South African Police Services v Safety and Security Sectoral Bargaining Council and Others (JR 1682/08) [2012] ZALCJHB 10; [2012] 6 BLLR 596 (LC); (2012) 33 ILJ 1933 (LC) (20 January 2012)

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[2012] ZALCJHB 10
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South African Police Services v Safety and Security Sectoral Bargaining Council and Others (JR 1682/08) [2012] ZALCJHB 10; [2012] 6 BLLR 596 (LC); (2012) 33 ILJ 1933 (LC) (20 January 2012)

REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case no: jR 1682/08
In the matter between:
SOUTH AFRICAN POLICE SERVICES
…...........................................................
APPLICANT
AND
SAFETY AND SECURITY SECTORIAL
BARGAINING COUNCIL
….........................................................................
First
Respondent
R. MOLETSANE N.O.
….........................................................................
Second
Respondent
CAPTAIN M.S. MONYAKENI
….................................................................
Third
Respondent
Heard
:
22
DECEMBER 2011
Delivered
:
20
JANUARY 2012
Summary: Review proceedings – Application
to review and set aside the arbitration award made by the Second
Respondent on 19
June 2008 in which the Second Respondent awarded
compensation against the Applicant based on an unfair labour
practice.
One cannot in a piecemeal manner only record
the aspects that appease you and that fit in with the outcome you
want to reach. An
arbitrator is a finder of fact and must diligently
search for the facts hidden amongst perceptions of parties. In the
event, like
in this case, where the facts have been recorded
haphazardly and no proper factually based reasoning was proffered as
to why certain
very relevant evidence, constitutes a gross
irregularity committed by the author of the award.
Award
reviewed and set aside- award substituted - No Unfair Labour Practice
was committed.
JUDGMENT
SWANEPOEL AJ
Introduction
[1] This is an application to:
Review and set aside the arbitration award issued by the Second
Respondent on 19 June 2008 under case number PSS 830/06/07.
Refer the matter back to the First Respondent to be heard afresh by
another arbitrator than the Second Respondent.
Cost if opposed
Further and/or alternative relief.
[2] The Third Respondent opposed the relief sought and requested that
the matter be dismissed with costs.
The facts
Applicant’s submissions
[3] The Third Respondent applied for an internally advertised post on
13 September 2006 for the position of Assistant Director:
Social
Services – Disability Management (post 6000 level 10). The
requirements were listed as follows:
Registered as a Social Worker with the SA Council for Social
Services Professional and receipt for paid-up registration fees

(2006),
Recognised BA degree or equivalent qualification in Social Work,
Managerial/project management experience in the field will be an
advantage (
Sic).
The core functions:
Participate in policy, project planning, international liaison and
research programmes regarding disability issues,
Executive middle and senior management responsibilities when
nominated to do so,
Co-ordinate Disability Management Programmes,
Evaluate and co-ordinate feedback received from Provinces,
Assist management in the implementation of the disability
management strategic plan.
[5] On 20 October 2006, an Evaluation Panel to entertain the Post
Promotions Phase 2: Level 2-12 2006/2007 applications, chaired
by
Assistant Commissioner N.C. Nomoyi was convened.
[6] The minutes indicate that for Post 6000, 6 applications were
received of which 1 was disqualified. Two were not recommended
and
three others were shortlisted. The Third Respondent was recommended.
It is recorded in the minutes that the panel, together
with the
chairperson agreed to all the recommendations because they fell
within the requirements with the Equity Profile of Personal
Services.
[7] On 2 November 2006, the Divisional Evaluation Committee Meeting
1
was conducted. This meeting was chaired by Divisional Commissioner
Stander. The purpose of it was to consider the recommendations
made
by the Evaluation Panels for the aforementioned posts. The
chairperson informed the meeting that the minutes kept by the
Evaluation Panel did not conform to the requirements since the
details of the first three candidates as well as their scoring was

not indicated. Stander also stated that the minutes were not in line
with the Employment Equity (EE) targets of the division as
well as of
the Component and the operational environment was not taken into
account. He therefore ruled that the minutes would
be ignored and
that it would be replaced by the Divisional Evaluation Committee
Meeting’s minutes.
[8] When the recommendations for Post 6000 were considered by this
Divisional Evaluation Committee Meeting, it noted that the Third

Applicant scored 73.3% whilst the other two candidates scored 60%
each. The decision of the latter was to re-advertise the position

since the short listed candidates had little or no experience in the
core functions of the post advertised. (The Third Respondent
had been
employed by the Applicant for some six months at the time.)
[9] The Critical Analysis for Personelle Services for the period 1
October 2006 – 31 December 2006 indicated an
under-representation
of 21 African males in salary levels 9 –
10 existed.
[10] The post was re-advertised externally and Superintendents
Gerber, a White woman and Ryan, a Coloured woman, were appointed
in
the vacant positions. (This was however, an external advertisement,
which meant that another circular and policy – 6/2005
regulated
the process.)
[11] The Third Respondent referred an Unfair Labour Practice dispute
to the First Respondent. (His referral had nothing to do with
the
appointments supra. His dispute related to the post-promotion phase
where he was recommended by the Evaluation Panel but not
by the
Divisional Evaluation Committee Meeting was irregular. He intimated
that his recommendation should have been referred to
the National
Commissioner by the Evaluation Panel and should not have been
considered or blocked by the Divisional Evaluation Committee

Meeting.)
The Arbitration process and award
2
[12] The Third Respondent testified that he met all the requirements
for the post as prescribed by the National Instruction 1 of
2004.
[13] He stated that the recommendations of the Evaluation Panel
should have been sent to the Nation al Commissioner for consideration

as prescribed by the National Instruction and the Directives of the
National Commissioner’s office.
[14] He should have been appointed by the National Commissioner
because he was a suitable candidate.
[15] The Divisional Evaluation Committee Meeting did not have the
right to reject the recommendation of the Evaluation Panel.
[16] Senior Superintendant J. Ramathoka testified that he was
performing his duties in the Divisional Career Management (Equity

Section) division of the Applicant.
[17] He testified that the Third Respondent should have been
appointed since the African males were under-represented by 21
candidates.
Indian, Coloured and White females were over-represented
by respectively 4, 1 and 19 candidates.
[18] Senior Superintendant Nkabinde, the Third Respondent’s
third witness, testified that she was a Manager in the Disability

Management Section and she was a panel member of the Evaluation Panel
at which the Third Respondent was recommended for the post
because
he had potential
(my italics).
[19] She also testified, inter alia, that the Divisional Commissioner
had to make the final decision.
[20] Director Stratford testified on behalf of the Applicant that she
was part of the Divisional Evaluation Committee Meeting.
She stated
that in terms of Clause 13(3) of the National Instruction the
Divisional Commissioner had a discretion whether to promote

candidates as per the recommendations made.
[21] The Third Respondent did not have sufficient experience to meet
the requirements.
[22] Since the minutes of the Evaluation Panel were not sufficient,
they declared the minutes null and void an issue she admitted
during
cross-examination the Divisional Commissioner had no power to do.
[23] She admitted during cross-examination that the Divisional
Commissioner did not have delegated authority to consider
applications
for promotion for salary levels 8 and higher.
[24] She testified that the replacement of candidate Mathebe BE with
candidate Ishmael RF was a typographical error.
3
[25] Senior Superintendant Kemp was the next to testify. He headed
the sub-section Promotions at Head Office and was thus responsible

for all internal promotions. He was part of the team that drafted the
National Instruction.
[26] According to Kemp, the Divisional Commissioner had authority to
consider all promotions below salary level 7 and the National

Commissioner authority to consider all promotions from salary level 8
and above.
[27] The recommendations of the Divisional Evaluation Committee
Meeting are sent to the National Commissioner and not those of
the
Evaluation Panel for consideration and approval.
[28] If the Divisional Commissioner does not recommend a candidate
for promotion, he/ she would not send anything to the National

Commissioner.
[29] An Evaluation Panel can submit its recommendations directly to
the National Commissioner.
[30] During cross-examination, Kemp agreed that the Divisional
Commissioner was at a far higher level than the requirements of

Clause 13(2) of the National Instruction when she chaired the panel.
(
Sic.)
[31] The panel also consisted of more members that the requirement of
5 as per Clause 8(3) of the National Instruction [this panel

consisted of 7 members inclusive of the chairperson].
[32] The Divisional Commissioner was supposed to appoint panels, not
be part of a panel that she appointed. (
Sic.)
[33] The Divisional Commissioner did have the authority to consider
and approve recommendations for salary levels 8 and higher.
[34] The successful candidates also testified. Superintendent Ryan
testified that she applied when the post was advertised externally

since she had the necessary two years experience at that time.
Superintendent Gerber also testified that she did not apply when
it
was advertised internally since she did not meet the two-year
experience requirement but by the time it was advertised externally,

she met that requirement.
Award
[35] In his analysis, the Second Respondent remarked that the issue
revolved mainly around the interpretation of National Instruction
1
of 2004.
[36] He recorded that in his view some of the witnesses incorrectly
interpreted the National Instruction and some made assumptions.
[37] The Second Respondent then analysed Clause 13(1) and 13(5), and
concluded that in
lieu
of the Clauses mentioned above the
National Commissioner and not the Divisional Commissioner had to
consider Post 6000 since it
was a level 10 post. He found that there
was non-compliance with the National Instruction since the National
Commissioner was not
given an opportunity to consider the
recommendation of the Third Respondent by the Evaluation Panel.
[38] He then recorded
‘
Even
if I am wrong, above in terms of the interpretation, clause 8(2)
requires that the Chairperson of the panel for level 8-10
posts must
be at the level of a Director. In the Applicant’s [Third
Respondent’s] case, the Chairperson of the Divisional
Panel
was above that of a Director. That was non compliance with the
National Instruction’. (
Sic)
[39] He then also recorded that there was another violation of the
National Instruction in that the Divisional Evaluation Committee

Meeting consisted of more than 5 members and was in violation of
Clause 8(3).
[40] He then continues to remark as follows:
1
. ‘I fully agree with
Senior Superintendent Kemp – the main witness for the First
Respondent, that the Divisional Commissioner
should not have been
part of the panel she appointed. In my view, the idea of excluding
the Divisional Commissioner from sitting
on the panel is for her or
him to make an independent decision without his or her mind be
contaminated.(
Sic
)
2. The National Instruction does
not give powers to the Divisional Panel to nullify the minutes. In
any case, even the minutes of
the Divisional Panel that was chaired
by Stander were not a true reflection of what transpired in that the
panel’s replacement
of candidate Mathebe with Ishmael was not
supposed to have happened.”
[41] On substance, he found that the Applicant did not comply with
the Employment Equity Plan, which in terms of priority statistics

indicated that African males were under-represented. The fact that
the post was re-advertised and Coloured and White women were

appointed was a show of bad faith on the part of the Applicant.
[42] He found that whilst Ryan and Gerber did into apply for the post
when initially advertised as they did not have two years
experience
at that stage they were appointed when the posts were externally
appointed despite the fact that the Third Respondent
was not
appointed despite the fact that he met the minimum requirements of
experience when he applied for the post internally.
(
Sic)
[43] He held that the Applicant committed an unfair labour practice
by not promoting the Third Respondent. He held that he could
not
appoint the Third Respondent to the vacant post of Assistant Social
Work Manager: Forensic Social Work advertised internally
during
October 2007 and externally during January 2008 wherein the Applicant
was also short listed but no one was appointed since
the issue was
never canvassed during evidence and the Applicant could still
challenge the outcome was he not appointed. He also
remarked that
others who had applied might be prejudiced should he order the
Applicant’s appointment.
[44] He held that compensation would be appropriate and motivated
this as follows:
The way that the Divisional Panel chaired by Stander dealt with the
matter left much to be desired ordering to such an extent
that he
felt a cost order was appropriate.
The appointment of over-represented candidates and the ignoring of
under-represented disadvantaged persons who met the minimum

requirements he regarded as bad faith standards that should not be
encouraged.
[45] He ordered the Applicant, based on the gross irregularity
committed by Commissioner Stander (
sic)
on behalf of the
Applicant and the bad faith on the part of the Applicant that the
Applicant should pay the Third Respondent 12
months compensation at
the level of an Assistant Director’s salary. Curiously, he did
not set the appointments of Gerber
and Ryan aside and ordered that a
new Evaluation panel be constituted to consider the applications,
including the Third Applicant’s
afresh, which I would have
thought would have been the preferred way to go.
Grounds for Review
Ground 1
[46] The Applicant professed that the Second Respondent committed a
gross irregularity in holding that the issue in these proceedings

revolved around the interpretation of National Instruction 1 of 2004.
The matter was a matter of factual dispute and not a matter
of
interpretation. The matter did not revolve around circulars as the
Second Respondent wrongly assumed. The matter dealt with
promotion
policy and how the process unfolded.
Ground 2
[47] The Second Respondent misdirected himself in reading the
circular in part and not in totality. This led to the Second
Respondent
concluding a reasonable arbitrator properly applying his
or her mind would not have arrived at.
Ground 3
[48] The Second Respondent read Clause 13(1) and 13(5) of the
National Instruction but did not take Clause 13(6) into
consideration.
Had he done so he would not reasonably have reached
the conclusion he did.
[49] The Second Respondent unreasonably concluded that recommendation
of the panel for post level 8 and higher had to be submitted
to the
National Commissioner and not to the Divisional Commissioner for
consideration and approval without reading Clause 13(6).
The
abovementioned Clauses, read together, constituted the promotion
policy of the Applicant. It was therefore irregular and unreasonable

to take one Clause and read it in isolation.
[50] A reasonable fact-finder properly applying his mind to the task
given to him/her would not have done so. Therefore, the Second

Respondent committed a gross irregularity. The Second Respondent
unreasonably held that the Applicant did not comply with the National

Instruction when the Chairperson was senior to the rank of a
Director. The policy required that the Chairperson should be at the

level of director or anyone senior to that could chair the panel.
Ground 5
[51] The Second Respondent came to another unreasonable conclusion
when he held that to have a panel consisting of more members
than the
stipulated minimum constituted a failure to comply with the National
Instruction.
Ground 6
[52] The Second Respondent’s finding that the Applicant did not
comply with its Employment Equity Plan was unreasonable since
Equity
was not an issue. The issue was relevant experience in core functions
for the post.
Ground 7
[53] The Second Respondent did not understand the issue before him
since the internal advertisement, which was post-promotion,
required
that a candidate had to have been a Captain for at least 2 years
before applying for promotion.
[54] Since the external advertisement was not a post-promotion the
two years experience requirement fell away. Nonetheless, the

successful candidates had more experience in the core functions for
the post but in rank did not have two years experience as Captains.
[55] The Second Respondent did not appreciate the distinction between
internal post-promotion advertisements and external advertisements.
Ground 8
[56] The Second Respondent exceeded his powers by ordering the
Applicant to pay the costs of the Third Respondent on a party and

party scale since the First Respondent did not have such an order in
its Rules.
[57] During Ms. Kgatla’s address to me, on a question I raised
with her, she intimated that should I see it fit and proper
she would
not have an objection, should I grant a review and set aside the
award if I determine the dispute in terms of Section
145(2) read with
(4) of the Labour Relations Act.
4
Third Respondent’s submissions
5
[58] The Third Respondent stated that he had the requisite experience
in the core functions of the post hence the Divisional Panel
(sic)
had recommended him as the preferred candidate for appointment.
[59] The Second Respondent correctly identified the issue to be
determined as whether or not the Applicant committed an unfair
labour
practice and to award appropriate relief.
[60] The Second Respondent found that central to this dispute was the
correct understanding and application of the National Instruction
and
this finding could not be faulted as the promotion was highly
regulated by the said circular and the application thereof was

indispensible. The Second Respondent relied on evidence put before
him and analysed it before making the award in favour of the
Third
Respondent.
[61] The application of Clause 13(6) related to post levels up to 7
and was thus irrelevant to this matter. Clause 13(6) did not
clothe
the Divisional Commissioner with powers to disapprove a promotion to
level 8 and higher posts.
[62] The Second Respondent did not err in his interpretation of
Clause 13(1) read with 13(5); the recommendation of post levels
8 and
higher had to be submitted to the National Commissioner for
consideration. Therefore, the award was reasonable.
[63] The Third Respondent denied that anyone senior to a Director
could chair the evaluation panel.
[64] The Second Respondent was not wrong when he found that the panel
of more than the stipulated minimum constituted failure to
comply
with the policy.
[65] The Second Respondent was presented with evidence pertaining to
the Employment Equity Plan and such evidence was not disputed.
[66] The Third Respondent met the requirements of Clause 6(1) read
with paragraph 2.1 of the waiver document dated 1 September
2006,
which reduced the 3-year requirement of Clause 6(1) to 2 years,
making him the best candidate for the position.
[67] He denied that the Second Respondent could not have made the
cost order.
Evaluation
[68] It is trite law and enshrined in Section 23 of the Constitution
6
that everyone has the right to fair labour practises. In terms of
Section 186(2)
(a)
of the Labour
Relations Act,
7
an Unfair Labour Practise is defined as
any act
or omission that arises between an employer and an employee involving
unfair conduct by the employer relating to the promotion,
in respect
of an employee.
The Second Respondent found in the Third Respondent’s favour
and did not promote him, but awarded him 12 months compensation
for
what he found to have been an unfair labour practice committed by the
Applicant. He went even further and ordered the Applicant
to pay the
costs of the Third Respondent.
[69] Mr. Moshoana on behalf of the Third Respondent, argued that I
could only adjudicate on the grounds of review raised by the

Applicant and not venture outside those, which I intend to do, even
though I had some other difficulties with the award rendered
outside
of those raised in review.
[70] In this matter, I agree with Ms. Kgatla, who appeared on behalf
of the Applicant, that the Second Respondent lost track of
the true
issue placed in front of him and got embroiled in the interpretation
of National Instruction 1/2004. According to the
transcript of the
recording, both parties agreed on 16 May 2008 that he would be
required to interpret the National Instruction.
He requested that a
person that participated in the second Divisional Evaluation
Committee Meeting be called as a witness, to which
the Applicant’s
representative, Mr. Sithole obliged. Mr. Sithole also called Senior
Superintendent Kemp to testify purely
on the National Instruction and
its specific purpose and process. The Second Respondent did not file
an explanatory affidavit to
explain or motivate his award leaving
some pertinent questions unanswered. However, from the complete
record that has been put
before me I have been able to fill in the
gaps by comparing the transcripts to his award.
[71] Tip AJ in
Standard Bank of SA Ltd v CCMA and Others
,
8
held that relief by way of review would be available:
'[w]here a commissioner sitting
as arbitrator has misconstrued oral or documentary evidence, or has
ignored or misapplied relevant
legal principle, to an extent that is
inappropriate or unreasonable, then such commissioner has failed in
the task under the Act'.
[72] This approach was echoed in
Carephone (Pty) Ltd v Marcus NO
and Others,
9
where the test in this regard was succinctly stated as follows:
'[I]s there a rational objective
basis justifying the connection made by the administrative decision
maker between the material
properly available to him and the
conclusion he or she eventually arrived at?'
[73] In
Marapula and
Others v Consteen
(Pty) Ltd
(1999) 20 ILJ 1837 (LC) it was held as follows:
‘
The credibility of witnesses and the
probability or improbability of what they say should not be regarded
as separate enquiries
to be considered piecemeal. They are part of a
single investigation into the acceptability or otherwise of the
employer's version,
an investigation where questions of demeanour and
impression are measured against the content of the witnesses'
evidence, where
the importance of any discrepancies or contradictions
are assessed and where a particular story is tested against facts
which cannot
be disputed and against the inherent probabilities, so
that at the end of the day one can say with conviction that one
version
is more probable and should be accepted, and that therefore
the other version is false and may be rejected with safety.’
[74] The judgement in
S
v Civa,
10
is particularly apposite. In particular, it was
held as follows:
‘
The
evidence must be weighed as a whole, taking account of the
probabilities, the reliability and opportunity for observation of
the
respective witnesses, the absence of interest or bias, the intrinsic
merits or demerits of the testimony itself, any inconsistencies
or
contradictions, corroboration, and all other relevant factors. It is
in the context of this overall scrutiny of the evidence
that
demeanour, if there are sufficient indications thereof to be
significant, must be assessed.’
[75] Based on the above, and taking into account that which is about
to follow, it is clear that the Second Respondent did not
apply his
mind properly to the real facts placed before him.
[76] The facts were as follows:
The Third Respondent had been employed by the Applicant since 1
April 2006.
He applied for promotion on 13 September 2006 and recommended by the
Evaluation Panel.
When the recommendation was forwarded to the Divisional Evaluation
Committee Meeting, he was found to be lacking in experience
on the
core responsibilities.
Therefore, he was not recommended.
In his evidence as per the transcribed recording, he clearly was not
intent on considering anything other than his own personal

perception of the meaning of the National Instruction any
consideration. He maintained throughout that he did not meet the

minimum requirements, in fact, he met the maximum requirements and
he stated unequivocally that he had to be appointed no matter
what
because he met the requirements and was scored a 73.3%, being the
highest score of the three that were recommended by the
Evaluation
Panel.
During cross-examination, he did not even attempt to provide any
explanation other than that he met the grade and was therefore

entitled to be appointed. He even went so far as to proclaim that
not even the National Commissioner had an option – he
had to
be appointed because he scored a 73.3%, was an African male.
Through the evidence presented by all the relevant witnesses,
including Nkabinde (Third Respondent’s witness) one central

aspect stands out – even though he may have met the criteria –
he lacked experience in the core functions.
[77] The fact that the Second Respondent ignored these pertinent
aspects and proceeded to find against the Applicant constituted
a
gross irregularity making the award susceptible to interference by
this Court.
[78] In Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
,
11
Van Niekerk J held that:
‘
In
summary, section 145 requires that the outcome of the CCMA
arbitration proceedings (as represented by the commissioner’s

decision) must fall within the band of reasonableness, but this does
not preclude this Court from scrutinising the process in terms
of
which the decision was made. If a commissioner commits some or other
misconduct or a gross irregularity during the proceedings
under
review and a party is likely to be prejudiced as a consequence, the
commissioner’s decision is liable to be set aside
regardless of
the result of the proceedings or whether on the basis of the record
of the proceedings, that result is nonetheless
capable of
justification.’
[79] Therefore, I hold that the Applicant’s first ground for
review must success. The Second Respondent did not apply his
mind to
the issue in the case.
[80] As to the second ground, namely that the Second Respondent
misdirected himself in not reading the circular in totality leading

to him drawing a conclusion a reasonable arbitrator properly applying
his mind to, I do agree with the Applicant.
[81] It is trite that one needs to read and interpret any document
[or legislation] keeping the origins, context, purpose and totality

of the document in mind.
[82] The National Instruction was drafted to regulate the process
pertaining to promotion of employees employed in the Applicant’s

service. It was amended by the circular dated 1 September 2006
12
but was still the document utilised to regulate and direct the
process to be followed pertaining to promotions.
[83] If the Second Respondent in fact perused the National
Instruction duly and properly, applying his mind properly he would
not have reached the decision he had. I specifically refer here to
his finding in paragraph 48 of his award:
‘
In my
view, if one reads clause 13(1) together with clause 13(5), the
recommendation of the panel for post level 8 and higher must
be
submitted to the National Commissioner for consideration and for
recommendation of post 1 to 7 must be submitted to Divisional
or
Provincial Commissioner for approval.’ (Sic)
[84] When one properly peruse the National Instruction, it is clear
that it is the duty of the Divisional Commissioner’s
office to
perform the administrative duties pertaining to the promotion and
consideration of filling vacant post in SAPS.
[85] Clause 5(1)
13
vindicates that the Divisional Commissioner: Personnel Services is
responsible to advertise all funded vacancies identified for

promotion purposes.
[86] Clause
8
deals with the appointment of evaluation panels.
‘
8(1)
... Divisional Commissioners must appoint panels to consider the
applications for promotions...
8(2) ... Levels 8 – 10
Chairperson of the panel must be on the level of a Director. Members
of the panel must at least be
on the level of a Senior Superintendent
or equivalent rank.
8(3) Panels must, as far as
reasonably possible, be representative. Panels must consist of no
more than 5 members; but not fewer
than 3 members, including the
chairperson. At least one member of the panel must have relevant
competence regarding the job requirements
of the advertised post.’
[87] Therefore, before any recommendation can be made to the National
Commissioner the process as envisaged above needs to be followed,

and, only those applicants, who met the grade and who are to be
recommended to be appointed – their details had to be forwarded

to the National Commissioner for his consideration and approval. To
find that the Divisional Evaluation Committee Meeting should
have
automatically forwarded the recommendation of the Evaluation Panel to
the National Commissioner was an incorrect interpretation
of the
National Instruction. No reason was proffered by the Second
Respondent why he accepted the version of the Third Respondent
and
rejected the evidence presented by Kemp, but on the face of the
evidence presented, it is clear that the Second Respondent

misconstrued the meaning and process explained in the National
Instruction. As such, his action constituted a gross irregularity,

which prejudiced the Applicant.
[88] Kemp testified to this – explaining the process in full –
all evidence relating to the contents of the National
Instruction was
tendered and put before the Second Respondent. It was properly
ventilated by evidence and there was no reason for
the Second
Respondent to merely ignore the evidence of the Applicant and accept
the evidence of the Third Respondent as to what
the role of the
Divisional Evaluation Committee Meeting was.
[89] Kemp testified that he was a co-author of National Instruction
1/2004. He was given a rather difficult time by the Third
Respondent’s representative, he was frequently interrupted and
battled to present his evidence when asked questions during

cross-examination. He, for example, did his utmost best to explain
that the recommendations of the Divisional Commissioner were
the
recommendations that were to be presented to the National
Commissioner.
[90] Kemp took time to explain the context of the promotion process
in detail remarking significantly that the recommendation that
had to
be considered by the National Commissioner was that made by the
Divisional Commissioner who could only make recommendations
based on
the recommendations made by the Divisional Evaluation Committee
Meeting.
[91] No matter how difficult Mr. Mthimunye tried to make the
situation, how many times he interrupted Kemp and tried to discredit

him, Kemp stood his ground. He was not evasive (like the Third
Respondent) had no background detail of the matter and did nothing
to
discredit himself or to create the impression that he was biased,
judgmental or had any reason to take sides in the matter.
He answered
all the questions with candour and a clear knowledge of the meaning
and contents of the National Instruction. He even
warned the Second
Respondent not to consider Clauses 13(1) and 13(5) in isolation but
to read it with Clauses 10 and 11 to establish
the real and correct
meaning of it.
[92] He admitted that indeed the Divisional Commissioner violated
Clause 8(3) when a panel consisting of more than five people
was
convened. He also admitted that the National Instruction did not
indicate that the Divisional Commissioner could chair the
Divisional
Evaluation Committee Meeting, but stated that noting in the National
Instruction prevented the Divisional Commissioner
from chairing it.
[93] The Second Respondent drew an adverse conclusion based on the
fact that the panel exceeded the number of members and declared
it
such a significant violation that it was part of his motivation to
find that the Applicant acted in bad faith towards the Third

Respondent.
[94] I do not agree that the actions of the Applicant were committed
in bad faith. No evidence to establish this was presented.
[95] In
CUSA v Tao Ying Metal Industries and Others
,
14
per Ngcobo J it was held as follows:
‘
It is
by now axiomatic that a commissioner is required to apply his or her
mind to the issues properly before him or her. Failure
to do so may
result in the ensuing award being reviewed and set aside. Recently,
in
Sidumo
,
the matter was put thus:
“
It is
plain from these constitutional and statutory provisions that CCMA
arbitration proceedings should be conducted in a fair manner.
The
parties to a CCMA arbitration must be afforded a fair trial. Parties
to the CCMA arbitrations have a right to have their cases
fully and
fairly determined. Fairness in the conduct of the proceedings
requires a commissioner to apply his or her mind to the
issues that
are material to the determination of the dispute. One of the duties
of a commissioner in conducting an arbitration
is to determine the
material facts and then to apply the provisions of the LRA to those
facts in answering the question whether
the dismissal was for a fair
reason. In my judgment, where a commissioner fails to apply his or
her mind to a matter which is material
to the determination of the
fairness of the sanction, it can hardly be said that there was a fair
trial of issues.”’
[96] Therefore, as far as the second ground for review is concerned,
the Applicant must also succeed. The Applicant was not,
in lieu
of
the abovementioned granted a fair hearing. The matter was not fairly
and fully determined. The Second Commissioner did not apply
his mind
to the evidence presented on behalf of the Applicant nor did he
motivate or explain why he found that indeed the fact
that the
Applicant violated Clause 8(3) was evidence that it acted in bad
faith. The mere recital of caselaw does not constitute
a proper and
fair reason for the Second Respondent to draw the conclusion that an
unfair labour practice was committed. Caselaw
set precedent that must
guide and practically give meaning to statute but, the mere recital
thereof without applying and comparing
details can never be regarded
as proper reasoning on proclaiming that an unfair labour practice was
committed.
[97] The Third ground for review dealt with the reading of Clause 13
(1) and (5) and not incorporating clause 13(6) in the process,
I
thought it wise to specifically record the contents in this
judgement. It deals with the consideration of recommendations and

approval of promotions.
‘
13(1)
The promotion of employees to level 8 and higher must be submitted to
the National Commissioner for consideration.
13(2) Upon the receipt of the
recommendations of the divisional panel, the Divisional Commissioner
must satisfy him/herself that
the process took place in accordance
with this Instruction.
13(3) If the Divisional
Commissioner is of the opinion that a recommendation for promotion
does not address the representativity
at the level of the post in the
business unit where the post is situated, but decides to nevertheless
approve such a promotion,
she or he must record this in writing with
a full motivation.
13(4) The Divisional
Commissioner must, about the promotion of employees to level 8 or to
higher levels, forward all the relevant
documentation and
recommendations to the National Commissioner.
13(5) The National, Provincial
or Divisional Commissioner may accept or reject the findings and
recommendations of an evaluation
panel. When the National, Provincial
or Divisional Commissioner does not approve a recommendation of an
evaluation panel she or
he must record the reasons for her or his
decision in writing
13(6) If the Divisional
Commissioner does not approve the promotion of a recommended
candidate, she or he may consult with the relevant
Deputy Provincial
Commissioner, Area Commissioner and in the case of Head of Divisions,
with the relevant Head of the Component
or the evaluation panel if
she or he deems it necessary and either promote another candidate of
her or his choice from the preference
list submitted by the
evaluation panel, or direct that he post be re-advertised.’
[98] Therefore, the actions of the Divisional Commissioner, who ruled
that the post be re-advertised was fair and in line with
the
provisions of the National Instruction. I reiterate that Nkabinde –
the Third Respondent’s own witness testified
that the reason
why he was recommended was because they thought he had potential –
she did not testify that he was recommended
because he met the
criteria for the position. Her evidence was transcribed as:
‘
...
So
obviously the fact that he was (indistinct) out of the other two, he
was the one (indistinct). If (indistinct) I remember one
of the
(indistinct) was the fact that he did not have the experience
(indistinct)...’
This panel therefore was in the wrong when it recommended him, making
the interference of the Divisional Evaluation Committee Meeting
even
more in line with the spirit and meaning of the National Instruction.
[99] Therefore, the Applicant also has made out a case on this ground
for review.
[100] The fourth ground also dealt with Clause 13(6) and I do not
intend commenting more on it other than to hold that indeed the

Second Respondent committed a gross irregularity by ignoring this sub
clause.
[101] Having stated that, however, if the Second Respondent prudently
perused the National Instruction he might have come across
Clause
10(3
)
“
The chairperson of the... divisional
evaluation panel must submit the recommendations of the panel, any
applicable reports and the
reason for its review of the
recommendation of area or competent panel’s recommendations to
the relevant Provincial Commissioner
or Divisional Commissioner.
[102] From the abovementioned it is obvious and clear that the
Divisional Evaluation Committee Meeting did not err in not referring

the Third Respondent’s application straight to the National
Commissioner. Kemp testified that only when a promotion concerned
a
position at National Head Office could a panel convened by the
National Commissioner make recommendations directly to the National

Commissioner.
[103] The Fifth and Sixth ground for review related to the Second
Respondent’s finding that the Applicant did not comply
with the
National Instruction when the chairperson of the panel was more
senior than the level of a director.
[104] The Third Respondent did not proffer any valid reason as to why
he was prejudiced by the chairperson being at a rank higher
than a
Director is. The panel and the structure of the panel were attacked
by the Third Respondent claiming it to have been unfair.
The Second
Respondent held as follows in paragraph 50:
‘
Even
if I am wrong above in terms of the interpretation, clause 8(2)
requires that the Chairperson of the panel for level 8 -10
must be at
the level of a Director. In the Applicant’s case, the
Chairperson of the Divisional Panel was above that of a
Director.
That was non-compliance with the National Instruction.’
[105] The fact that the chairperson was at a rank higher than a
Director did not prejudice the Third Respondent. Bottom line
prevailed
– he had been with the Applicant for a rather short
time. Whether the Chairperson was of a rank higher than that of a
Director
and whether the panel consisted of 5 or seven people had no,
if any, bearing on the validity of his application for promotion. If

indeed there were merits in his application, one would have suspected
that someone on the extended panel would have drawn the attention
of
the Chairperson to such aspects. The fact that his recommendation
lacked merit can be deferred from the evidence presented by
Nkabinde
as stated above.
[106] No evidence was presented by the Second Respondent as to what
prejudice he suffered. He did not even address the issue of

prejudice. All he maintained throughout his evidence was that the
National Commissioner – and no other panel - was supposed
to
have considered his application and should – without having a
choice in the matter – have appointed him because
he met the
maximum [his words] requirements. Being so fixated on his
interpretation of the National Instruction, he too lost track
of the
real issue, or what he had to prove to succeed with his dispute.
[107] In his evidence, he stated that his interpretation was the only
correct interpretation. He even intimated that the fact that
the
National Instruction clearly stated, as I set out elsewhere in the
judgement, that he had no vested right to be appointed purely
based
on the fact that he was scored the highest he stated that he was
entitled to be appointed and that was that, the National
Instruction
was wrong.
[108] I therefore hold that the Third Respondent was not prejudiced
by the fact that the Divisional Evaluation Committee Meeting

consisted of more than the five members nor was he prejudiced by the
fact that the chairperson was at a higher rank than that of
a
Director. Given the above, the Second Respondent committed a gross
irregularity when he found that the non-compliance, or violation
as
he had phrased it, constituted an unfair labour practice.
[109] The Employment Equity Plan of the Applicant forms the basis of
the next ground for review.
[110] The Second Respondent held that the Applicant did not comply
with it. The Applicant claimed that the Equity Plan was not
the
issue, the relevant experience in core functions for the post was the
real issue.
[111] In the preamble to the Employment Equity Plan the following is
stated:
‘
This
Employment Equity Plan is therefore geared to:
Promote the Constitutional
right of equality and the exercise of true democracy, ·
Eliminate unfair
discrimination in employment within the South African Police
Service;·
Ensure proper and effective
implementation of Employment Equity within the South African
Police Service to redress the effects
of past practices;·
Achieve a diverse workforce
broadly representative of the South African community; and·
Promote economic development
and efficiency in the workforce.’
[112] Under the heading ‘
Executive Summary’
the
following is, amongst other things, stated:
‘
1. The
transformation process will help to expedite the promotion of
diversity and the successful implementation of the Employment
Equity
Plan based on equal dignity and respect for all, and ensuring
reasonable accommodation available for people with disabilities.

Effective procedures have been implemented to monitor and evaluate
reasonable progress towards Employment Equity in every sphere
of
employment in the South African Police Service with the objective of
achieving service delivery improvement which permeates
across all
sectors of Human Resource practices.
In terms of the plan, it is the
National Commissioner who “is responsible for the championing
of the Employment Equity Plan
as well as the overall management and
implementation of the plan”.
The South African Police
Services has taken the approach of implementing the Employment
Equity Plan per business unit. Due to
the huge size of SAPS’
120 017 members and the spread throughout the different provinces,
it is impractical to develop
a single Plan that will integrate all
the dynamics in the business units. SAPS has consequently subdivided
the organisation into
business units which will be manageable, large
enough to have a standardized approach and small enough to cater for
specific
needs and unique circumstances, but the ultimate objective
being alignment with national demographics since SAPS is a National

Institution.’
[113] Based on this, the document handed in at the arbitration
hearing, indicating that the critical analysis personnel services

period 2006/10/01 – 2006/12/31, being a national document, has
no, if any evidentiary value of the specific numbers in the
business
unit wherein Post 6000 was situated.
[114] Ramathoka’s evidence was centred on the statistics he
prepared pertaining to the numbers needed. He however did not
explain
or proffer any reason why his evidence, contradicting that of the
Equity Plan handed up differed. His statistics did not
conform to the
strategy outlined in the plan as to how the equity situation should
be corrected.
[115] The Employment Equity Plan sets out “numeric
targets”. The South African Police Service commits itself anew
to
reach equity targets agreed upon in this Section 20 Plan in favour
of the designated group by the year 2004.
15
In the process of striving to achieve the Equity
targets of this Section 20 Plan the SAPS has to create capacity
within the organisation.
To ensure the realisation of this process,
posts must become available to apply and promote Employment Equity by
making use of
the following options/opportunities:
Natural attrition.
Movement to the ideal establishment.
Offering severance package or any other available programme subject
to cabinet approval. Should cabinet approve severance packages
or
any other similar programmes for the South African Police Service,
the implementation or execution of such severance package
programme
should be geared to support this Section 20 Plan in redressing the
imbalances in the organisation. This means that
designated
members/officials be appointed in the vacancies created by
personnel who take severance packages.
Continuous implementation and close monitoring of the six focus
areas of affirmative action including other relevant programmes.
[116] Indeed, when perusing this it is clear that there was no
obligation to fill Post 6000 by adhering to the Equity Plan as
averred by the Second Respondent or the Third Respondent. Further to
this, it is noteworthy that the two successful incumbents
16
– which were appointed after the external advertisement, fell
within the scope and definition of the designated group.
[117] In
SA Police Service v Zandberg and Others
,
17
Pillay J, held that
‘
Equity
means fairness and justice to the candidate and to the people they
serve. Fairness and justice cannot prevail if candidates
who are less
than the best, who are less suitable and less meritorious are
appointed.’
[118] Given the fact that the Applicant did not meet the relevant
experience requirement and that was indicated as the reason why
he
was not regarded as a suitable candidate, I hold that indeed the
Equity Plan had no, if any bearing on the refusal of the Divisional

Evaluation Committee Meeting to recommend the Third Respondent for
the position. After all, it would create an intolerable position
if a
person had to be promoted purely because there was a ‘numeric
deficiency’ pertaining to his specific gender and
race group.
It also would have been against the spirit and the proposed way to
deal with the matter as set out in the Equity Plan
of the Applicant.
[119] I therefore hold that on this ground for review the Applicant
must also succeed.
[120] The Eighth ground for review stated that the Second Respondent
did not understand that issues before him since the Third
Respondent
applied internally whilst the successful incumbents reacted to the
external advertisement of the post on a later date.
The Second
Respondent found as follows in paragraph 56:
‘
While
the Second And Third Respondents did not apply for the post when it
was initially advertised internally as they did not have
the two
years experience, they were appointed to the posts when they were
externally advertised and the Applicant was not appointed
despite the
fact that the Applicant met the minimum requirements of experience
when he applied for the post internally.’
[121] If indeed, both the successful incumbents indicated that they
did into apply when the post was internally advertised because
they
did into have the required two years experience, it should have
alerted the Second Respondent to verify and confirm that when
the
Third Respondent applied he indeed met the requirements. Indeed, the
Third Respondent testified that he had been in the position
at the
Department of Correctional Services since 1999 and that he performed
similar duties there. However, given the fact that
he had been with
the Applicant for a mere five months by the time he applied for this
post, the lack of experience in the procedures
and practices of the
Applicant should have been pertinently clear to the Second
Respondent. The evidence also echoed the fact that
he lacked the
required experience.
[122] Given the fact that the Third Respondent did not meet the
requirements pertaining to experience, seen in context with the
fact
that he was not guaranteed the promotion even if he achieved the
highest score and that no legitimate expectation was created
that he
would be appointed, it remained the prerogative of the Applicant to
not appoint any applicant and to advertise the position
afresh. The
fact that it was advertised afresh was an action the Applicant could
do in accordance with the National instruction
and as such the Second
Respondent committed a gross irregularity when he did not take the
prerogative of the Applicant as employer
or the fact that the
Divisional Evaluation Committee Meeting acted within the scope of its
duties when it ordered the position
to be advertised again.
[123] As far as the issue of the two successful candidates are
concerned, I interpose here to state the following.
After perusing the record it seems that the matter was eventually
withdrawn against them since- after all- it was pertinently
asked by
the Second Respondent and stated by the Third Respondent’s
representative – that the ONLY (my emphasis)
issue before the
Second Respondent related to the internal process – not the
external process. The Second Respondent then,
on application by the
Third Respondent’s representative allowed them to rejoin the
successful incumbents – stating
that should he decide to set
the appointments aside they needed to have been heard.
Later on in the minutes of the arbitration, it is stated that Ryan
was appointed in the position. However, then again, the distinction

was drawn between the two processes and the Second Respondent even
remarked that since the Third Respondent applied but was not

shortlisted when the post was advertised externally, he still had
the right to dispute the appointment of Ryan and/or Gerber.
Given the fact that the re-advertisement was a second event that had
no real bearing on the reason why the Second Respondent
referred
this matter to the First Respondent, their appointment was not
related –and- it was regulated by another circular
6/2005. (As
Kemp had testified when asked about the difference between internal
and external advertisements.)
Further to this- he was not even shortlisted the second time around-
had he been shortlisted then it might have had significant
bearing
on the current matter.
[124] Therefore; the only issue before the Second Respondent related
to the factors related to the internal process.
[125] In
Khula Enterprise Finance Ltd v Madinane and Others
,
18
it was held as follows:
‘
The
failure by an arbitrator to appreciate and decide the true issue that
he or she is called upon to determine is a gross irregularity
which
justifies the review and setting aside of an award. See in this
regard the remarks of Francis AJ (as he then was) in the
SA
Revenue Service
matter.
“
It is
crucial that an arbitrator who is conducting arbitration proceedings
knows what the true issues are that he is called upon
to determine.
Where he issues an award which is based on a failure by him to
appreciate the true nature of the issue before him,
he commits a
gross irregularity which violates the entire proceedings.”
Such a failure denies the
parties their right to have the issues fairly determined.’
[126] I need to interrupt myself here. Indeed, the National
Instruction stipulates that In terms of Clause 2(f) of the National

Instruction ‘recognised experience’ mean any relevant
experience in the Service or the Public Service at the required

level. However, given the fact that the post advertised was not a
level 8 post, but a level 10 post and that the Third Respondent
had
but five months of experience in the services of the Applicant I hold
that not even this clause would have vindicated or entitled
the Third
Respondent to be appointed to the position.
[127] I also, for the sake of completeness need to quote the
following clauses:
Clause 3(3) provides:
‘
The
fact that a candidate, on average, obtained the highest rating in the
assessment or highest marks or percentages during their
PEP
evaluation or was recommended for promotion, does not establish any
right or legitimate expectation on the part of the candidate
to be
promoted to the advertised post or any other post.’
Clause 4(2) states that ‘no employee has any right or
legitimate expectation to be promoted to an advertised or any other

post.’
[128] Therefore, I hold that if indeed the Second Respondent took all
the facts put in front of him into account, he would have
reached a
different conclusion that the one he reached. His actions constituted
a gross irregularity allowing me to interfere with
the award he made.
[129] In
Anglo Platinum Limited v CCMA and Others,
19
Cele J held that:
‘
....
this evidence was available to the second respondent. For him to have
reached a contrary decision, means simply that he failed
to apply his
mind appropriately to such evidence and thus committed a gross
irregularity. On the basis of this finding alone, the
arbitration
award he issued in this case cannot stand.’
[130] On par with this abovementioned judgement, I find that the
Second Respondent’s actions constituted a gross irregularity

and as such cannot stand.
[131]
In Tedco
Plastics (Pty) Ltd v National Union of Metalworkers of SA and
Others,
20
it was decided that:
‘
Furthermore,
in
Matthews
v Hutchinson and Others
(1998)
19 ILJ 1512 (LC) Landman J listed a large number of “misdirections”
committed by the commissioner with regard
to his treatment of the
evidence before him. These included drawing conclusions not supported
by the evidence, ignoring material
evidence and relying on unreliable
hearsay evidence. Landman J then went on to state as follows:
“
In the
result the cumulative effect of the misdirections amount to a gross
irregularity and failure of justice. The commissioner
did not apply
his mind to the evidence and the subtle nuances of the evidence. He
misunderstood the import of the evidence and
attributed motives to
the applicant, which could not reasonably be drawn. He relied on
suspect evidence.”
It would also seem that it is a
logical consequence of the approach in the
Matthews
’
decision that where there has
been only one serious misdirection, but it is central or fundamental
to the entire award, that in
itself can give rise to the same result,
i.e. a finding that there has been a failure of justice.’
[132] Based on the fact that the Applicant must succeed in its
application, the resultant cost order the Second Respondent made

falls away and need not be addressed by me.
[133] Finally, after the
Sidumo
and Another v Rustenburg
Platinum Mines Ltd and Others
judgment,
21
it has become increasingly difficult for aggrieved parties to
successfully review awards made by commissioners, panellists and

arbitrators. This however, places an extra burden on both the
Bargaining Councils, [and the CCMA for that matter] and its
commissioners,
arbitrators and panellists to ensure that the facts
placed before them are diligently, accurately and factually
comprehensively
recorded. Evidence presented during all phases of the
hearing – inclusive of those solicited during cross-examination
and
the evidence of experts, must be duly, properly and accurately
recorded and dealt with in the award. One cannot in a piecemeal
manner only record the aspects that appease you and that fit in with
the outcome you want to reach. An arbitrator is a finder of
fact and
must diligently search for the facts hidden amongst perceptions of
parties. In the event, like in this case, where the
facts have been
recorded haphazardly and no proper factually based reasoning was
proffered as to why certain very relevant evidence,
such as the
evidence presented by Kemp, was not regarded as reliable, constitutes
a gross irregularity committed by the author
of the award. Bargaining
Councils [and the CCMA] cannot scrutinise the evidence recorded on
tape, digitally or otherwise, but that
does not absolve if from
ensuring that facts are comprehensively and accurately relayed in the
awards rendered.
[134] I am fully aware that the Labour Relations Act
22
requires only brief reasons why a certain conclusion is drawn and
award is made, but that should not be interpreted that relevant,

vital and persuasive evidence should simply be brushed aside and
ignored. Nor does it entitle a commissioner, arbitrator or panellist

to simply declare that a specific party’s evidence is the
preferred evidence without properly substantiating the statement.

Care must be taken and decisions must be properly motivated to enable
any one reading the award the ability to understand the reason
why a
specific conclusion was drawn.
[135] In this matter, had the Applicant sought costs against the
First of Second Respondent, given the above mentioned, I might
have
been persuaded to consider such an order.
[136] For the reasons as set out above, I believe that the award must
be set aside.
[137] The remaining question is whether I should refer the matter
back to the First Respondent for a hearing
de novo
. When
deciding to refer the matter back I need to consider not only the
interest of the Third Respondent but also those of the
Applicant.
[138] Ms. Kgatla agreed that in terms of Section 145(4) of the LRA,
23
I do have the authority to determine the dispute in a manner I
considered appropriate. Mr. Moshoana did not address me on this

issue, simply requesting that the review should be dismissed with
costs.
[139] In
Mondi Kraft
(Pty) Ltd v PPWAWU and Others
,
24
Landman J held that:
‘
There
may well be instances where the court is unable to make a finding
without a full record of the proceedings. But where a defect
as
defined in section 145 is obvious from the award and the admitted
facts before it, and if, from the award and the admitted facts,
the
court is satisfied that it has before it all material evidence
relative to a particular point and is thus able to make a finding

that there is no rational objective basis justifying the connection
made by the arbitrator between that
material
and the conclusion he or she eventually arrived at on that point, the
court is placed in a position to set aside the award...’
[140] Having had regard of Section 145 (2)(a)(ii) of the LRA,
25
it is obvious and clear that indeed the Second Respondent committed a
gross irregularity in the conduct of the arbitration proceedings

rendering it within my power to determine the dispute in a manner I
consider appropriate, I have taken into account the following:
The matter relates to a situation dating from the non-appointment of
the Applicant in 2006.
To send it back now to be re-heard by another arbitrator would be
pointless and futile.
Based on the extensive record of the arbitration hearing I am in the
position to consider all the evidence presented.
[141] I have taken into account the fact that the Third Respondent
was employed by the Applicant for a mere five month period by
the
time he applied for the promotion.
[142] I also have taken into account that as such it would have been
impossible for him to be properly experienced to perform his
duties
at the level of an Assistant Director: Social Services –
Disability Management specifically that of the Applicant.
He tried to
remedy the situation by testifying at the arbitration hearing that he
did not in his application indicate that he had
experience with
international liaison and research programmes regarding disability
issues whilst he did have such experience. He
however had to stand
and fall by that which was contained in the application he presented.
[143] Since the applications was to be evaluated on information
contained in the candidates’ applications only and no personal

knowledge of the candidates by members on the panel could have been
taken into account to either favour of prejudice a candidate,
the
Divisional Evaluation Committee Meeting could only go on what they
had before it.
26
A bland statement that he possessed all the requisite experience was
not enough. Throughout the evidence as stated above one fact
emerged
– he did not have the required experience needed. He could not
substantiate his averments that he possessed the required
experience.
Even if he did, it would in any event not have assisted him because
none of it formed part of his application.
[144] His reliance on the fact that a score of 73.3% should
automatically have entitled him to be appointed does not hold water.

The comparison he made with the appointment of Frank as Chaplain –
who also scored 73% has no relevance – it was not
only the
score achieved that made one a suitable candidate. He denied that in
terms of the National Instruction he had no automatic
right to be
appointed.
[145] He did not meet the criteria as per Clause 12 of the National
Instruction.
27
[146] The Divisional Evaluation Committee Meeting acted within its
scope when it did not accept the recommendation of the Evaluation

Panel and substituted it with its own.
28
[147] Based on the fact that the Third Respondent did not meet the
required experience in the core responsibilities there was therefore

no need to submit his application to the National Commissioner for
his recommendation and approval.
[148] In the result the application must succeed, I need to consider
whether the costs should follow the result. I have taken into
account
that;
There is an existing employment relationship between the Applicant
and Third Respondent.
The Third Respondent should not be prejudiced by the errors in
judgement made by the Second Respondent.
Equity, justice, and fairness, being the spirit of the LRA must
prevail.
Order
Accordingly, I make the following order:
The arbitration award of the Second Respondent is reviewed and set
aside.
The Applicant did not commit an Unfair Labour Practice when it did
not recommend or promote the Third Respondent on 20 October
2006.
The matter is dismissed.
I make no order as to costs.
_______________________
A.H. Swanepoel
Acting Judge in the Labour Court
Appearances:
For the Applicant: Ms. M Kgatla
State Attorney
For the Third Respondent: Mr. G.N. Moshoana
Mohlaba & Moshoana Inc
1
Referred
to as the Divisional Panel by the Second Respondent, but for the
sake of correctness, I will refer to it as set out here
whenever I
do not quote the Second Respondent.
2
In
this part of the judgment, I am quoting the facts as contained in
the award. Where the evidence I consider relevant was not
quoted by
the Second Respondent I will elaborate on the omitted evidence
presented to him during my evaluation of the evidence.
3
The
relevance of this remark by the Second Respondent was not taken
further and the reason why he mentioned it remains unanswered.
4
Act
66 of 1995 as amended
5
Even
though the papers filed by the Third Respondent were not properly
attested to, I mentioned it here. It might have been an
oversight
that an incorrect copy was filed in the court file. I am sure that
had it been not a mere oversight, Ms. Kgaka would
have drawn my
attention to it. Be that as it may, the decision I reached was not
influenced by it.
6
Act
200 of 1996
7
Above
n 1
8
(1998)
19 ILJ 903 (LC) at para 24.
9
(1998)
19 ILJ 1425 (LAC) at para 37.
10
1974
(3) SA 844
(T) at 846H – 847A.
11
(2009)
11 BLLR 1128
LC at para 17.
12
See
para 66 above.
13
National
Instruction 1/2004
14
[2009]
1 BLLR 1
(CC) at para 76
15
In
terms of Clause (5)(3) of the National Instruction designated group
includes all African, Indian and Coloured males and females
and
White females.
16
Throughout
the Arbitration, the Second Respondent requested evidence as to who
was appointed in the position the Applicant had
applied for. At some
stage, it seemed as if the evidence reflected Superintendent Ryan to
have been the successful incumbent.
17
(2009)
31
ILJ
1230 at 1235I.
18
(2004)
25 ILJ 535 (LC) at paras 13 and 14.
19
JR
129/09 not yet reported by the time of this judgement.
20
(2000)
21 ILJ 2710 (LC) at paras 8 and 9.
21
(2007)
28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC)
22
Section
138(7)(a) Act 66 of 1995 as amended.
23
If
the award is set aside, the Labour Court may-
(a) determine the dispute in the manner it considered
appropriate; or
(b)
make any order it considers appropriate about the procedures to be
followed to determine the dispute.
24
(1999)
8 LC 1.11.49
25
Above
n 1.
26
Clause
10(1) of the National Instruction.
27
Criteria
for selection of candidates:
12(1) The selection of a candidate must be based on the
following criteria:
Competence based on the inherent requirements of the
job or the capacity to acquire, within reasonable time, the ability
to
do the job;
Prior learning, training and development,
Record of previous experience,
Employment equity in line with the Employment Equity
Plan of the relevant business unit,
Evidence of satisfactory performance,
Suitability and
Record of conduct.
28
10(2)
states that all recommendations of area or competent panels together
with all relevant applications of candidates must be
submitted to
the provincial or divisional panel for consideration, which panel
may review the area or competent panel’s
recommendations and
substitute it with their own. The conditions for review... may
include, but are not limited to
.....
Suitability of the candidate.