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[2015] ZALCJHB 368
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Feltmann v Minister of Safety and Security Section Head: Medical Administration and Another (JR1487/2011) [2015] ZALCJHB 368 (1 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 1487/2011
In the matter between:
JJ
FELTMANN
APPLICANT
and
MINISTER OF SAFETY AND
SECURITY
FIRST RESPONDENT
SECTION HEAD: MEDICAL
ADMINISTRATION
SOUTH AFRICAN POLICE
SERVICES
SECOND RESPONDENT
Application argued: 29
September 2015
Judgment
delivered: 1 October 2015
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
The applicant is a warrant officer in the South African Police
Services (SAPS). In
2010, the applicant applied for ill-health
retirement on account of his having been diagnosed with
post-traumatic stress disorder.
In a letter addressed to the
applicant on 24 December 2010, the second respondent advised the
applicant that his application for
ill-health retirement had been
refused and that he was required to resume his duties in an
alternative, suitably low-stress position
on or before 10 January
2011. The second respondent is the party who made the decision under
review. In this application, the applicant
seeks to review and set
aside that decision.
[2]
The founding affidavit deposed to by the applicant sets out a
chronology of events
relevant to the decision taken by the second
respondent and subsequent developments. The applicant refers
specifically to an assessment
report prepared by a Ms E Kingsley and
a Dr S Motaung, annexed to the founding affidavit, which recommends
that the application
for ill-health retirement be declined and that
the applicant should be considered for an alternative administrative
position within
the SAPS with minimal exposure to traumatic incidents
and material. It was also recommended that the applicant attend a
comprehensive
vocational rehabilitation programme to improve his work
skills and to assist with suitable alternative placement options, and
that
the applicant’s current psychiatric treatment regime be
reviewed and adjusted where necessary, and that regular psychotherapy
sessions should continue. The recommendation made in the report was
effectively endorsed by the second respondent, whose decision
is
reflected in almost identical terms.
[3]
What is remarkable about the founding affidavit is that it makes no
reference to the
basis on which the review is sought and contains no
grounds for review; indeed, it is not clear from the founding papers
whether
the applicant contends that the decision taken by the second
respondent constituted administrative action (either for the purposes
of the
Promotion of Administrative Justice Act, 3 of 2000
, or for any
other purpose) nor is it clear, assuming for present purposes that
the applicant seeks an administrative law remedy,
precisely what the
basis for review might be. In his replying affidavit, for the first
time, the applicant makes clear that the
present application is
brought in terms of s 158 (1) (h) of the Labour Relations Act (LRA),
a provision which empowers this court
to review any decision taken or
any act performed by the state in its capacity as employer on any
grounds that are permissible
in law. Given the broad basis on which
this review jurisdiction is expressed, it is incumbent on an
applicant at least to make
out a proper case for review and
specifically, to state the basis on which this court’s
intervention is sought. No such basis
is articulated in the replying
affidavit or the heads of argument filed on the applicant’s
behalf. The replying affidavit
introduces what would appear to be a
number of challenges to the recommendation of the health risk
manager, the failure to
convene a board of enquiry, and the failure
by the health risk manager to have regard to the relevant information
and in particular,
the report submitted by Dr Grove. Dr Grove, who
examined the applicant in 2009, diagnosed post-traumatic stress
disorder and expressed
the opinion that the applicant could be
reintegrated into the SAPS only with great difficulty. Subsequent
examinations were carried
out by another psychiatrist, Dr Allwood,
and an occupational therapist, Ms Naidoo. Dr Allwood expressed the
opinion that the applicant
was severely disabled and would not be
able to be redeployed in the SAPS or in any related work. Ms Naidoo
expressed the view that
the applicant was not suitable to return to
his previous occupation, but that he should be re-assessed in six
months and that the
vocational rehabilitation programme could explore
alternate employment options. The applicant’s primary
complaint, it would
appear, is that the second respondent based his
decision on the opinion expressed by Ms Naidoo and that to the extent
that he opinion
contrasted with that expressed by a psychiatrist to
the effect of that the applicant was permanently unfit for any duties
within
the SAPS, the second respondent’s decision is ‘entirely
inexplicable and irrational’.
[4]
It was only during the course of argument that the precise basis for
the review application
was articulated – the applicant’s
counsel relied on the doctrine of legality in support of the relief
sought.
[5]
I pause at this juncture to restate the well-established rule that in
motion proceedings,
an applicant’s case stands or falls by the
notice of motion and the founding affidavit. In
Betlane v Shelly
Court CC
2011 (1) SA 388
(CC) at paragraph 29, the Constitutional
Court said the following:
It
is trite that one ought to stand or fall by one’s notice of
motion and the averments made in one’s founding affidavit.
The
case cannot be made out in the replying affidavit for the first time.
This
approach has been applied by this court. For example, in
De
Beer v Minister of Safety and Security and another
(2011)
32
ILJ
2506 (LC) the
court held that:
It
is a trite principle that in application proceedings the affidavits
constitute the pleadings and the evidence, and that an applicant
must
make out a case in its founding papers.
The
founding affidavit should contain, in the evidence it sets out, all
of the averments necessary to secure the relief sought.
As was
pointed out by Miller J in
Hart v Pinetown
Drive-in Cinema (Pty) Ltd
1972 (1) SA 464
(D):
Where
proceedings are brought by way of application, the petition is not
the equivalent of a declaration in proceedings by way of
action. What
might be sufficient in a declaration to foil an exception, would not
necessarily, in a petition, be sufficient to
resist an objection that
the case has not been adequately made out. The petition takes the
place not only of the declaration but
also of the essential evidence
which would be led at trial and if there is absent from the petition
such facts as would be necessary
for determination of the issue in
the petitioner’s favour, an objection that it does not support
the relief claimed is sound.
[6]
In my view, the founding papers disclose no cause of action. There is
no more than
a faint but bald averment to the effect that the
decision was unjustifiable and not rationally linked to the objective
facts. What
the founding affidavit discloses is that the upshot of
the applicant’s complaint amounts to his dissatisfaction with
the
outcome of his application for ill-health retirement; in other
words, a challenge to the correctness of the decision. The present
application accordingly stands to be dismissed simply on the basis
that the applicant has manifestly failed to make out a cause
of
action (and in particular, a case for review) in his founding
affidavit. However, even if I were to afford the papers a generous
reading and have regard to the arguments submitted on the applicant’s
behalf concerning the application of the principle
of legality
in the context of review, for the reasons that follow, the outcome
would be no different.
[7]
In
MEC for Health v Weder
[2014] 7 BLLR 687
(LAC), the Labour
Appeal Court recently examined the review powers conferred on this
court by the LRA. The court observed that
irrespective of the
classification of the decisions of the appellant in that instance as
administrative action, the appellant’s
actions were open to
review on the ground of legality. The court went on to note that the
principle of legaility required public
functionaries to act within
the powers granted to them by law, and further, required the
executive and public functionaries to
exercise their powers for the
specific purposes for which they were granted so that they cannot act
arbitrarily, for no other purpose
or an ulterior motive. An
expression of the former principle is to be found in the seminal
judgment of the Constitutional Court
in
Pharmaceutical
Manufacturers Association of South Africa and others: in the: ex
parte President of the Republic of South Africa
and others
[2000] ZACC 1
;
2000
(2) SA 674
(CC), where the court said the following:
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
another functionaries must, at least, comply with this requirement.
[8]
In other words, a legality review is competent either where the
functionary exercised
a power that he or she had no power to perform
(in other words, acted
ultra vires
his or her power) or acted
in a manner that is irrational, in the sense that he or she acted
capriciously or arbitrarily. In essence,
this requires that the
functionary’s actions or decisions are rationally related to
the purpose for which the power in question
was given.
[9]
On the basis that these principles are applicable for present
purposes to the decision
taken by the second respondent, the relevant
prescripts are contained in what was referred to as the National
Instruction 2/2004
and the Policy and Procedure on Incapacity Leave.
The policy sets out the various types of leave available in cases of
illness,
disease and various degrees of incapacity. Applications for
ill-health retirement or permanent capacity are regulated by the
policy.
The policy provides in paragraph 7.4.3 that if both the
employer and employee are convinced that the employee never be able
to
render an effective service at his or her level rank they may
proceed with the process of termination of service on grounds of
ill-health. That process is regulated by paragraph 8. Paragraph 8.6
deals with the assessment process. For present purposes, it
is
sufficient to state that the process must be conducted by the health
risk manager, having regard to the factors listed in paragraph
8.6.2.
The health risk manager may request additional information which may
emanate either from the employer, an external source
or service
provider. When sufficient information is available to the health risk
manager, the employer must apply the assessment
criteria set out in
paragraph 8.6.6. Once he was she has done so, the health risk manager
must make a report to the employer it
then falls to the employer,
after a consideration of the report, to decide whether the employees
incapacity is of a permanent or
temporary nature, whether to grant
incapacity leave, the outcome of the investigation having regard to
alternative employment or
the adaptation of the employee’s
duties work circumstances to accommodate the employee and whether to
retire the employee
on grounds of ill-health.
[10]
In the present instance, the SAPS took the view that the applicant
had indeed suffered a disability.
It is not in dispute that the
applicant suffers from post-traumatic stress syndrome. What the SAPS
did not accept was that the
applicant could never be employed again
in the service. The second respondent considered that the applicant
may be capable of working
in a different environment and in coming to
this conclusion, it had regard to the findings of the occupational
therapist, Ms Naidoo.
In her report, Ms Naidoo stated that the
applicant himself was of the view that he could work again, although
he felt that he could
no longer work for the SAPS. She considered him
to be a suitable candidate for vocation rehabilitation and
recommended that he
be reassessed in six months’ time. The
reason advanced by the applicant for his inability to continue
working was recorded
by Ms Naidoo. She expresses it thus:
He
feels he is unable to cope with the organisation and politics within
the SAPS. He reports that he attempted to resign from the
SAPS but
this was refused.
Ms
Naidoo notes further that the applicant expressed the opinion that he
could work again, and that he could be involved in the
running of a
hotel or bed and breakfast.
[11]
I fail to appreciate on what basis it can be said that the decision
taken was not rationally
connected to the information that served
before him. To the extent that the applicant submits (again,
for the first time
in argument) that the SAPS was as a matter of law
entitled only to consider the report of a psychiatrist and that it
was not entitled
to have regard to Ms Naidoo’s report, there is
nothing in the national instructional the policy to support that
submission.
Annexure G to the policy (guidelines for incapacity
assessment - handed up for the first time in argument) simply states
that incapacity
applications in psychiatric grounds ought to be
assessed and treated by a psychiatrist. In the present instance, this
was done.
The policy does not state that any such application should
only be assessed by psychiatrist, or that the opinion of other
medical
professional is irrelevant. In so far as any return to work
is concerned, the guidelines state (in paragraph 2.5.6) that the
return
of a patient to work where he or she is reminded of past,
traumatic events can exacerbate the situation, but that this does not
preclude the patient from working in a different environment, where
these factors are not present.
[12]
In short, the decision taken by the second respondent requires the
applicant to do no more than
undergo treatment while working in an
alternative environment with appropriate psychiatric treatment in
order to review his situation.
That decision is consistent with the
purpose of the policy – its stated purpose is to prevent
premature and incorrect decisions
on the one hand, and to ensure the
genuine cases are not discriminated against on the other. By
recognizing the applicant’s
condition and affording him the
opportunity of alternative employment in a non-stressful environment
with ongoing rehabilitation
and review, the decision of the second
respondent in my view is manifestly rationally connected to the
purpose of the policy, and
there is accordingly no basis for this
court to interfere with it. There is no basis therefore for this
court, as it was invited
to do, to remit the decision for
reconsideration after further investigation and updated reports.
[//]
Mr Hulley SC, who appeared for the respondents, charitably did not
pursue the issue
of costs and I intend therefore to make no order as
to costs either in respect of the proceedings when the application
was finally
argued or the previous occasions when for one or another
reason, the application did not proceed and costs were reserved.
I
make the following order:
1.
The application is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Adv E van As, instructed by Len Dekker and Associates
For
the respondents: ADv G Hulley SC, instructed by the state attorney.