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[2017] ZALCPE 22
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Booysen v Minister of Police and Others (P209/16) [2017] ZALCPE 22 (9 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
CASE NO: P 209/16
In
the matter between
HYRON
GAVIN BOOYSEN
Applicant
and
THE
MINISTER OF POLICE
First
Respondent
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICES
Second Respondent
Heard:
21 September 2017
Delivered:
9 November 2017
Summary: This court
will not decide a matter with no practical effect on the parties as
such matter is moot.
JUDGMENT
LALLIE,
J
Introduction
[1]
The applicant is a Colonel in the organised crime unit, the Hawks.
Owing to allegations of misconduct against him, the first
respondent
subjected him to a disciplinary enquiry. He launched an urgent
application seeking an order declaring the first and
second
respondent’s failure to start his disciplinary enquiry an
unreasonably long delay which justified its dismissal. He
sought a
further order declaring the first and second respondent’s
failure to accept the decision of the presiding officer
to reinstate
him in terms of clause 13 (4) of Resolution 1/2006 irregular. In
addition, he sought an order declaring the first
and second
respondent’s failure to complete or finalise his disciplinary
hearing as irregular and an unreasonably long delay.
The urgent
application was dismissed in a judgment handed down on 25 April 2017.
The applicant again brought an application on
the same papers seeking
only an order declaring the first and second respondents’
failure to complete or finalise his disciplinary
hearing irregular
and an unreasonably long delay. The first and second respondents
opposed the application.
[2]
In the answering affidavit the first and second respondents raised a
number of
points in limine
. I will only consider the
point
in limine
that this dispute is moot because, if proved, it will
be dispositive of this matter. In the supplementary answering
affidavit,
the first and second respondent’s attorney submitted
that on 18 April 2017, the applicant’s disciplinary enquiry was
resumed after it had been postponed to afford him an opportunity to
secure the services of an alternative legal representative
as the one
who had been assisting him had walked out. The disciplinary enquiry
did not proceed on 18 April 2017 because the applicant
requested a
further postponement as his new attorney was not available. It was
postponed to 16 May 2017 to accommodate his attorney.
The
disciplinary enquiry proceeded on 16 May 2017. After the respondents
had closed their case the disciplinary enquiry was postponed
to 26
and 27 June 2017 for the applicant to present his case. On 30 May
2017, the applicant’s legal representative requested
a
postponement. It was granted and the disciplinary enquiry was
scheduled for 28 and 29 June 2017. As the chairperson of the
disciplinary
enquiry was not available on 28 and 29 June 2017 owing
to other official duties, the disciplinary enquiry was rescheduled by
agreement
between the parties to 10 to 12 July 2017. For the same
reason, the disciplinary enquiry could not sit on the scheduled dates
and
it was further postponed by agreement between the parties to 20
to 21 July 2017. On 20 July 2017, the disciplinary enquiry proceeded
until the applicant closed his case. The parties agreed to submit
closing arguments. The respondents were required to file theirs
on 25
August and 8 September 2017. The applicant’s submissions were
due on 1 September 2017. Both parties met their deadlines.
When this
matter was argued on 22 August 2017 all the evidence had been led and
a decision on when closing submissions had to be
submitted had been
taken. For the above reasons the respondents argued that this matter
is moot as there is no dispute between
the parties.
[3]
The applicant denied that this matter is moot. He based his argument
on the fact that the disciplinary enquiry had not been
finalised as
its outcome was still outstanding. Amongst the authorities the
respondent relied on is the decision in
MEC
for Local Government, KZN v Yengwa
[1]
where
the Court referred with approval to the authority that is totally
against deciding matters which have no practical effect
on the
parties. Such matters are moot as they do not constitute disputes
between parties.
[4]
The averments on behalf of the respondents on the reasons for the
delay in the finalisation of the applicant’s disciplinary
enquiry were not gainsaid. They prove that the delay in the
finalisation of the disciplinary enquiry was mainly caused by the
applicant. He also consented to some postponements which were
occasioned by the unavailability of the chairperson. He may therefore
not seek to rely on the delay he is responsible for. Above all, only
the outcome of the disciplinary enquiry was outstanding when
this
application was argued on 21 September 2017. The chairperson received
the last set of closing submissions on 8 September 2017.
The
applicant did not argue that the period between 8 and 21 September
2017 is unreasonably long. The disciplinary enquiry is virtually
complete and there is therefore no dispute between the parties. The
matter is, in the circumstances, moot.
[5]
In the premises, I make the following order:
Order
1.
The
point
in limine
that this matter is moot is upheld.
2.
The
application is dismissed.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Advocate Burton
Instructed
by:
Wikus Van Rensburg
For
the Third Respondent:
Advocate Simoyi
Instructed
by:
The State Attorney
[1]
2010 (5) SA 494
at para 11.