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[2017] ZALCJHB 186
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Police and Prisons Civil Rights Union (POPCRU) obo Assegai v Minister of Police and Others (J418/17) [2017] ZALCJHB 186 (1 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case
no: J 418/17
In the matter between:
POLICE
AND PRISONS CIVIL RIGHTS
UNION
(POPCRU) obo BRIGADIER GA
ASSEGAI
and
THE
MINISTER OF POLICE
THE
ACTING NATIONAL COMMISSIONER
OF
POLICE
GAUTENG
PROVINCIAL COMMISSIONER
DIVISIONAL
COMMISSIONER: PERSONNEL
MANAGEMENT
Applicant
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Heard:
28 February 2017
Judgment:
1 March 2017
JUDGMENT
VAN
NIEKERK J
[1]
The applicant seeks an interim order, on an urgent basis,
interdicting the respondents from implementing a decision taken by
the third respondent to terminate the applicant’s service with
the SAPS, pending an application to review and set aside that
decision.
[2]
The matter was set down for hearing on 27 February 2017. On that
date, the application was stood down to the next day, 28 February
2017, and the costs reserved. The postponement of the matter was
occasioned by the respondents having apparently consented to the
relief sought in the form of a letter addressed to the applicant’s
attorneys in terms of which the decision that is the subject
of these
proceedings was withdrawn. The respondents’ representative, who
was not a legal representative, was unable to furnish
the letter or
provide any further instructions in regard to any consent to the
order and for that reason, the matter was stood
down.
[3]
On 28 February 2017, the letter, dated 27 February 2017, was made
available to the Court. In terms of the letter, as I have
indicated,
the decision to terminate the applicant’s services is
withdrawn. The applicant was urged to withdraw the application
on the
basis that each party pay its own costs, alternatively, to remove the
matter from the roll with costs to be determined at
a later stage. I
determined that there was no reason why the question of costs could
not be argued and determined immediately,
and both parties’
counsel made submissions in this regard.
[4]
In essence, the applicant contains that the withdrawal of the
applicant’s letter of termination constitutes a capitulation
on
the part of the respondents and that they ought on that basis to be
liable for the applicant’s costs. Indeed, the applicant
sought
costs in a punitive scale, largely on the basis of a letter written
to the respondents by the applicant’s attorney
on 17 February
2017 in which information, details and the reasons that necessitated
the applicant’s termination of service
in terms of s 35 of the
SAPS Act were requested. That request was refused and in a letter
dated 20 February 2017, the respondents
confirmed that the
applicant’s service was to be terminated with effect from 28
February 2017. Had the respondents acceded
to the applicant’s
request, the application would have been necessary.
[5]
The respondent’s counsel opposed any costs order on the basis
that the application in any event lacked merit. He contested
the
urgency of the application (on the basis that it was a claim for
money) and on the basis that the applicant would suffer no
irreparable harm, the respondents had agreed to her continuing to
receive remuneration until the end of her agreed extended service.
Counsel also submitted that to the extent that the relief sought was
interim relief pending the outcome of the review, the applicant
had
made no averments as to the nature of the review, or any grounds for
review.
[6]
In terms of s 162 of the LRA, the court has a broad discretion to
make orders for costs in accordance with the requirements
of the law
and fairness. First, I must say that the unchallenged version put up
by the applicant demonstrates a gross degree of
incompetence on the
part of the SAPS and it human resource management. This no doubt
contributed to the decision to withdraw the
decision that the
applicant sought to review, and to the present application. However,
while I appreciate that the present application
might have been
avoided altogether had the respondents acted more constructively in
relation to the applicants efforts to avoid
initiating these
proceedings, I must also take into account the deficiencies in the
applicants papers and in particular, the failure
to assert any
grounds for review or to make any averments regarding the applicant’s
prospects of success in any review application.
To the extent of that
the court would have been required to assess the applicant’s
prospects of success in order to determine
whether interim relief
should be granted, this would not have been possible on the basis of
the papers as they stand. It is likely
therefore that the application
would not have succeeded, certainly not without some degree of
amplification of the founding affidavit.
I also have my doubts that
the applicant suffered any irreparable harm, given the undertaking
that she would be remunerated at
least until 31 December 2018. In
these circumstances, in my view, the interests of the law and
fairness are best served by each
party bearing its own costs.
For
the above reasons, make the following order:
1. The application
is removed from the roll, with no order as to costs
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Adv. E Sithole instructed by Makgahlela Mashaba
Attorneys
For
the respondent: Adv. Mtsweni instructed by the State Attorney