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[2015] ZALCJHB 266
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Solidarity and Others v SA Police Services and Others (JS469/12) [2015] ZALCJHB 266 (13 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG.
JUDGMENT
Not Reportable
Case
no: JS 469/12
SOLIDARITY
First
Applicant
J.P.L
VAN DER WALT
Second
Applicant
J.E
STONE
Third
Applicant
N.
LE ROUX
Fourth
Applicant
and
SA
POLICE SERVICES
First
Respondent
THE
MINISTER OF SAFETY AND SECURITY N.O.
Second
Respondent
THE
NATIONAL COMMISSIONER OF THE
SA
POLICE SERVICE N.O.
Third
Respondent
SOUTH
AFRICAN POLICING UNION
Fourth
Respondent
POLICE
AND PRISONS CIVIL RIGHTS UNION
Fifth
Respondent
THE
SAFETY AND SECURITY BARGAINING
COUNCIL Sixth
Respondent
Decided
in Chambers.
Delivered
on: 13 August 2015
RULING
- LEAVE TO APPEAL
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
initial dispute before the Court concerned whether the Second to
Fourth Applicants had been unfairly discriminated against in
not
being selected for promotion in accordance with the new ranking
structure within the First Respondent (SAPS) as implemented
in terms
of a Collective Agreement, which was concluded under the auspices of
the Sixth Respondent between SAPS, POPCRU and SAPU.
[2]
The
dispute had then by agreement between the parties, metamorphosed into
whether the Collective Agreement was valid and constitutional.
The
dispute in respect of the individual applicants was then separated
from the main dispute. The applicants’ main
contention was that
the promotion of members pursuant to the Agreement was by reference
to race and gender quotas, to the exclusion
of other relevant
factors. It was also contended that the Agreement was in
contravention of the provisions of sections 9(3) of
the
Constitution
[1]
and those of the
Employment Equity Act.
[3]
In
a judgment handed down on 2 April 2015, the following order was made;
(i)
The
application as brought by the First Applicant (Solidarity) is
dismissed.
(ii)
The
First Applicant is ordered to pay to the First, Third and Fifth
Respondents, the costs of this application.
(iii)
Solidarity
may approach the Registrar of this Court for a set-down date in
respect of the matter concerning the individual applicants.
[4]
On 28 April 2015 The applicants lodged an application for leave to
appeal against the judgment. The application was lodged
simultaneously with an application for leave to appeal to the
Constitutional Court. By agreement between the parties, the
submissions
in regard to the application in this court were held in
abeyance pending the outcome of the Constitutional Court’s
decision.
[5]
The Constitutional Court considered the application for leave to
appeal. In an order dated 27 May 2015, the application was
dismissed
as it was not in the interests of justice to hear it at that stage.
The First, Second, Third and Fifth Respondents opposed
this
application for leave to appeal.
The
legal framework:
[6]
When
considering an application for leave to appeal, the issue is whether
there are reasonable prospects that the Court of appeal
may take a
different view on the matter
[2]
.
In
S v
Smith
[3]
Plasket AJA observed that:
‘
What the test of reasonable
prospects of success postulates is a dispassionate decision, based on
the facts and the law, that a
court of appeal could reasonably arrive
at a conclusion different to that of the trial court. In order to
succeed, therefore, the
appellant must convince this court on proper
grounds that he has prospects of success on appeal and that those
prospects are not
remote, but have a realistic chance of succeeding.
More is required to be established than that there is a mere
possibility of
success, that the case is arguable on appeal or that
the case cannot be categorised as hopeless. There must, in other
words, be
a sound, rational basis for the conclusion that there are
prospects of success on appeal.’
[7]
As it was further pointed out on behalf of the Fifth Respondent, in
terms of
section 17(1)
of the
Superior Courts Act 10 of 2013
, leave
to appeal may also be granted if there is some compelling reason why
the appeal should be heard.
The
grounds for leave to appeal:
[8]
Part A of the Collective Agreement confirmed the introduction of two
new ranks within SAPS with effect from 1 April 2010. It
set the level
at which the ranks of Lieutenant, Captain, Major and
Lieutenant-Colonel were to be filled and the principles underpinning
the process. Annexure “B” to the Agreement set out the
criteria for promotion from rank to rank in accordance with
the new
ranking system.
[9]
The applicants’ main contention was that Agreement was
unlawful, and breached the provisions of the Constitution and the
Employment Equity Act. It was further submitted on their behalf that
the court a
quo
misdirected itself in finding that the legitimacy of the SAPS’
employment equity plan had been confirmed by the Constitutional
Court
in
Barnard.
[4]
In this regard, it was submitted that the judgment of the
Constitutional Court in
SAPS
v Solidarity obo Barnard
[5]
did not concern the validity of the South African Police Service
(‘SAPS’) employment equity plan, and one of the reasons
why the Court declined to grant
Capt
Barnard relief in that case was that the SAPS employment equity plan
had not been impugned.
[6]
[10]
It
was further submitted on behalf of the applicants that the vexed
questions concerning the appropriate standards to be applied
to
instruments alleged to be affirmative action measures manifestly
warrant the attention of the Labour Appeal Court. The attainment
of
substantive equality and the appropriate means of doing so without
infringing upon the dignity of those excluded from the benefits
of
restitutionary measures is one of the most important issues facing
our society today. To this end, it was contended that the
public
interest in receiving clarity on these issues was manifest.
[11]
Submissions made on behalf of the First, Second, Third, and Fifth
Respondents were to the effect that there are no reasonable
prospects
that another court might come to a different conclusion that of the
court a
quo
on the same facts. In this regard, it was
submitted that authorities of the Constitutional Court and the Labour
Appeal Court had
made determinative pronouncements on the questions
at hand, and there was no reason why the matter should enjoy the
attention of
the Labour Appeal Court.
[12]
Having responded in detail to the applicants’ submissions
insofar as the judgment was attacked, it was submitted further
on
behalf of the First to Third Respondents that there was no inherent
public interest in allowing this matter to be heard by the
LAC, as
the issues of principle which lie at its heart have been resolved by
the Constitutional Court and the LAC.
[13]
The Fifth Respondent’s main submissions were that the measures
taken in the implementation of the Collective Agreement
did not
amount to unfair discrimination; that the applicants had not
challenged the Employment Equity Plan of the numeric targets
set
therein. Furthermore, it was submitted that contrary to the
applicants’ arguments, the measures taken did not propagate
‘automatic preference’, ‘absolute preference’,
or ‘preferential treatment.
Evaluation:
[14]
Most of the contentions relating to the grounds upon which the
applicants seek leave to appeal have been dealt with in the
main
judgment, and there is no point in burdening this judgment with the
same issues. Equally so, the First, Second, Third and
Fifth
Respondent’s submissions in opposing the application are issues
that were also to a large extent dealt with in the
main judgment.
[15]
The issue however is whether there are reasonable prospects that the
Labour Appeal Court may come to a different conclusion
on the issues
raised. Most of the issues as correctly pointed out on behalf of the
Respondents opposing the application were indeed
dealt with by the
Constitutional Court in Barnard and by the Labour Appeal Court.
[16]
It was correctly acknowledged on behalf of the First, Second and
Third Respondents that the issues raised in this application
are
important,
albeit
was contended that they are not novel as the
relevant law was settled. Central however to the dispute leading to
the main judgment
was whether Collective Agreement propagated the
population of the positions in accordance with the new ranking
structure in a rigid
manner; whether the selection for promotion were
made within ‘silos’ defined by race and gender and thus
resulting
invariably with quotas; and whether the scheme of the
Agreement taken as a whole was arbitrary and had resulted in unfair
discrimination.
[17]
When
considering applications of this nature, the Labour Court should be
mindful of the cautionary note sounded by Davis JA in
Martin
and East (Pty) Ltd v NUMSA & others
[7]
where he stated that:
“
Before I
conclude there is a further comment I wish to make. I indicated that
the events in this case took place in 2010. The Labour
Relations Act
was designed to ensure an expeditious resolution of industrial
disputes. This means that courts, particularly courts
in the position
of the court a
quo
,
need to be cautious when leave to appeal is granted, as should this
Court when petitions are granted. There are two sets of interests
to
consider. There are the interests of the parties such as appellant,
namely who are entitled to have their rights vindicated,
if there is
a reasonable prospect that another court might come to a different
conclusion. There are also the rights of employees
who land up in a
legal “no-man’s-land” and have to wait years for an
appeal (or two) to be prosecuted. This was
a case which should have
ended in the labour court. This matter should not have come to this
court. It stood to be resolved on
its own facts. There is no novel
point of law to be determined nor did the Court a
quo
misinterpret existing law. There was no incorrect application of the
facts; in particular the assessment of the factual justification
for
the dismissals/alternative sanctions. I would urge labour courts in
future to take great care in ensuring a balance between
expeditious
resolution of a dispute and the rights of the party which has lost.
If there is a reasonable prospect that the factual
matrix could
receive a different treatment or there is a legitimate dispute on the
law, that is different. But this kind of case
should not reappear
continuously in courts on appeal after appeal, subverting a key
purpose of the Act, namely the expeditious
resolution of labour
disputes.”
[18]
Bearing the above caution in mind, the Labour Court is also reminded
by
the words echoed in
Minister
of Safety and Security and Another v Madyibi
[8]
that;
“
In
giving consideration to the issues at hand I am enjoined by judicial
authority to take due cognisance of the test which is of
application
in matters of this nature. Judicial authority requires of a Judge
considering an application for leave to appeal to
reflect
dispassionately upon the decision sought to be appealed against and
decide whether or not there is a reasonable prospect
that the Appeal
Court may come to a different conclusion. This necessarily requires
of me to disabuse my mind of the fact that
I was of the view when I
delivered my judgment that it was supportable both on the facts of
the case and the law applicable thereto”.
[19]
The Collective Agreement as a measure designed to achieve equality in
the population of ranks within SAPS has gained momentum
as a result
of challenges to its validity and constitutionality by the applicants
from its inception. The applicants have persisted
with their view
that the Agreement on its own has the consequences of achieving
undesirable results.
[20]
Inasmuch as I am in agreement with the respondents that most of, if
not all of the legal arguments and challenged have been
settled, and
even though I am satisfied that the issues were exhaustedly canvassed
in my judgment, the implementation of the Collective
Agreement as a
part of an equality seeking measure will always remain impugned in
the light of the applicants’ approach that
on its own, the
Agreement remains susceptible to a constitutional challenge.
[21]
There are competing interests insofar as there is a need to populate
the SAPS ranks in accordance with the provisions of the
Agreement.
SAPS and its members as represented by POPCRU and SAPU have a right
to have the Agreement implemented and to put an
end to the long
standing conundrum of populating ranks. The applicants on the other
hand have a right to ensure that the implementation
of the Agreement
does not encroach on their constitutional rights to equality. To this
end, having reflected dispassionately upon
my judgment, and
notwithstanding my view that the judgment is supportable both on the
facts of the case and the law applicable
thereto, I am reluctantly of
the view that there are reasonable prospects that the Labour Appeal
Court may take a different view
on the matter, and that the case
cannot be categorised as hopeless.
Order:
i.
The
application for leave to appeal against the judgment handed down on 2
April 2015 is granted.
ii.
The costs
of this application are to be costs in the appeal.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa.
[1]
Constitution of
the Republic of South Africa, Act no 108 of 1996
[2]
National Union
of Metal Workers of South Africa v Jumbo Products CC
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 742B
[3]
2012 (1) SACR 567
(SCA) at para [7]
[4]
Judgment paras 33
– 34.
[5]
South African
Police Service v Solidarity obo Barnard
[2014] ZACC 23
(‘Barnard’).
[6]
Barnard
at paras 51 - 52. See also para 83.
[7]
(2014) 35 ILJ 2399
(LAC)
[8]
(1034/2004)
[2008]
ZAECHC 180
(30 October 2008) at para 20