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[2012] ZALCJHB 134
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SAPU v Minister of Safety and Security and Another (J2653/12) [2012] ZALCJHB 134; [2013] 1 BLLR 60 (LC); (2013) 34 ILJ 1586 (LC) (27 November 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 SAPS
Second Respondent
Delivered
:
27 November 2012
Summary:
Leave to appeal – applicable test.
RULING ON LEAVE TO APPEAL
STEENKAMP J
Introduction
The applicant union brought an urgent application seeking to prevent
the South African Police Services (SAPS) from appointing
security
guards. I dismissed the application on 18 October 2012.
1
The applicant seeks leave to appeal against that judgment.
The applicable test
The applicant submitted that “it is trite” that the test
in considering leave to appeal is –
whether there is a reasonable prospect that another court may come
to a different conclusion to that of the Labour Court (with
reference to
Tsotetsi v Stallion Security (Pty) Ltd
2
);
and
whether the case is of considerable importance, not only to the
parties involved but also to the public at large (with reference
to
GA Motor Winders (East Cape) cc & Another v CCMA &
Others
3
.
Whilst the applicant’s counsel is correct in formulating the
test as outlined in
Tsotetsi
– i.e. whether there is a
reasonable prospect that another court may come to a different
conclusion – I doubt that
the test adopted in
GA Motor
Winders
survived the judgment of the Supreme Court of Appeal in
NUMSA v Fry’s Metals (Pty) Ltd
4
.
The decision in
GA Motor Winders
was based on the premise
that the LAC is the final court of appeal in all labour matters. But
in
Fry’s Metals
, the SCA held:
“
We
conclude that the Constitution vests this court with power to hear
appeals from the LAC in both constitutional and non-constitutional
matters, and that the provisions of the LRA that confer final
appellate power on the LAC must be read subject to the appellate
hierarchy created by the Constitution itself. This follows from the
subordination to the Constitution that the LRA itself mandates.
It
does not entail that any provisions of the LRA are unconstitutional
any more than the recognition of the appellate jurisdiction
of the CC
and of this court in constitutional matters required a finding of
unconstitutionality.”
Importantly, the court in
Fry’s Metals
5
went on to state:
“
We
therefore hold, exercising this court’s constitutional power to
protect and regulate its own process, that applications
for leave to
appeal from the LAC must be on petition to this court, in accordance
with the existing application procedure from
the High Court. We hold
further that applicants must show not merely that the appeal has
reasonable prospects of success, but that
there are special
considerations why, having already had an appeal before a specialist
tribunal, there should be a further appeal
to this court.”
Subsequent to that finding, it appears to me that the public
interest element is only relevant in applications for special leave,
such as appeals from the Labour Court to the Supreme Court of
Appeal. That appraoach was recently confirmed by the SCA in
FAWU
obo Mbatha & others v Pioneer Foods (Pty) Ltd t/a Sasko Milling
and Baking & others.
6
Grounds for appeal
The applicant raises three grounds for leave to appeal:
That the court was mistaken in coming to the conclusion that there
was no agreement that SAPS would not employ career security
guards.
That the appointment of security guards amounted to “restructuring”
and that the collective agreement 2 of 2009
applies.
That the court erred in finding that the duty to consult had been
fulfilled.
I shall deal with each of these grounds.
The “agreement” of 20 June 2012
The minutes of the meeting of 20 June 2012 do not bear out the
applicant’s contention that there was an agreement that
the
SAPS “would not employ career security guards”.
At that meeting, management indicated that “guard duties
should not be outsourced anymore at police buildings”. After
a
caucus, labour “indicated that they understand and welcome the
principle however the period between now and implementation
is too
short”. Labour also expressed the opinion that “guarding
should not be a member’s permanent post”.
This clearly
referred to a SAPS member, and not the recruitment of new personnel
under the Public Service Act.
The only “decision” reflected in the minutes is the
following:
Management will give feedback to their principles.
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 the guidelines.
There was no decision that SAPS is precluded from recruiting and
appointing security guards. There is no reasonable prospect
that
another court could come to a different conclusion.
Does the decision amount to restructuring?
The applicant submits that the court should have found that
“restructuring” occurred, thus triggering the provisions
of SSSBC agreement 2 of 2009.
The applicant now argues, in its submissions for leave to appeal,
that “restructuring” includes the process of moving
from
the “outsourcing” to the “insourcing” of
security guards. In its founding affidavit, though, it
stated that
it was entitled to be consulted over the “recruitment”
of security guards and that this amounted to restructuring.
Firstly,
there is no prospect that another court would find that the
recruitment of new personnel amounts to “restructuring”
in circumstances where no existing jobs are threatened or affected.
Secondly, the unions (including the applicant) expressly
accepted
the principle of moving from outsourcing to “insourcing”
at the meeting of 20 June 2012.
Duty to consult fulfilled?
The applicant accepted that, at most, SAPS had to consult it. It
abandoned the argument that SAPS had to negotiate with it. The
difference is significant. There was no duty on SAPS to reach
agreement with the unions.
SAPS did consult with the unions, including the applicant. The
parties met over a period of four months to discuss the recruitment
issue. SAPS disclosed all relevant information to the unions. The
applicant made proposals and SAPS considered them. The duty
to
consult (and not to negotiate to agreement) was fulfilled.
There is no reasonable prospect that another court will come to a
different conclusion on this point.
Balance of convenience
The balance of convenience did not favour the applicant. It is
imperative for SAPS to fill the guard positions as soon as possible.
The failure to do so impacts on the South African public at large.
On the other hand, no existing rights of the applicant’s
members are affected.
Conclusion
There is no reasonable prospect that another court will come to a
different conclusion on any of the grounds raised. The applicant
approached the court on an urgent basis. It is in the public
interest that the matter now be brought to finality without further
delay.
Order
The application for leave to appeal is dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
JL Basson
Instructed by Van der
Merwe Du Toit Inc, Pretoria.
RESPONDENTS:
T Ngcukaitobi
Instructed by the State
Attorney, Pretoria.
1
[2012]
ZALCJHB 118.
2
(2009)
30
ILJ
2802 (LC) para [14].
3
(1999)
20
ILJ
1802 (LC) para [3].
4
(2005)
26
ILJ
689 (SCA);
[2005] 5 BLLR 430
(SCA) para [16].
5
Supra
para [42].
6
(2011)
32
ILJ
2918 (SCA) paras [19] – [.