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[2017] ZALCCT 36
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Solidarity obo Gerber v South African Police Service and Others (C381/17) [2017] ZALCCT 36 (11 August 2017)
Not
reportable
Of interest to other
judges
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 381/17
In
the matter between:
SOLIDARITY
obo A GERBER
Applicant
and
THE
SOUTH AFRICAN POLICE SERVICE
First respondent
MINISTER
OF POLICE N.O.
Second respondent
NATIONAL
COMMISSIONER OF SAPS N.O.
Third respondent
PROVINCIAL
COMMISSIONER (WESTERN
CAPE)
OF SAPS N.O.
NATIONAL
SECTION HEAD: MEDICAL
ADMINISTRATION
(SAPS)
DEPUTY
PROVINCIAL COMMISSIONER
(WESTERN CAPE):
HUMAN RESOURCE
MANAGEMENT
OF SAPS, N.O.
Fourth respondent
Fifth respondent
Sixth Respondent
Heard
:
4 August 2017
Delivered
:
11 August 2017
Summary:
Urgent application – unlawful transfer interdicted.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, Sergeant Armand Grobler, suffers from post-traumatic
stress disorder (PTSD) as a result of a traumatic event in the
course
of his duty as an officer of the South African Police Service (SAPS).
As a result, he has been declared unfit to carry a
firearm and he has
been temporarily placed in an administrative function at the Client
Service Centre (CSC) – commonly referred
to as the charge
office – in Oudtshoorn. But the Deputy Provincial Commissioner
of SAPS for the Western Cape dealing with
human resources (the sixth
respondent) has instructed him to report for duty at the Oudtshoorn
Magistrate’s Court –
a position that, according to its
key performance areas (KPAs), includes the provision that he must be
armed. He
[1]
seeks to interdict
the transfer on the ground that it is unlawful.
Background
facts
[2]
Sgt Gerber has been a police officer for some 15 years. In 2014 he
was exposed to a traumatic incident on duty that triggered
PTSD.
After consulting a clinical psychologist and an occupational
therapist they recommended that he be placed in an alternative
job.
On 16 February 2015 SAPS declared him unfit to possess a firearm for
five years, i.e. until February 2020.
[3]
Sgt Gerber was temporarily placed in a desk job at the Oudtshoorn
CSC, awaiting the outcome of a medical assessment. On 16 February
this year, 2017, the deputy provincial commissioner: human resource
management for SAPS in the Western Cape, Major General M C
Mzamane
(the sixth respondent) sent a letter to all station commanders in the
Western Cape confirming that Gerber (amongst others)
was unfit to
possess a firearm. He stated:
“
You
are hereby instructed to consult with the affected members and serve
a notice of redeployment in terms of SSSBC Agreement 5
of 1999 to a
position identified by Station Management where the carrying of a
firearm is not a prerequisite to perform such duties.”
[4]
SSBC Agreement 5 of 1999 is a collective agreement reached in the
Safety and Security Sectoral Bargaining Council in October
1999
between SAPS and three recognised trade unions. It binds the employer
and employees in SAPS. It governs transfers and states,
in peremptory
terms:
“
10.1.3
The employee whose transfer is being considered must be informed that
the transfer is being considered, and given the reasons
for the
proposed transfer. He or she must be allowed a reasonable opportunity
to make representations concerning the transfer,
if he or she wishes
to do so. Under normal circumstances a period of 21 days will suffice
for this purpose. The final decision
must be communicated to the
employee concerned within 21 days after his or her representation. If
the employee accepts the transfer
and fails to make any
representations, the necessary notice may be issued and the transfer
carried out.
10.1.4
If the employee makes representations, the commissioner responsible
for considering the transfer must consider the representations
and
decide the matter. If the transfer has to be considered by more than
one provincial or divisional commissioner, each commissioner
must be
given a copy of the representations to allow him or her to take an
informed decision.
10.1.5
After the representations of the employee have been considered, the
employee must be informed in writing that the representations
were
considered, and the outcome must be stated. If the representations
were not favourably considered, the reasons why the representations
were rejected must be set out in brief.”
[5]
On 3 March 2017 the acting station commander in Oudtshoorn, Col C
Marnewick, sent Sgt Gerber a letter in the following terms:
“
Member
must be informed that his possible placement at the Court will be
considered.
The
member has 21 days to make a representation to this office.”
[6]
Sgt Gerber did make representations. He did so on 3 April 2017. But
he received no response. The deponent to SAPS’s answering
affidavit, Brigadier Januari, says she never received it; but that is
contradicted by her own letter, written on 30 May 2017, that
she did
receive it. More of that later. What is common cause, is that Sgt
Gerber’s representations were not considered; nor
was he given
“the reasons why the representations were rejected” as
required by the SSSBC collective agreement.
[7]
Instead, before the 21 days for him to make representations had
expired, a Captain Dean of Oudtshoorn SAPS gave Gerber a letter
dated
14 March 2017 informing him of his “possible placement”
at the Oudtshoorn Magistrate’s Court. It did not
contain a post
description or the date when he had to report for duty. And on 24
April 2017 Col Dreyer told Gerber that he would
be placed at
“Oudtshoorn Vispol Support (Court)”. [Vispol is an
abbreviation for Visible Policing]. It purported to
be on Brig
Januari’s instruction, although she had not considered or
responded to Gerber’s earlier representations.
[8]
On 23 May 2017 Brig Januari transmitted an email annexing a letter
from a Col van Rooyen, the provincial head: personnel management.
That letter deals with the placement of members of SAPS declared
unfit to possess firearms in terms of the Firearms Control Act.
Col
van Rooyen confirms that: “You had to consult the member/s and
serve a notice for redeployment in terms of the transfer
policy
(SSSBC Agreement 5 of 1999) to the position that was proposed by this
office. Representations had to be considered if submitted
and the
information submitted to this office”. Brig Januari had neither
considered Gerber’s representations nor submitted
them to Col
van Rooyen’s office. She did not follow the steps set out in
SSSBC agreement 5 of 1999.
[9]
The performance plan output and standards for rendering duty at court
include the following:
9.1
“Always be well-armed when an average of 15 prisoners are [
sic
]
transported to and from their places of detention daily.”
9.2
“Always handle any dangerous situations daily, when an average
of 15 prisoners are transported
from and to their places of
detention.”
9.3
“Handle any dangerous situations daily in court building.”
9.4
“Arrest an average of 5 persons per month who are held in
connection with contempt of court
daily.”
[10]
Sgt Gerber points out that these tasks are in conflict with his final
medical assessment in terms of which he must be kept
away from
dangerous and stressful situations. He is also not allowed to carry a
firearm.
[11]
On 7 June 2017 Brig Januari sent Gerber a letter – without
having consulted him – stating:
“
PLACEMENT
AT COURT
1.
As per PC instruction and head office approval you are hereby
instructed to report to the above component before 2017/06/08.
2.
Non-compliance will be dealt with departmentally and can result in
stopping of salary.”
[12]
Gerber was booked off ill by a Dr Fourie.
[13]
On 14 June 2017 the principal social worker of SAPS’s Employee
Health and Wellness Social Work Services, Capt J E Neethling,
sent
Brig Januari a report. She confirmed Gerber’s medical condition
and noted that he was “correctly placed (according
to his
medical evaluation and diagnosis) for the last year”. She
concluded and recommended that it would not be in the interests
of
Gerber or SAPS for him to be transferred. Once again, Brig Januari
did not respond.
[14]
Sgt Gerber then approached his trade union, Solidarity. Its official,
Renate Barnard, wrote to Brig Januari on 15 June 2017.
She requested
Brig Januari to provide feedback on Sgt Gerber’s
representations of 3 April 2017 in terms of the SSSBC collective
agreement and to reconsider his placement at court; and to take into
consideration the National Instruction 5 of 2015 regarding
alternative placement. Barnard included another copy of Gerber’s
representations of 3 April 2017. She pointed out that SAPS
were not
adhering to its own collective agreements and policies. Once again,
Brig Januari did not respond.
[15]
Instead, and without responding to Solidarity, a Lt Col du Plessis,
the Operational Support Commander at Oudtshoorn SAPS, wrote
to the
station commander on 21 June 2017. She alleges that Gerber was
consulted on 13 February 2017 on possible placement at court
and that
Gerber was “not interested”. Gerber’s version is
that he could not take up that position due to his
PTSD and the risk
to him, other SAPS members and the public at large. Du Plessis
stated:
“
The
member has not yet taken up his post. By instruction of Col Dreyer on
2017-06-20 after he interviewed the member, this letter
to be [
sic
]
drawn up and member to be given 5 days to liaise with myself [
sic
]
and the court commander and take up his placement at court. There is
no work or office for the member currently at Vispol Operational
Support. If the member does not comply with instruction, the stopping
of salary will be investigated. Disciplinary file was already
opened
for non-compliance with an instruction. Member was served a copy of
this letter.”
[16]
Solidarity’s attorneys wrote to Brigadier Januari twice, on 23
June and 26 June 2017, in an effort to prevent litigation.
By now it
should come as now surprise that she did not respond. The attorneys
then brought this application on an urgent basis
on 28 June 2017. It
asked SAPS to deliver an answering affidavit by 4 July. Brig Januari
delivered an answering affidavit on behalf
of SAPS on 5 July 2017.
Gerber replied the next day. The matter was set down for hearing
during court recess on 6 July 2017. On
that day, and by agreement,
Lagrange J made the following order:
“
1.
First respondent [SAPS] does not concede that the matter is urgent
and reserves all its rights in this regard.
2.
Applicant and first respondent agree that urgency or the alleged lack
thereof, as per first respondent, would not be affected
by the matter
being heard in the first week of the third term as requested by
Lagrange J.
3.
Applicant shall continue to render services at the enquiry desk,
Oudtshoorn police station forthwith until the application has
been
heard on 4 August 2017 at which date the Presiding Judge may make
further directions (if applicable) and should judgment not
be given
on such date.
4.
All issues of costs including the scale thereof stand over for
determination.”
[17]
The matter was then enrolled for 4 August 2017. Having heard
argument, I reserved judgment and extended the arrangement set
out in
paragraph 3 of Lagrange J’s order until the date of judgment.
The
relief sought
[18]
Solidarity and Sgt Gerber seek the following relief:
“
1.
The applicant’s failure to comply with the form and time
requirements for service and filing of the application as required
by
the rules and the LRA are condoned and the matter be heard and dealt
with on an urgent basis;
2.
Declaring the decision by the sixth respondent [the Deputy Provincial
Commissioner (Western Cape): human resource management
of SAPS] that
the individual applicant (Sgt Armand Gerber) is placed at the
Magistrate’s Court in Oudtshoorn in the position
of “court
duties” as from 26 June 2017 to be unlawful and of no force and
effect;
3.
Interdicting and restraining the first to fourth respondents and the
sixth respondent (and any person authorised or instructed
by them) to
forthwith refrain from placing the individual applicant in a position
or at a place where he may be required to possess
and/or handle a
firearm for the period that he was declared to be unfit to possess
and handle a firearm and where the individual
applicant’s
current medical situation (PTSD) will preclude him from rendering
duty in or at, for as long as the individual
applicant continues to
suffer from his current medical condition;
4.
Directing the first to fourth respondents and the sixth respondent
(and any person authorised or instructed by them) to
allow the
individual applicant to continue rendering service at the Oudtshoorn
CSC (client services centre) in an administration
capacity as he did
prior to the unlawful instruction being issued for him to be placed
at the Magistrate’s Court in Oudtshoorn
in the position of
“court duties” as from 26 June 2017;
5.
Interdicting and restraining the first to fourth respondents and the
sixth respondent (and any person authorised or instructed
by them)
forthwith to place the individual in any other or alternative
position than Oudtshoorn CSC (client services centre) in
an
administration capacity if the relevant provisions of the SSSBC
Agreement 5 of 1999 and the National Instruction 5 of 2015
(ill-health retirement and ill health related matters) were not
followed and adhered to;
6.
Interdicting and restraining the first to fourth respondents and the
sixth respondent (and any person authorised or instructed
by them)
from instituting and/or from proceeding with any disciplinary steps
against the individual applicant for his failure to
comply with the
instruction by his superiors to report for duty at the Magistrate’s
Court in the position of “court
duties” and for any
failure to render duty in this position as from 26 June 2017;
7.
Interdicting and restraining the first to fourth respondents and the
sixth respondent (and any person authorised or instructed
by them)
from withholding the individual applicant’s monthly salary as a
result of his failure to comply with the instruction
by his superiors
to report for duty at the Magistrate’s Court in Oudtshoorn in
the position of “court duties”;
8.
That the first to third respondents be ordered to pay the applicant’s
costs, the one paying the others to be absolved;
9.
That the fourth to sixth respondents be ordered to pay the
applicant’s costs, the one paying the others to be absolved,
only in the event of opposition;
10.
Further and/or alternative relief.”
Evaluation
/ Analysis
[19]
The relief
sought is in the nature of an interdict. The applicant has to
establish a clear right; an injury actually committed or
reasonably
apprehended; and the absence of another satisfactory remedy.
[2]
The applicant also has to establish why the matter should be heard
urgently.
Urgency
[20]
Ms
De
Wet
,
for SAPS, submitted that the matter was not urgent. Gerber received a
placement letter on 7 June 2017. And he knew of his possible
placement – before making representations – on 14 March.
She referred to
BEMAWUSA
v SABC
[3]
,
where an application was struck from the roll for lack of urgency
where the union was aware of a pending disciplinary process
for many
months but had taken no action.
[21]
In this case, the date of 14 March is a red herring. At that stage,
had the union approached the Court on an urgent basis,
it would have
been given short shrift as its member had not availed himself of the
opportunity to make representations as outlined
in the collective
agreement. In this case, Sgt Gerber did make representations. He
followed the process outlined in the collective
agreement. Brig
Januari and SAPS did not. He and his union could not come to court at
that early stage.
[22]
Having received the placement letter on 7 June, Sgt Gerber again took
further steps to prevent unnecessary litigation and costs.
His social
worker wrote to Brig Januari. As is her wont, she did not respond. As
a last resort, he approached his trade union.
Solidarity wrote to
Brig Januari on 15 June. It included his representations again. It
reminded Brig Januari of her duties. Again,
it waited in vain for a
response. It is only on 21 June, having seen Col du Plessis’s
letter, that it became clear that Brig
Januari and SAPS had no
intention to respond to the applicants’ representations and
that this application was the last resort.
And then they brought this
application within a week.
[23]
I am
satisfied that this is one of those rare cases where exceptional
circumstances exist to hear the application on an urgent basis,
as
grave injustice may otherwise result
[4]
,
given that the applicants’ representations and their attempts
to comply with the collective agreement have fallen deaf ears.
Clear right?
[24]
In order to decide whether Sgt Gerber has a clear right to the relief
he seeks, a fundamental question is whether SAPS has
considered his
representations not to be transferred, as they were compelled to do
in terms of the SSSBC Agreement. And here lies
a fundamental and
startling contradiction.
[25]
The deponent to SAPS’s answering affidavit is Brigadier Lavona
Magdalene Januari, the Oudtshoorn Station Commander. She
says under
oath, in response to Gerber’s allegation that he made
representations on 3 April 2017:
“
I
note that Applicant alleges that he had submitted representations to
myself [
sic
] and Col Festus. It was never brought to my or Col
Festus’s attention and I am investigating whether the
submissions were
indeed submitted as alleged by Applicant”.
[26]
Brig Januari deposed to this affidavit, it appears, early in July
2017. (Her affidavit is signed but undated. The State Attorney
filed
it on 5 July 2017). But this allegation by Brig Januari is
contradicted in a letter under her own hand and signature on 30
May
2017 – barely a month earlier – and addressed to the
provincial commissioner, dealing with the placement of SAPS
members
declared unfit to possess a firearm, in which she refers to the
letter sent to Gerber on 14 March 2017. Then she states:
“
Only
one [1] [
sic
] member: no 7000678-4 Sgt A Gerber submitted his
representation to this office on 2017-04-03.”
[27]
Brig Januari wrote that letter to the Provincial Commissioner
and other SAPS officials, including the Oudtshoorn Vispol
Commander,
under the heading: “PLACEMENT: MEMBERS OF THE SA POLICE
SERVICE DECLARED UNFIT TO POSSESS FIREARMS into.
SECTION 102 AND 103
OF THE
FIREARMS CONTROL ACT, 2000
[ACT 60/2000]: WESTERN CAPE.”
It refers to the intended redeployment of a number of SAPS members,
including Sgt Gerber.
[28]
Colonel Erika van Rooyen, responsible for human resources, deposed to
a supporting affidavit. She confirms under oath that
“a letter
was received from the Station Commander [i.e. Brig Januari] on
2017-05-31 that Sergeant Gerber has not yet executed
his transfer to
the Oudtshoorn Court.” But she attaches no such letter. The
letter that is attached is the one from Brig
Januari dated 30 May
2017, in which she states that Sgt Gerber had made submissions on 3
April 2017. That corroborates Sgt Gerber’s
version and
contradicts Brig Januari’s own later statement under oath.
Sadly for a high ranking SAPS officer, the ineluctable
conclusion is
that Brig Januari did not, under oath, play open cards with the
Court.
[29]
To make matters worse, Brig Januari – having received Gerber’s
representations twice, if the second copy attached
to Solidarity’s
letter of 15 June 2017 is considered – did nothing about it.
She did not respond and she did not give
reasons why he would,
despite his representations, be transferred. Nor did she refer it to
the commissioner responsible for the
transfer for his or her
consideration. That is contrary to the prescripts of the collective
agreement reached in the Bargaining
Council on 8 October 1999. Sgt
Gerber’s representations were, quite simply, never considered.
And he has a clear right for
them to be considered. The collective
agreement says so in clear and peremptory terms. And that agreement
is binding on SAPS.
[30]
SAPS have also not complied with National Instruction 5 of 2005
dealing with ill health. It did not convene a meeting as set
out in
paragraph 9 of that Instruction, nor did it follow the procedures set
out in paragraphs 10 and 11.
[31]
Sgt Gerber and his trade union have a clear right to the relief they
seek. SAPS – and Brig Januari in particular –
simply
disregarded their obligations in terms of SSSBC agreement 5 of 1999.
That is unlawful. And her attempt to evade her obligations
by
alleging that she never received those representations is based on a
distortion of the truth.
An
injury committed or apprehended?
[32]
The KPAs attached to the position to which Sgt Gerber is to be
transferred, specify that he must carry a firearm. That would
be
unlawful. He has been declared unfit to carry a firearm.
[33]
In response, Brig Januari says that an exception will be made and
that he will not have to carry a firearm, despite the KPAs
to the
contrary. But even if that were to be accepted, he will still be
required to carry out “KPA 3 and 5”, according
to Brig
Januari. And that includes duties like the following:
“
Escort
an average of five prisoners to the clerk of the court per week to
pay a fine or bail.
No
escapes from prisoner [
sic
] while the prisoners are escorted.”
[34]
As Mr
Bekker
argued, since Gerber suffers from PTSD, any
possible escape by a prisoner would create a stressful situation. It
may well trigger
his PTSD, as is clear from his medical report. He
reasonably apprehends further injury to his mental health, should he
be transferred
to the court position.
Alternative
remedy?
[35]
The
application rests on lawfulness, not unfairness. It is analogous to
the situation in
Solidarity
v SABC
[5]
in
which Lagrange J referred to the judgment of the Constitutional Court
in
Steenkamp
v Edcon Ltd.
[6]
In that
case, Zondo J cautioned that, where an LRA remedy exists, that is the
remedy that litigants should use. But that does not
mean that other
remedies may not exist in specific factual circumstances.
[36]
This is a
case akin to dealt with in
Dlamini
v The Independent Police Investigative Directorate
[7]
where Van Niekerk J commented:
“
To
the extent that counsel for the respondents has relied on the
availability of an adequate alternative remedy in the hands of
the
applicants, he conceded during argument that the remedy sought in the
bargaining council was one premised on fairness, in which
the
applicants seek redress for what they contend was an unfair labour
practice committed by their employer. In these proceedings,
what is
at issue is the lawfulness of the applicants continued precautionary
transfer. The referral of a dispute to the bargaining
council is
therefore not an adequate alternative remedy; it is no more than a
separate substantive cause of action arising from
the same set of
facts.”
[37]
Sgt Gerber has attempted to make use of the procedures prescribed by
the SSBC agreement. SAPS have not. This is not a dispute
that he can
refer to the Bargaining Council as an unfair labour practice as is
the case, for example, with allegedly unfair suspensions.
He has no
adequate alternative remedy left, other than to approach this Court
for relief.
Conclusion
[38]
The applicant is entitled to the relief it seeks. It has satisfied
all the requirements for an urgent interdict. And all it
seeks is for
the respondents to abide by their own agreements and instructions.
[39]
Despite the apparent duplicity of the deponent to SAPS’s
answering affidavit, Brigadier Januari, Mr
Bekker
told the
Court that Solidarity would not seek costs against any of the
respondents or against her, given the ongoing relationship
between
the union and SAPS. I respect that request.
Order
[40]
I therefore make the following order:
40.1
The forms and time for service as required by the rules are dispensed
with and the matter was heard on an urgent
basis.
40.2
The decision by the sixth respondent [the Deputy Provincial
Commissioner (Western Cape): Human Resource Management
of the SAPS]
that Sgt Armand Gerber is placed at the Magistrate’s Court in
Oudtshoorn in the position of “court duties”
as from 26
June 2017 is declared to be unlawful and of no force and effect;
40.3
The first to fourth respondents and the sixth respondent (and any
person authorised or instructed by them) are
interdicted and
restrained from placing the individual applicant, Sgt Gerber, in a
position or at a place where he may be required
to possess and/or
handle a firearm for the period that he was declared to be unfit to
possess and handle a firearm and where his
current medical situation
(PTSD) will preclude him from rendering duty, for as long as he
continues to suffer from his current
medical condition;
40.4
The first to fourth respondents and the sixth respondent (and any
person authorised or instructed by them) are
directed to allow Sgt
Gerber to continue rendering service at the Oudtshoorn CSC (client
services centre) in an administration
capacity, as he did prior to
the unlawful instruction being issued for him to be placed at the
Magistrate’s Court in Oudtshoorn
in the position of “court
duties” as from 26 June 2017;
40.5
The first to fourth respondents and the sixth respondent (and any
person authorised or instructed by them) are
interdicted from placing
Sgt Gerber in any other or alternative position than Oudtshoorn CSC
(client services centre) in an administration
capacity if the
relevant provisions of the SSSBC Agreement 5 of 1999 and the National
Instruction 5 of 2015 (ill-health retirement
and ill health related
matters) were not followed and adhered to;
40.6
The first to fourth respondents and the sixth respondent (and any
person authorised or instructed by them) are
interdicted from
instituting or from proceeding with any disciplinary steps against
Sgt Gerber for his failure to comply with the
instruction by his
superiors to report for duty at the Magistrate’s Court in the
position of “court duties” and
for any failure to render
duty in this position as from 26 June 2017;
40.7
The first to fourth respondents and the sixth respondent (and any
person authorised or instructed by them) are
interdicted from
withholding Sgt Gerber’s monthly salary as a result of his
failure to comply with the instruction by his
superiors to report for
duty at the Magistrate’s Court in Oudtshoorn in the position of
“court duties”.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Wilhelm
P Bekker
Instructed
by Serfontein Viljoen & Swart.
RESPONDENTS:
Alma
de Wet
Instructed
by the State Attorney, Cape Town.
[1]
The
applicant is in fact Solidarity, Sgt Gerber’s trade union,
acting on his behalf.
[2]
Setlogelo
v Setlogelo
1914
AD 221
at 224; C B Prest,
The
Law and Practice of Interdicts
(Juta
1993) at 44-45.
[3]
(2016)
36
ILJ
1394
(LC).
[4]
Cf
Booysen
v Minister of Safety & Security
[2011]
1 83 (LAC) para 54.
[5]
[5]
(2016)
37
ILJ
2888 (LC). Seealso the discussion by Dr John Grogan, “Summary
Justice”
Employment
Law,
Volume 32, December 2016 4-12.
[6]
(2016)
37
ILJ
564 (CC).
[7]
[2016]
ZALCJHB 452 (29 April 2016) par 12.