About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2018
>>
[2018] ZALCCT 4
|
|
National Commissioner of Police Service and Another v Bobie NO and Another (C585/16) [2018] ZALCCT 4; (2018) 39 ILJ 1140 (LC) (2 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
C
ase
no: C585/16
In the
matter between
NATIONAL
COMMISSIONER OF POLICE SERVICE
First Applicant
SOUTH
AFRICAN POLICE
SERVICE
Second Applicant
and
COLONEL
MD BOBIE N.O.
First Respondent
SERGEANT
F. CAALSEN
Second
Respondent
Heard:
24 October 2017
Delivered: 2 February 2018
Summary:
An application under section 158(1)(h) requires a litigant to
conceptualise the ground in law on which the review application
based
and present this to the Court by means of its pleadings and in
submission. A state employer that seeks to review the
decision
of its own functionary cannot do so merely because it regards the
decision as incorrect.
JUDGMENT
RABKIN-NAICKER J
[1] This
is an unopposed review of a decision made by the First Respondent in
his capacity as Appeals Authority of the Second Applicant
(the SAPS).
It is brought under section 158(1)(h) of the LRA. Condonation is
sought in the review papers for the late filing of
the review on the
7 September 2016 in respect of a decision issued on the 23 February
2016.
[2] The
applicant’s submit that their challenge to the decision of the
Appeals Authority (which overturned the dismissal of
Second
Respondent) is based on it being irrational, unreasonable and
unjustifiable on the evidence before it.
[3]
This application is one of a number coming before the Labour Court
relying on the authority of
Hendricks
v Overstrand Municipality & Another
[1]
on the understanding that an
employer such as SAPS may take its disciplinary decisions on review
on any grounds permissible in
law. The appeal decision in this case
is worth recording in full as follows:
“
This
is an appeal against the finding and sanction of the appellants in
terms of regulation 17(3) of the South African Police Service
Disciplinary Regulations.
The
appellant was charged with three counts of misconduct of which one
was withdrawn. The two charges are contravening Regulation
20(z) by
committing a common law or statutory offence of murder and Regulation
20(q) by contravening any prescribed Code of Conduct
for the Service
or Public Service in that he shot rounds(sic)
Grounds of appeal
The
employees’ grounds of appeal are stated at length. They refer
to both procedural and substantive issues.
Analysis
of the evidence:
The
appellant submitted that the purpose of firing the shots was to warn
the suspect. He states that the other shot was fired by
accident when
his wrist was struck by an object which was thrown by the suspect. He
also denies that the shots were fired in order
to effect arrest.
The
appellant further admitted to firing a shot at the suspect in private
defence. The chairperson erred in not taking into consideration
that
a knife was found next to deceased’s body.
Furthermore
Cst Mzuzu also admitted that he fired warning shots. The ballistic
expert’s in his statement stated that it is
not definite that
the shot that killed the deceased came solely from the appellant’s
fire-arm. There is no clear causal connection
between the conduct of
the appellant and death of the deceased.
In
terms of section 205 of the Constitution, 1996, the objects of the
police are to prevent, combat and investigate crime, to maintain
public order,
to
protect and secure the inhabitants of the Republic and their
property, and to uphold and enforce the law.
The
appellants alleges that the chairperson was bias, after reading the
transcript, it appears that the chairperson did not take
into
consideration the evidence of CSt Mzuzu and W/O April. Cst Mzuzu in
his testimony alleges that the deceased was fighting,
he further
pointed out that the deceased threw objects towards them. He had a
sharp object in his arm (page 48 par 20)
The
appellant’s version contains elements of private defence, he
states that the deceased kept throwing objects at them even
after
being ordered to stop. The appellant states that the deceased jumped
towards him and ignored the request to stand still and
that he
noticed that he had a sharp object in his hand. He decided to fire a
warning shot and thereafter he notices him running
and he fell.
After
reading the appeal and considering the facts I do not think that the
employer has evidence which indicates that the appellant
is the one
who fired the fatal shots. The appellant indicated that he fired the
shots in self -defence, the other colleague also
admitted that he
fired warning shots and was ordered to pay a fine of R500. The
appellant must therefore be treated in the same
manner as the
co-accused. The appeal is therefore upheld.”
[4]
In this particular review application, the applicant takes issue with
the following findings of the Appeals Authority:
4.1
That the disciplinary chairperson did not take into consideration the
evidence of Mzuzu
and April, and specifically Mzuzu’s evidence
that the deceased was fighting and throwing objects at the police
members, and
had a sharp object on his arm.
4.2
That Caalsen’s evidence contains elements of private defence
which justified him shooting
at the deceased, because of the
following: the deceased continued to throw objects at the police even
after being ordered to stop:
the deceased jumped towards Caalsen and
ignored the request to stand still, and Caalsen notices a sharp
object in his hand; Caalsen
fired a warning shot and thereafter
notices the deceased running and he fell.
4.3
That SAPS did not have evidence indicating that Caalsen is the one
who fired the fatal shot;
that Mzuzu also admitted that he fired
warning shots, but was ordered to pay a fine of R599; that Caalsen
must be treated in the
same manner as Mzuzu.
[5]
In respect of the finding in 4.1 above, the founding affidavit
analyses the evidence contained in the transcript of the disciplinary
enquiry in some detail. The applicant’s conclusions in respect
of the finding are that:
“
Thus
all the findings by the appeals authority in this paragraph are
factually incorrect, and without basis, and his decision is
therefore
reviewable.”
[6]
In respect of the finding in 4.2 above, the evidence is again
examined. The applicant submits in its founding papers at the
outset
of its analysis that:
“
The
appeals authority’s conclusion that Caalsen’s shooting
was justified because the deceased was still throwing objects
at the
police members is not correct.”
[7]
On the finalisation of its analysis in respect of the finding in 4.2
above the founding affidavit contains the following submission:
“
The
appeals authority ignored all the above evidence, and gave no reasons
for rejecting the disciplinary chairperson’s findings.
In this
respect, the appeals authority decision was grossly irregular,
irrational and arbitrary.”
[8]
Regarding the finding contained in 4.3 above, and highlighting
certain evidence in the transcribed record before the appeals
authority, the applicant submits in its founding papers that:
“
The
effect of the decision of the appeals authority is to ignore all the
above evidence. In the circumstances, the appeals authority
decision
is unreasonable, irrational, arbitrary and grossly irregular.”
Evaluation
[9]
The authority relied on in this and other similar applications is
that in
Hendricks v Overstrand Municipality & another (2015)
36 ILJ 163 (LAC)
in which Murphy AJA held that:
“
[29]
In sum therefore, the Labour Court has the power under s 158(1)(h) to
review the decision taken by a presiding officer of a
disciplinary
hearing on (i) the grounds listed in PAJA, provided the decision
constitutes administrative action; (ii) in terms
of the common law
in relation to domestic or contractual disciplinary proceedings; or
(iii) in accordance with the requirements
of the constitutional
principle of legality, such being grounds 'permissible in law'.”
[10]
While this court’s jurisprudence in reviews under section 145
of the LRA is substantive and has developed over a considerable
period, section 158(1)(h) of the LRA requires a labour court litigant
to branch out into less known and comfortable territory.
The
pleadings and submissions in such applications must provide the Court
with an understanding of which ground of law an applicant
relies. Is
the decision sought to be reviewed administrative action which
involves an exercise of public power and the application
of PAJA? Or
does an applicant rely on review of an exercise of public power in
terms of the principle of legality?
[11]
These questions are complex as the Constitutional Court in
Cape
Town City v Aurecon (Pty) Ltd
[2]
reflected
stating that:
“
An
interesting question arose during the hearing: Is an administrator's
right to review its own decision sourced in PAJA or the
broader
principle of legality? The position in our law on this question is
presently uncertain.”
[12]
The footnote to the above comment bears recording:
“
In
Khumalo and Another v MEC for Education, KwaZulu-Natal
2014 (5)
SA 579
(CC)
(2014 (3) BCLR 333
;
[2013] ZACC 49)
this court considered
the nature of an application that was made in terms of
s 158(1)(h)
of
the
Labour Relations Act 66 of 1995
to review the administrative acts
of decision-making officials. In para 28 the majority found that the
'true nature of the application
[was] one for judicial review under
the principle of legality'. The minority, on the other hand, in para
92, found that 'the procedure
for bringing [the] application to court
was governed by the PAJA'. More generally, the interplay between
review under PAJA and
legality review has been extensively discussed
and has, at times, given rise to differing interpretations in this
court's jurisprudence.
See the cases of Pharmaceutical Manufacturers
Association of SA and Another: In re Ex parte President of the
Republic of South
Africa and Others
2000 (2) SA 674
(CC)
(2000
(3) BCLR 241
;
[2000] ZACC 1)
; Minister of Health and Another NO v New
Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign
and Another as Amici
Curiae)
2006 (2) SA 311
(CC)
(2006 (1) BCLR
1
;
[2005] ZACC 14)
; Masetlha v President of the Republic of South
Africa and Another
2008 (1) SA 566
(CC)
(2008 (1) BCLR 1
;
[2007]
ZACC 20)
; Albutt v Centre for the Study of Violence and
Reconciliation, and Others 2010 (3) SA 293 (CC)
(2010 (5) BCLR
391
;
[2010] ZACC 4).
”
[13]
Whether the principle of legality or PAJA applies can have
implications for the discretion to be exercised in applications
for
condonation
[3]
. Further, the
Supreme Court of Appeal has recently held in a majority judgment,
that if PAJA applies, a litigant does not have
an option to bypass it
and to make a legality challenge, and that to allow such bypass would
lead to PAJA's disuse, which the drafters
of s 33(3) of the
Constitution could not have intended.
[4]
[14]
The above jurisprudence is highlighted to underline the need for
applications under section 158(1)(h) to grapple with the complexities
involved, and for state entities who do not agree with the findings
of their disciplinary chairpersons or appeal authorities, to
grasp
that a review under section 158(1)(h) cannot be successful merely
because the decision in question is labelled ‘irrational’
or ‘unreasonable’. The application before me does not
identify the grounds in law on which it is based but essentially
differs with factual findings of the Appeal Authority and on that
basis labels these as ‘irrational, unreasonable or irregular.’
[15]
A review will not be successful if it is brought because the State
entity believes the decision was incorrect. In the Court’s
view
this is precisely the position in the papers before me as is
reflected in paragraphs 3 - 9 above. The applicant’s papers
are
akin to those found in appeal proceedings. The distinction between
review and appeal proceedings is one that must be preserved.
[5]
[16]
In view of the above the application for condonation and review stand
to be dismissed and I make the following order:
Order
1. The application is
dismissed.
_____________________
H
RABKIN-NAICKER
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: N. Mangcu-Lockwood instructed by the
State Attorney
The lens for judicial
review of these actions, as with other administrative action, is
found in PAJA. The central focus of this
enquiry is not whether the
decision was correct, but whether the F process is
reviewable on the grounds set out
in PAJA. There is no magic in the
procurement process that requires a different approach. Alleged
irregularities may differ from
case to case, but they will still be
assessed under the same grounds of review in PAJA. If a court finds
that there are valid grounds
for review, it is obliged to enter into
an enquiry with a view G to formulating a just and
equitable remedy.
That enquiry must entail weighing all relevant
factors, after the objective grounds for review have been
established.
[1]
(2015) 36 ILJ 163 (LAC)
[2]
2017 (4) SA 223
(CC) at paragraph 24.
[3]
Are
the prescripts of PAJA applicable or is the test a “unreasonable”
period of delay; see CAPE TOWN CITY v AURECON
SA (PTY) LTD
2017 (4)
SA 223
(CC) at para 37
[4]
STATE
INFORMATION TECHNOLOGY AGENCY SOC LTD v GIJIMA HOLDINGS (PTY) LTD
2017 (2) SA 63
(SCA) paras 27, 37-38.
[5]
BATO
STAR FISHING (PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS AND
TOURISM AND OTHERS
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 45