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[2011] ZALCCT 79
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Lamastra v National Commissioner of Police and Another (C641/2009) [2011] ZALCCT 79 (4 February 2011)
Not
reportable
Not of
interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
C
ase
no: C 641 / 2009
In
the matter between:
GORDON
ROBERT
LAMASTRA
Applicant
and
THE
NATIONAL COMMISSIONER OF
POLICE
First
respondent
THE
PROVINCIAL COMMISSIONER OF
POLICE
Second
respondent
RULING
ON LEAVE TO APPEAL
STEENKAMP
J:
[1]
On 19 November 2010 I made an order in the
following terms:
1.1
The second respondent's application for
condonation for the late filing of his answering affidavit and heads
of argument is dismissed.
1.2
The first respondent's award dated 1 April
2009 is reviewed and set aside in terms of section 158(1)(h) of the
Labour Relations
Act.
1.3
The award on sanction is substituted with
the following award: "The second respondent (i.e.
the employee, Gordon
Robert Lamastra) is dismissed with effect from 1
April 2009".
1.4
There is no order as to costs.
[2]
As appears from the order, the second
respondent in the matter was the employee, Lamastra. He has now
applied for leave to appeal.
[3]
The application for leave to appeal is
directed at my findings on condonation as well as the merits. I do
not think it would be
sensible for me to separate the two. Were I
inclined to grant leave on either aspect, it would make sense for the
Labour Appeal
Court to address both aspects of the judgment.
[4]
The
test for granting leave to appeal is by now trite. The applicant must
show that he has reasonable prospects of success on appeal.
[1]
It has also been stated as the question whether another court could
come to a different conclusion.
[5]
The background facts are set out fully in
the judgment, which I enclose. In short, Lamastra, who is a police
officer, stole darts
from a shop. In an internal disciplinary
hearing, the chairperson imposed a sanction of a “suspended
dismissal” for
six months and a fine of R500. I found that,
given the facts of the case, this was so lenient that no reasonable
decision maker
could have come to the same conclusion.
[6]
I
think it is doubtful that another court would come to the conclusion
that it could be expected of the South African Police Services
to
keep a thief in its employ. However, in paragraphs [27] – [39]
of my judgment, I set out the anomalous situation with
regard to the
review of internal disciplinary hearings that has arisen in the light
of the judgments of the Constitutional Court
in
Chirwa
v Transnet
[2]
and
Gcaba
v Minister of Safety and Security
[3]
;
and
that of the Supreme Court of Appeal in
Ntshangase
v MEC for Education, KwaZulu-Natal.
[4]
[7]
Given that anomaly, it may be possible that
another court could come to a different conclusion on the question of
reviewability.
[8]
The application for leave to appeal is
therefore granted.Costs are to be costs in the appeal.
_______________________
STEENKAMP
J
Date
of judgment:
4 February 2011
For
the applicant:
Attorney Dave Heggie
For
the respondents:
Adv
Ewald De Villiers - Jansen
Instructed
by
The State Attorney
[1]
Westinghouse
Brake & Equipment (Pty) Ltd v Bilger Engineering
1986 (2) SA 555 561 E.
[2]
2006
(4) SA 367 (CC)
[3]
(2010)
31
ILJ
296
(CC)
[4]
2010
(3) SA 210
(SCA)