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[2018] ZALCJHB 235
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POPCRU obo Moleshe v Minister of Police and Others (J1726/18) [2018] ZALCJHB 235 (7 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J1726/18
In the matter between:
POPCRU
obo LUYANDA
MOLESHE
Applicant
and
MINISTER OF
POLICE
First
Respondent
NATIONAL
COMMISSIONER
Second
Respondent
PROVINCIAL
COMMISSIONER
Third
Respondent
MAJOR GENERAL DI
BILLET
Fourth
Respondent
Application heard: 29 May 2018
Judgment delivered: 7 June 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an urgent application in
which the applicant seeks to suspend a decision to withdraw his
transfer to Mdatsane cluster
pending his appeal against the decision,
to require that the applicant continue to reporting to the
Mdatsane cluster and/or
provincial head office and/or King William’s
Town cluster pending the outcome of his appeal, that he be paid his
full remuneration
pending the outcome of the appeal and that no
disciplinary action be taken against him pending the outcome of his
appeal.
[2] The factual background is not in
dispute. The applicant was previously based at the crime operation
sub-component in Aliwal
North. On 11 December 2017, he applied for a
transfer to King William’s Town cluster legal services. The
application was
motivated by, amongst other things, the applicant’s
deteriorating health and his personal circumstances. Ultimately,
during
May 2018, the applicant was transferred to Mdatsane. He
accepted the transfer and was instructed to report there and that
‘the
paperwork would follow’.
[3] On 2 May 2018, the applicant went
to the provincial head office as he had not yet received a written
communication to take to
Mdatsane to tender his services. He was told
to go to Mdatsane, as they were expecting him there. On arrival at
Mdatsane, the applicant
was told to report to East London.
[4] On 7 May 2018 the applicant was
advised that his placement at Mdatsane had been withdrawn and that he
was to report at Aliwal
North with immediate effect. On 8 May 2018,
the fourth respondent addressed a letter to the applicant headed
“Confirmation
of withdrawal of placement of Lt Col Moleshe…’.
The letter went on to state:
3.
… you are still reporting at the provincial office without
authority.
4.
Please note that your tender of service at the provincial office is
not accepted as proper tender service at your workplace,
as you have
no authority to tender your service at the provincial office.
5.
Be advised that a contract of employment is of a reciprocal nature
and that your entitlement to salary is based on your tender
of
service to your employer
6.
As indicated above, your tender of service at the provincial office
is not regarded as proper tender of services and your absence
at your
current workplace in Aliwal North, is without authority.
7.
It is as follows that you are absent from work without any authority
and thus not entitled to salary. Your continued reporting
at the
provincial office does in no way cure or render your absence lawful.
8.
Please be further advised that should you continue with your refusal
to take up your post that Allah will North cluster, we will
have no
other option but to suspend our obligation to reimburse you.
9.
Your continued disregard of the instruction to report to your post is
also regarded as misconduct and will be dealt with accordingly.
[5] On 8 May 2018, the applicant
appealed against this decision. On 16 May 2018, he supplemented his
grounds of appeal.
[6] The
prima facie
right on
which the applicant relies is founded in a collective agreement
regulating transfers within the SAPS. The applicant submits
that
there is no provision made in the agreement for the withdrawal of a
transfer, unilateral or otherwise. He submits that the
approval of
his transfer to Mdatsane demonstrates that there was a genuine
occupational need and that the decision to transfer
him there was in
the best interests of all parties.
[7] The applicant submits that
exceptional circumstances exist for this court to intervene with the
decision dated 7 May 2018 in
terms of which he is to report in Aliwal
North. He states that he was granted a transfer to Mdatsane on 17
April 2018, which he
accepted, that he left Aliwal North and returned
his belongings to his home in Bisho (which is closer to Mdatsane) as
a result,
that he tendered his services at Mdatsane, that he was told
that there was no offer space for him there and that he has never
refused
to work there, that he was moved back to the provincial
office and again to East London. The applicant maintains that he has
no
objection to reporting at Mdatsane, or the provincial office or
King William’s Town. In short, the applicant submits that
there
is no sound basis to withdraw his transfer to Mdatsane and that in
any event, as mentioned above, there is no provision for
any
withdrawal in terms of the applicable collective agreement.
[8] The respondents do not dispute
that the applicant can apply for a transfer to King William’s
Town. They contend
that the processing of the application is not yet
been finalised and note that it ‘may very well be successful’.
The
essence of the respondent’s opposition to the application
is that the respondents were sympathetic to the applicant’s
request to be transferred to a post closer to his home and for this
reason, in terms of an informal arrangement, secured his placement
at
the Mdatsane offices. The applicant accepted this placement and
accordingly tendered services in Mdatsane. His arrival there
however
was not anticipated and there was no office ready for him. As an
interim measure, the applicant was accommodated in East
London. On 3
May 2018, the applicant telephoned the provincial head of legal
services stating that he was not willing to travel
between King
William’s Town and East London or Mdatsane, and that for this
reason, the Mdatsane placement was withdrawn.
The applicant then
reported for duty at the provincial offices which prompted the letter
dated 8 May 2018, warning the employee
that he should take up his
post at the Aliwal North cluster or face suspension of his
remuneration and/or disciplinary action.
[9] Central to the respondent’s
case is the contention that the applicant has failed to establish
that he was officially transferred,
in terms of the applicable policy
as informed by the collective agreement, from Aliwal North to
Mdatsane. The applicant has accordingly
failed to establish any right
to be transferred since the subject of the interim agreement
concerned a placement as opposed to
a transfer. The respondent
submitted that it is not for this court to complete a placement into
a transfer, or to override the
binding provisions of the transfer
policy. In any event, the respondent contend that there are no appeal
procedures relating to
placement disputes and that the alternative
remedy of the normal dispute resolution procedure remains available
to the applicant.
[10]
Factual disputes in motion proceedings are to be decided in
accordance with the rule established in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H - 635B.. The court may only find in favour of
the applicant “
if
the facts as stated by the first respondent together with the
admitted facts in the applicant's affidavits justify such an
order...”
The
court is therefore, in effect, bound by what the respondent’s
state in their affidavit, unless it is “
so
far-fetched or clearly untenable that [he] is justified in rejecting
them merely on the papers”
(
Plascon-Evans,
supra
at 634 –
635).
[11]
The respondents’ averments that the applicant’s
application for a transfer remains pending must therefore be
accepted,
as must the averment that the applicant was placed in
Mdatsane only as an interim measure. Further, the applicant does not
seriously
dispute that the ‘transfer’ on which he relies
was not a transfer implemented in terms of the collective agreement.
That being so, the collective agreement regulating transfers is not
applicable to what amounts to no more than an interim placement
pending the outcome of an application for a transfer. It follows that
the applicant has no clear right or
prima
facie
right in
terms of that agreement to sustain an application for interim relief.
The application accordingly stands to be dismissed.
[12]
In relation to costs, the court has a broad discretion in terms of s
162 to make orders for costs according to the requirements
of the law
and fairness. The court ordinarily does not make orders for costs in
disputes between collective-bargaining partners,
and I do not intend
to depart from that convention. In any event, it seems to me that the
applicant has been subjected to human
resource practices that appear
to have been less than optimal. Finally, it warrants mentioned that
the applicant’s application
for a transfer has remained pending
since 11 December 2017, almost 6 months ago. Good industrial
relations and principles of good
governance require that matters such
as this are dealt with diligently and expeditiously. The interests of
the law and fairness
are best satisfied by each party bearing its own
costs.
I
make the following order:
1.
The application is
dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. L Pillay instructed by Mitti Attorney
For
the respondent: Adv. M Thys instructed by state attorney