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[2017] ZALCJHB 69
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Provincial Commissioner: North West South African Police Service and Another v Safety and Security Sectoral Bargaining Council and Others (JS787/14) [2017] ZALCJHB 69 (22 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JS 787 / 14
In
the matter between:
PROVINCIAL COMMISSIONER: NORTH
WEST
SOUTH AFRICAN POLICE SERVICE
THE NATIONAL COMMISSIONER:
SOUTH
AFRICAN POLICE SERVICE
1
st
Applicant
2
nd
Applicant
And
SAFETY AND SECURITY SECTORAL
BARGAINING
COUNCIL
PATEL M N.O.
POPCRU
OBO MOSWEU I B
1
st
Respondent
2
nd
Respondent
3
rd
Respondent
DATE HEARD: 8 December 2016
DATE DELIVERED: 22 February 2017
SUMMARY: Whether
an employee who had been dismissed in an internal disciplinary action
is to be regarded as being on suspension
as envisaged in Regulation
17(9) of the SAPS Regulations pending the outcome of his/her appeal.
Held, that
Regulation 16(4) has the effect of deeming all employees as suspended
pending the outcome of their appeal.
Held, that the
3rd Respondent, who had been suspended without remuneration remained
so suspended pending the outcome of his appeal
and was entitled to be
reinstated, with pay, after the lapse of the thirty (30) working days
period within which the appeal had
to be finalised.
JUDGMENT
MALINDI
AJ
Introduction
[1]
The
First and Second Applicants (“the Applicants”) have
brought a review application seeking a declaratory order in
terms of
which an interpretation of Regulation 17(9) of the South African
Police Service Regulations
[1]
(Reg 17(9)) should be made. The Regulation reads as follows:
“
Regulation
17(9)
The
Appeal authority must finalise an appeal within thirty (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 appeal.”
[2]
Regulation 17(9) has to be read in context
with Regulation (16)(4)(a) and (b) which provides as follows:
“
(4)
(a) In the event of the sanction of dismissal
being imposed on the employee, such dismissal
shall take effect
twenty one (21) calendar days after the determination is made:
Provided that such employee shall be deemed to
have been suspended
with immediate effect with full remuneration, unless the employee is
under suspension without remuneration
in accordance with regulation
(13)(2), in which case the suspension without remuneration will
continue.
(b)
If an employee referred to in paragraph (a), lodges an appeal against
the finding or determination in
terms of regulation 17, the employee
shall be deemed to have been suspended, as provided for in paragraph
(a), until the conclusion
of the appeal proceedings: Provided that if
the appeals authority confirms the discharge, the discharge of such
employee shall
take immediate effect.
[3]
The Applicant’s contend that although
the appeal that was lodged by the Third Respondent on behalf of
Mosweu (“Mosweu”)
was not concluded within 30 working
days as contemplated in terms of Regulation 17(9), Mosweu is not one
of the employees in respect
of which the regulation provides that
they must resume duties immediately pending the outcome of the
appeal.
[4]
On the other hand, the Third Respondent
contends that Mosweu qualifies for resumption of his duties with
effect from the date on
which the 30 working day period referred to
in Regulation 17(9) lapsed on the 30
th
of August 2014 and payment from that date to date of the outcome of
the appeal. During the hearing it was confirmed that the appeal
outcome confirmed Mosweu’s dismissal on the 30
th
of November 2016.
Background
and Chronology of Material Facts
[5]
Mosweu joined the service of the Applicants
on 16 May 1990 as a police officer with a rank of warrant officer. He
was at all material
times stationed at the Rustenburg Police Station.
[6]
On 31 March 2014 Mosweu was placed on
suspension without pay following allegations of various acts of
misconduct levelled against
him. He went through a disciplinary
hearing and was found guilty by the Chairperson who also recommended
a sanction of dismissal
on 6 June 2014.
[7]
Aggrieved by the chairperson’s
recommendation of dismissal Mosweu appealed against the chairperson’s
findings of guilty
as well as the recommended sanction of dismissal.
Mosweu’s appeal is dated 2 July 2014 and was filed by
electronic mail on
3 July 2014
[8]
At the time the Third Respondent’s
heads were drafted, Mosweu was still waiting for the appeal outcome.
[9]
The Third Respondent further proceeded to
lodge a dispute with the First Respondent. The dispute was regarding
an alleged unfair
labour practice of dismissal.
[10]
During the arbitration, the commissioner
would decide whether the Applicants failed to comply with Regulation
17(9) of the SAPS
discipline regulations of 2006.
[11]
During the arbitration, the Third
Respondent criticized the SAP’s failure to comply with
regulation 17(9) in that the appeal
was, according to the Third
Respondent, long lodged on the 22
nd
July 2014 but was not finalized within the prescribed thirty (30) day
period as dictated under Regulation 17(9).
[12]
The Commissioner made a finding that the
employer had failed to comply with Regulation 17(9) and ordered that
the Third Respondent
had to resume his employment with immediate
effect, pending the outcome of the appeal.
Consideration
of the law
[13]
I am required to consider whether the
Commissioner was correct, not reasonable, in concluding that the
Applicants had failed to
comply with Regulation 17(9) by no
reinstating Mosweu after 30
th
August 2014 and ordering that he be reinstated within 24 hours
pending the outcome of his appeal.
[14]
The Applicants submit that whereas
Regulation 17(9) states expressly that employees who are entitled to
reinstatement into their
positions pending the outcome of an appeal
after the lapse of the 30 day period are those that were on
“precautionary suspension
or temporarily transferred” at
the time of their dismissal. The regulation does not effect or avail
those “who are
out rightly or directly dismissed.”
Therefore in the case of Mosweu, he is not entitled to resume duties
whilst awaiting
the outcome of the appeal since he is a dismissed
employee, not on under precautionary suspension or temporarily
transferred.
[15]
Mosweu had been suspended in terms of
Regulation 13(2) which provides that:
“
(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: Provided that –
(a)
Before
suspending an employee without remuneration, the employee is afforded
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)
The
disciplinary process is not completed within sixty (60) calendar days
from the commencement of the suspension, the question
of continued
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
such 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.
[16]
It
was stated in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2]
that:
“
[18]
…
.
The
present state of the law can be expressed as follows. Interpretation
is the process of attributing meaning to the words
used in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation. In a contractual context
it is to make a contract for
the parties other than the one they in fact made. The ‘inevitable
point of departure is the
language of the provision itself’, read
in context and having regard to the purpose of the provision and the
background
to the preparation and production of the document.”
[17]
In
Bothma-Batho
Transport (Edms) BPK v S Bothma en Seun Transport (Edms) Bpk
[3]
it
was found as follows in reference to the Endumeni Municipality case
at para [18]:
[12]
… Whilst the starting point remains the words of the document,
which are the only relevant medium
through which the parties have
expressed their contractual intentions, the process of interpretation
does not stop at a perceived
literal meaning of those words, but
considers them in the light of all relevant and admissible context,
including the circumstances
in
which
the document came into being. The former distinction between
permissible background and surrounding circumstances, never very
clear,
has
fallen away. Interpretation is no longer a process that occurs in
stages but is ‘essentially one unitary exercise’.
[18]
I was
referred to the case of
Ntuli
v South African Police Service and Others
[4]
in support of the submission that Regulation 17(9) fails to cover the
situation of a directly dismissed employee where an appeal
is not
concluded within 30 days. I did not find this case helpful in this
enquiry.
[19]
It is my view, therefore, that I must apply
the rules of interpretation as espoused in
Natal
Joint Municipal Pension Fund
, that is,
to interpret the Regulations as a whole and in context. I will
therefore consider the literal meaning of the words in
the relevant
regulations 17(9) and 16(4) and in the light of all relevant and
admissible context, including the Constitution of
the RSA, the Labour
Relations Act and the Collective Agreement No.1 of 2006, dated 02
February 2006, between the South African
Police Service, third
Respondent and South African Police Union.
Analysis
[20]
As stated above, Mosweu was suspended in
terms of Regulation 13(2) without remuneration. Sub-item (3) of
Regulation 13 states that
a suspension is a precautionary measure.
[21]
After Mosweu was found to have committed
misconduct and a sanction of dismissal was meted out, he lodged an
appeal in terms of Regulation
17(3) and (4). It is common cause that
his appeal was not concluded within 30 working days as stipulated in
Regulation 17(9).
[22]
The
Regulations contemplate a speedy process in disciplinary proceedings,
including appeal processes, in compliance with the Labour
Relations
Act
[5]
whose purpose is to promote “
the
effective resolution of labour disputes.
”
[6]
In
Mashego
v Cellier NO and Others
[7]
it was said:
[15]
The Constitution guarantees the right to fair labour
practices. The LRA gives effect to those rights. One of its
primary
objects is to promote the effective resolution of labour disputes. In
order to be effective, dispute resolution should
be speedy. And both
time and legal costs should be minimised. In
National Education
Health and Allied Workers Union v UCT
the Constitutional Court
recognised this principle and said:
“
By
their nature labour disputes must be resolved expeditiously and be
brought to finality so that the parties can organise their
affairs
accordingly. They affect our economy and labour peace. It is in the
public interest that labour disputes be resolved speedily.
. .”
[16]
As the learned authors in
Labour
Relations Law: a Comprehensive Guide
point
out, the drafters of the LRA intended that disputes be resolved
quickly. The Explanatory Memorandum noted that the brief of
the task
team drafting the LRA was, amongst other things, to “provide
simple procedures for the resolution of disputes through
statutory
conciliation, mediation and arbitration”. It was meant to adopt
“a simple non-technical and non-jurisdictional
approach the
dispute resolution”. By providing for the determination of
dismissal disputes by final and binding arbitration,
the act adopted
“a simple, quick, cheap and non-legalistic approach to the
adjudication of unfair dismissal.”
[23]
What is clear from the reading of
Regulation 16(4) and 17(9) is that they seek to cure the mischief of
prolonged disciplinary processes
and appeal processes. Regulation
17(9) in particular requires a speedy appeal process in order to
ensure that the employer does
not prejudice the employee by keeping
that away from their duties for a protracted period and also to avoid
the prejudice to the
employer of paying an employee for long periods
pending the finalisation of the process.
[24]
Furthermore, Regulation 4 principles
require that “discipline must be applied in a prompt, fair,
consistent and progressive
manner.”
[25]
In this context and the clear reading of
regulation 17(9) it is envisaged that if the employer does not
conclude appeal processes
within 30 working days it does so at the
pain of reinstating the employee pending the outcome. Reinstatement
envisages payment
for the services rendered. Of course, if the
outcome is in favour of the employee then he/she continues in the
position or is reinstated
to the original position if he/she was
temporarily transferred as a precautionary measure. If the outcome is
against the employee,
as is the case herein, the employee would not
have lost out on remuneration for the period that the employer was
dilatory.
[26]
Whether Mosweu is covered by Regulation
17(9) depends on the meaning of regulation 16(4).
[27]
It is
required that proceedings against an employee who has been suspended
without remuneration be initiated within fourteen (14)
calendar days
of the date of the decision to suspend him/her,
[8]
and that if the disciplinary process is not completed within sixty
(60) calendar days,
“
the
question of continued suspension without remuneration must be
considered by the Commissioner and the employee may again make
written representations which the commissioner must consider.”
[9]
[28]
Furthermore,
“
A
decision that the suspension continues may only be for a further
period of thirty (30) calendar days.”
[10]
[29]
All this points to the principle that a
suspension in terms of Regulation 13(2) must not operate unfairly and
to the prejudice of
the employee whereby a sanction of suspension
without remuneration is applied without the employee having been
found guilty of
misconduct.
[30]
Regulation
16(4)(a) deems an employee against whom a sanction of dismissal has
been imposed to have been suspended with immediate
effect with full
remuneration.
[11]
This is merely to accommodate the fact that such a dismissal takes
effect only twenty-one (21) calendar days after the sanction
of
dismissal is made. However, in the case of an employee who at the
time the sanction of dismissal is imposed in under suspension
without
remuneration in accordance with Regulation 13(2), the suspension
without remuneration continues.
[12]
In other words, such an employee as Mosweu is in this case, remains
suspended without remuneration until the dismissal comes into
effect
twenty-one calendar days after its imposition.
[31]
Mosweu
therefore remained suspended without remuneration even at the time
that he lodged his appeal. Regulation 16(4)(b) provides
that if an
employee who is dismissed but was not under suspension at the time,
and an employee who was under suspension without
remuneration as
referred to in Regulation 16(4)(a), lodges an appeal is deemed to
have been suspended as provided for in paragraph
(a) until the
conclusion of the appeal process. Therefore, Mosweu continued to be
suspended without remuneration at the time of
lodging his appeal. In
other words, he was not considered a dismissed employee but a
suspended employee. The discharge or dismissal
would only take effect
immediately upon confirmation of such by the appeal authority.
[13]
[32]
The Applicants are therefore incorrect in
their submission that Regulation 17(9) does not contemplate a person
in Mosweu’s
position. His dismissal by the disciplinary panel
did not distinguish him from those who were on suspension or
temporary transfer
pending the commencement of hearings. In fact,
Regulation 6(4) clarifies his position fully that he remains
suspended pending the
final pronouncement of the appeal authority. It
is therefore also incorrect that Regulation 17(9) is not clear in
this regard.
[33]
I have come to the conclusion that the
Second Respondent was correct in finding that the Applicants had
failed to comply with Regulation
17(9) of the South African Police
Service regulations under Notice No. R643, Government Gazette 28985
of 3 July 2006, and ordering
that Mosweu is to resume his duties
within twenty-four (24) hours of becoming aware of the award pending
the outcome of the appeal,
as provided for in Regulation 17(9).
[34
]
Since Mosweu should have resumed his duties
within twenty four (24) hours after the lapse of the thirty (30)
working days period
referred to in Regulation 17(9) I will
accordingly modify the Second Respondent’s second part of the
award.
[35]
Regarding the award of compensation for the
period of 30 August 2014 to 30 November 2016, I am enjoined to give
an amount of compensation
that is fair to both parties. Mosweu’s
referral of the dispute was a claim for unfair labour practice not in
contract. In
the circumstances I consider compensation in the amount
equivalent to 12 month’s salary, to be paid at Mosweu’s
salary
at the time of his suspension, to be fair.
Order
[36]
I therefore make the following order:
1.
Condonation for the late filing of the
review application is granted;
2.
The review application is dismissed;
3.
The first and second Applicants are to pay
to Mosweu compensation equivalent to 12 month’s salary
calculated at the time of
his suspension.
4.
The first and second Applicants are to pay
the costs of the application jointly and severally, the one paying
the other to be absolved.
_______________________
MALINDI
AJ
ACTING
JUDGE OF
THE
LABOUR COURT
REPRESENTATION
For
the Applicants: Adv. DM Matlou
Instructed
by: State Attorney
For
the Respondents: Mr T Majang of Majang Attorneys
[1]
Notice No.
R643, GG28958 of 3 July 2006
[2]
2
2012 (4)
SA 593
(SCA) at [18]
[3]
2014 (2) SA
494
(SCA) at [10] – [12]
[4]
[2012]
ZALCD 14 (D862/12); (2013) 34 ILJ 1239 (LC)
[5]
Act 66 of
1995
[6]
Section
1(d)(iv) of the Labour Relations Act
[7]
(2016) 37
ILJ 994 (LC) at [15] and [16]
[8]
Regulation
13(2)(c)
[9]
Regulation
13(2)(d)
[10]
Ibid
[11]
Regulation
16(4)(a)
[12]
Ibid
[13]
Regulation
16(4)(b)