About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 145
|
|
POPCRU obo Sephanda and Another v Provincial Commissioner: South African Police Services, Gauteng Province and Another (J291/12) [2012] ZALCJHB 145; (2012) 33 ILJ 2110 (LC) (17 February 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR
COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
CASE
NO: J 291/12
In the matter between:
POPCRU OBO O M SEPHANDA AND
ANOTHER
Applicant
and
THE PROVINCIAL COMMISSIONER:
SOUTH AFRICAN POLICE SERVICES, GAUTENG PROVINCE
First
Respondent
THE MINISTER OF SAFETY AND
SECURITY
Second
Respondent
Heard
:
15 February
2012
Delivered
:
17 February
2012
Summary:
(urgent –
suspension without pay –SAPS Regulations -precautionary
requirement not met)
JUDGMENT
LAGRANGE, J
Introduction
This application was brought as
a matter of urgency on 3 February 2012 after the applicants had only
been advised of their suspension
on 30 January 2012. The applicants
were suspended without pay after their disciplinary enquiries had
already commenced and after
the principal witness of the employer
had already testified. The applicants face serious charges of
defeating the ends of justice
relating to an alleged attempt to
suppress a complaint of bribery against two subordinates.
The employer was aware of the
factual basis of the complaint since late in 2010, yet only
suspended the applicants on 30 January
2012 after notifying them of
their prospective suspension on 13 December 2011 and after receiving
their representations. In the
notice of the contemplated suspension
the reason for the proposed suspension provided by the Provincial
Commissioner was stated
in the following terms:
“
1.
Take note that your suspension without remuneration is being
considered in terms of regulation 13 (two) of the South African
Police Service Discipline Regulations 2006 promulgated in accordance
with section 24 (1) (g) of the South African Police Service
Act No.
68 to 1995, for the following reason (s):
1.1 it is alleged that on
2010 – 08 – 31 you were approached by the complainant to
want to open a criminal case of corruption
against members under your
command, namely W/O Seshweni and Const. Mooka. You then pleaded with
the complainant not to open a criminal
case and you are raised or
allowed the erasure of the video footage. A criminal case Pta-Central
CAS 1214/09/2010 – defeating
the ends of justice has
subsequently [been] opened.’
In the notice of suspension
issued to the applicants on 31 January 2012, the commissioners
reasoning for the suspension reads:
"1. Take note that after
due consideration of all the relevant facts and circumstances, as
well as your representation:
you are suspended without
remuneration with effect from the date of receipt of this notice in
accordance with the provisions of
regulation 13(2)....
1.1.1 I am satisfied on
reasonable grounds that you have allegedly committed serious
misconduct as contemplated in regulation 20
in that:
It is alleged that on 2010 –
08 – 31 you were approached by the complainant to want to open
a criminal case of corruption
against members under your command,
namely W/O Seshweni and Const. Mooka. You then pleaded with the
complainant not to open a criminal
case and you are raised or allowed
the erasure of the video footage. A criminal case Pta-Central CAS
1214/09/2010 – defeating
the ends of justice has subsequently
[been] opened.
2. Take further note that the
misconduct as described above is misconduct as contemplated in an
Annexure A of the Disciplinary Regulations.
I am satisfied that the
case against you is so strong that it is likely that you will be
convicted of a crime and be dismissed
as a result of the disciplinary
hearing.”
Urgency
It cannot be said that the
applicants did not launch this application at the earliest
opportunity. However, the respondent argued
that since the relief
sought concerned the payment of salary this could not be a ground of
urgency. It is also submitted that
any loss of dignity or respect
occasioned by being removed from the workplace was not something
which the court ought to take
account of. Accordingly, there was no
reason to deal with the matter on an urgent basis. Lastly, the
respondent submits that
the challenges to the Commissioner's
decision based on the points raised in this application, were not
issues put before the
Commissioner when he called upon the
applicants to make submissions on why they ought not to be
suspended.
The respondent cited a number
of cases in which financial or pressures were deemed insufficient to
justify urgency, on the basis
that alternative mechanisms existed
for a party to recover financial loss and financial pressure, as
such, was not deemed to
be a valid reason for treating the matter as
urgent, such as
Hultzer v Standard Bank of SA (Pty) Ltd
(1999) 20
ILJ
1806 (LC)
at and
Democratic Nursing Organisation of SA & Another v
Director-General, Department of Health & Others
(2009)
30
ILJ
1845 (LC)
. In those cases the
employees claiming payment of remuneration or continuation of
benefits had already been dismissed when they
initiated urgent
proceedings. It stands to reason that granting relief in the form of
remuneration or other benefits of employment
when the very
employment status of the individual is in issue, would be an
extraordinary remedy
.
However, the circumstances in
this case are not strictly comparable. The applicants currently
remain employees of the respondent.
The drastic measure taken by the
employer of stopping the applicants’ salaries whilst they
remained employed is the exercise
of an extraordinary power which
makes a serious inroad into an employee's common-law employment
right to be remunerated so long
as one remains in employment and
tenders one’s services.
To
my mind, this is the type of situation in which a claim for payment
of salary can be raised on an urgent basis, in the same
way that any
failure to pay wages to an employee who remains in service could
give rise to an urgent application for specific
performance.
1
An emplolyer’s obligation
to remunerate an employee is a fundamental component of the
reciprocally rendered obligations
of the employment contract.
Moreover, where suspension is implemented without pay, it is
difficult to ignore the punitive connotation
of such a measure,
especially where it is premised on the employer having anticipated
the probable outcome of disciplinary and
criminal proceedings. In
these circumstances, where there is a procedure with some procedural
safeguards to minimise the arbitrary
use of this power, if important
components of those safeguards are bypassed an employee ought to be
entitled to approach this
court on an urgent basis for relief.
Lis alibi pendens and
Jurisdiction
The respondents’ other
points
in limine
are closely related. Firstly the respondent
contends that because the applicants had referred an unfair labour
practices claim
to the bargaining council over their suspension, the
matter which the court was asked to determine in this forum was
already
pending before another one. Secondly, it argued that the
applicants were essentially asking this court to determine an issue
which is the exclusive preserve of the bargaining council and
therefore this court had no jurisdiction in terms of section 157
(5)
of the Labour relations act, 66 of 1995 ("the LRA"). The
answer to both these objections lies in whether or not
the claim
before the bargaining council is identical to claim the court is
asked to adjudicate.
The primary relief the
applicants ask is for this court to review and set aside the
decision to suspend them without pay on the
basis that there was no
factual basis which entitled the Commissioner to act in terms of
regulation 13 which provides for precautionary
Suspensions.
Essentially, this amounts to saying that the suspension lacks any
precautionary character, the timing of the suspension
suggests the
commissioner did not act
bona
fide
, and there is
no factual basis for the Commissioner to conclude that the case
against the applicants was so strong that it was
likely to result in
a conviction and dismissal.
This kind of attack goes to the
legality of the Commissioner's decision. The requirements of
legality are well-established. To
satisfy the principle that a
person exercising a statutory power may not do so
in
bad faith, arbitrarily or irrationally
2
,
and may not exercise a power or perform a function beyond that
conferred upon them by law.
3
It is true as Mr Mtsweni
contended for the respondent that there will be an overlap between
questions of legality and some issues
that might be considered by an
arbitrator deciding whether the suspension amounts to an unfair
labour practice, but the application
for review on the basis of
legality is quite distinct: it concerns the lawfulness and not the
unfairness of the Commissioner's
action. Moreover, the arbitrator
has no authority to determine the lawfulness of the suspensions,
as such. For this reason
neither the
in limine
objection based on
lis
alibi pendens
nor
the one based on jurisdiction can succeed.
The merits of the review
The notice of suspension relies
solely on the Commissioner stating that he is satisfied that the
requirements of Regulation 13(2)
were met, namely that the
applicants were charged with serious misconduct and that the case
against them was so strong that it
was likely they would be
convicted of a crime and dismissed as a result of a disciplinary
hearing.
The respondent argued that this
is sufficient in order to suspend the applicants without pay.
However, this cannot be correct.
Firstly, this regulation is merely
one provision in the regulations governing precautionary suspension.
Secondly, Regulation
13(3) clearly states: "A suspension is a
precautionary measure". Regulation 13(3) does not distinguish
between suspensions
with or without pay, or any other type of
suspension, and there is no reason to believe it does not apply
equally to suspensions
without pay under Regulation 13 (2).
Consequently, even if the respondent is right to say that the
requirements of regulation
13 (2) have been met, the suspension in
question must still be for a precautionary purpose.
A precaution is “
a
measure taken beforehand to avoid a danger or ensure a good result
”
(Shorter Oxford English Dictionary, 6ed, 2007, vol2). There is
nothing in the respondent’s notice of suspension
that provides
any indication why it considered it necessary to suspend the
applicant’s at a stage when the enquiry was
already well
underway. It is only in its answering affidavit that it says it
became apparent to it on 7 December 2012 that some
of the witnesses
it intended to call were the applicants’ subordinates and were
reluctant to testify against them in fear
of victimisation and
harassment or victimisation. However, firstly there is no claim that
the applicants had acted improperly
in this regard, but most
tellingly there is not the slightest hint of this being the reason
for the suspension in the notice
of proposed suspension, nor in the
notice confirming the suspension.
Moreover, in so far as the real
reason was to prevent interference with potential witnesses, the
applicants were not even given
an opportunity to respond to this
suspicion before they were suspended, so the notice of possible
suspension was materially defective
because it did not fulfil the
purpose of giving them advance warning of why the employer intended
to suspend them so they could
respond to that reason. Mr Mtsweni
conceded, rightly, that the absence of any stated precautionary
purpose in the notices was
a fundamental difficulty with the
respondent’s case.
Ms Prinsloo argued that
regulation 13 (2)(c) could be read to mean that the Commissioner
could not implement a suspension without
pay in terms of the
regulation unless this occurred before the commencement of the
disciplinary process. However, she conceded,
also correctly, that
the more probable purpose of that provision was to limit the abuse
of suspension as a way of removing an
employee from the workplace
and thereafter never initiating any disciplinary action. I do not
read that provision to mean that
the employer is confined to
suspending a person without pay only if it is done no less than 14
days before the commencement of
disciplinary proceedings.
Nevertheless, in this instance
the suspension was implemented long after the matter had been
investigated and the allegations
against the applicants were known,
on top of which the disciplinary hearing was well advanced. These
are all circumstances which
call for an extremely well motivated
explanation why a precautionary suspension is implemented at such a
late stage.
It is clear on the evidence
before me, that the suspension was not prompted by a precautionary
consideration. Because this is
a pre-requisite of any suspension
under the regulations, the Commissioner in acting solely on the
purported basis of the severity
of the charges and the prospect of
conviction and dismissal, acted outside of the powers conferred on
him by Regulation 13, and
thereby breached the principle of
legality. For this reason alone, the suspension ought to be set
aside.
Even if the employer has
grounds for believing that there is a strong likelihood they will be
convicted of a crime and dismissed,
which is not necessary to
consider in this instance, the suspension must still serve a
precautionary purpose. Such a purpose
is absent in this case. In
view of this finding, it is not necessary to consider the
applicant’s other grounds of review.
Relief and costs
As the suspension is so
fundamentally wanting on a basis that provides legal grounds for
relief quite distinct from the applicants’
rights in respect
of unfair labour practices, there is no reason to grant temporary
relief pending the outcome of proceedings
in the bargaining council.
On the basis of the grounds
given for the proposed suspension, the respondent should not have
contested this matter and there
is no reason why the applicants
should incur the costs of the matter. Also, despite the ongoing
relationship between the parties,
both asked for costs if they were
successful.
Order
Accordingly, an order is
granted in the following terms:
The matter is dealt with as
one of urgency;
The first respondent’s
decision to suspend Lt-Colonel Sephanda and Captain Modise without
remuneration is reviewed and
set aside;
The respondents must permit
the abovementioned applicants to return to work on the next working
day after this order is granted;
The respondents must pay the
costs of the application.
_______________________
R LAGRANGE, J
Judge of the Labour Court of
South Africa
APPEARANCES
APPLICANT: C Prinsloo,
instructed by Grosskopf Attorneys
RESPONDENTS: D Mtsweni
instructed by the State Attorney
1
[zRPz]
Nationwide
Airlines (Pty) Ltd v Roediger & Another
2008 (1) SA 293
(W)
at
296-299, [14]-[28].
2
Masetlha
v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC)
at
575,[23].
3
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC)
at
400,[58].