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[2012] ZALCJHB 118
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SAPU v Minister of Safety and Security and Another (J2653/12) [2012] ZALCJHB 118 (18 October 2012)
Reportable
Of
interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: J 2653/12
In the matter between:
SAPU
Applicant
and
MINISTER OF SAFETY & SECURITY
First Respondent
NATIONAL COMMISSIONER OF SA POLICE SERVICE N.O.
Second Respondent
Heard
:
12 October 2012
Delivered
:
18 October 2012
Summary:
Urgent application to prevent SAPS from advertising
new posts for security guards. Requirements for interim interdict not
met.
Application dismissed.
JUDGMENT
STEENKAMP J
Introduction
Quis custodiet ipsos custodes?
1
That is the question that arises when the South African Police
Services have to appoint security guards to guard their own police
stations.
The applicant, the South African Police Union (SAPU) applied for an
urgent interim interdict to prevent the SAPS from appointing
anyone
to serve as security guards, “pending consultation between the
parties at the SSSBC
2
in terms of SSSBC resolution 2 of 2009”.
Background facts
The dispute arises from a decision taken by the SAPS pertaining to
the performance of guarding duties at its various premises,
including, ironically enough, police stations.
Until June 2012, the provision of guard duties was performed by a
private security company, which deployed its own employees
at the
premises of the SAPS. There were approximately 4000 private security
guards deployed across the country at the various
premises of the
SAPS. The SAPS also employed directly certain employees as security
guards. These were small in number and supplemented
the services
provided by the private security firm.
The premises that were guarded by the private security guards
included:
police stations;
the national commissioner’s office;
office of the Minister of Police;
buildings containing the IT equipment;
the crime intelligence unit; and
the directorate of priority crimes unit.
In April 2012, SAPU obtained an interim order in this Court on an
urgent basis to interdict the SAPS from deploying or transferring
any SAPS members for the purpose of performing operational duties
(including security duties) without the SAPS members being
assessed
and being in possession of a competency certificate in terms of the
Firearms Control Act.
3
The reason, alarmingly enough, was that a number of SAPS officials
in the North West province were not competent to carry firearms,
yet
they were being deployed as security guards.
During 2012, the SAPS decided to employ directly employees to
perform guard duties at its premises. This was in anticipation
of
the lapsing of the contract between the SAPS and the service
provider to which security duties had been outsourced, which
lapsed
on 30 June 2012. On 20 June 2012 a meeting was held at the SSSBC
between the SAPS and the trade union parties represented
at the
SSSBC. Since there is a dispute as to what was agreed at that
meeting, it is necessary to reproduce the decision in full:
“
Decision
Management
will give feedback to their principals
Labour
agreed to the principle
Management
will start with the implementation process on 1
st
July
2012
Engagements
between Management and Labour will continue on the matter
The
process is jointly owned by Management and Labour
Management
will in the interim develop guidelines”.
The applicant union has contended that at this meeting, it was
agreed that guarding should not be a member’s permanent
post
and that the SAPS would not employ ‘career security guards’.
As the minute of the decision bears out, there was no such agreement
reached at the SSSBC on 20 June 2012. All that was recorded,
was
that Labour (i.e. the trade unions, including SAPU) welcomed “the
principle” that SAPS buildings should be guarded
by “own
personnel”; and that Labour expressed the wish that guarding
should not be a SAPS member’s permanent
post.
Following this meeting, the National Commissioner of the SAPS
approved an operational plan on 28 June 2012. That operational
plan
envisaged the phasing out of private security guards and the
employment of guards by the SAPS in two phases: the first was
a
short term strategy to employ police reservists on a short term
period, while the second entailed the employment, on a permanent
basis, of SAPS reservists as security guards.
On 1 July 2012 the SAPS enlisted reservists to perform guard duties.
The contracts concluded with them were of a short term duration
of
four months. It was envisaged that they would lapse on 31 October
2012, after which they would be replaced by permanent employees.
On 10 July 2012 the SAPS presented the item of security guards at
the SSSBC. The minutes show the following
4
:
“
Management
further indicated that the contracts of external service providers
were terminated on the 30
th
of June 2012. However, they were faced with implementation challenges
due to the shortage of manpower required to perform duties.
Subsequent to that, 3500 trained reservists were deployed to render
guard duties for four months, from July to October 2012 that
they
will be compensated and assisted by permanent members. Further the
Nascom
5
acted within the prescripts that allow her to call reservists on an
ad-hoc basis to perform duties whereby they will be remunerated
for
services rendered which is in line with the regulations.
Management further indicated
that the Nascom instructed that a long term mechanism should be
looked into regarding guard duties
and that a task team has been
established to deal with the matter. Labour will be kept informed of
all developments.
Labour indicated that Management
should clarify if the reservists that are performing guard duties
will still resort under CSC or
has another unit been established and
also the type of duties that were performed prior to the new
arrangement…
Management further indicated
that admin members are not utilised as the duties are operational in
nature and that the bulk of duties
are performed by reservists...
POPRCU indicated that Management
should ensure that the reservists performing guard duties should be
reminded they are only employed
on a four (4) month project and there
should be no expectation of permanent appointment.
…
Decision
Management to keep labour
informed on all new developments.”
Contrary to what Mr
Basson
submitted, the statement that
“admin members are not utilised as the duties are operational
in nature” does not constitute
an undertaking that SAPS would
not employ security guards under the Public Service Act
6
.
It is merely a statement of fact of the situation that pertained at
the time, i.e. that “admin members” (a concept
that was
not defined in the meeting, on the papers or by Mr Basson) were not
being used as security guards at that time.
On 6 August 2012 there was another meeting held at the SSSBC during
which the issue of guard duties was again discussed. At that
meeting, the trade union parties were specifically advised that the
SAPS would employ permanent employees when the contracts
of
reservists expired on 31 October 2012. Management indicated that
more posts would be advertised in future and that the posts
would be
restricted to reservists.
At the meeting of 6 August 2012, the applicant union did not take
issue with any agreement reached on 20 June 2012. Instead,
the
discussion was about eligibility to apply. POPCRU however raised the
concern about SAPS employees being confined to guard
duties. Even
then, POPCRU did not contend that the decision to employ guards was
in conflict with any decision taken on 20 June
2012.
The decision taken at this meeting was simply that feedback would be
provided at a subsequent meeting of the SSSBC. In particular
there
was no agreement:
in terms of which the SAPS’s powers of recruitment were
limited; undertaking that new employees would not be employed
on a
full time basis as guards; or
that the SAPS would first seek an agreement at the SSSBC before
employing the guards – indeed the only decision was to
provide “feedback” at the following meeting of the
SSSBC.
As agreed, the next meeting of the SSSBC was held on 7 September
2012. The SAPS, in fulfilment of an undertaking reached at the
previous meeting of the SSSBC, presented the item of guards for
discussion. A full presentation was made. Several questions were
raised by the trade union parties. Issues that were raised by the
trade unions related to career prospects, salary level, and
implications for existing employees. There was no contention that
the decision was in conflict with any earlier decision, particularly
that of 20 June 2012. It was agreed that there was a disagreement
between the parties. Upon a query from SAPU about an undertaking
that no SAPS officials would be made to perform guard duties on a
permanent basis, the minutes reflect that:
“
Management
indicated that they are still committed to the undertaking and that
Public Service Act employees will fall under a specific
category
within SAPS. Further that they had engagements with Provincial
Commissioners to emphasise that no police officials should
perform
guard duties on a permanent basis.”
The SAPS is now in the process of recruiting employees to take up
the positions of security guards. It submits that there is
urgency
in the filling up of the positions, which must be done by 1 November
2012, simply because key buildings and premises
will be left without
guards if the positions are not filled and the contracts of
reservists are not extended.
Evaluation: the applicable test
Since this is an application for interim relief, it is incumbent
upon the applicant to show a
prima facie
right to the relief
sought, in addition to the other requirements for interim relief.
7
The applicant has argued that its rights that have allegedly been
flouted by the SAPS flow from two sources – resolution
2 of
2009 and an agreement allegedly concluded at the SSSBC on 20 June
2012. The respondents have argued that neither resolution
2 nor the
meeting of 20 June 2012 created any sort of entitlement for the
union and its members. To the extent that the SAPS
had any duty to
consult, they say, such duty was discharged at the four consultative
meetings held between the parties.
The test applicable in respect of interim applications is that
contained in
Webster v Mitchell.
8
The applicant must show:
a
prima facie
right (although open to some doubt) to the
final relief, which will be sought in due course;
an apprehension of irreparable harm, if the application is not
granted and the applicant ultimately establishes his or her
claim;
that the balance of convenience favours it; and
the absence of any other satisfactory remedy.
Prima facie right?
The
prima facie
right to be shown by the applicant is that it
has a right to be consulted and that it has been infringed. First,
it contends that
on 20 June 2012 an agreement was reached at the
SSSBC that employees would not be employed on a permanent basis as
guards. Second,
it argues that resolution 2 of 2009 requires
consultation with the trade union parties before the decision to
employ security
guards can be taken. The relevant clauses of that
resolution provide:
“
Before
the employer implements a position in relation to matters referred to
hereunder, the employer must consult formally with
admitted trade
unions...
Specific matters for
consultation:
Unless the matters for
consultation are regulated by a collective agreement, admitted trade
unions are entitled to prior consultation
by the employer about
proposals relating to the following matters (including but not
limited to):
restructuring;
...
...
changes
in the organisation of work;
procedures
for enlistment / recruitment.”
The applicant has not been able to sustain either of its
contentions:
The minutes of the meeting of 20 June 2012 simply do not bear out
the allegation that there was any agreement on the terms
contended
by the applicant. The minutes simply show that the trade unions
contended that guard duties must not be performed
by employees on a
permanent basis. But it is clear from the minutes that there was no
agreement in this respect. There is therefore
no basis for the
claim that the meeting of 20 June 2012 gives the applicant any
prima facie
entitlement to the relief sought.
Next is the question of resolution 2. This claim is premised on a
misconception that resolution 2 of 2009 applies in the current
circumstances. But on a proper reading of the resolution, it is
quite clear that it does not apply:
The appointment of security guards does not constitute
“restructuring” – no case has been made by the
applicant to show why it is contended that the filling of
vacancies amounts to restructuring. While the term “restructuring”
has not been defined, it must be accepted that it implies an
activity akin to re-organisation of the structures that currently
exist within the SAPS. No case has been made out illustrating that
there will be any changes to the organisational structure
of the
SAPS.
The appointments do not amount to any changes in the organisation
of work for any employees. New employees are being recruited
to
provide guard duties. They are replacing a private security firm.
The existing employees will not be redeployed from their
functions. There will be no changes in the organisation of work of
current employees.
There is also no change to the recruitment procedures. The SAPS
has undertaken that it will follow the existing procedures
for the
appointment of employees when it hires the security guards.
It is therefore clear that resolution 2 is also of no application to
the present facts. The filling of vacancies is within the
prerogative of the employer. That is because the Constitution itself
requires the “control and management” of the
SAPS to be
done by the National Commissioner of the SAPS. Section 207(2) of the
Constitution says:
“
The
National Commissioner must exercise control over and manage the
police service in accordance with the national policing policy
and
the directions of the Cabinet member responsible for policing.”
Mr
Ngcukaitobi
submitted that the peremptory phrase “must
exercise control” is a clear enunciation of the extent of the
powers entrusted
upon the national commissioner. I agree. That power
implies the ability to employ employees to fill vacancies within the
existing
establishment. This power is also confirmed by
section
28(2)
of the
South African Police Service Act, 1995
, which empowers
the national commissioner to fill any vacancies in the fixed
establishment, subject to the Constitution.
There is simply no warrant to restrict the statutory and
constitutional powers of the national commissioner by reference to
resolution 2. In this regard, it is noteworthy that resolution 2
itself draws a distinction between “consultation”
and
“negotiation” – the latter being limited to
matters of mutual interest. Mr
Basson
, for the applicant,
restricted the relief sought to consultation and abandoned a prayer
for negotiation.
The distinction between consultation and negotiation is not without
significance. Resolution 2 lays out the threshold requirements
for
consultation, which are:
“
Before
the employer implements a position … the employer must consult
formally with admitted trade unions. At this time the
employer must
furnish labour with all information pertaining to the matter under
consideration.
The employer must allow admitted
trade unions an opportunity during consultation to make
representations and advance alternative
proposals.
The employer
must consider and respond to the representations or alternative
proposals made by admitted trade unions and if the
employer does not
agree with them, to state reasons for disagreement.”
9
Consistent with the general tenor of resolution 2, it is clear that
the employer is not required to reach agreement with employee
parties when consulting.
In this instance all
the duties imposed by clause 4 of resolution 2 were fulfilled:
The employees were consulted over an extensive period of time –
from June to September 2012;
The information relevant to the decision was communicated to them;
They were allowed to make alternative proposals, which they did;
The SAPS considered the representations, and where it was decided
to reject them, reasons were furnished.
The duty to consult was clearly fulfilled. The applicant contends
that the representatives of the SAPS stated that the meeting
of 7
September 2012 was an “information sharing” meeting.
That may well be. The point is that in substance there
was a full
consultation which met the requirements of resolution 2. A comment
made that the meeting was an information sharing
cannot detract from
the substance of the activity being performed, namely a consultation
meeting concerning the employment of
guards.
The applicant has established no
prima facie
right to the
relief sought. On this ground alone, the application must be
dismissed. Since there is no
prima facie
right, there can be
no threat of a violation of a right. I shall nevertheless consider
the remaining requirements for interim
relief.
Balance of convenience
The balance of convenience does not favour the granting of this
application. It favours its dismissal. The consequences of being
unable to fill the guard positions are profound. They impact on the
public at large since they threaten the security of highly
sensitive
premises and highly sensitive information being stored at such
buildings. It is not for this Court to question why
the SAPS have
not been able to guard its own premises, much less protect the
public; what is plain, is that the public interest
strongly requires
the appointment of guards without delay.
There are also no concrete rights of the applicant or its members
that have been affected as a result of this decision. The decision
will have no impact at all on existing employees. It only affects
potential applicants for the positions. The only issue that
affects
the applicant is compliance with a collective agreement. I have
accepted that there has been full compliance with the
collective
agreements in this matter.
Absence of alternatives
The applicant has argued that it has no alternative but to bring
this application. This claim cannot be sustained. The only issue
of
concern to the applicant is information about the conditions of
employment of the security guards and the impact of the decision
on
existing employees. That issue can be raised at the consultations at
the SSSBC. There is no reason advanced in the papers
before me why
that cannot be done.
It must also be taken into account that four meetings have been held
over this issue. The collective agreement that the applicant
relies
upon does not offer it any substantive rights – it requires
consultation. That duty, if it exists, has been fulfilled.
To the
extent that the applicant believes that there is insufficient
consultation or that it seeks certain specific information,
it can
ask for the information. The SAPS has indicated that the doors for
consultation are not closed.
Conclusion and costs
The present application stands to be dismissed.
I agree with Mr
Ngcukaitobi
that, in view of the following
factors, costs ought to be granted against the applicant, despite
the ongoing relationship between
the parties:
There are no real grounds for urgency. The applicant has known
about the decision it seeks to attack since August 2012, and
the
advertisement it seeks to stop since 5 September 2012. It brought
this application a month later on two days’ notice
to the
respondents.
The decision being challenged has no impact on the rights of any
member of the applicant – the affected employees are
yet to
be employed.
The applicant is fully cognizant of the fact that the consultation
doors are not shut in any topic that it may wish to raise.
Order
The application is dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
JL Basson
Instructed by Van der
Merwe Du Toit, Pretoria.
RESPONDENTS:
Tembeka Ngcukaitobi
I
nstructed
by the State Attorney, Pretoria.
1
"Who
will guard the guards themselves?" - traditionally attributed
to the Roman poet
Juvenal
from his
Satires
(Satire VI, lines 347–8).
2
Safety
and Security Bargaining Council.
3
Act
60 of 2000.
4
Grammar
as in original.
5
Apparently
a reference to the National Commissioner of the SAPS.
6
Act
103 of 1994.
7
Webster
v Mitchell
1948 (1) SA 1186
(W).
8
Footnote
7 above. See also
Setlogelo v Setlogelo
1914 AD 221.
Recently, in
National Treasury and Others v Opposition to Urban
Tolling Alliance and Others
(CCT 38/12)
[2012] ZACC 18
(20
September 2012) the Constitutional Court endorsed the applicability
of the
Setlogelo
test.
9
Resolution
2 of 2009, clause 4.