About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 355
|
|
POPCRU obo Ashondolf v National Commissioner, South African Police Services and Others (J969/2015) [2015] ZALCJHB 355 (16 October 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG.
JUDGMENT
Not Reportable
Case no: J969/2015
In
the matter between:
POPCRU
obo
ASHONDOLF Applicants
and
NATIONAL
COMMISSIONER,
SOUTH
First Respondent
AFRICAN
POLICE SERVICES
PROVINCIAL
COMMISSIONER, SAPS GAUTENG Second
Respondent
MINISTER
OF
POLICE Third
Respondent
Decided
in Chambers
Delivered
on: 16
October 2015
RULING - LEAVE TO
APPEAL
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This
is an application for leave to appeal against the whole of the
judgment that was handed down on 19 June 2015 wherein I had
dismissed
the Applicants’ urgent application in favour of the
Respondents. The Respondents had filed a Notice to Oppose the
application, but thus far, no further submissions were received in
that regard.
Grounds
upon which leave to appeal is sought:
[2]
The Applicants relied on
the following specific grounds in seeking leave to appeal,
i.e.;
2.1
That in having acknowledged that the suspension of Ashondolf was a
precautionary measure,
the Court nevertheless erred by failing to
have regard to and apply the binding dictum found in
POPCRU
obo Sephanda v Provincial Commissioner: SAPS Gauteng Province
[1]
;
2.2
That the Court erred in finding that the Second Respondent was
justified in placing Ashondolf
on suspension in accordance with
Regulation 13 (2) of the SAPS Disciplinary Regulations;
2.3
The Court erred in finding that Ashondolf could have approached the
appropriate Bargaining
Council with an unfair
labour
practice dispute as an
alternative to approaching the urgent court for a review
The
legal framework and evaluation:
[3]
It
is trite that the test for determining whether to grant an
application for leave to appeal is whether there are reasonable
prospects
that another Court (on appeal) may come to a different
conclusion as reached by the Court a
quo
.
This test is described by Corbett CJ in
National
Union of Metal Workers of South Africa v Jumbo Products CC
[2]
in the following terms:
“
In such a case the enquiry
is whether there are reasonable prospects of success, i.e. whether
there is a reasonable prospect that
the Court of appeal may take a
different view and hold the trial Judge to have been wrong (see S v
Ackerman en 'n ander
1973 (1) SA 765
(A); Botes and Another v Nedbank
Ltd
1983 (3) SA 27
(A), at 28 D)”
[4]
The facts and background leading to the suspension of Ashondolf are
set out in the
main judgment and will not be repeated herein, save to
state that the basis of the urgent application was the alleged
failure by
the Second Respondent to apply his mind and to consider
Ashondolf’s written representations, and the fact that his
suspension
could not be deemed to be ‘precautionary’
suspension as was required by Regulation 13 (2) of the SAPS
Regulations.
[5]
It has been stated that where a police officer is suspended without
pay pending a
disciplinary enquiry, he or she has no right not to be
suspended, provided that the suspension complies with the
requirements of
the regulations
[3]
.
It is accepted that a precautionary suspension has serious
implications, as it invariably impacts on the employee’s right
to dignity and freedom to work
[4]
.
In order for such suspensions to be considered fair or lawful, the
rules of natural justice and fairness must be adhered to. These
include (a) that there must be
justifiable reasons why the employee should be placed on such
suspension (this requires at least a
prima
facie
basis
that the employee had engaged some serious form of misconduct) and
(b) the employee must be given an opportunity to make representations
why he/she should not be suspended
[5]
[6]
In this case, it was common cause that Ashondolf was afforded an
opportunity and had
indeed made written submissions. Central to his
application was that the Second Respondent had failed to apply his
mind to those
submissions. This issue was dealt with in the main
judgment and I am not persuaded that the grounds advanced in this
regard in
seeking leave to appeal give rise to reasonable prospects
of success on appeal. I had further in the judgment dealt with
the issue of whether the Second Respondent had complied with the
requirements of the regulations, and pointed out that the fact
that
Ashondolf’s written submissions did not yield the outcome he
desired did not make the Second Respondent’s decision
to
confirm his suspension without pay unlawful or reviewable. The
factors leading to his suspension in my view justified the suspension
in question.
[7]
Further having had regard to other grounds relied upon, I am of the
view that none
of them are sufficiently cogent to persuade me to
allow leave to appeal. The Applicants’ insistence that the
Court ought
to have followed the dictum in
Sephanda
as it was
binding is clearly misplaced in the light of the distinction drawn
between the facts and circumstances of that case and
the facts in
casu
.
[8]
Having reflected on my judgment, the grounds upon which leave to
appeal is sought
and submissions made in that regard, I am of the
view that a case has not been made out to demonstrate reasonable
prospects of
success on appeal. Accordingly, the following order is
made;
Order:
i.
The application for leave
to appeal against the judgment handed down on 19 June 2015 is
dismissed.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
[1]
(2012) 33 ILJ 2120
(LC)
[2]
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 742B. See also
Karbochem Sasolburg (A
Division of Sentrachem Ltd) v Kriel and Others
(1999)
20 ILJ 2889 (LC) at 2890B where it was held that:
“
I
have understood that the test in deciding whether to grant leave to
appeal is the traditional test. It requires a judge to ask
whether
there is a reasonable prospect that another court may come to a
different conclusion.'
[3]
Ntuli v SA
Police Service & others
(2013)
34 ILJ 1239 (LC) at para [16]
[4]
See
Minister
of Home Affairs and Others v Watchenuka
[2004]
(4) SA 326
(SCA), and also
Muller
and Others v Chairman of the Ministers’ Council House of
Representative and Others
(1991)
12 ILJ 761 at 775 to 776.
[5]
Mogotlhe v
Premier of the North-West Province and Another
[2009] 4 BLLR 331
(LC)