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[2016] ZALCJHB 5
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Mbekele and Another v Phahlane and Another (J2525/15) [2016] ZALCJHB 5 (5 January 2016)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Case no: J
2525/15
Reportable
In the matter between:
CHRISTABLE NOBELE
MBEKELA
First Applicant
SOLOMON MOTSWADISE
MAKGALE
Second Applicant
and
JOHANNES KOMOTSO PHAHLANE
First
Respondent
MINISTER OF
POLICE
Second Respondent
Heard:
23 December 2015
Delivered:
05 January 2016
Summary: Urgent
application: Powers of the Acting National Commissioner of the Police
to suspend. Regulation 13.
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
The
applicants in this urgent application seek a declaratory and
mandatory interdict relating to their suspension by the first
respondent. The order they seek is that of declaring their suspension
by the respondents to be invalid and unlawful and to direct
the
suspension be uplifted.
[2]
The
application is opposed on both its urgency and the merits.
The parties
[3]
The
first applicant, Mr Mbekela, is Deputy National Commissioner:
Corporate Service Management and the second applicant, Mr Makgale,
is
a Lieutenant General, Head of Corporate Communication, Marketing
Liaison in the South African Police Service (SAPS). The
applicants have instituted the present application jointly because
the facts upon which they base their complaints are the same
in
relation to the findings of the Police Portfolio Committee in
Parliament.
[4]
The
first respondent, Mr Phahlane, is a Lieutenant General who is
currently acting in the position of the National Commissioner
who is
on suspension. The second respondent, the Minister of Police is cited
in his nominal capacity as the executing authority
of the SAPS.
Background facts
[5]
It is
common cause that soon after his appointment as Acting National
Commissioner, the second respondent expressed an intention
to have
the first applicant “discharged” from the services of the
SAPS. The intention was expressed in the letter in
the following
terms:
‘
1.
Kindly note that I am considering your possible discharge from the
South African Police
Service in terms of the provisions of
section 35
(b) of the
South African Police Service Act, 1995
based on the
following:
1.1
The
deferment of your retirement age For a Period of Three Years Has Been
Approved by the Minister of Police on 2015- 3-02;
1.2
the
deferment is based on your involvement in the four
projects/initiatives are set out in your application for deferment .
. .
‘
[6]
The
reasons for invoking the provisions of section 35 of the SAPS Act
[1]
as
set out in the letter is in essence related to the restructuring of
the services of the SAPS. The letter further invited the
first
applicant to provide reasons why the above decision should not be
implemented.
It
is apparent from the reading of s 35 that the discharge would have to
take form of operational reasons based on restructuring.
[7]
It is
further common cause that soon after making her submission as to why
her services should not be terminated, the first applicant
received a
notice of the intention to institute disciplinary proceedings against
her.
[8]
On 23
November 2015 the applicant received the letter from the first
respondent indicating amongst others that the intended discharge
in
terms of section 35 (b) of the SAPS Act was no longer under
consideration. The letter also stated that since the intention to
discharge was served on the first applicant the following have
occurred:
‘
4.1
On 11 November 2015 the Portfolio Committee on Police released a
Draft Rule 201 Enquiry Report
(Draft 5 A). In the said report serious
allegations of impropriety have been levelled against yourselves and
I am under a constitutional
obligation to have the allegations
investigated and to have appropriate action taken in the event of
prima
facie
misconduct.
4.2
On 12 November 2015 you filed an Urgent Application in the Labour
Court, Johannesburg to
interdict the Acting National Commissioner and
the Minister of Police from taking certain decisions. Although the
application was
subsequently withdrawn your founding affidavit
contains certain statements which lack the decorum one could expect
from your office.
The statement also
prima
facie
constitute
misconduct and I have decided to institute a disciplinary
investigation in this regard. You will be served with a Notice
of
Intended Suspension in due course.”
5.
In the light of the above please note that your contemplated
discharge in terms
of the provisions of
section 35
(b) of the
South
African Police Service Act, 1995
is no longer under consideration.’
[9]
The
first applicant was on the same day, of receipt of the intention to
institute disciplinary proceedings, served with the notice
of the
intention to suspend her. A further allegation which formed the basis
for the intention to suspend the first applicant relates
to the radio
interview she participated in, on 12 August 2015 at Radio 702.
[10]
The
suspension of the second applicant is based only on the findings made
by the Portfolio Committee on Police in Parliament which
reads as
follows:
·
‘
your
conduct was obstructive, not forthcoming and deliberately obstructing
the questions put to you;
·
you
are uncooperative with the Committee
·
you
attempted not to provide full answers to the Committee
·
your
role in the interactions and deliberations at the said Committee
meetings has been to deliberately mislead the Committee as
to who
ordered you to release the press statement (s); and
·
your
actions were inconsistent with the rule of a high-ranking officer of
your bank and status in the management echelon of SAPS.’
The relief and the contention of the
applicants
[11]
The
basis of the relief sought in this matter is set out in the founding
affidavit in the following terms:
a.
The
suspension ought to have been on the basis of precautionary measure
pending the determination of the alleged misconduct in terms
of
Regulation 13 of the SAPS Disciplinary Regulations.
b.
The
interview with Radio 702 was a once off event and that any question
about it can be done by visiting the recording based at
the radio
station and that the suspension came four months after the interview.
c.
The
alleged untrue statement contained in the affidavit before the Labour
Court cannot sustain because the matter was never decided
by the
Court as it resolved by agreement.
d.
The
evidence relating to the finding by the Parliamentary Portfolio
Committee is held by that Committee.
[12]
Mr
Mashaba, for the applicants contended that the suspension was invalid
because it did not comply with the provisions of regulation
13 of the
SAPS Regulations. He further contended that the suspension was
motivated by ulterior motive. It was for this reasons
that he
contended that the suspension was invalid and unlawful. He conceded
that the allegations made against the applicants especially
those
contained in the findings of the Portfolio Committee were serious.
He, however contended that that could not serve as a valid
ground for
suspension because the report was a subject of a pending review
challenge by the suspended National Commissioner of
Police,
Commissioner Phiyega. The other point he made in this regard
was that the report was still in a draft form and further
needed to
be ratified by the Parliament.
Evaluation
[13]
In my
view the applicants have failed to make out case for urgency and it
is for that reason alone that their application stands
to fail. It is
trite that in order to succeed an applicant who institute an urgent
application must satisfy the requirements of
rule 8 of the Rules of
this Court. In this respect the application must in the founding
affidavit set out the reasons for urgency
and why the relief is
sought on an urgent basis. The founding affidavit must further
explain why the time frame set out in the
rules should be abridged.
[14]
The
other requirement to satisfy in relation to urgency is to show that
there are no other satisfactory remedies available to the
applicant
and that if the relief is not granted on an urgent basis the
applicant will suffer irreparable harm.
[15]
In the
present matter the reason why the matter is urgent is set out in the
founding affidavit in the following terms:
‘
28
I submit hearing of this matter is urgent. Invalid and unlawful
decision of the First Respondent
continues to be of force until set
aside.
29.
The First Respondent’s decision to suspend me has been taken
for an ulterior motive.
The reasons provided for the decision are
clearly not authorised in terms of the Regulation 13 of the South
African Police Service
Disciplinary Regulations 2006.
30.
We have been directed to hand over the SAPS 108 items. These include
cell phones, laptop
computer and our certificates of appointment.
31.
On Saturday the 05 December 2015, Makgale received numerous phone
calls from officials of
the SAPS requesting that he hands over his
SAPS 108 items.
32.
All the above items necessary for the preparation of ensuing
disciplinary hearing. Our rights
to a fair hearing process will be
undermined if the possession of the SAPS 108 items (are) taken away
from us.’
[16]
It
is apparent from the above that the reason for urgency is based on
the fact that the decision to suspend the applicants is invalid
and
unlawful because it ‘continues to have force until set aside.’
It is indeed correct that the decision carries force
until it is set
aside.
[2]
The
fact that a decision is invalid and unlawful does not automatically
make the matter urgent, as Mr Kennedy for the respondent
argued. It
does not relief the applicant of the duty of showing that the matter
is indeed urgent. In other words even if it was
to be accepted that
the decision was unlawful, the applicants still needed to satisfy the
Court as to why the decision could not
be challenged through the
normal time frames provided for in Rules of the Court.
[17]
In
light of the above I find that the applicants have failed to persuade
this Court as why the alleged unlawful suspension could
not be
challenged through the normal time frames provided for in the Rules
of the Court. The case of applicants is also not assisted
by the call
for returning the SAPS 108 items to the respondents. In the first
instance those items are the properties of the SAPS,
and secondly the
call for the return of the items cannot form a basis for urgency for
two reasons, namely that:
a.
There
is no evidence that the applicants have returned the items.
b.
The
complaint is based on the fear that taking away the items will hinder
the applicants in their preparation for the disciplinary
hearing. The
disciplinary hearing is still to be instituted and if the applicants
require the items for preparation at that stage,
they can then apply
to the chairperson of the disciplinary hearing for their release.
[18]
The
other reason for finding that this matter is not urgent is because
the applicants have failed to make out a case that they will
not be
able to obtain a satisfactory relief at a later stage and that if the
relief is not granted on an urgent basis they will
suffer irreparable
harm.
[19]
The
issue of availability of other satisfactory remedy in suspension
cases was dealt with in
MEC
for Education, North West Provincial Government v Gladwell
,
[3]
where
the Court found that in suspension cases the remedy is found in
the provisions of s186 (2) of the LRA and therefore
urgent relief
would be inappropriate. The urgent relief in suspension cases would
according to the Court apply where there exist
reasonable
apprehension of irreparable harm. In that instance an interim relief
pending the finalisation of the unfair labour dispute
would be the
appropriate remedy. In this regard the Court per Murphy AJA had the
following to say:
“
[46]
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 section 191(1) of the
LRA. The respondent in this
case instead sought a declaratory order
from the Labour Court in terms of section 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 where 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 an
applicant will be to seek an order granting urgent interim relief
pending the outcome of the
unfair labour practice proceedings.
(Footnote omitted)”
[20]
In the
present matter the applicants do not in their founding affidavit
state what irreparable harm they will suffer if the relief
they are
seeking is not granted. In the confirmatory and supporting affidavit
the second applicant makes a broad and unsubstantiated
averment that
he will suffer irreparable harm if the relief is not
granted on an urgent basis. The only harm
that the applicants
allude to is that they will not be able to prepare for the
disciplinary hearing if they were to hand over the
SAPS 108 items. As
indicated earlier there is no evidence that they have handed the
items to the respondents. Even if they had
they have the option of
applying to the chairperson of the disciplinary hearing to order that
they be allowed access to them as
soon as those proceedings commence.
[21]
In
light of the above I find that the applicants have failed to make out
a case for urgency and accordingly their case stands to
fail for that
reason alone.
Merit
[22]
Ordinarily
I should have concluded the case on the basis of the above finding
but I have decided to deal the merits for two reasons.
The first
being is that even if I was wrong in finding that the applicants have
failed to make case for urgency, their case still
fails on the
merits. The second is for the purpose of applying the exception to
the general policy of this Court that in general
costs should not be
awarded against individuals because they may have a chilling effect
on individuals who may wish to assert their
labour rights.
[23]
It
seems to me that the applicants in their claim that their suspension
is unlawful misunderstood the cause of action which the
first
respondent took against them. They seem to treat suspension in the
same way as a disciplinary inquiry. Although related
the two
processes are distinct from each other.
[24]
As
indicated earlier the applicants sought a final relief and therefore
it was incumbent on them in order to succeed to satisfy
the following
requirements:
-
a clear
right to the relief sought
-
proof
that an injury or wrong was actually perpetrated or committed or
reasonably apprehended by them; and
-
the
absence other satisfactory remedy.
[25]
The
basis of the relief sought by the applicants is set out at paragraph
[11] of this judgment. In the founding affidavit the applicants
focuses their complaint on the charges and the evidence which is to
be led at the disciplinary hearing. The issues relating to
how
evidence for the disciplinary hearing is obtained and where it is
located has very little bearing on the validity and the lawfulness
of
the suspension. Those issues would become relevant once the
investigation into the allegations have been completed, the charges
formulated and the disciplinary proceedings having commenced. The
fact that the alleged misconduct is committed in Cape Town and
therefore the evidence relating thereto is locate there has no
relation to the lawfulness of the suspension. The question of the
location of the evidence, whether it be in the archives of Radio 702
or in Parliament in Cape Town, may well be a defence that
they may be
raise during the disciplinary hearing. Whether that would constitute
sustainable defences is not a matter for this
court to determine at
this stage.
[26]
It
appears to me that one of the important thing which the applicants
ought to have shown in their papers in order to succeed in
their
point about the allegations made against them, in particular those
contained in the Portfolio Committee’s findings
was that they
were innocent in as far that was concerned or that none of those
never happened or if they concede that it happened,
that they do not
constitutes misconduct. Except for contending that the evidence
relating to the findings of the Portfolio Committee
is based in Cape
Town the applicants did not dispute the allegations contained in the
findings nor contended that they are innocent
in as far as that was
concerned.
[27]
The
other basis upon which the applicants attacks the decision to suspend
them is on the alleged ulterior motive on the part of
the first
respondent. The ulterior motive is based on the averment that the
decision to suspend was not authorised in terms of
regulation 13 of
the Regulations of the SAPS. There was initially some confusion as to
whether the complaint about non-compliance
with the regulation
related to regulation 31(2) of the Regulations. Mr Matlhaba clarified
in reply that the applicants’ case
was based on regulation
13(1) read with sub-regulation (3) and regulation 5 of the
Regulations.
[28]
Regulation
13 under the heading, “Precautionary suspension,”
envisages two kinds of suspensions, the one with pay and
the other
without pay.
[4]
It
is clear that sub-regulation (1) gives the National Commissioner very
wide powers to suspend. Unlike sub-regulation (2) which
provides for
certain requirements to be satisfied in order to suspend an employee
without pay, sub-regulation (1) is silent on
that. Sub-regulation (3)
simply states that; “A suspension is a precautionary measure.”
[29]
Regulation
5 which the applicants relied on in their submission is headed
“Nature of misconduct.”
[5]
This
regulation deals with misconduct that may warrant disciplinary action
against an employee. It has to be read with regulation
20 which deals
with various misconduct which could be committed by an employee. It
is clear that regulation 5 requires of the employer
in charging an
employee under any of the offences listed under regulation 20 to
assess the seriousness of the misconduct taking
also into account the
impact that such misconduct would have on both the work of the
employee and his colleagues.
[30]
In my
view regulation 5 has to do more with the consideration of whether an
employee should be charged of any of the misconduct
listed in
regulation 20 of the Regulations. It may well be that the guidelines
set out in that regulation may be applied by the
employer when
considering suspension of an employee. The seriousness of the alleged
offence is always an important factor to consider
when considering
whether or not to suspend. In the present matter, Matlhaba conceded
during the debate that the allegations contained
in the findings of
the Portfolio Committee were very serious.
[31]
In my
view regulation 5 has to do more with the consideration of whether an
employee should be charged of any of the misconduct
listed in
regulation 20 of the Regulations. It may well be that the guidelines
set out in that regulation may be applied by the
employer when
considering suspension of an employee. The seriousness of the alleged
offence is always an important factor to consider
when considering
whether or not to suspend. In the present matter, Matlhaba conceded
during the debate that the allegations contained
in the findings of
the Portfolio Committee were very serious.
[32]
In
light of the above I find that the applicants have failed to satisfy
the requirement of a clear right to the relief sought. They
have also
failed to show that a wrong or injury was perpetrated against them by
the respondents in suspending them. They have further
failed to show
that they have no alternative remedy but to approach this Court on an
urgent basis.
[33]
Turning
to the issue of costs, I see no reason based on the facts and the
circumstances of this case why costs should not follow
the results.
This is more so when regard is had to the fact that the applicants
institute these proceedings despite clear jurisprudence
on the
approach to adopt when instituting an urgent applications concerning
suspension.
[6]
Order
[34]
In the
premises the applicants’ application is dismissed with costs.
________________
E, Molahlehi
Judge of the Labour Court of South
Africa
Appearances:
For the Applicant:
Adv. P Keneddy SC
Instructed by:
The State Attorney
For the Respondent:
Adv M Matlhaba
Instructed by:
Makgahlela Mashaba Attorneys.
[1]
Section
35 pf the SAPS Act reads as follows: “The National
Commissioner may, subject to the provisions of the Government
Service Pension Act, 1973 (Act 57 of 1973), discharged a member-
(a)
Because
of the abolition of his or her post, or the reduction in the numeral
strength, the reorganisation or the readjustment
of the Service;
(b)
If,
for reasons other than that unfitness or incapacity of such member,
his or her discharged will promote efficiency or economy
in the
Service, or will otherwise be in the interest of the Service; or
(c)
If the
President or a Premier appoints him or her in the public interest
under any law to an office to which the provisions of
this Act or
the Public Service Act, 1994 (promulgated under Proclamation 103 of
1994), do not apply.’
[2]
The
principle that an invalid and unlawful decision carries force until
set aside is based on the decision in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and
Others
[2004]
3 All SA 1
(SCA) (28 May 2004).
[3]
[2012]
8 BLLR 747(LAC).
[4]
Regulation
13 which reads as follows:
’
13.
Precautionary suspension
(1)
The
employer may suspend with full remuneration or temporarily transfer
an employee on condition, 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: Provides that –
(a)
Before
suspending an employee without remuneration, the employee is offered
a reasonable opportunity to make written representations;
(b)
The
Commissioner considers the representations and inform the employee
of the outcome of the representations;
(c)
The
disciplinary process must be initiated within fourteen (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 sixty (60) calendar
days from the commencement of the 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 seven (7) calendar days of receiving written representations
on continued suspension and inform the employee of the outcome of
the representations. A decision that the suspension continues,
may
only be for a further period of thirty (30) calendar days.
(3)
A
suspension is a precautionary measure.
(4)
If
any employee is suspended with full remuneration or transferred as a
precautionary measure, the employer must hold a disciplinary
hearing
within sixty (60) calendar days from the commencement of the
suspension or transfer. Upon the expiry of the sixty (60)
days, the
chairperson of the hearing must take a decision on whether the
suspension or temporary transfer should continue or
be terminated.
[5]
Regulation
5 which reads as follows:
‘
5
Nature of misconduct
(1)
Employee
conduct that may warrant disciplinary action is listed in regulation
20.
(2)
In
applying regulation 20, the employer must assess the seriousness of
the alleged misconduct after considering –
(a)
The
actual or potential impact of the alleged misconduct on the work of
the Service, the component of the employee, his or her
colleagues
and the public;
(b)
The
nature of the work and responsibilities of the employee; and
(c)
The
circumstances in which the alleged misconduct took place.’
[6]
See
MEC
for Education, North West Provincial Government v Gladwell, supra,
Golding v HCI Managerial Services (Pty) Ltd and Others
[2015] BLLR
91
(LC
)
at paragraph [43] and
Maqubela
v South African Graduate Development Association and Others
[2014] 6 BLLR 582
(LC)
at
paragraph [25].