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[2016] ZALCJHB 45
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Minister of Police v Nomdo and Another (JR2719/13) [2016] ZALCJHB 45 (8 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
Number: JR2719/13
In
the matter between:
MINISTER OF
POLICE
Applicant
and
CONSTABLE F.
NOMDO
First Respondent
POPCRU
Second
Respondent
Date
heard: 14 October 2015
Delivered:
8 February 2016
JUDGMENT
RABKIN-NAICKER
J
[1]
The applicant relies on section 158(1)(h) of the LRA and/or PAJA to
review a decision by the Appeal Authority of the South African
Police
Services. The Appeals Authority of the SAPS was established in terms
of paragraph 17(1) of the Regulations for the SAPS.
The Regulations
reads as follows:
“
17.
Appeal –
(1)
An appeals authority is hereby established.
(2)
The appeals authority comprises of a person or person appointed by
the National Commissioner to consider
appeals or a specific appeal in
terms of these Regulations.
(3)
An employee may appeal a finding or sanction in the form determined
by the National Commissioner.
(4)
The employee must, within ten (10) working days of receiving the
notice of the final outcome of the
hearing, submit the appeal to the
administrative office of the appeals authority.
(5)
The appeals authority may on good cause shown condone the late
lodging of an appeal.
(6)
The appeals authority must consider the appeal and, in the event that
the appeals authority decides
that a hearing is required, the appeals
authority must notify the appellant of the date and place of the
hearing.
(7)
The appeals authority may –
(a)
uphold the appeal; or
(b)
reduce the sanction to any lesser sanction allowed
in terms of regulation 15 (1); or
(c)
confirm the outcome of the disciplinary hearing.
(8)
The employer must immediately implement the decision of the appeals
authority. Where the appeals authority
decides to reduce the sanction
or to confirm the outcome of the disciplinary hearing, the sanction
will be implemented by the employer
from the date of the decision of
the appeals authority.
(9)
The appeals authority must finalise an appeal within (30) working
days from the date of the receipt
of the appeal, failing which in
cases where the employee is on precautionary suspension or
temporarily transferred, he or she must
resume duties immediately and
await the outcome of the appeal.”
[2]
The decision to uphold the first respondent appeal was, according to
the founding papers, one in which the Appeals authority
of the SAPS
was acting
qua
employer and the functionary was fulfilling his
duties in terms of the applicable legislation.
[3]
The first question that the court has to consider is whether a proper
application is before it, given that neither the appeal
authority nor
the functionary himself is joined in the application. Joinder is a
matter for the Court to decide even if the parties
to the relevant
litigation do not raise the point or insist on the joinder of another
party
[1]
A court will order the
joinder of another party to ensure that all the parties interested in
the subject-matter of the dispute
and whose rights may be affected by
the judgment of the court are before it to avoid a multiplicity of
actions and to avoid a waste
of costs.
[2]
It is generally accepted that what is required is a legal interest in
the subject-matter of the action which could be prejudicially
affected by the judgment of the Court.
[3]
[4]
In
Member
of the Executive Council, Department of Education, Eastern Cape v
Gqebe
[4]
the
LAC stated that:
“
[33]
It is settled law that where a person or entity has a direct and
substantial interest in the outcome of the proceedings such
a person
and/or entity should be joined in the proceedings (
Public
Servants Association v Department of Justice & others
(2004) 25 ILJ 692 (LAC);
[2004] 2 BLLR 118
(LAC)). In review
applications, it is necessary to cite the arbitrator and/or CCMA or
the relevant bargaining council. (Cf
I
Dlala v Commissioner for CCMA & another
[1999] 7 BLLR 670
(LC) at para 19;
Johnson
v CCMA & others
(2005) 26 ILJ 1332
(LC);
[2005] 8 BLLR 796
(LC) at para 6;
Duda
v MEC for Gauteng Department of Education & others
(2001) 22 ILJ 1637 (LC) at para 23;
De
Beers Consolidated Mines Ltd v CCMA & others
(2000) 21 ILJ 1051 (LAC);
[2000] 9 BLLR 995
(LAC) at para 15; see
also
Cloete v Evander Gold Mines Ltd
[2001] 4 BLLR 433
(LC) at para 36.
[34]
In
casu
the Labour Court should have afforded both the
arbitrator and the relevant bargaining council an opportunity to make
representations
on the issue relating to whether the award fell to be
set aside or not.”
[5]
In this matter the Appeals Authority, one Colonel JR Mokwena, should
have an opportunity to depose to a affidavit, in his representative
capacity, as to whether the decision stands to be set aside. I
therefore intend to make an interlocutory order in this matter as
follows:
Order
1.
It is ordered that Colonel JR Mokwena
N.O.
is joined as third
respondent to these proceedings.
2.
The applicant is directed to serve upon the third respondent within
21 days of the date of this
order copies of all pleadings and papers
filed in this application.
3.
The third respondent is directed to answer thereto within 10 days of
date of service.
4.
The matter may then be re-enrolled for final adjudication on the
opposed motion roll.
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Adv. M. Gwala instructed by
the State Attorney
First
Respondent: Chism Incorporated Attorneys
[1]
Toekies
Butchery (Edms) Bpk en Andere v Stassen
1974
(4) SA 771
(T) at 774G--H;
Harding
v Basson and Another
1995 (4) SA 499
(C) at 501D--E.
[2]
Harding
v Basson and Another supra
at
501I--J.
[3]
see
Henri
Viljoen's case supra
at 167
[4]
(2009)
30 ILJ 2388 (LAC)