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[2012] ZALCD 14
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Ntuli v South African Police Services and Others (D 862/12) [2012] ZALCD 14; (2013) 34 ILJ 1239 (LC) (9 October 2012)
Reportable
Of
interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
DURBAN
JUDGMENT
Case
no: D 862/12
In the matter between:
MSINDISI NTULI
Applicant
and
SOUTH AFRICAN POLICE SERVICE
First Respondent
NATIONAL COMMISSIONER, saps
Second Respondent
PROVINCIAL COMISSIONER, SAPS
Third Respondent
MINISTER OF SAFETY & SECURITY
Fourth Respondent
PROVINCIAL HEAD OF CRIME INTELLIGENCE, SAPS
Fifth Respondent
Heard
:
27 September 2012
Delivered
:
9 October 2012
Summary:
Urgent application – suspension of SAPS member
– SAPS regulation 13 – member given opportunity to make
representations
– no
prima facie
right to uplift
suspension – application dismissed with costs.
JUDGMENT
STEENKAMP J
Introduction
The applicant, a constable in the South African Police Service
(SAPS), was suspended without pay on 12 September 2012. He has
brought an urgent application during the court recess in the form of
a rule
nisi
, asking for the suspension to be uplifted and for
his salary to be reinstated.
The respondents have been given two court days’ notice of the
application. They have not had an opportunity to file answering
papers, but Mr
Titus
, who appeared for the respondents, was
willing to argue the application on the applicant’s papers.
Having heard the parties’ argument, I dismissed the
application with costs on 27 September 2012. These are the full
reasons
for my judgment.
Background facts
The applicant is employed by the SAPS in its Crime Intelligence
division. He was arrested on 26 April 2012. It appears from a
“notice of rights in terms of the Constitution” issued
on that date that he was detained pursuant to allegations
of
corruption and defeating the ends of justice. The applicant’s
legal representative submitted that those charges against
him were
subsequently withdrawn; however, in his founding affidavit, the
applicant says that a charge of theft was subsequently
withdrawn.
On 8 August 2012, the Provincial Commissioner of the SAPS (the third
respondent) presented the applicant with a “notice
of intended
suspension or temporary transfer in terms of regulation 13 of the
South African Police Service discipline regulations,
2006”
dated 30 July 2012. The notice was addressed to the applicant and
read as follows:
“
1. You
are hereby notified that your suspension or temporary transfer under
regulation 13 of the Discipline Regulations for the
South African
Police Service, 2006, promulgated in terms of the
South African
Police Service Act, 1995
will be considered on the grounds that you
are alleged to have committed serious misconduct –
by
contravening Regulation 20 (Z) of the Discipline Regulations,
2006, in that, on 2012-04-26 you were arrested for corruption
and
or defeating the ends of justice whereby you did not hand in
exhibits (100 litre blue drum containing a large quantity
of
cannabis) into the SAP 13 at SAPS Wartburg.
2. You are entitled to submit
written representations regarding the possible suspension or
temporary transfer.
3. Anything you wish to bring to
the attention of the Commissioner who will consider the suspension or
temporary transfer must be
delivered to or communicated to Provincial
Behaviour Management: seventh floor, Servamus building, room 718,
Durban no later than
five days from you signing this notice. If no
representations have been received by then, it will be accepted that
you do not wish
to say anything and you’re possible suspension
or temporary transfer will be decided on without further notice.”
According to his attorney, the applicant did make representations in
the form of an unsigned document under the heading “affidavit”
and the further heading: “Employee representation on
allegation levelled against him”. However, that document deals
with allegations of assault and theft and does not deal with his
suspension at all. Nevertheless, it is common cause that the
applicant was given the opportunity to make representations.
On 5 September 2012 the applicant was transferred from the Crime
Intelligence provincial head office to the Brighton Beach cluster.
He stated in his affidavit, and his attorney submitted in argument,
that he assumed that the transfer was as a result of his
representations. However, there is nothing in the correspondence and
other documents emanating from SAPS to suggest that the
transfer was
related to the notice of 30 July 2012 (received by the applicant on
8 August 2012) or his representations.
On 17 September 2012, the applicant received a “notice of
suspension in terms of regulation 13” from the Provincial
Commissioner. That notice read:
“
You
are hereby informed that you are deemed to be suspended as from
2012-09-12 without salary or any allowances, due to the fact
that you
are alleged to have committed serious misconduct in that, on
2012-04-26 you were arrested for corruption and or defeating
the ends
of justice whereby you did not hand in exhibits (100 litre blue drum
containing a large quantity of cannabis) into the
SAP 13 at SAPS
Wartburg.
Your representation was received
from yourself [
sic
] for consideration before the decision to
suspend has been made.”
The applicant argues that his suspension was unfair for the
following reasons:
1
“
I
have not been found guilty of any misconduct and the termination of
my salary is unfair.
The
statements and affidavits attached to the report to the employer
representative are fabricated and contradictory could not
sustain
prove the charges or allegations, beside when I was arrested the
allegations were corruption and defeating ends of justice
and not as
now framed on annexure MN 11.
I
have a family that I support, and they will suffer prejudice if the
suspension and termination of my salary were to stand.”
Evaluation / Analysis
In order to decide whether the application should be granted, the
court has to consider the well-known principles relating to
interim
interdicts set out in
LF Boshoff Investments
(Pty) Ltd v Cape Town Municipality
2
and subsequent judgments.
Before considering those factors, I shall briefly consider the
aspect of urgency.
Urgency
I am satisfied that the application is urgent. The applicant
received the notice of suspension on 17 September 2012. He launched
this application on 20 September 2012. It was heard on 27 September
2012, one day before the monthly salary run.
Prima facie right?
The applicant appears to vest his reliance on a
prima facie
right – although it is not spelt out in those terms – on
the following two allegations:
He has not been found guilty of any misconduct; and
The statements and affidavits attached to a “report to the
employer representative” are fabricated and contradictory.
In order to decide whether or not the applicant had a
prima facie
right not to be suspended, the Court must have regard to
regulation 13 of the SAPS Discipline Regulations.
3
Under the heading, “
Precautionary suspension
”, it
reads:
“
(1)
The employer may suspend with full remuneration or temporarily
transfer an employee on conditions, if any, determined by the
National Commissioner.
(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:
provided that –
(a) before suspending an
employee without remuneration, the employee is afforded a reasonable
opportunity to make written representations;
(b) the Commissioner considers
the representations and informs the employee of the outcome of the
representations;
(c) the disciplinary process
must be initiated within 14 calendar days of the date of the decision
to suspend the employee without
remuneration; and
(d) if the disciplinary process
is not completed within 60 calendar days from the commencement of the
suspension, the question of
continued suspension without remuneration
must be considered by the Commissioner and the employee may again
make written representations
which the Commissioner must consider.
The Commissioner must take any decision on continued suspension
within 7 calendar days of
receiving written representations on
continued suspension and informed the employee of the outcome of the
representations. A decision
that the suspension continues, may only
be for a further period of 30 calendar days.
(3) A suspension is a
precautionary measure.”
A number of issues become apparent when one reads this regulation.
Firstly, the opportunity to make written representations is
prescribed only in terms of regulation 13(2)(a), i.e. in cases where
the Commissioner considers suspending the employee
without
remuneration. Regulation 13 (1), dealing with suspension on full
remuneration, does not prescribe such a procedure. Secondly,
the
Commissioner my only suspend the employee without remuneration if he
or she is satisfied that the misconduct which the employee
is
alleged to have committed, is misconduct as described in annexure A
to the regulations. That annexure includes,
inter alia
,
corruption and defeating the course of justice. Thirdly, suspension
is a precautionary measure and not a disciplinary sanction.
It is immediately clear from the regulation that an employee does
not have the right not to be suspended, provided that it is
done in
terms of the regulation.
The fact that the applicant has not been found guilty of misconduct,
is entirely irrelevant to the suspension. The regulation
makes it
clear that it is a precautionary measure taken before any misconduct
has been proven. That leg of the applicant’s
argument has no
merit.
The question then remains whether the Commissioner has complied with
the regulation. On the applicant’s own version, it
appears
that he has. The Commissioner issued a notice to the applicant
giving him the opportunity to make representations as
envisaged in
regulation 13 (2)(a). Mr
Nxongco
, for the applicant,
attempted to argue that the notice was issued in terms of regulation
13(1). He made out no basis for that
argument. Firstly, the notice
does not refer to regulation 13(1). Secondly, that regulation does
not prescribe an opportunity
to make representations. Thirdly, the
notice refers to “serious misconduct” in the form of
corruption and defeating
the ends of justice, both categories of
misconduct that are envisaged by regulation 13(2) read with annexure
A to the regulations.
The applicant acknowledges that he did, in fact, submit written
representations. He had an adequate opportunity to do so. He
was
fully aware of the serious allegations against him, and those
allegations appear to have at least some substance, having
regard to
the affidavits and statements filed by fellow employees and included
in the court papers. There is nothing to gainsay
the allegation by
the Commissioner in the notice of suspension dated 12 September 2012
in which the Commissioner states that
he had received and considered
the applicant’s submissions before deciding to suspend him.
It is clear from the aforegoing that the respondents have followed
the prescribed procedure in terms of regulation 13. In those
circumstances, the applicant has not established a
prima facie
right not to be suspended.
Absence of alternative remedy
The Labour Appeal Court has recently pointed out in
Gradwell
4
that:
“
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA. The
respondent in this case instead sought a declaratory order
from the
Labour Court in terms of s 158(1)(a)(iv) of the LRA to the effect
that the suspension was unfair, unlawful and unconstitutional.
A
declaratory order will normally be regarded as inappropriate when the
applicant has access to alternative remedies, such as those
available
under the unfair labour practice jurisdiction. A final declaration of
unlawfulness on the grounds of unfairness will
rarely be easy or
prudent in motion proceedings. The determination of the unfairness of
a suspension will usually be better accomplished
in arbitration
proceedings, except perhaps in extraordinary or compellingly urgent
circumstances. When the suspension carries with
it a reasonable
apprehension of irreparable harm, then, more often than not, the
appropriate remedy for the applicant will be to
seek an order
granting urgent interim relief pending the outcome of the unfair
labour practice proceedings.”
In the current case, the applicant has not referred an unfair labour
practice dispute in terms of s 186(2)(b) of the LRA to the
bargaining council. He has an alternative remedy but has elected not
to make use of it. In the light of the binding authority
in
Gradwell
, this is another reason why he has not satisfied the
requirements for urgent interim relief.
Apprehension of irreparable harm
It is so that the applicant will suffer some form in the form of
loss of remuneration during his suspension. It is not clear,
though,
that the harm will be irreparable. The disciplinary process must be
initiated within 14 days. It must be completed within
60 days,
unless the employee has been given a further opportunity to make
representations why it should not be continued; and
even then, he
may only be suspended for a further period of 30 days.
5
Should the misconduct not be proven, the applicant will have a claim
for the employer to reimburse his remuneration for the period
of the
suspension.
Considering this aspect together with the absence of a
prima
facie
right and the applicant’s failure to make use of an
alternative remedy, his claim for urgent relief cannot succeed.
Balance of convenience
Insofar as the balance of convenience still has to be considered,
given the view I have taken of the other prerequisites for
urgent
interim relief, it must be accepted that the applicant will suffer
inconvenience for at least a certain length of time.
On the other
hand, the respondents have acted in terms of the regulations that
bind employer and employee. The fact that the
employee will suffer
some inconvenience does not, on its own, entitle him to the relief
sought.
Costs
The applicant’s claim is without merit. The matter was
opposed, albeit that the respondents have not had the opportunity
to
file answering papers and Mr
Titus
argued the matter on the
applicant’s papers. There is no reason why costs should not
follow the result.
Order
For these reasons the application was dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
M Nxoncgo of Mkhize
attorneys, Durban.
RESPONDENTS:
M Titus
Instructed by the State
Attorney, Durban.
1
Spelling
and grammar as in founding affidavit.
2
1969
(2) SA 256 (A) 267 A-F.
3
GN
643 published in
Government Gazette
No 28985, 3 July 2006.
4
Member
of the Executive Council for Education, North West Government v
Gradwell
(2012) 33
ILJ
2033 (LAC) para [46].
5
Regulation
13(2)(c) and (d).