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[2011] ZALCJHB 109
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Erasmus v Minister of Safety and Security and Another (JR1122/09) [2011] ZALCJHB 109; (2012) 33 ILJ 1660 (LC) (7 December 2011)
REPUBLIC OF SOUTH
AFRICA
Reportable
Of
interest to other judges
IN THE LABOUR
COURT OF SOUTH AFRICA
(HELD AT
BRAAMFONTEIN)
Case: JR 1122/09
In the matter between:
MARINDA ERASMUS
...........................................................................
Applicant
and
THE MINISTER OF SAFETY AND
SECURITY
…............................................................................
First
Respondent
COMMISSIONER OF THE SOUTH
AFRICAN POLICE SERVICES
…........................................
Second
Respondent
JUDGMENT
LAGRANGE, J:
Introduction
The
parties in this matter have agreed on the following summary as a
background to the application which appears in a pre-trial
minute
concluded in October 2010.
The
applicant was formerly employed by the SAPS and dismissed on 19
January 1999 for alleged medical reasons.
The
applicant lodged a review application against dismissal on grounds
of the allegation that her dismissal was in conflict with
the
provisions of regulation 28 of the regulations published in
government notice R203 in government Gazette 719 of 14 February
1974
in terms of the
SAPS act
, 7 of 1958
("the regulations").
The
application was instituted in the former Transvaal Provincial
Division of the High Court of South Africa on the 7 May 2002
under
case number 12195/02.
The
application was referred to oral evidence on 30 August 2006 in terms
of rule six (5) (g) of the uniform rules of the High
Court. It was
subsequently postponed on 15 May 2007 as it would have taken more
than five days to complete. It came again before
the same court on
25 March 2009 when the parties agreed that the high court does not
have jurisdiction to hear the application
on the basis of the
judgement in
Chirwa v Transnet Ltd & Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC).
Accordingly it was removed from the roll.
On
23 July 2009 the applicant filed a review application in the Labour
Court in terms of section 158 (1) (h) of the Labour relations
act,
66 of 1995 ("the LRA"). In essence, the applicant seeks to
pursue the review application which was previously
pursued in the
High Court in the Labour Court.
The
applicant seeks the following relief:
“
1. An
order in terms of which condonation is granted in
terms of rule 7 (1) of the Rules
for the Conduct of Proceedings in the Labour Court ("the rules")
for not following the
provisions of rule 7A of the rules, more
particularly the provisions of rule 7 A (2) (a) and (b), on grounds
of the circumstances
set out in paragraph 8 of the applicant's
founding affidavit.
2. An order in terms of which the
applicant is permitted to incorporate and attach the review
application in the matter of Marinda
Erasmus v Die Minister van
Veiligheid en Sekuriteit en die Minister van die Suid-Afrikaanse
Polisie in the Transvaal Provincial
Division of the High Court of
South Africa under case number 12195/02 into and to this application
for the purpose of the hearing
of this application.
3. An order in terms of which the
issues of dispute determined by the Honourable Acting Justice Mills
in his judgement and they
are case number 12195/02 (...) In the
matter referred to in paragraph 2 above, be referred for oral
evidence as contemplated in
rule 7 (7) (b) of the Rules.
4. An order in terms of which it is
declared that the second respondent's failure to take a decision (as
contemplated in terms of
the provisions of regulation 28 (5) of the
regulations published in government notice R203 in government Gazette
of 14 February
1964, as amended by government notice 1504 published
in government Gazette 4004 24 August 1974 as contemplated in section
24 of
the South African Police Act, 68 of 1995)
whether the
applicant had to be discharged from her employment or had to be
medically re-examined or had to resume with her duties,
constitutes a
gross irregularity for the purpose of section 158 (1) (h) of the LRA.
5. An order in terms of which the
second respondent is ordered to take a decision in respect of the
applicant as contemplated in
regulation 28 (5) of the Regulations
within two months from the date of this order.
6. An order in terms of which the
applicant is reinstated in her position as a senior superintendent
with the SAPS which she had
before 19 January 1999, alternatively one
April 1999 with the retrospective payment of her salary and
allowances pending the second
respondent's decision in terms of the
said regulation 28 (5).
7. Alternatively to paragraphs 4 to
6:
7.1 an order in terms of which the
written recommendation by the medical board (consisting of Dr B van
Heerden adn Dr P J Retief)
that the applicant be discharged from the
SAPS as permanently unfit for further police service be reviewed and
set aside; and
7.2 an order in terms of which the
decision on behalf by the respondents, alternatively the second
respondent, on or about 19 January
1999, alternatively any other
date, that the applicant be discharged from the saps as permanently
unfit for further police service
be reviewed and set aside;
7.3 the order in terms of which the
applicant is reinstated in the former position as senior
superintendent which she held on 19
January 1999 together with the
payment of her salary and other allowances retrospectively from one
April 1999 until the date of
her reinstatement;
7.4 further alternatively to
paragraphs 7.3 (in the event of the applicant not being reinstated):
an order in terms of which the
respondents are ordered to pay the
applicant's loss of income to the applicant from one April 1999 until
the date on which she
was supposed to retire, alternatively a date to
be determined by the Honourable Court.
8. costs of the application.
”
(my emphasis)
The
relief set out above is the relief sought in the original notice of
motion dated 7 May 2002 as amended on 13 June 2006.
To
contextualise the dispute further it is useful to set out
regulations 28 (4) and 28 (5) referred to above:
“
(4) (a)
The Commissioner may convene a medical board or may order such a
board to be convened for the purpose of examining a member
and
determining whether or not he is fit to remain in Force.
(b) Such boards shall consist of
one or more registered medical practitioners and, if necessary one or
more persons registered to
render medical auxiliary services.
(c) Medical reports or sheets which
may have a bearing on the case as well as all relevant reports which
the member concerned may
wish to submit, shall be placed before the
board for consideration and shall be included in the proceedings. If
such member so
desires, he may at his own expense be represented in
the proceedings of the board by his private registered medical
practitioner.
(d) After examining the member
concerned and considering the report or sheets referred to in
paragraph (c), the board shall record
its report, finding and
recommendation on the prescribed form. The records of the board shall
be signed by all the members thereof.
(e) Should the board recommend the
member concerned be discharged from the force on account of
ill-health, he shall be given the
opportunity to make written
representations to the Commissioner.
(f) The records and any
representations referred to in paragraph (b), shall be forwarded to
the Commissioner for consideration,
who, if he deems it expedient,
may consult the director-general for health or a medical officer
authorised by him.
(5) (a) The Commissioner shall,
with due observance of the provisions of subsection (1) of section
three of the Act, decide whether
the member concerned shall, in terms
of paragraph (b) of sub regulation (1) of regulation 15, be
discharged as medically unfit
for further service in the force,
whether he shall be granted leave of absence, whether he shall again
be examined or whether he
shall be ordered to resume duty.
(b) Should it be decided to
discharge the member concerned, the date of his discharge shall be
determined by the Commissioner.
”
The
respondents do not oppose the relief sought in prayers 1 to 3 of the
notice of motion. In effect subject to the agreement
of the court
they are willing to allow the matter to proceed as if it had
originally been referred on review to this court. In
these
proceedings, the parties only request the court to make a ruling on
an
in limine
issue.
In limine issue
On
11 March 2011, the respondent gave notice of its intention to raise
a jurisdictional challenge
to part of the
relief
sought. The respondent contends that the act of making
a written recommendation by a medical board for the applicants
discharge
from the SAPS and the decision to discharge her do not
constitute administrative action and are therefore not capable of
being
reviewed by any court, including the labour court. The
respondents allege that the applicant's complaint should have been
addressed
through the Safety and Security Services Bargaining
Council.
Analysing
the relief sought by the applicant, the respondents submit that if
she was merely seeking that the decision of the medical
board which
declared that she was medically unfit should be reviewed and set
aside, it might well be argued that she was not
seeking to review
her dismissal by the SAPS. However, given that she is seeking
reinstatement as well, the respondents say the
application is
tantamount to an application to review her dismissal.
The
respondents find further support for this in paragraphs 1.2 and 5.2
of the pre-trial minute of 19 October 2010 in which it
is
respectively recorded that the applicant lodged the review
application against her dismissal on grounds of an allegation that
“
...her dismissal was in conflict with the provisions of
regulation 28...
” and that the court is required to
decide,
inter alia,
"...
whether the applicant was
lawfully dismissed for medical reasons as contemplated in regulation
28 of the Regulations.
"
The
respondents submit that on the authority of the Constitutional Court
decisions in
Chirwa
v Transnet Ltd & others
(2008)
29 ILJ 73 (CC)
and
Gcaba
v Minister of Safety and Security & others
(
2009) 30
ILJ
2623 (CC)
, which respectively held that the dismissal of a
public servant or the non-promotion of a public servant or not
regarded as administrative
action for the purposes of the Promotion
of Administrative Justice Act, the applicant is also effectively
trying to review her
dismissal, which similarly cannot be construed
as administrative action. On this issue it is useful to repeat the
much cited
dictum from the decision in
Gcaba
:
“
[64]
Generally, employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This
is recognized
by the Constitution. Section 23 regulates the employment relationship
between employer and employee and guarantees
the right to fair labour
practices. The ordinary thrust of s 33 is to deal with the
relationship between the state as bureaucracy
and citizens and
guarantees the right to lawful, reasonable and procedurally fair
administrative action. Section 33 does not regulate
the relationship
between the state as employer and its workers. When a grievance is
raised by an employee relating to the conduct
of the state as
employer and it has few or no direct implications or consequences for
other citizens, it does not constitute administrative
action.
”
1
The
respondents further cite three decisions by Pillay J, namely
Ngutshane v Arriviakom (Pty) Ltd t/a Arrivia.kom & others
(2009) 30 ILJ 2135 (LC)
,
SARS v CCMA
[2002]
3 BLLR 323
(LC)
and
MEC Department of Education, Kwa
Zulu-Natal v Khumalo
[2010] 11 BLLR 1174
(LC)
, in
which the learned judge held that section 158 (1) (h) of the LRA was
only available to an applicant if the LRA does not prescribe
another
channel for obtaining relief. By analogy, in this instance the
applicant could have challenged her dismissal by referring
a dispute
over their alleged unfair dismissal for incapacity to the SSSBC for
conciliation and ultimately arbitration.
The
respondent then argued, in the alternative, on the basis that the
applicant is only seeking to review and set aside the recommendation
of the medical board that she be dismissed on grounds of ill-health.
On the basis of two decisions in cases of
Kotze v National
Commissioner , SA Police Service & another
(2008) 29
ILJ
1875 (T)
and
PSA obo de Bruyn v
Minister of Safety and Security
, the respondents argue that
such a recommendation also does not constitute administrative
action, and where alternative mechanisms
exist a review under
section 158 (1) (h) is inappropriate. In
Kotze
the court held
that as a collective agreement dealt with the issue a review in
terms of section 158(1)(h) was inappropriate.
The second case held
that a decision not to medically board an employee was not
administrative action and that adequate alternative
mechanisms
existed to deal with the applicant’s complaint. However,
neither of those matters dealt with an attack on grounds
of
legality.
The
respondents further argue that, in any event, it is not competent
for the labour court to make an order compelling the second
respondent to make a decision in terms of regulation 28 (5), because
section 158 of the LRA does not give the Court the jurisdiction
to
intervene in internal medical boards or ought to make orders in
respect of the regulations.
The applicant’s defence
and analysis
The
first defence which the applicant raises to the respondent’s
arguments is that the respondents are precluded from objecting
to
this court when determining the lawfulness of her dismissal because
the parties had agreed that the lawfulness of the applicant's
dismissal was one of the matters which parties had agreed on in the
pre-trial minute as a matter which the court had to determine.
The
pertinent paragraphs listed under paragraph 5 of the pre-trial
minute read as follows:
"
1.2 Whether the second
respondent
was entitled to dismiss
the applicant
from the services of the SAPS with reference to the question whether:
1.2.1 The second respondent in fact
took the decision that the applicant must be dismissed from service;
1.2.2 The applicant has submitted a
representation against the findings and recommendations of the
medical Council in accordance
with the provisions of regulations 24
(4) (e); and
1.2.3 The second respondent had in
fact followed the procedure laid down in regulation 28 in connection
with the handling of the
applicant's representation and further when
he took a decision in respect of the applicant's representation in
accordance with
the provisions of regulation 28 (5) (a) and 28 (5)
(b);..
.
5.2 The Honourable Court has to
determine whether the applicant was
lawfully
dismissed
for medical reasons as contemplated in
regulation 28 of the Regulations.
5.3 The Honourable Court has to
determine, in the event of a finding that the applicant was not
lawfully dismissed, whether she
is still in the employment of the
SAPS.
"
Even
though it might be argued by the applicant that respondents have
waived their right to raise the
in
limine
objection relating
to this court's jurisdiction on the basis of what the parties agreed
the court should determine in terms of
the pre-trial minute, the
parties cannot confer jurisdiction on the court which it does not
already possess.
2
Conversely, the court cannot assume
jurisdiction to determine issues merely because the parties have
agreed to ask it to. Thus,
despite the agreement between the parties
on the issues the court should determine, even if the respondents
had not raised their
in
limine
objection, the
court is bound to consider whether indeed it has the necessary
jurisdiction to entertain them.
Thus,
the jurisdictional point cannot simply be brushed aside on the basis
of a consensus between the parties on what the court
should
determine.
Turning
to the substance of the question of the court's jurisdiction, the
applicant relies on section 157(1) as the jurisdictional
platform
for her application. Sub-sections 157(1) and 157(2) state:
“
157(1)
Subject to the Constitution and
section
173
,
and except where this Act provides otherwise, the Labour Court has
exclusive jurisdiction in respect of all matters that elsewhere
in
terms of this Act or in terms of any other law are to be determined
by the Labour Court
(2) The Labour
Court has concurrent jurisdiction with the High Court in respect of
any alleged or threatened violation of any fundamental
right
entrenched in
Chapter
2
of
the Constitution of the Republic of South Africa, 1996, and arising
from—
(a) employment and from labour
relations;
(b) any dispute over the
constitutionality of any executive or administrative act or conduct,
or any threatened executive or administrative
act or conduct, by the
State in its capacity as an employer; and
(c) the application of any law for
the administration of which the Minister is responsible.
”
The
applicant relies on the decision in
MEC Department of
Education Kwazulu Natal v Khumalo & another
[2010] 11
BLLR 1174
(LC)
for its interpretation of the ambit of the
court's jurisdiction in terms of section 157 (1) as one that extends
to the power of
review set out in section 158 (1) (h). That case
concerned an application by the applicant employer to set aside the
promotions
of certain staff members after an investigation into
irregularities connected with the promotions. The court found that
it had
jurisdiction to entertain the application on the following
basis:
“
[24] The
Labour Court has exclusive jurisdiction in respect of all matters
that the LRA empowers it to determine. It also has concurrent
jurisdiction with the High Court in respect of any alleged violation
of any fundamental right in
Chapter
2
of the Constitution, arising from employment and from labour
relations, and in respect of any dispute over the constitutionality
of any executive or administrative act or conduct by the State in its
capacity as an employer.
[25] The MEC
brought this application in terms of
section
158(1)(h)
of the LRA.
Section
158(1)(h)
empowers the Court to review any decision taken or any
act performed by the State in its capacity as employer, on such
grounds
as are permissible in law.
[26]
Section
158(1)(h)
is available when no other process is available or
special circumstances exist to review an act of the State as
employer. It is
not a safety net to process disputes in public
employment that should have been channelled through some other
prescribed provision.
Nor is it a licence to bypass the prescribed
conciliation, arbitration and review procedures when an applicant has
missed the time
limits.
[27] The relief
claimed, namely declarators, is not available through conciliation
and arbitration, at least, not without the parties’
consent.
The Labour Court is empowered to grant declarators in terms of
sections
158(1)(a)
, (iv).
[28] The MEC
invoked the Constitution to substantiate the relief claimed.
Section
157(2)
of the LRA expressly confers jurisdiction in
constitutional matters on the Labour Court. Furthermore,
section
158(1)(a)(iii)
empowers the Court to grant “an order
directing the performance of any particular act which order, when
implemented, will
remedy a wrong and give effect to the primary
objects of this Act”.
[29] Accordingly, the Labour Court
has jurisdiction to determine this application.
”
3
By
analogy, the applicant contends that in attacking the decision of
the medical board, she is entitled to rely on the power of
review
contained in Section 158 (1) (h), which provides that:
“
158(1)
The Labour Court may—
. . .
review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible in
law;...
”
Although
section 158 (1) (h) is supposed to be a provision that identifies a
power of the court which it can exercise in respect
of matters
within its jurisdiction, the
Khumalo
decision is support for
the view that it should also be interpreted as describing a facet of
the court's jurisdiction. Indeed,
in referring to any permissible
ground of review in law and any decision or act by the State as
employer it is difficult to distinguish
this provision from other
provisions in the LRA providing for a matter to
be
determined by the Labour Court, and thereby implicating the court’s
jurisdiction.
The applicant argues that the grounds
of review which may be relied upon are not confined to the review of
administrative acts
alone, but because they include any grounds of
review permissible in law, the failure of the medical board to
follow the provisions
of regulation 28 in arriving at its
recommendation can be set aside on common law grounds. In
elucidating the common law grounds
relied on, the applicant cites as
an example the dictum
in
African
Realty Trust Ltd v Johannesburg Municipality
1906 TH 179
at 182:
'If a public body . . . exceeds its
powers, the court will exercise a restraining influence. And if,
while ostensibly confining
itself within the scope of its powers, it
nevertheless acts mala fide or dishonestly, or for ulterior reasons
which ought not to
influence its judgment, or with an
unreasonableness so gross as to be inexplicable, except on the
assumption of mala fides or ulterior
motive, then again the court
will interfere. But once a decision has been honestly and fairly
arrived at upon a point which lies
within the discretion of the body
or person who has decided it, then the court has no functions
whatever. It has no more power
than a private individual would have
to interfere with the decision merely because it is not the one at
which it would have itself
arrived at.
'
It
is well established that judicial review is not confined to reviews
of administrative action in terms of PAJA but also includes
a review
based on the principle of legality. The learned authors of
The
New Constitutional and Administrative Law
summarise the
basis of reviews in terms of this principle as follows:
"
The
principle is more general and probably far less searching than the
rights to administrative justice in section 33 of the Constitution,
but it covers a lot of the same ground. Whatever else it may mean, we
know it implies that those who hold public power must act
within
their powers, that there must act in good faith, that they must not
misconstrue the powers, and they must not act arbitrarily.
These are
all long established principles of administrative law, and
undoubtedly form part of the right to lawful administrative
action in
section 33 (1).
”
4
The
requirement of legality applies to actions and decisions by
functionaries. Moreover, if review based on the principle of
legality were to be interpreted as excluded from the provisions of s
158(1)(h) then, in the light of the decisions in
Gcaba
and
Chirwa
which have already circumscribed the scope of review
in public employment, s158(1)(h) would be rendered inoperable.
The
applicant argues that the bargaining Council has no jurisdiction to
deal with a failure by the medical board to follow the
prescribed
procedures in regulation 28 and, in reliance on the approach in
Khumalo’s
case
,
she maintains she should be allowed to challenge the lawfulness of
the medical board’s actions
.
The
recommendation of the medical board which is convened at the behest
of the respondent is a necessary adjunct to the Commissioner’s
decision making process and its actions and recommendations are to
all intents and purposes pre-requisites for that decision.
If the
Commissioner’s decision to discharge the applicant on grounds
of ill-health was based on a recommendation from its
own board that
might be set aside as null and void, the legal propriety of the
Commissioner’s decision is also implicated
if the
pre-requisites for his deliberations were not lawfully met.
The
respondents are right that the Commissioner’s decision is part
of the subject matter of the dispute. However, unless
the decisions
in
Chirwa
and
Gcaba
are read as also excluding a
review attacking the legality of the acts of the state as employer,
I do not understand them to
preclude the applicant from seeking to
set aside the employer’s decision on this basis.
Further,
if the court has the power to review a decision or act of an
employer on the basis of legality, it stands to reason that
to give
effect to that power it would need the ancillary power to make an
appropriate order to give effect to any finding that
an action or
decision was taken in breach of the principle of legality.
Consequently, If the court has the power to review a
decision or act
of an employer on the basis of legality, it stands to reason that to
give effect to that power it would need
the ancillary power to make
an appropriate order to give effect to any finding that an action or
decision was taken in breach
of the principle of legality.
If
the outcome of the review is that the decision of the medical board
to recommend the applicant's discharge on grounds of ill-health
were
to be set aside, then the court can make an appropriate order in
keeping with the normal remedies which follow the setting
aside of
such acts. There is no reason why a mandamus compelling the board or
the commissioner to perform their statutory duties
might not be one
form of relief which the court might order.
Conclusion
In
the circumstances, I am satisfied that the applicant is entitled to
review the medical board’s actions in making a written
recommendation for the applicants discharge from the SAPS and the
decision of the Commissioner to discharge her on the principles
of
legality.
Order
Consequently,
the
in
limine objection is dismissed with costs, and the
matter may be set down for hearing oral evidence on the issues
previously agreed
upon by the parties.
.
ROBERT LAGRANGE
JUDGE OF THE LABOUR COURT
Date of hearing: 28 February 2011
Date of judgment: 7 December 2011
Appearances:
For
the applicant: E van Graan, SC instructed by Motla Conradie Inc.
For
the respondents: R Beaton, SC assisted by C Prinsloo instructed by
the State Attorney, Pretoria
1
At
2638
2
See
e.g,
Bargaining
Council for Hairdressing & Cosmetology Trade (Pretoria) v Smit
t/a Hair Mistique
[2002]
3 BLLR 218
(LC)
at
218, [10].
3
At
1181-1182
4
Hoexter
C and Lyster R,
The New
Constitutional and Administrative Law
,
vol 2, (2002), 88