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[2012] ZALCCT 2
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Booysen v Minister of Safety and Security and Others, Petros NO v Joubert NO and Others (C 60/08, C 307/09) [2012] ZALCCT 2; [2012] 5 BLLR 446 (LC); (2012) 33 ILJ 1132 (LC) (25 January 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C 60/08; 307/09
C 60/08
In the matter between:
RIAAN
BOOYSEN
............................................................................
Applicant
and
MINISTER
OF SAFETY & SECURITY
…..............................
First
respondent
NATIONAL
COMMISSIONER OF SAPS
….....................
Second
respondent
PROVINCIAL
COMMISSIONER OF SAPS
….....................
Third
respondent
SOUTH
AFRICAN POLICE SERVICES
…........................
Fourth
respondent
COMISSIONER YVONNE BADI N.O.
…...............................
Fifth
respondent
C 307/09
PROVINCIAL
COMMISSIONER M PETROS N.O.
….......................
Applicant
and
DIRECTOR
D JOUBERT N.O.
…..........................................
First
respondent
RIAAN
BOOYSEN
….......................................................
Second
respondent
__________________________________________________________
Heard
:
30 November 2011
Delivered
:
25 January 2012
Summary:
Legality review in terms of LRA s 158(1)(h) –
review of decision by chairperson of disciplinary hearing refusing
postponement
of hearing where police officer suffering from
post-traumatic stress disorder – review of decision by SAPS
appeals authority
overturning that decision.
judgment
STEENKAMP J
Introduction
In July 2007, the South African Police Services (“SAPS”)
alleged that Commissioner Riaan Booysen (“Booysen”)
had
committed fraud, corruption and perjury in the scope of his duties
as a police officer. Four and a half years later, those
allegations
have not been tested. During that period, the dispute between the
parties has been the subject of a part-heard disciplinary
hearing
that had been postponed 12 times; an internal appeal; two unfair
labour practice arbitrations before the Safety and Security
Sectoral
Bargaining Council; three urgent applications before this Court; an
urgent application in the High Court; and an appeal
to the Labour
Appeal Court. This Court is not called upon to decide on the merits
of the allegations against Booysen, but merely
whether the
disciplinary hearing should now – four and a half years later
– proceed.
The reason for these delays are mainly to be ascribed to the fact
that five psychiatrists and psychologists have all agreed that
Booysen suffers from post traumatic stress disorder (“PTSD”)
and major depressive disorder. They all agreed that
he is unfit for
duties as a police officer and should be medically boarded. Where
they differ, to a greater or lesser extent,
is whether he is fit to
withstand the rigours of a disciplinary hearing; and if so, when it
could continue.
The disciplinary hearing was initially convened on 31 October 2007
before SAPS Commissioner Yvonne Badi (“Badi”).
After a
number of interventions that will be discussed more fully later, she
ruled that Booysen was fit to continue with the
hearing. That ruling
was challenged in an urgent application before Cheadle AJ in this
Court on 12 February 2008 under case number
C 60/2008. Cheadle AJ
ruled that the Labour Court did not have jurisdiction to hear the
application.
1
That decision was overturned on appeal
2
on 1 October 2010 and referred back to this Court for a hearing on
the merits. In the interim, Booysen had been dismissed in
terms of
the deeming provision in Regulation 18(5)(a)(ii) of the SAPS
Regulations
3
(“the Regulations”). He lodged an internal appeal that
was chaired by Director D Joubert (“Joubert”).
Joubert
overturned Badi’s decision.
SAPS, purportedly represented by Provincial Commissioner Mzwandile
Petros, has applied to this Court under case number C 307/2009
to
review and set aside the Joubert decision. Booysen persists in his
application under case number C 60/2008. Although no longer
urgent,
Booysen seeks to have the ruling by Commissioner Badi that he was
fit to participate in the hearing; and her subsequent
ruling that he
is deemed to have been discharged, reviewed and set aside. These two
applications have been consolidated (by Lagrange
J on 21 October
2011) and both applications were argued before me on 30 November
2011.
For the sake of convenience, I shall refer to the applicant in C
60/2008 (the second respondent in C 307/2009) as “Booysen”;
and to the applicant in C 307/2009 and the respondents in C 60/2008
as “SAPS”, except where an individual (such as
Commissioners Petros or Badi) need to be identified by name. Adv
Robert
Stelzner
SC appeared for Booysen and Adv Norman
Arendse
SC appeared for SAPS in these proceedings and in most
of the preceding court proceedings.
4
Background facts
On 11 July 2007, SAPS served a notice on Booysen to attend a
disciplinary hearing on 3 August 2007. SAPS alleged that Booysen
had
committed misconduct comprising fraud, corruption and perjury.
The alleged misconduct arises from two incidents in which Booysen
had allegedly paid two informers (from SAPS coffers) who had
not
been registered as such. SAPS formulated seven charges arising from
these incidents, viz:
Fraud in respect of informer claims for the amounts of R20 000,
00 and R15 000, 00 respectively;
Failure to comply with SAPS National Instruction 2/2001 in respect
of the registration and finances of informers;
Wilful or negligent mismanagement of state finances;
Prejudicing the administration, discipline or efficiency of a state
department, office or institution;
Failure to carry out a lawful order or routine instruction without
just or reasonable cause;
Giving a false statement of evidence in the execution of his
duties; and
Committing a common law and statutory offence, namely fraud.
The allegations arose from a report by Supt Pieter Viljoen, who had
been appointed to conduct the investigation in March 2007.
Booysen
had been on sick leave from 16 February 2007 because of major
depressive disorder and post traumatic stress disorder
(PTSD).
Booysen was allowed legal representation at the disciplinary
hearing. Due to his legal representative, attorney Edmund Booth,
being abroad on 3 August 2007, the hearing was postponed to 31
October 2007.
The hearing was to be conducted in terms of the South African Police
Service Discipline Regulations, 2006
5
(“the regulations”). The regulations are based on a
collective agreement between SAPS (represented by the National
Commissioner) and all the unions admitted to the Safety and Security
Bargaining Council (SSSBC). The regulations prescribe a
disciplinary
process that is far removed from the simple procedures envisaged by
the Labour Relations Act
6
and is more akin to a criminal trial; but that is the collective
agreement that the parties entered into and, unless and until
it is
amended, they must abide by it.
In terms of regulation 13(2):
“
The
National or the Provincial or Divisional Commissioner (the
Commissioner) may suspend the
employee without remuneration, if the
Commissioner on reasonable
grounds, is satisfied that the misconduct
which the employee is alleged to
have committed, is misconduct as
described in Annexure
A
and
that the case against the employee is so
strong that it is likely that
the employee will be convicted
of
a crime and
be dismissed.”
The offences listed in that
annexure includes fraud.
On 4 September 2007, the Provincial Commissioner of SAPS suspended
Booysen without pay with effect from 31 August 2007. Booysen
referred an unfair labour practice dispute to the Bargaining Council
and launched an urgent application in this Court (under
case number
C489/07) to compel SAPS to continue paying him his remuneration and
other benefits pending the decision of the Bargaining
Council. The
parties agreed that an order be granted to this effect; and on 22
November 2007 that order was further extended
to January 2008.
The disciplinary hearing commenced on 31 October 2007. Despite the
fact that Booysen was suffering from PTSD, it continued until
2
November 2007.
On the third day of the hearing, 2 November 2007, while a witness
was being cross-examined, Booysen experienced a “flashback”.
Booysen was reminded of previous traumatic incidents that he had
experienced in criminal investigations and that led to his PTSD.
The
hearing was postponed to 3 December 2007 and Booysen was
hospitalised. It was then further postponed to 8 January 2008.
On that day, Badi was informed that, in terms of the court order of
22 November 2007
7
,
she had to decide on Booysen’s medical fitness to attend the
hearing. The hearing was rescheduled to 16 January 2008 to
enable
one of the psychiatrists, Dr Teggin, to re-examine Booysen on 14
January 2008.
On 16 January 2008, after having heard the medical evidence of four
practitioners, Badi requested a further medical report by
an
independent expert appointed by the South African Society of
Psychiatrists, Prof DJH Niehaus. The hearing was adjourned to
6
February 2008.
On 5 February 2008, Nieuwoudt AJ made the following order in respect
of the urgent application heard in this Court on 31 January
2008
8
:
The decision by the employer (SAPS) on 31 August 2007 to suspend
the employee (Booysen) without remuneration is varied to the
extent
that the continuation of the employee’s membership of Polmed
9
and the funding of his employer and employee contributions to
Polmed are excluded from the decision;
The employer is directed to continue to fund the employer and
employee contributions in respect of the employee to Polmed.
The order was to operate until determination of the suspension
dispute by the Bargaining Council.
On 6 February 2008 Badi ruled that, despite his major depressive
disorder and PTSD, Booysen’s concentration and memory
was not
so impaired as to hinder or restrict his participation in the
disciplinary hearing. She ruled that the hearing would
commence,
with Booysen in attendance, on 13 February 2008.
On 12 February 2008 Booysen launched the urgent application under
case number C60/08 that was heard before Cheadle AJ. Booysen
sought
to have the disciplinary hearing postponed pending the Court’s
decision to review and set aside Badi’s ruling
of 6 February
2008.
Cheadle AJ, in an
ex tempore
judgment, ruled that this Court
had no jurisdiction to hear the application. He provided further
written reasons on 14 February
2008. SAPS appealed and the Labour
Appeal Court eventually overturned the judgment on 1 October 2010.
It is on the strength of
that LAC judgment that the review
application of Badi’s ruling (under case number C60/08) was
argued before me in November
2011.
In the interim, matters developed further at the workplace. On 12
May 2008 the Bargaining Council (commissioner Bill Maritz)
determined that Booysen’s suspension without pay beyond the 90
day period stipulated by regulation 13(2)(d) was an unfair
labour
practice. SAPS reinstated Booysen’s salary and benefits from 6
February 2008.
However, at the next day scheduled for the continuation of the
disciplinary hearing, 2 June 2008, Badi invoked regulation
18(5)(a)(i)
to suspend Booysen without remuneration again, because
he was not personally in attendance. Regulation 18(5) reads:
(a) In the event that the
employee fails to appear at the disciplinary
hearing on any date to which the
disciplinary hearing has been
postponed, or a date to which it
was postponed in terms of
subregulation (3)
-
(i) the employee shall, from the
date of such failure to appear
or remain in attendance, be
deemed to be suspended
without remuneration; and
(ii) the chairperson must
postpone the disciplinary hearing
indefinitely, and the
disciplinary hearing shall only
reconvene at the instance of the
employee concerned, after
liaising with the
employer
representative,
as contemplated
in subregulation (l)(b):
Provided that in the event that the
employee fails to take steps to
reconvene the hearing
within two (2) months of such
date, the chairperson must
record such failure on the
record of the disciplinary hearing,
and the employee shall forthwith
be deemed to be
discharged from the Service in
terms of regulation 15(1)(e).
(b) In the event of a hearing
being reconvened in terms of
subregulation (5)(a)(ii) the
chairperson must summarily inquire into
the reasons for the employee’s
failure to appear or remain in
attendance at the disciplinary
hearing and confirm or set aside the
suspension as contemplated in
subregulation (5)(a)(i).
(e) Notwithstanding paragraphs
(a) and (b), the chairperson may, on
good cause shown, at any time
set aside a suspension
contemplated in subregulation
(5)(a)(i).
(d) Notwithstanding paragraphs
(a) and (b), the chairperson may,
upon good cause shown, decide
that the employee must not be
suspended and that the hearing
be postponed to a later date.
Booysen referred another dispute to the Bargaining Council, alleging
that this suspension was an unfair labour practice. On 1
August 2008
the legal representatives for Booysen (Messrs Stelzner SC and Booth)
and SAPS (Messrs Arendse SC and Joseph, and
Ms Bailey) had a
pre-arbitration meeting. Mr Booth tendered to represent Booysen at
the disciplinary hearing in his absence “with
reservation of
his rights”.
Booth took steps to continue with the disciplinary hearing before
the expiry of the 60 day period referred to in regulation
18(5)(a)(ii). It was scheduled to continue on 12 August 2008. At the
hearing, Booth asked Badi to revisit her decision of 6 February
2008
that Booysen was fit to attend the hearing. She refused. Booth then
brought an application for the hearing to continue in
Booysen’s
absence. He explained that he would cross-examine the witnesses for
SAPS on the instructions he had previously
received from Booysen;
and that he would lead Booysen’s case by way of an affidavit
that Booysen had previously deposed
to and, if necessary, by leading
further witnesses. Badi initially ruled that the hearing would
continue at 14h00 the same day
in Booysen’s absence, after the
parties’ legal representatives had agreed in writing as to the
process. However,
the parties could not agree. Badi then ruled that
the hearing had not been “reconvened” and that Booysen
was deemed
to be discharged in terms of regulation 18(5)(a)(ii). The
record of the disciplinary hearing confirms that Booysen was
dismissed
in terms of that regulation.
Booysen lodged an internal appeal against Badi’s decision of
12 August 2008. He also referred an unfair dismissal dispute
to the
Bargaining Council. On 11 September 2008 the state attorney (Ms
Colleen Bailey), on behalf of SAPS, confirmed in a letter
to Booth
that:
“
[Y]our
client is entitled to appeal his dismissal in accordance with
Regulations 17(3) and (4) of the prevailing Regulations for
the South
African Police Service (2006)”.
Director Joubert, as the appeals authority, upheld the internal
appeal on 27 February 2009. It is that decision that SAPS wishes
to
have reviewed and set aside under case number C 307/2009.
The Badi rulings
To summarise: Booysen seeks to have Badi’s rulings of 6
February 2008 and 12 August 2008 reviewed and set aside. The ruling
of 6 February was to the effect that Booysen was fit to continue
with the disciplinary hearing or, as she put it, “fit
to stand
trial”. The ruling of 12 August was to the effect that Booysen
was deemed to have been discharged in terms of
regulation
18(5)(a)(ii).
The Joubert ruling
SAPS seeks to have Joubert’s ruling – in his capacity as
its appeals authority – overturning Badi’s ruling
reviewed and set aside. The effect of Joubert’s ruling is that
Booysen is reinstated. He found that Badi erred in her finding
of 6
February 2008 that Booysen was “fit to stand his trial”;
the ruling of 12 August 2008 that Booysen was deemed
to be
dismissed, followed on the ruling of 6 February. In upholding
Booysen’s appeal, therefore, it appears – even
though it
is not spelt out – that SAPS should have reinstated Booysen.
It did not do so and instead brought the application
to review the
Joubert decision under case number C307/2009.
Legal principles: legality
Both applications for review are argued on the grounds of legality
in terms of s 158(1)(h) of the Labour Relations Act.
10
Neither is an application to review an arbitration award in terms of
s 145, ie the type of review that this Court customarily
deals with.
In
National Commissioner of Police & another v Harri NO &
others
11
I considered the effect of the Constitutional Court decisions in
Chirwa
12
and
Gcaba
13
on reviews in terms of this section in some detail. I do not propose
to reiterate those principles here. Suffice it to say that,
anomalous as it may seem, I remain bound by the decision of the
Supreme Court of Appeal in
Ntshangase v MEC for Finance,
KwaZulu-Natal & another.
14
The actions of Badi and Joubert qualify as administrative action.
That being so, it must be lawful, reasonable and procedurally
fair.
The test to be applied on review remains that outlined in
Sidumo
,
ie whether the decisions of Badi and Joubert were so unreasonable
that no reasonable decision maker could have come to the same
conclusion. That much appears from the SCA judgment in
Ntshangase.
15
The point of departure: Badi or Joubert?
Booysen seeks to have the two rulings by Badi – relating to
the continuation of the disciplinary hearing on 6 February
2008 and
his dismissal by virtue of regulation 18(5)(a)(ii) on 12 August 2008
– reviewed and set aside. SAPS seeks to have
the appeal ruling
by its appeals authority i.e. Joubert - overturning Badi’s
decision, reviewed and set aside. If Badi’s
rulings are
reviewed and set aside, Joubert’s decision on appeal becomes
moot. And if Joubert’s decision on appeal
is upheld, the Badi
review becomes moot, as her decision of 6 February (and the
consequent deemed dismissal on 12 August 2008)
fall away.
It appears to me to be the most sensible course of action to start
at the end. Booysen has resorted to the internal appeal process
of
the SAPS. If the decision of the appeals authority is reviewable,
the question remains whether Badi’s rulings are open
to
review. But if the decision of the appeals authority is reasonable,
caedit questio.
The Badi rulings fall away; Booysen is
reinstated; and another chairperson would have to decide whether he
is now, some four
years after her initial ruling, able to attend a
disciplinary hearing.
The expert evidence
The expert evidence submitted to the disciplinary hearing and
considered by Badi and Joubert is important in order to form a
view
of the reasonableness of Badi’s ruling on 6 February 2008 and
the subsequent events.
Booysen submitted the evidence of two expert witnesses: Dr EP
Vorster, his attending psychiatrist; and Prof PP Oosthuizen, an
independent psychiatrist and academic from the University of
Stellenbosch. Both of them submitted written reports and gave oral
evidence.
SAPS submitted written reports by Mr L Loebenstein, a psychologist;
and Dr A Teggin, a psychiatrist. Teggin also gave oral evidence.
Badi called for a further independent expert to consult with Booysen
and to present her with his findings. The chairperson of
the South
African Society of Psychiatrists appointed Prof DJH Niehaus of the
University of Stellenbosch.
All of the experts are
ad idem
that Booysen suffers from
major depressive disorder and PTSD, i.e. there is no suggestion that
he is malingering or faking his
condition. They also unanimously
recommended that Booysen should be medically boarded.
16
Where they part ways, is whether and to what extent he is able to
withstand the rigours of a disciplinary hearing.
17
Vorster, Oosthuizen and Niehaus (the independent expert appointed at
Badi’s behest) all agreed that Booysen could not be
subjected
to a continued disciplinary hearing. Their views were influenced by
initial consultations with him as well as the event
on 2 November
2007 at the initial stages of the hearing when Booysen suffered a
major relapse and flashbacks brought about by
the evidence of a
witness that caused him to recall some of the traumatic events that
caused his condition in the first place.
This necessitated his
hospitalisation.
Dr Vorster was of the view that Booysen was medically unfit to
attend a hearing for an indefinite period of time. This was because
the hearing itself would generate further anxiety and tension; and
that Booysen would be reminded directly or indirectly of past
traumatic experiences that would impair the healing process.
Prof Oosthuizen was of the opinion that Booysen’s experience
of anxiety would be ongoing and would affect his concentration,
attention and memory; and that there was a pertinent risk of
suicide. He was of the view that Booysen would be able to recover
to
the extent where he would be able to participate in a hearing at a
later stage.
Loebenstein, and initially Teggin, were of the view that Booysen
could participate in a disciplinary hearing, provided that the
inquiry –
was not “inquisitorial”;
was not one in which Booysen was required to give evidence;
was not one in which he would be subjected to harsh
cross-examination;
would not induce flashbacks or further panic attacks.
At the continuation of the hearing on 6 January 2008, though, Teggin
testified that he was now of the view that Booysen could
participate
in the hearing. Having initially noted in his consultation notes and
in his report of October 2007 – confirmed
in a joint report
with Loebenstein in November 2007 - that Booysen’s
concentration was impaired, he now stated that he
had “found
no evidence of concentration impairment or memory impairment”.
He further testified that he had come to
this conclusion without
having performed any of the standard – and rather simple –
tests that Vorster and Oosthuizen
had recommended and used.
During his cross-examination on 6 January Teggin suggested that a
joint report by him and Oosthuizen – for whom he had
high
regard – would be useful. Oosthuizen was also prepared to do
so. However, SAPS objected, stating that Teggin “was
originally requested by the state and on behalf of the state to
bring out a report” and that “this is our witness”.
The hearing was nevertheless adjourned to enable Teggin to consult
with Booysen again and to produce a further report. Badi also
requested a report from an independent psychiatrist, consequent to
which Niehaus was appointed, consulted with Booysen and produced
his
own report.
At the resumption on 16 January 2008, Teggin produced a third
report, having consulted with Booysen again on 14 January. He formed
the opinion that Booysen’s psychiatric condition had improved,
largely due to the correct dosage of medication. He was
of the view
that “Booysen’s condition has plateaued and that little
further in the way of symptom improvement can
be expected in the
future”. He came to the conclusion that Boysen was medically
fit to attend the disciplinary hearing.
Both Oosthuizen and the independent expert requested by Badi, Prof
Niehaus, strongly disagreed.
Niehaus gave evidence on 6 February 2008, having consulted with
Booysen on 1 February. He agreed with Teggin that “...many
people with psychiatric disorders are able to attend and defend
themselves (advise their legal team) despite the psychiatric
symptoms.” He also agreed that a speedy conclusion to the
dispute between the parties would benefit Booysen’s general
well-being. However, he pointed out that, in addition to the impact
on the proceedings of the emotional liability and anger outburst
associated with PTSD, further issues arose:
Re-living of the events with associated stress response. Niehaus
disagreed with Teggin that it would be possible to conduct
the
hearing in a safe environment, as Booysen’s trigger events
are closely linked with the potential witnesses and presiding
officer in the case.
Siginificant concentration difficulties demonstrated during his
assessment of Booysen.
In summary, Niehaus was of the opinion that Booysen’s
condition was of a marked degree and impairs his ability to partake
fully in the hearing.
Badi, however, came to the conclusion that Booysen was fit to
participate in the hearing. It is that decision that was overturned
by Joubert in the internal appeal.
Is Joubert open to review?
Before considering the merits of the Joubert review, I need to
consider two preliminary points relating to that application.
The
first is that the application was filed late and that SAPS
(purportedly represented by Commissioner Petros) seeks condonation.
The second is that Booysen takes issue with Petros’s authority
to bring the application.
Condonation
The affidavit filed by Commissioner Petros and the application for
review in case number 307/2009 was brought out of time. The
date of
the finding on appeal by Joubert is 27 February 2009. The review
application was delivered on 8 May 2009. Petros says
the decision of
the appeals authority was only “shown to him” after 2
March 2009. He states so in the passive voice,
thus avoiding having
to identify the person who allegedly showed it to him. (He also does
not attach a confirmatory affidavit
by that unnamed person). He
further sets out a number of consultations between him, the state
attorney and counsel over the following
two months and alleges that
there were “problems obtaining the record of proceedings
before the appeals authority”,
although this is hearsay.
These reasons are neither good nor sufficiently explained. However,
given the length of time this matter has taken to reach a
hearing on
the merits of Badi’s decision – and hence the decision
of the appeals authority – some of which
may be attributable
to systemic delays, I believe it is in the interests of justice to
decide on the matter after having fully
considered all the evidence
and arguments – all in all comprising some 1600 pages --
before me. In these circumstances
condonation for the late filing of
Booysen’s answering affidavit is similarly condoned.
The same applies to the replying affidavit, that was filed some 20
days late; and the heads of argument filed by counsel for
SAPS,
instructed by the state attorney. I pause only to note that it is an
unhappily frequent occurrence in this Court that the
state attorney
pays scant regard to the rules relating to time limits and is all
too often quite prepared to accept an adverse
costs order, safe in
the knowledge that the taxpayer will foot the bill.
Condonation for the late filing of the founding and replying
affidavits and the heads of argument for SAPS; and of Booysen’s
answering affidavit is granted. Costs will follow the result.
Locus standi
Booysen takes issue with the authority of Commissioner Mzwandile
Petros, then Western Cape Provincial Commissioner of SAPS, to
bring
the application in the Joubert review (case number C 307/2009).
The applicant in that review application is cited as “Provincial
Commissioner M Petros N.O.”. The deponent to the
founding
affidavit, Commissioner Petros, states that:
‘
I am
the Provincial Commissioner of the Western Cape province, a Member of
the Service established by
s 5(1)
of the
South African Police Service
Act 68 of 1995
, as amended (“the SAPS Act”), having been
appointed by the National Commissioner in terms of s 6(2) of the SAPS
Act.
My offices are at 25 Alfred Street, Green Point, Western Cape.
I bring this application both in
my official capacity (
nomine officio
) as Provincial
Commissioner, and in a representative capacity (duly authorised) on
behalf of the employer, the National Commissioner
and the South
African Police Service (“SAPS”).’
Petros further alleges that he is duly authorised by the “employer”
as contemplated in the regulations to perform
any function in terms
of the regulations on behalf of, and in the name of, the National
Commissioner insofar as it relates to
members of SAPS employed in
the Western Cape.
Booysen challenged Petros’s authority in his answering
affidavit. He pointed out that SAPS had not been cited as a party;
that there is no confirmatory affidavit by the National
Commissioner; and invited Petros to prove his authority to act on
behalf
of SAPS. Petros did not do so in reply. Instead, he alleged:
“
The
newly appointed National Commissioner, Mr Bheki Cele, has been
briefed by the SAPS’ legal advisers on this matter, and
he has
authorised me to continue representing him, and his office, in these
proceedings. He supports the application. The relevant
written
authorisation will follow in due course.”
Despite this assertion, Commissioner Cele did not file a
confirmatory affidavit. Petros deposed to the replying affidavit on
23 September 2009. The application was heard more than two years
later. To date, the “written authorisation” that
was
foreshadowed in the replying affidavit and that would – so
Petros stated under oath – “follow in due course”,
has not been presented to the Court.
In the heads of argument filed by messrs
Arendse
and
Joseph
on 15 April 2011, they stated that:
“
Once
the authority of a departmental officer to represent the State is
challenged, it is incumbent upon the State to produce proof
that such
office is duly delegated, directed and authorised to represent it in
the proceedings.
In the circumstances, the
relevant written authorisation will be produced at the hearing of
this matter in due course, confirming
the deponent’s authority
to institute and prosecute this review.”
This was not done in the subsequent seven months before the matter
was heard; at the hearing on 30 November 2011; or at any stage
thereafter prior to this judgment being handed down.
In terms of the regulations, ‘appeals authority’ means a
person or persons appointed by the National Commissioner
to consider
appeals and ‘employer’ means the National Commissioner
or any person delegated by him or her to perform
any function in
terms of the regulations.
The regulations do not provide for the delegation of the authority
to appoint the appeals authority. It seems to me to follow
that, if
only the National Commissioner can appoint the appeals authority, it
is only the National Commissioner that can have
the authority to
take that authority on review, as expressed by the maxim
delegatus
delegare non potest.
In the face of Petros’s failure to provide any delegation of
authority for him to bring the application for the Joubert
review,
despite the pertinent challenge – and subsequent promise –
to do so, the application by Petros under case
number C 307/2009
should be dismissed on this ground alone.
I shall nevertheless deal with the merits of that application in an
effort to bring this matter to finality.
Merits of the Joubert review
Booysen appealed the Badi rulings of 6 February, 2 June and 12
August 2008 internally in terms of the regulations. These rulings
were, respectively, that:
Booysen was fit to participate in the disciplinary hearing;
He was deemed to be suspended without remuneration in terms of
regulation 18(5)(a)(i); and
He was dismissed in terms of regulation 18(5)(a)(ii).
Regulation 17 establishes the appeals authority, comprising a person
or persons appointed by the National Commissioner to consider
appeals or, as in this case, a specific appeal. In this case,
Director Joubert was appointed as the appeals authority.
In terms of regulation 17(3) an employee may appeal a finding or
sanction. Regulation 17(4) stipulates that the appeals authority
must consider the appeal and, in the event that he decides that a
hearing is required, he must notify the appellant of the date
and
place of the hearing.
It is clear from regulation 17(4) that a hearing is not compulsory
and that the appeals authority may decide the appeal without
a
hearing. He may uphold the appeal, reduce any sanction imposed, or
dismiss the appeal. In this case, Joubert upheld the appeal.
Mr
Arendse
submitted that Joubert was obliged to convene a
hearing; that he did not do so; and that SAPS was not given an
opportunity to
be heard.
Firstly, I cannot agree with the initial contention. Even though a
hearing is often required or held in internal appeals, regulation
17(4) could not be clearer – the appeals authority has a
discretion to convene a hearing or not. That regulation forms
part
of a collective agreement and the parties are bound by it.
But in any event, as I pointed out to Mr
Arendse
during oral
argument, it appears from the papers that the employer was given an
opportunity to be heard.
Badi evidently submitted a document to the appeals authority with
the heading:
“
Appeal
in respect of disciplinary hearing: No 0406298-1 Director R Booysen:
PC 511/2007.
Reasons for judgement [
sic
]
in terms of regulation 16(1) of the SAPS Discipline Regulations, 2006
for consideration by the Provincial Commissioner –
Western
Cape.”
In this document, Badi sets out her reasons for each of the rulings
that formed the subject of the appeal, ie those of 6 February,
2
June and 12 August 2008.
In his decision on appeal dated 27 February 2009, Joubert quotes the
full reasons supplied by Badi verbatim under the heading,
“Chairperson’s response to the grounds of appeal”.
It is thus clear – contrary to Mr
Arendse
’s
further submission – that the appeals authority did consider
those submissions.
It is further noteworthy that, in case number C60/08, Badi deposed
to an affidavit in her official capacity “and also on
behalf
of the other respondents” – that is, the Minister of
Safety and Security; the National Commissioner; the Provincial
Commissioner; and SAPS. She places herself squarely in the
employer’s camp and it does not lie in the mouth of SAPS to
say it was not given an opportunity to be heard by Joubert when he
clearly considered Badi’s response to Booysen’s
grounds
of appeal that she placed before him.
SAPS further contended that Joubert did not have jurisdiction to
consider the appeal. Its reasoning is that Booysen was “dismissed
by operation of law” by reason of regulation 18(5)(a)(ii)
after Badi had ruled that the hearing had not been reconvened.
The flaw in this argument is evident from its very premise. As
counsel for SAPS submitted in their heads of argument, Badi
ruled
that the hearing had not reconvened; on the premise of that ruling,
she made the further ruling that Booysen was deemed to be
dismissed
in terms of regulation 15(1)(e), as she clearly states in her
reasons submitted to the appeals authority. It is thus
clear that,
in her own mind, Badi had no doubt that she had imposed a sanction
of dismissal in terms of regulation 15(1)(e).
That decision in itself was premised on Badi’s ruling that the
disciplinary hearing had not “reconvened” on
12 August
2008. As she states in her reasons to the appeals authority:
“
Reconvening
meant that the appellant had to appear personally before the
chairperson in order for the hearing to proceed. I rejected
the
proposal that we proceed in his absence as requested by Mr Booth. In
the absence of Dir Booysen at the hearing I decided that
we had not
reconvened according to the Regulations and as a result thereof I
involved [
sic
]
the provisions of Regulation 15(1)(e).”
This reasoning is not borne out by the wording of the regulation.
The regulation envisages that the employee must “take
steps to
reconvene the hearing” within two months of a postponement.
The employee has a right to be represented and, in
this case, SAPS
allowed him to use a legal representative, Mr Booth. Booth ensured
that the hearing was reconvened within the
requisite time period.
Given his client’s medical condition, he made a reasonable, if
not ideal, proposal – ie that
he would continue to represent
Booysen, cross-examine SAPS’ witnesses, lead the evidence of
witnesses other than Booysen,
and submit Boysen’s earlier
affidavit into evidence. I fail to see how a reasonable chairperson
could not have considered
this an attempt to – or steps to –
reconvene the hearing on behalf of the employee.
Having considered the grounds of appeal and Badi’s response
thereto, Joubert correctly pointed out that the appeal was
not about
the merits of the alleged misconduct. The first question, he said,
was whether Badi made the correct decision when
she made the ruling
that Booysen was “fit to stand this trial”.
Joubert considered the medical evidence that was led before Badi. He
concluded that she erred in her finding that Booysen was
fit to
continue with the hearing.
In doing so, Joubert used the terminology of evidence being “more
probably true” on a balance of probabilities, rather
than
simply assessing the weight of the medical evidence. In doing so, he
did not, strictly speaking, use the correct legal test.
But does
that make his finding reviewable?
I think not. His finding remains reasonable. The weight of the
medical evidence before Badi – and especially that of the
independent expert appointed at her insistence, Prof Niehaus –
was clearly that Booysen was not in a state to attend the
hearing at
that stage. In dismissing all of the evidence bar that of Teggin’s
revised opinion, Badi acted irrationally;
and when the appeals
authority comes to the conclusion that she was “wrong”,
that is not, in my mind, an unreasonable
conclusion.
Having upheld the appeal with regard to the ruling of 6 February
2008, Joubert did not consider it necessary to deal with the
other
two grounds of appeal. Maybe he should have; but no other inference
can be drawn than that he upheld the appeal as a whole,
as the
rulings of 2 June and 12 August followed on that of 6 February 2008.
The result is that Booysen should have been reinstated.
The ruling of the appeals authority overturning those of Badi is not
so unreasonable that no other authority could have come
to the same
conclusion. The Joubert decision is not open to review.
That makes it unnecessary to decide whether the Badi ruling of 6
February 2008 is reviewable, as it has been overturned. However,
the
question of costs in that review application (case C 60/2008)
remains relevant.
Is Badi open to review?
Firstly, it is important to note that the application in this matter
(C60/2008) is no longer urgent; however, the “exceptional
circumstances” that would have to shown to interdict a
disciplinary hearing, as required by the Labour Appeal Court
18
need still be shown in order for the application for review in the
normal course -- albeit one based on legality in terms of
s
158(1)(h) of the LRA – were to succeed. This is so because the
effect of a successful review application would be to
hold that Badi
should have postponed the disciplinary hearing, and for a court to
order that that be done
in medias res
would only happen in
exceptional cases. That is so because an employee has the dispute
resolution procedures prescribed by the
LRA to his or her disposal
if he or she were to be dismissed following a flawed procedure.
Secondly, I express an opinion on this matter merely insofar as it
is relevant to costs. As explained above, I need not decide
the Badi
review, as the Badi ruling under review has been overturned on
appeal by the appeals authority (Joubert) and that decision
stands.
My views in this regard are thereofore
obiter
.
Badi summarily rejected the express view of the independent expert
that was appointed at her behest, Prof Nienaber, that Booysen
was
not fit to continue with the hearing at that stage. She also
rejected the views of Vorster and Oosthuizen and accepted that
of
Teggin (as revised) without a proper explanation.
Badi placed much emphasis on the fact that Proff Nienaber and
Oosthuizen were both associate professors at the University of
Stellenbosch; and that they had both graduated from the University
of the Free State. On the basis of these facts, and because
Oosthuizen had mentioned to Nienaber in passing that he was due to
consult with Booysen, Badi rejected Nienaber’s evidence
on the
basis that he was not independent. Those facts could hardly point to
any bias on the side of Nienaber. Academics of the
standing of these
experts have the benefit of academic freedom; they can (and do)
freely disagree with their colleagues, and
their professional ethics
would not allow them to be swayed by collegiality or even personal
friendships. Similar principles
of etiquette and ethics apply to
legal academics, counsel and judges.
Exceptional circumstances existed. The hearing had already commenced
with Booysen present, but an extraordinary incident led
to him
experiencing a flashback and resulting in his medical condition
deteriorating to the extent that he had to be hospitalised.
This had
an effect on the expert medical opinions placed before Badi. She
dismissed those opinions – bar that of Teggin
– without
proper consideration.
Interestingly, the Employment Appeal Tribunal in the UK dealt with
the issue of an adjournment because of ill-health in a judgment
handed down just over a week ago. In
O’Cathail v Transport
for London
19
Richardson J found that the refusal of the Employment Tribunal to
adjourn a hearing was wrong in law.
20
The learned judge confirmed that the EAT [like this Court] will only
examine adjournment decisions in limited circumstances;
yet, where
the fairness of the proceedings as a whole is endangered, it will
consider whether the decision was fair. Applying
Teinaz v London
Borough of Wandsworth
21
,
it was held that where an employee’s presence is needed for a
fair hearing, but he is blamelessly unable to attend because
of a
medical condition, the tribunal should usually grant an adjournment.
The tribunal is entitled to be satisfied that the inability
was
genuine and the onus is on the employee to prove the necessity of
the adjournment.
Richardson J cited the dictum of Sedley LJ in
Terluk v
Berezovsky
22
with approval, even though that decision was not concerned with an
employment dispute:
“
18.
Our approach to this question is that the test to be applied to a
decision on the adjournment of proceedings is not whether
it lay
within the broad band of judicial discretion but whether, in the
judgment of the appellate court, it was unfair. In
Gillies
v Secretary of State for Work and Pensions
[2006] UKHL 2
, Lord Hope said (at §6):
‘
[T]he
question whether a tribunal ... was acting in breach of the
principles of natural justice is essentially a question of law.’
As Carnwath LJ said in
AA
(Uganda) v Secretary of State for the Home Department
[2008] EWCA
Civ 579
, §50, anything less would be a departure from the
appellate court's constitutional responsibility. This
‘non-
Wednesbury
’ approach, we would note, has a
pedigree at least as longstanding as the decision of the divisional
court in
R v S W London SBAT, ex parte Bullen
(1976) 120 Sol.
Jo. 437; see also
R v Panel on Takeovers, ex p Guinness PLC
[1990] 1 QB 146
, 178G-H per Lord Donaldson (who had been a party to
the
Bullen
decision) and 184 C-E per Lloyd LJ. It also
conforms with the jurisprudence of the European Court of Human Rights
under article
6 of the Convention - for we accept without demur that
what was engaged by the successive applications for an adjournment
was the
defendant's right both at common law and under the ECHR to a
fair trial.
19. But, as Lord Hope went on in
his next sentence in
Gillies
to point out, the appellate
judgment
‘
requires
a correct application of the legal test to the decided facts…’
Thus the judgment arrived at at
first instance is not eclipsed or marginalised on appeal. What the
appellate court is concerned
with is what was fair in the
circumstances identified and evaluated by the judge. In the present
case, this is an important element.
20. We would add that the
question whether a procedural decision was fair does not involve a
premise that in any given forensic
situation only one outcome is ever
fair. Without reverting to the notion of a broad discretionary
highway one can recognise that
there may be more than one genuinely
fair solution to a difficulty. As Lord Widgery CJ indicated in
Bullen
, it is where it can say with confidence that the course
taken was not fair that an appellate or reviewing court should
intervene.
Put another way, the question is whether the decision was
a fair one, not whether it was "the" fair one.”
I believe similar considerations apply in assessing the fairness of
the proceedings in our law. Despite the fact that Booysen’s
inability to attend was genuine, based on the weight of the medical
evidence, Badi refused his request for a postponement. That
decision
was unreasonable in the circumstances.
Bearing in mind that the attack on Badi’s ruling is based on
review and not appeal, this Court should be slow to interfere.
Nevertheless, the reasonableness of Joubert’s decision –
sitting as the internal appeals authority – is borne
out by
Badi’s failure to apply the correct legal test when
considering the medical evidence before her.
The Supreme Court of Appeal dealt with those principles in
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
23
where it was said:
‘
[I]t
would be wrong to decide a case by simple preference where there are
conflicting views on either side, both capable of logical
support.
Only where expert opinion cannot be logically supported at all will
it fail to provide “the benchmark by reference
to which the
defendant’s conduct falls to be assessed.”’
Applying this test to the facts before the court in
Louwrens v
Oldwage
24
Mthiyane JA remarked:
‘
The
uncritical acceptance of the evidence of Professor de Villiers and
the plaintiff’s other expert evidence and the rejection
of the
evidence of the defendant’s expert witnesses falls short of the
requisite standard and the approach laid down by this
Court in
Michael
v Linksfield Park Clinic.
What was required of the trial Judge was to determine to what extent
the opinions advanced by the experts were founded on logical
reasoning and how the competing sets of evidence stood in relation to
each other, viewed in the light of the probabilities. I have
already
indicated why I found the evidence adduced on behalf of the defendant
to be more acceptable than that of the plaintiff’s
witnesses
and why the conclusion of the trial court cannot stand.’
As a lay chairperson of an internal disciplinary hearing, in my
view, Badi should have deferred to the weight of expert medical
evidence and opinion before her. She did not do so. This meant that
she acted irrationally. I would have been inclined to set
aside her
ruling on the basis of irrationality.
That being the case, SAPS should carry Booysen’s costs in case
number C 60/08 as well.
Conclusion
The Joubert decision in case number C 307/ 2009 is not open to
review. The effect of this judgment is that Badi’s rulings
of
6 February, 2 June and 12 August 2008 are overturned.
Booysen must therefore be reinstated retrospectively to the date of
his dismissal with full benefits.
The way forward
There is no evidence before this Court what Booysen’s current
medical condition is. In 2008 all of the psychiatrists and
psychologists who provided reports and gave evidence were
ad idem
that he suffered from PTSD and major deperessive disorder. They did
not agree on the question whether it was a chronic condition.
While all of the experts were also in agreement that Booysen should
be medically boarded, it is not in the public interest that
employees who are alleged to have committed misconduct should be
able to act with impunity. It may still be necessary to proceed
with
a disciplinary hearing. In that case, a new presiding officer will
have to be guided by the expert medical opinions available
in order
to decide on an appropriate process. That could or may include a
process along the lines of that proposed by Mr Booth.
It could also,
for example, provide for written questions to be put to Booysen and
for him to be given an opportunity to provide
written answers. It is
not ideal, but the Code of Good Practice and the LRA provide for
informal processes. Insofar as it does
not conflict with the
parties’ own collective agreement embodied in the regulations,
a way out can and should be found.
Positions have become entrenched in the lengthy and costly
litigation between the parties over the last four and a half years.
The parties may also be well advised to enlist the assistance of a
mediator, perhaps assisted by medical experts, in a final
effort to
bring this matter to a resolution.
The floodgates argument
I expressed the opinion that employees who suffer from medical
conditions – even if it came about through the nature of
their
very occupation – should not be able to use that fact on order
to act with impunity and escape liability for misconduct.
It may be argued that the effect of this judgment would be that many
police officers, when faced with a disciplinary hearing,
will try to
escape it by claiming PTSD.
It is so that, as an unfortunate result of the violent society we
live in, PTSD is not an uncommon syndrome amongst South African
police officers. But in this case there were indeed “exceptional
circumstances” – not only in the sense referred
to by
the LAC, but also in the sense that the circumstances of the
disciplinary hearing itself were unique. The incident resulting
in
Booysen suffering a flashback only occurred when the matter was
already part-heard. It is to be envisaged that, in many, if
not
most, disciplinary hearings, such an incident is unlikely to occur.
The degree to which an individual may be incapacitated
to the extent
that Booysen was, will differ from person to person; in many cases,
the unanimous legal advice may well be that
the employee is fit to
continue with a hearing. Our criminal courts are confronted with
similar cases on a regular basis, and
it is rare for a court to rule
that an accused person in a criminal case is not fit to stand trial.
Each case has to be considered on its own merits. I doubt, though,
that this judgment will have the floodgates effect that concerns
me.
Costs
Booysen has been successful in the Joubert review. That makes the
Badi review moot, but in the light of the view I have taken
on
Booysen’s prospects of success in that application, he should
not be burdened with the costs of that application either.
I have noted earlier in this judgment that SAPS and the state
attorney have adopted a somewhat lackadaisical approach in
conforming
to the time limits imposed by the LRA and the rules. Not
only did they file a number of pleadings late, they also failed to
abide
by the undertakings given by them, Commissioner Petros and
their counsel to provide the requisite authorisation delegating the
authority to institute the proceedings in case number C307/2009 to
Petros. This is also a factor relevant to costs. Unfortunately,
it
is the taxpayer that will ultimately bear those costs.
Order
In the result, I rule as follows:
The application for review in case number C 307/2009 is dismissed.
The respondents in case number C 60/08 and the applicant in case
number C 307/2009 are ordered to pay Booysen’s costs
jointly
and severally, the one paying, the other to be absolved; such costs
to include the costs of two counsel where so employed.
_______________________
Anton Steenkamp
Judge
APPEARANCES
APPLICANT (Booysen): RGL Stelzner SC and N van Huyssteen
Instructed by Edmund Booth.
RESPONDENTS (SAPS): N Arendse SC and B Joseph
Instructed by the State Attorney.
1
Reported
as
Booysen v SAPS & another
(2009)
31
ILJ
301
(LC) and
[2008] ZALC 87
;
[2008] 10 BLLR 928
(LC).
2
In
Booysen v The Minister of Safety and
Security
[2011] 1 BLLR 83
(LC).
3
Regulations
for the South African Police Service, Notice
No
R643, published in
Government Gazette
No 28985, 3 July 2006.
4
They
were assisted by Ms N van Huyssteen and Mr B Joseph respectively in
these proceedings.
5
Published
under GN R643 in
Government Gazette
28985 of 3 July 2006.
6
Act
66 of 1995 (“the LRA”).
7
Case
number C489/2007.
8
Case
C489/2007, relating to the suspension without remuneration in terms
of regulation 13(2).
9
The
SAPS medical aid fund.
10
Act
66 of 1995 (the LRA).
11
(2011)
32
ILJ
1175
(LC) paras [15] – [39].
12
Chirwa
v Transnet Ltd & others
[2007] ZACC 23
;
2008 (4) SA 367
(CC); (2008) 29
ILJ
73
(CC).
13
Gcaba
v Minister of Safety & Security and others
2010
(1) SA 238
(CC); (2010) 31
ILJ
296 (CC).
14
2010
(3) SA 210
(SCA); (2009) 30
ILJ
2653 (SCA).
15
Supra
paras [15] – [16] (per Bosielo
AJA), cited with approval in
Harri
(supra)
para [34] – [39].
16
The
reason that this has not happened is because SAPS wished to finalise
the disciplinary hearing. Were he to be dismissed, he
could
evidently not be medically boarded.
17
I
use the present tense to describe the position as at February 2008.
There is no evidence before me what the position is four
years
later. Depending on the outcome of this judgment, it may well be
that Booysen has to undergo fresh tests to ascertain his
present
condition.
18
Booysen
v The Minister of Safety and Security
[2011]
1 BLLR 83
(LC).
19
Appeal
no UKEAT/024/11/MAA (unreported, 13 January 2012).
20
The
employee in that case was suffering from anxiety and depression.
However, the specific adjournment sought was because of a
respiratory infection.
21
[2002] EWCA Civ 1040
;
[2002]
IRLR 721
;
[2002] ICR 1471.
22
[2010]
EWCA Civ 1345
(25 Nov 2010), followed in
Osborn
& Booth v Parole Board
[2010] EWCA
Civ 1409.
23
2001
(3) SA 1188
(SCA);
[2002] 1 All SA 384
para [39].
24
2006
(2) SA 161
(SCA) para [27].