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[2015] ZALCJHB 416
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Solidarity obo Roos v South African Police Service and Others (JS1043/12) [2015] ZALCJHB 416 (23 November 2015)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
case
no: JS 1043/12
In the matter between:
SOLIDARITY obo ROOS
APPLICANT
and
SOUTH AFRICAN POLICE
SERVICE
FIRST RESPONDENT
THE MINISTER OF POLICE
N.O
SECOND RESPONDENT
THE NATIONAL COMMISSIONER OF
THE SOUTH AFRICAN POLICE
SERVICE
THIRD RESPONDENT
Heard
:
16, 17, 18 March; June 2015 (heads of
argument filed)
Delivered
:
23 November 2015
JUDGMENT
WHITCHER
J
Introduction
[1]
These proceedings concern whether the respondents are in contempt of
an Order issued by this court
[1]
on 22 April 2014.
The
Court Order
[2]
Colonel Roos (“Roos”) instituted action against the
respondents, claiming the SAPS had transferred him from his
post in
the internal audit section of Crime Intelligence and that such
transfer had occurred as he had made a number of protected
disclosures about fraud and corruption in the secret service account
of Crime Intelligence. He alleged that the transfer amounted
to an
occupational detriment as envisaged in the
Protected Disclosures Act
26 of 2000
.
[3]
The court found that he had been deliberately moved out of his
position as an auditor of the secret service account of the Crime
Intelligence section of the SAPS, and placed in a position where he
had no meaningful role, with an adverse effect on his career
prospects.
[4]
The judgment recorded that Roos agreed that if he could not be placed
in his previous position, an appointment in a comparable
post
acceptable to him would address the problem of his present placement.
[5]
In the paragraph immediately preceding the Order handed down, the
court stated:
“
I
am mindful of the primary consideration, which is that there is no
reason why, as far as possible, the respondents would not wish
to
utilise the applicant in his capacity as an internal auditor for
which he was trained and in which he performed well'.
[6]
On 22 April 2014, the court handed down the following Order:
‘
[66]
In light of the above, noting that the respondents have conceded the
merits of the applicant’s
claim and the points of agreement
reached between the parties on the form that an order should take in
relation to the applicant’s
return to useful employment, the
following order is made:
66.1
For the avoidance of doubt it is recorded that:
66.1.1
Colonel JJH Roos (‘Roos’) is currently on the staff of
the South African Police Services (Crime Intelligence)
in the
position of Colonel and is drawing benefits as such.
66.1.2
Nothing in this order shall effect his
status
as such; his
rank as Colonel; his remuneration (that is, his basic salary and
fringe benefits), which shall remain in full force
and effect.
66.2
Nothing in this order shall entail the displacement of any person
from his or her position in Crime
Intelligence specifically, or in
the South African Police Service generally.
66.3
The respondents are obliged –
66.3.1
to redeploy Roos preferably in the Internal Audit section of Crime
Intelligence or failing that in an internal audit
unit of the South
African Police Service and to provide him with work of a comparable
nature to that which he performed prior to
his transfer to Inspection
and Evaluation;
66.3.2
to give preference to Roos in any application for appointment or
promotion in a post reasonably acceptable to him within
the said
Department or in any other Department in which his skills can
properly be deployed, as soon as such a post becomes available.
66.4
The respondents must pay Roos compensation under
s 194
(4) of the LRA
in the amount of R 156,250-00 (one hundred and fifty six thousand,
two hundred and fifty rands) within 14 days of
the date of this
judgment.
66.5
The respondent must pay the applicant’s costs of suit,
including the costs occasioned by the
employment of two counsel.’
[7]
Pursuant to this Order, the SAPS placed Roos in an internal audit
unit of the SAPS (Internal Audit: Head Office), contending
that there
was no vacant Colonel post (level 12) in the internal audit section
of Crime Intelligence. They claimed that the internal
audit section
of Crime Intelligence possessed only two Colonel (level 12) posts
which were occupied by Colonel Trollip and Colonel
Changoolam. They
could not place Roos in any of these posts as that would constitute a
contravention of the Order prohibiting the
displacement of any
employee from his or her position in Crime Intelligence, or in the
SAPS generally.
[8]
The applicants were of the view that this placement is not in
accordance with the Court Order of 22 April 2014 and instituted
these
proceedings.
[9]
In their application, the applicants primarily alleged that there was
a
third
post in the Internal Audit section of Crime
Intelligence and it was vacant. In this regard they relied on a
documentary Breakdown
Structure: Crime Intelligence.
[10]
The applicants further alleged that when Roos’s placement was
discussed at a meeting with the SAPS on 6 June 20014, “SAPS
personnel stated that the [National] Commissioner herself had given
explicit instruction that [he] be placed in
the
position
outside Crime Intelligence”. The applicants interpreted this as
an order that Roos was not to be placed in Crime
Intelligence.
[11]
They further alleged that the respondents were refusing to consult
Roos on the post to which he was to be deployed and were
unmoved by
the fact that he would be forfeiting fringe benefits, such as a motor
vehicle, by being forced to take up the assigned
post. They contended
that Roos has been effectively demoted because the job description he
was required to sign described his post
as ‘Internal Audit
Manager’.
[12]
The SAPS filed an answering affidavit, contending that:
12.1
They have complied with the Order.
12.2
There was no
third
post in the internal audit section of Crime
Intelligence. In support hereof it was stated that the Crime
Intelligence Structure
approved on 1 September 2011 was applicable
(“the 2011 Structure”). In terms thereof there were only
two substantive
Colonel (level 12) posts in the internal audit
section of Crime Intelligence. The applicant’s reliance on the
Breakdown Structure:
Crime Intelligence was misplaced as this
structure was a new draft which had not been approved by the National
Commissioner.
12.3
Roos was thus placed at Internal Audit: Head Office without loss of
earnings and benefits and he was given
work of a comparable nature to
that which he performed prior to his transfer out of the Crime
Intelligence Unit.
12.4
The National Commissioner did not give any instruction that Roos be
placed in a position outside Crime Intelligence.
[13]
On 16 January 2015, having considered the parties’ affidavits
and heads of argument, Justice Van Niekerk issued a ruling
wherein he
directed that oral evidence be led in relation to matters referred to
in paragraph 13 of his Ruling.
[14]
Paragraph 13 of his Ruling reads as follows:
‘
It is common cause that Roos
has not been placed in a position in the Internal Audit section of
Crime Intelligence. The primary
factual issues that the court is
required to decide, it seems to me, in relation to the first leg of
the court's order dated April
2014 are whether there was a direct
order from the National Commissioner that Roos was to be placed in a
position outside Crime
Intelligence and whether there is in fact a
post available in the Internal Audit section within the Crime
Intelligence division
of the SAPS and specifically, whether by
failing to appoint Roos to a post in that section, the respondents
relied on a structure
that is outdated or otherwise not applicable.
In relation to the second leg of the order, the primary factual issue
is whether
the post to which Roos has been redeployed is one that is
truly comparable both in content and substance to that in which he
performed
prior to his transfer to Inspection and Evaluation, and
whether Roos has been provided with all the necessary means to engage
in
that work. This is not an exhaustive list of all the
factual
disputes that are disclosed
on the papers, but they seem to me to be the primary issues that
require determination [emphasis added].
Oral
evidence
[15]
Pursuant to this ruling, oral evidence was led before me. The
evidence primarily revolved around whether a
third
Colonel
post existed in the internal audit section of Crime Intelligence,
whether there was a direct order from the National Commissioner
that
Roos was to be placed in a position outside Crime Intelligence and
whether the post to which Roos has been redeployed is one
that is
truly comparable both in content and substance to the post in which
he performed prior to his transfer out of Crime Intelligence.
The
existence of a third post
[16]
Brigadier Mabena gave evidence that after receiving the Court Order
the SAPS studied same. They understood that they should
first try to
place Roos in the internal audit section of Crime Intelligence. They
investigated whether there was a post available
in this section to
place Roos. They ascertained that there were only two posts in the
section, occupied by Colonel Trollip and
Colonel Changoolam.
[17]
It is common cause that currently in order to determine how many
posts exist regard must be had to the ‘Fixed Establishment’
signed in November 2014 which records the number of posts within the
SAPS that are funded and can be utilized to render services
within
the organization. The ‘Fixed Establishment’ as well as
the Breakdown Structure: Crime Intelligence which is
aligned to the
‘Fixed Establishment’ shows that currently there are only
two funded Colonel posts on the establishment.
[18]
However the issue is whether a third Colonel post (level 12) existed
when and soon after the Order was issued on 22 April 2014,
that is,
prior to the introduction of the Fixed Establishment.
[19]
During the evidentiary hearing, the applicants essentially abandoned
their reliance on the document they had relied on in their
application and in the meeting of 6 June 2014 to prove the existence
of a third Colonel post within the internal audit section
of Crime
Intelligence. Instead the debate centered on another document, the
Resource Allocation Guide ('RAG'). On the face of it,
there were
three Colonel posts in Crime Intelligence.
[20]
During his testimony, Roos agreed that when he was in the internal
audit unit of Crime Intelligence, there were only two Colonel
posts.
However, he contended that the RAG proved that a third post existed
and, in his experience as an auditor, the RAG was considered
as a
source document for auditing purposes.
[21]
In their closing argument, the applicant pointed out that Major
General Nkosi, the most senior person in the internal audit
unit of
the SAPS, confirmed during his testimony that the RAG was used in
audits. Moreover, Colonel Matsetela confirmed during
his testimony
that the RAG records that three Colonel posts existed. The document
itself further records that it is a 'guide for
the number of granted
posts', and provided (at the time), 'management with a scientific
based management tool to manage critical
resources, on micro level',
including 'the placement of new personnel members' and
'redistribution of resources'.
[22]
I am however satisfied that the witnesses for the SAPS established
that the RAG was merely a “wish list” of the
ideal number
of posts the SAPS wished to have in the unit, but is ultimately
dependent on budgetary constraints. They further demonstrated
that
the three posts reflected in the RAG comprised the two funded posts
occupied by Colonel Trollip and Colonel Changoolam and
a third
non-funded post. In the public service a non-funded post could not be
filled. Its status was essentially non-existent.
[23]
During his testimony, Colonel Matsetela explained it as follows:
“
You
explained that the document on page 154 is a combination of the
funded posts and the non-funded posts. You used the word “wish
list”. Can you just elaborate on that? - One would say
these are the number of posts that you wish to have within the
organization in terms of to be able to perform functions. But now if
one had to come to the budget point of view, you can only
afford to
have this number of posts in terms of the fixed establishment.
So
the budget then is the deciding factor? – The budget is the
deciding factor of course.
[24]
General Nkosi gave similar evidence and further stated that the RAG
was used previously during auditing but done in conjunction
with the
organogram. She said:
“
The
Rag is particularly a guideline. So it has vacant funded and those
unfunded posts. So that is why they even talk about the ideal.
It is
an ideal allocation … You can only fill it when you got funds
to be able to fill those particular posts which are
funded.
Is
that why you look at RAG together with the organogram? – Yes.
So we compare the two
[25]
Colonel Mabena gave similar evidence:
“…
the
meaning of RAG means the Resource Allocation Guide, to say that if
the SAPS had money. For SAPS to function effectively we would
love to
have so many people. But because of us not having enough funds to
then accommodate this, the ideal is going to be so many
people who
render service to the organization. It is a wish list. If we had
money …,. We would love to have this number
of people within
the SAPS to render these kinds of services.”
[26]
Colonel Matsetela testified as follows:
Okay.
Just hold it there. So it basically show all the posts that actually
exist? This Rag document? These posts actually exist.
However, you
will have to go somewhere else to find out whether that post is
filled, funded or vacant? Is that what you are saying?
– In
terms of the specifics to see if the post has been filled, which
means the relevant manager will know …. In terms
of to be able
to know if the post is funded then one has to go through finance to
check if the post has been funded … In
terms of whether the
post is vacant, the manager will know.
[27]
In conclusion, I find that there was no third colonel post in the
internal audit section of Crime Intelligence in which the
SAPS could
have placed Roos.
Whether
Roos could have been placed in Colonel Changoolam’s post
[28]
When the Order was handed down, Colonel Changoolam was acting in
another post. During cross-examination, Roos conceded that
Changoolam
could return to his substantive post at any time and therefore the
post was not vacant. More significantly, when he
was asked if he
would have accepted a temporary deployment to Changoolam’s
position, his answer was an emphatic: “No,
I want to be placed
back in my permanent post in crime intelligence”.
Whether
there was a direct order from the National Commissioner that Roos was
to be placed outside Crime Intelligence
[29]
I find that there is no clear evidence that the National Commissioner
gave such an order.
[30]
In the founding affidavit, the applicants contended that at a meeting
on 6 June 2014, SAPS personnel stated that the National
Commissioner
had given explicit instructions that Roos be placed in a position
outside
Crime Intelligence. The applicants interpreted this as
an order that Roos was not to be placed in Crime Intelligence.
[31]
At the evidentiary hearing, however, Roos and a union witness
testified that Brigadier Mabena told them that the instruction
to
place Roos at head office came directly from the National
Commissioner. This statement is materially different. At most it
communicates that the National Commissioner allegedly instructed that
Roos be placed at head office; not that he is to be kept out
of Crime
Intelligence.
[32]
Brigadier Mabena said she, at no stage, had discussions with the
National Commissioner on Roos and denied telling Roos and
his
representatives that the National Commissioner had given explicit
instructions that Roos be placed in a position
outside
Crime Intelligence. She may not have made this specific statement but
I accept that she made a statement in which she invoked the
name and
authority of the National Commissioner to explain why Roos was placed
in head office. Two witnesses testified to this.
Comparable
work
[33]
The next issue is whether the post to which Roos has been deployed is
comparable in content and substance to the post in which
he performed
in Crime Intelligence.
[34]
Roos has been placed in the Head Office of Internal Audits as an
audit manager in charge of teams of auditors who audit all
the police
stations in Gauteng. His present unit has a larger budget than the
internal audit section of Crime Intelligence because
of the volume of
work.
[35]
Roos however contends that the effect of his placement is a demotion.
In Crime Intelligence he had been an audit manager way
back in 2002
and thereafter became the section head of financial compliance with
audit managers reporting to him. Moreover, the
auditing process in
Crime Intelligence was more complicated and interesting than the “low
level auditing” of police
stations.
[36]
I fail to see an objectionable issue. The Order states that if the
SAPS cannot redeploy Roos in the internal audit section
of Crime
Intelligence, they must redeploy him
in an internal audit unit
of
the SAPS and provide him with work of a comparable nature to that
which he performed in Crime Intelligence. The judgment to the
Order
states:
“
I
am mindful of the primary consideration, which is that there is no
reason why, as far as possible, the respondents would not wish
to
utilise the applicant in his capacity
as
an internal auditor
for
which he was trained and in which he performed well' [emphasis
added].
[37]
Roos has been redeployed to an internal audit unit of the SAPS to be
utilized as an internal auditor; and not to some low level
department, but to a head office position. The core nature of the
work remains the same, which is internal auditing and managing
teams
of auditors. In my view, the SAPS has, as far as is possible,
provided Ross with work of a comparable nature. They obviously
could
not provide him with precisely the same work he performed in Crime
Intelligence because, on his own version, Crime Intelligence
work is
unique.
[38]
He has retained his rank of Colonel (level 12), he has teams of
auditors reporting to him and reports only to the provincial
head:
Gauteng who in turns reports to the national head of internal audit.
He is thus performing at
a similar managerial level,
as can be
achieved in the circumstances.
[39]
In their closing argument, the applicant contended that the Order
must be understood to mean that Roos must be provided with
duties and
functions
equal in content, difficulty and/or complexity
to
those he performed in Crime Intelligence.
[40]
As indicated, on Roos’s version, the accounts in Crime
Intelligence are
unique.
Obviously, then, no other auditing
job in the SAPS, even at head office level, would be equal in
content, difficult, complexity
or status.
[41]
It seems to me that Roos’ real grievance is not being placed in
his former substantive position. During cross-examination
he was
asked if he was prepared to be temporarily deployed to Changoolam’s
position (as the latter was acting in another
position). His answer
was an emphatic: “No, I want to be placed back in my permanent
post in crime intelligence”.
[42]
In that case, he ought to have persisted with his prayer for such
relief at the trial court. Instead he compromised and agreed
to be
placed in an alternative auditing position in the event that he could
not be placed in his former position.
Whether
Roos has been provided with all the necessary means to engage in that
work.
[43]
There were issues regarding office space and a webbed laptop, but
these matters were resolved by the time this hearing commenced.
In my
view the SAPS demonstrated that such issues were not due to any
attempt to frustrate Roos in the performance of his duties.
Loss
of benefits
[44]
Roos complained that whilst he was in Crime Intelligence he was given
a motor vehicle which he could use for travel between
home and work.
This vehicle was removed from him and in his view he lost a benefit
of the job. Under cross- examination he confirmed
that he would only
be entitled to the vehicle if he was placed in Crime Intelligence. It
was further demonstrated by the SAPS that
Roos currently has access
to pool vehicles that are available to him to conduct his duties.
Whether
Roos was consulted on a comparable post acceptable to him
[45]
It is common cause that the parties met and also communicated in
writing after the handing down of the Order. What emerged
during this
hearing is that in these discussions Roos pursued only one
proposition and demand, namely that there is a third Colonel
post in
Crime Intelligence and that he be placed in that post. When he was
told that there was no third post, he persisted with
his proposition
and demand and did not explore other options. In these circumstances,
I cannot find that the respondents failed
to properly consult him on
his placement.
Interpretation
of the Court Order
[46]
In their closing argument, the applicants contend that even if there
was no third Colonel post in the internal audit section
of Crime
Intelligence, the respondents have nevertheless failed to comply with
the Order.
[47]
They contend that that the language of the Order “preferring
redeployment in the Internal Audit section of Crime Intelligence”
was not really for appointment to a particular post, but for
deployment to a particular unit. They contend that it is
inconceivable
that the trial judge would have made an order
expressing a preference for the deployment of Roos in Crime
Intelligence if he knew
and understood that it would not be possible
to deploy Roos there. If a vacant post did not exist in Crime
Intelligence,
the Order ought to have been satisfied by either by the
creation of a post by the National Commissioner or by the National
Commissioner
transferring the post filled by Roos into the internal
audit unit of Crime Intelligence. They contend that the Commissioner
has
a plethora of powers which made this possible.
[48]
Under s 11(2) of the SAPS Act, the Commissioner is responsible to
'determine the fixed establishment of the Service and the
number and
grading of posts', 'determine the distribution of the numerical
strength of the Service', 'organise or reorganise the
Service at
national level into various components, units or groups'. Section
27(2) provides that the Commissioner 'may appoint
a person to a post
in the fixed establishment of the Service'. Under the SAPS Employment
Regulations, the Commissioner must 'define
the posts necessary to
perform the relevant functions while remaining within the current
budget and medium-term expenditure framework
of the Service. She is
further responsible to 'promote the efficient, economic and effective
use of resources', and 'to that end'
she must 'apply working methods
such as the re-allocation'. The SAPS Employment Regulations provide
that, before creating a post
or filling a vacancy, the Commissioner
must
inter alia
(i) confirm that the post is required to meet
the objectives of the Service; and (ii) ensure that sufficient
budgeted funds are
available for the filling of the post.
[49]
There is no legal basis to the applicants’ contentions.
Firstly, these issues were not pleaded in the applicant’s
application or put to the respondents’ witnesses in order to
demonstrate their feasibility. Secondly, there is nothing in
the
above statutory provisions which demonstrates that the National
Commissioner is empowered to use her powers to cater for the
particular circumstances of an individual and for the benefit of a
particular individual. Finally, the applicants’ contentions
are
inconsistent with Van Niekerk J’s ruling regarding the issues
to be determined in this case.
[50]
I endorse the respondents’ submissions that the applicants are
basing their case of contempt on the interpretation of
the Court
Order. The applicants knowing that there is a dispute about the
interpretation of the Court Order ought to have approached
this Court
to interpret the Court Order. In any event, on the face of it, the
interpretation of the Court Order by the applicants
is far-fetched,
especially considering the fact that Roos agreed at the trial court
that if he could not be placed in his previous
post in Crime
Intelligence then redeployment to a comparable post would be
acceptable to him.
Conclusion
[51]
The respondents have demonstrated ample proof that they have complied
with the Court Order and furthermore established reasonable
doubt
that their actions were not wilful or mala fide.
Costs
[52]
I do not think a cost order is appropriate, considering the history
of this matter.
Order
[53]
The rule
nisi
is
discharged and the application is dismissed with no order as to
costs.
_____________________________
Whitcher
J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. M J Engelbrecht
Instructed
by:
Serfontein Viljoen & Swart Attorneys
For
the Respondents:
Adv W R Mokhare SC with Adv S Tilly
Instructed
by:
The State Attorney, Pretoria
[1]
By Justice Lagrange.