Brief Summary

Labour Law — Transfer of employees — Legitimate expectation — Applicants, members of SAPS, sought to interdict their transfer back to the provincial anti-corruption unit after being assured at a prior meeting that they would remain in their current positions at the DPCI — Respondents contended that the original transfer was invalid due to procedural non-compliance — Court found that the applicants had a legitimate expectation based on representations made at the meeting, and that the decision to transfer them back was made without proper consultation — Applicants established a prima facie right to maintain their positions pending review of the decision.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an urgent application for interim interdictory relief in the Labour Court, aimed at preserving the status quo pending contemplated review proceedings. The relief sought was directed at preventing the South African Police Service (“SAPS”) from implementing a decision that would have transferred a group of detectives out of the Directorate for Priority Crime Investigation (“DPCI”) and back to a provincial anti-corruption unit.

The applicants were the Police and Prisons Civil Rights Union (POPCRU) acting on behalf of T M Nkuna and 11 other SAPS members (constables and a warrant officer) who were serving as detectives. The respondents were senior SAPS functionaries, including the Acting National Commissioner of Police, the Deputy National Commissioner: Human Resource Management, several DPCI and provincial commanders, and the Minister of Police.

Procedurally, the urgent application was launched on 3 May 2017 and was heard on 9 May 2017, by which time answering and replying affidavits had been exchanged. Judgment was delivered on 31 May 2017. Although the interim relief was framed as pending a review, the judgment recorded that no review application had yet been launched when the matter was argued, and the court addressed this by crafting the interim order so that it would lapse automatically unless review proceedings were instituted within a short period.

The dispute arose from an employment-related administrative decision concerning the transfer/posting of the applicants within SAPS structures, and in particular whether SAPS could implement a reversal of their earlier placement at DPCI in circumstances where the applicants alleged that undertakings (or representations) had been made that they would not be compelled to return to the provincial unit.

2. Material Facts

POPCRU acted for eleven SAPS members who had been transferred in April 2013 from various Gauteng police stations to the Gauteng provincial anti-corruption unit. Initially, they were based at a “safe house” with inadequate facilities and endured lengthy travel.

In April 2016, the applicants were instructed that the unit would be absorbed by the DPCI Anti-Corruption Investigations Unit, and they would be transferred with effect from 17 May 2016. Upon reporting at the new unit, they completed administrative forms and were then posted to offices in Germiston or Pretoria, chosen to be closer to their respective residences. Their salaries and benefits remained the same, but they alleged that DPCI postings came with practical advantages, including fully resourced offices, allocated official cell phones with unlimited air time, and regular on-the-job training.

On 25 November 2016, a meeting took place involving DPCI, the Gauteng Anti-Corruption unit, and the applicants. The applicants’ version was that it was agreed at this meeting that, except for one member who was willing to return, they would not be compelled to go back to the provincial unit and that posts at DPCI would be advertised so they could apply. On that version, SAPS representatives made representations that created a legitimate expectation that they would remain at DPCI on that basis.

The respondents disputed that such undertakings were made to the majority who did not wish to return, and characterised the November meeting as a consultation contemplated by the applicable transfer policy framework.

On 24 April 2017, the applicants became aware of a letter dated 22 March 2017 which, in their view, revoked or undermined what had been agreed or represented at the November meeting. The letter communicated that they were to be transferred back to the provincial structure with effect from 28 April 2017.

The respondents’ stated justification (as reflected in the 22 March 2017 letter) was that the original DPCI transfer had been implemented without the authority of the Provincial Commissioner and without following due process under Transfer Policy SSSBC 5/1999, and that it was therefore necessary to transfer them back. The judgment noted that this justification was not elaborated upon in the answering affidavit.

It was also material that the letter of 22 March 2017 did not purport to implement the transfer on the basis that proper consultation had occurred; instead it relied on the contention that the earlier authorisation was invalid for want of authority and non-compliance with process.

3. Legal Issues

The central legal questions were whether the applicants had satisfied the requirements for interim interdictory relief in urgent proceedings to prevent implementation of the transfer back to the provincial unit, pending the outcome of review proceedings directed at the 22 March 2017 decision.

Within that, the court had to determine whether the applicants had established a prima facie right (even if open to doubt). The asserted right was framed primarily in terms of a legitimate expectation (or alternatively an agreement/undertaking) arising from the 25 November 2016 meeting, namely that they would not be compelled to return to the provincial unit without the issue being reopened and properly addressed.

The dispute required the court to engage with a mixed inquiry involving the application of legal principles to the facts, especially the relationship between (a) what the applicants contended was represented or undertaken at the November meeting, (b) the content and rationale of the March letter, and (c) whether the respondents’ conduct in March could be treated as consistent with a meaningful prior consultation. It also involved evaluative judgments typical of interim relief, including apprehension of harm, absence of adequate alternative remedies, and the balance of convenience.

4. Court’s Reasoning

The court first addressed urgency, holding that the application had been brought with sufficient urgency given the short period between the applicants becoming aware of the decision to transfer them back and the effective date of transfer. The court further considered that, based on the unsigned minute of the November meeting, the applicants could not reasonably have anticipated the outcome later communicated.

On the requirement of a prima facie right, the court analysed the nature of the right actually advanced in the papers. While the applicants also suggested—collaterally—that if the May 2016 transfer was invalid it should first be set aside and could not simply be treated as invalid by the respondents, the court focused on the principal thrust of the interim claim: the asserted expectation or undertaking arising from the 25 November 2016 meeting.

The court accepted that the unsigned minute lent at least some support to the applicants’ contention that commitments were conveyed that they would not be compelled to return and that DPCI posts would be advertised. Although the respondents disputed that such undertakings were made, the court emphasised that the respondents did not provide an alternative version explaining why the minute was inaccurate. The court then compared the alleged content of the November meeting to the rationale in the 22 March 2017 letter, finding a lack of correspondence between what was recorded as having transpired at the meeting and the reason later advanced for the transfer.

In that context, the court reasoned that, if the representations at the November meeting were as they appeared, the March stance represented either a complete reversal or repudiation. The court found it difficult to accept the respondents’ claim that the November meeting constituted consultation preceding the March decision when the pleaded version of the meeting did not align with the reasons later relied upon. The court held that, at minimum, the applicants had a reasonable expectation that the status quo would persist unless the issue was reopened through further discussion explaining a change in circumstances. The court therefore concluded that the applicants had shown a prima facie right, even if open to doubt, not to be subjected to the impugned measure in the absence of proper procedures associated with lawful administrative action.

On apprehension of harm, the court accepted that the applicants would likely suffer material prejudice from being relocated from DPCI postings that placed them closer to their homes and families, and from losing the benefit of official cellphones, which had relieved them of additional expense. While the respondents argued that the apprehension of harm was moot because the transfer had already occurred, the court treated the harm as potentially ongoing and not insignificant given the applicants’ salary levels.

On alternative remedies, the respondents contended that any dispute could be dealt with through internal grievance procedures and, ultimately, mediation or arbitration, characterising the applicants’ asserted right as being limited to consultation under the transfer policy. The court, however, framed the applicants’ complaint differently: it was not principally a claim about non-compliance with the transfer policy, but rather about SAPS undermining alleged undertakings or expectations created in November 2016 when the March decision was taken. On that basis, the court was not persuaded that transfer-procedure mechanisms would provide suitable alternative redress for the asserted right underpinning the interim application.

On the balance of convenience, the court noted that the respondents advanced only vague reasons from the bar. Any prejudice to the respondents mentioned in the March letter was not confirmed on oath. The court found no self-evident short-term prejudice to the respondents in retaining the applicants within DPCI pending review, while the applicants had shown tangible prejudice affecting living and working conditions. The court concluded that the balance favoured granting interim relief.

Finally, the court addressed the problem that the relief could become open-ended because review proceedings had not yet been instituted. It therefore fashioned the order to require prompt institution of review proceedings, failing which the interim relief would lapse automatically.

5. Outcome and Relief

The Labour Court treated the matter as urgent and dispensed with the usual forms and time periods. It granted interim interdictory relief pending the outcome of review proceedings relating to the decisions communicated in the 22 March 2017 letter from the Deputy National Commissioner: Human Resource Management.

The respondents were interdicted and prohibited from reversing the decision communicated in the 16 May 2016 letter from the Gauteng Provincial Commander: Serious Corruption Investigations, and interdicted from giving effect to the decisions in the 22 March 2017 letter. This included prohibiting directions that the applicants return to their pre–16 May 2016 posts at the Gauteng Provincial Anti-Corruption Unit – Detectives, and prohibiting the commencement or continuation of any process connected with the March letter.

The court imposed a time limit: the applicants had to launch the contemplated review proceedings within five days of the order, failing which the interim relief would lapse automatically.

The respondents were ordered to pay the applicants’ costs, jointly and severally, the one paying the others to be absolved.

Cases Cited

No external cases were cited in the judgment.

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

The judgment referred generally to “the rules governing forms of service, and time periods in the Labour Court rules” being dispensed with due to urgency, but did not cite a specific numbered rule.

Held

The court held that the matter was urgent and that the applicants met the requirements for interim interdictory relief. In particular, it found that the applicants established a prima facie right (even if open to doubt) grounded in a reasonable legitimate expectation arising from the November 2016 meeting, and that the respondents’ March 2017 decision was materially inconsistent with those representations without a further process that addressed the change.

The court further held that the applicants demonstrated a well-grounded apprehension of ongoing harm, that alternative remedies were not shown to be adequate for the specific complaint advanced, and that the balance of convenience favoured maintaining the status quo at DPCI pending review. Interim relief was therefore granted, subject to a strict requirement that review proceedings be instituted within five days.

LEGAL PRINCIPLES

Interim interdictory relief requires the applicant to establish urgency (where relied upon), a prima facie right (even if open to doubt), a well-grounded apprehension of harm, the absence of adequate alternative remedies, and that the balance of convenience favours the granting of relief.

Where an employer’s prior representations or undertakings create a reasonable expectation as to how an employment-related administrative decision will be handled, a later decision that is materially inconsistent with those representations may support a prima facie right to preservation of the status quo, particularly where the later step is taken without a further process addressing the change in position.

In assessing whether consultation has occurred for purposes advanced by an employer, the court may scrutinise whether the content of the alleged consultation bears a meaningful relationship to the reasons later relied upon for the prejudicial step, and may take into account the absence of an explained alternative version where the applicant relies on a recorded minute of the consultation.

Where interim relief is granted pending contemplated review proceedings that have not yet been instituted, the court may craft an order to prevent open-ended interim protection by imposing a strict timeframe for launching the review, failing which the interim relief lapses automatically.

Police and Prisons Civil Rights Union (POPCRU) obo Nkuna and Others v Acting National Commissioner of Police and Others (J970/17) [2017] ZALCJHB 207 (31 May 2017)