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[2018] ZALCJHB 378
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Ramatja v South African Police Services and Others (JR2028/16) [2018] ZALCJHB 378 (17 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2028/16
In
the matter between:
LIEUTENANT
COLONEL
RAMATJA Applicant
and
SOUTH
AFRICAN POLICE
SERVICES First
Respondent
BELLA
GOLDMAN
N.O
. Second
Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL Third
Respondent
Heard:
8 August 2018
Delivered:
17 October 2018
JUDGMENT
RABKIN-NAICKER,
J
[1] This is an opposed
application to review and set aside an arbitration award under case
number PSSS164-13/14 in which the second
respondent (the Arbitrator)
found the applicant’s dismissal to have been substantively and
procedurally fair.
[2] The applicant
commenced employment with the first respondent, the South African
Police Services (SAPS) on 3 July 1984. At the
time of her dismissal
she was holding the rank of Lieutenant Colonel in the Employment
Equity division in the Western Cape. On
or about the 12 April 2011,
SAPS advertised two promotional posts which she applied for.
[3] During September
2012, the applicant was charged with the following acts of
misconduct:
“
Charge
1
Contravened
any prescribed code for the service which is applicable to you, in
that on 16 August 2011 at Custom’s house did
not act in an
honest manner when you completed an application for promotion by
failing to disclose that you have ever been found
guilty in a
disciplinary matters, PC case numbers 613/2002 and 576/2017
Charge
2
Contravened
any prescribed code for the service which is applicable to you, in
that on 16 August 2011 at Custom’s house did
not act in an
honest manner when you completed an application for promotion by
failing to disclose any pending cases against you,
PC case 1279/2011
(originally also charged with PC case 108/2011 but that was
withdrawn)’.
[4] It was common cause
in the arbitration proceedings that in SAPS case 613/2008 the
applicant had been found guilty of falsifying
her supervisor’s
signature in her performance plan and that on 5 June 2009 she was
issued with the sanction of a suspended
dismissal.
[5] The arbitrator
recorded that in terms of Charge 1 the applicant had not denied her
disciplinary record at arbitration. Her defense
was that she believed
that all the sanctions/processes had lapsed when she applied for
promotion. The arbitrator however recorded
that:
‘
The
question of the applicant was
Have you
ever been found guilty in a disciplinary matter
?
This had nothing to do with whether the sanctions/processes had
lapsed.
When
the applicant answered NO she clearly was dishonest,
she
had been found guilty in a disciplinary matter, in fact more than
one
. Further it is trite that even
though the sanction may lapse for purposes of future sanctions, the
fact that an employee has been
subjected to a hearing is permanently
on record and should be for the purposes of progressive discipline.’
[6] The arbitrator dealt
with Charge 2 in paragraphs 31 – 33 of the award as follows:
‘
31.
With regard to charge 2, the applicant was per her own testimony
aware of the incidents to which the two case numbers refer
to in that
charge and hence I do not understand how it was possible for her to
state that she did not know that there was any …
disciplinary
action
pending against her.
32.
Her defence was that a complaint is not an investigation. She did not
clarify when a complaint becomes an investigation. With
regard to the
incident which took place in July 2011 the Applicant testified that
Colonel Dalton told her in August 2011 that he
would charge her with
regard to the incident so on her own version she was aware of pending
disciplinary action.
33.
With regard to the letter requesting the cases referred to in Charge
2 be placed in abeyance ending an investigation, the applicant
did
not submit evidence that the Provincial Commissioner agreed to the
request and she was not charged immediately after the letter,
Brigadier May made enquiries from the Provincial Commissioner on 25
June 2012 before continuing with the disciplinary process.
However
even if the respondent should not have charged with applicant with
Charge 2 (which for the reasons submitted I find not
to be the case)
a finding of guilt on Charge 1 on its own is dismissable.’
[7] The grounds of review
in this matter appear to be that the arbitrator misconstrued the
evidence before her and came to an unreasonable
result. However, what
is evident from the founding affidavit and the heads of argument
filed on her behalf, is that essentially
the applicant is of the view
that the arbitrator got it wrong and should have taken into account
and or/construed the closing submissions
she made correctly. There
was no supplementary affidavit filed in order to specify in which way
the record reflects the misconstruing
of evidence by the Arbitrator.
She also asserts that her dismissal was procedurally unfair as she
was never given a formal notice
to attend a disciplinary hearing.
However, the record reflects that a disciplinary hearing and an
appeal process took place.
[8] In her founding and
replying affidavits in this application, the applicant persists with
her defense stating in reply that:
“As already stated in my
founding affidavit, sanctions were valid six months after date of
issue and at the expiry thereof
we destroyed them in accordance with
the 1
st
Respondents policy. For all intents and purposes
my record was clean and I was not obliged to disclose previous
sanctions”.
[9] This is a review that
should not have been brought to the Court and I am surprised the
applicant was advised to pursue the matter.
The award is well within
the bounds of reasonableness and the Arbitrator in no way
misconstrued the enquiry before her. The record
displays no material
mistakes in evaluating the evidence which could make the award
susceptible to review.
[10] In submission before
Court the applicant’s representative was able to take the
matter no further than to attempt to point
out that the applicant was
not dishonest in the way she filled out her forms. He also made the
unusual proposition that dismissal
was too harsh a sanction because
the applicant had been punished enough by not being promoted.
[11]
The application stands to be dismissed. The dispute has been dragging
on for far too long. I note that a review pertaining
to it was
previously successful and it was remitted to the third respondent for
rehearing. The SAPS have asked the Court to award
costs. The
applicant’s attorney left the issue of costs in the hands of
the Court. This crowned a very lackluster effort
to represent the
applicant. In
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[1]
, the Constitutional Court
stated that:
‘
[24]
The rule of practice that costs follow the result does not apply in
Labour Court matters. In
Dorkin
,
Zondo JP explained the reason for the departure as follows:
‘
The
rule of practice that costs follow the result does not govern the
making of orders of costs in this court. The relevant statutory
provision is to the effect that orders of costs in this court are to
be made in accordance with the requirements of the law and
fairness.
And the norm ought to be that costs orders are not made unless the
requirements are met. In making decisions on costs
orders this court
should seek to strike a fair balance between on the one hand, not
unduly discouraging workers, employers, unions
and employers’
organizations from approaching the Labour Court and this court to
have their disputes dealt with, and, on
the other, allowing those
parties to bring to the Labour Court and this court frivolous cases
that should not be brought to court.’
[12] In applying the
above principles in this matter, and given my view that this review
should not have come to Court, I am going
to make an order of costs
against the applicant even given her status as an individual
litigant. I make the following order:
Order
1.
The application is dismissed with costs.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court South Africa
Appearances:
For the Applicant:
Advocate P.Botha
Instructed
by:
MMM Inc
For the First Respondent
Advocate Z.L Mapoma
Instructed
by:
The State Attorney
[1]
(2018)
39 ILJ 523 (CC).