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[2019] ZALCPE 3
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South African Police Services v Du Preez and Others In Re: Du Preez v South African Police Services (PR157/17;P226/17) [2019] ZALCPE 3 (8 March 2019)
the
labour court of South Africa, PORT ELIZABETH
Not
Reportable
case
no:
PR
157/17 & P226/17
In
the matter between:
SOUTH
AFRICAN POLICE SERVICES
Applicant
and
T
DU
PREEZ
First
Respondent
SSSBC
Second Respondent
JOHN
ROBERTSON
N.O
Third Respondent
In
re
:
T
DU
PREEZ
Applicant
And
SOUTH
AFRICAN POLICE SERVICES
Respondent
Heard
:
06 March 2019
Delivered
:
08 March 2019
Summary:
An application to review and set aside an arbitration award issued
without the necessary jurisdiction is a nullity thus cannot be
made
an order of court. An incorrect award is reviewable in law. Held
(1): The award is reviewed and set aside and is replaced
with an
order that the claim of Captain Du Preez is dismissed. (2): The
application in terms of section 158(1)(c) is dismissed.
(3): There is
no order as to costs.
judgment
MOSHOANA,
J
[1]
There are two applications before me. On the one hand, the SAPS is
seeking
a review and setting aside of an award issued by the
arbitrator. On the other hand, Captain Du Preez seeks an order making
the
same impugned award an order of this court in terms of section
158(1)(c) of the LRA. Both applications are opposed. This judgment
shall deal with both applications.
[2]
Briefly, Captain Du Preez (Du Preez) is a member of the SAPS in the
capacity
of a Captain in the Forensic Services Division. Around April
2013, one Lieutenant Colonel Meyer retired from the force. Following
that, one Brigadier Botha, in writing and on 5 April 2013, appointed
Du Preez as an Acting Commander: Provincial Human Resource
Development: Eastern Cape. The Brigadier was purportedly acting in
terms of an instruction issued by the Head Office in circular
14/6/23
dated 2002-03-08. This acting appointment was to run for a period of
6 months. Du Preez accepted the temporary appointment
on 10 April
2013.
[3]
On 12 April 2013, the Brigadier prepared a recommendation for the
acting
appointment of Du Preez. On18 April 2013, Major General Khunou
refused to accept the recommendation and recorded thus:
“
The
post for Commander HRD does not exist, therefore, the grievance
request cannot be entertained by this office”
[4]
Later on, the Major General addressed a letter to the Provincial Head
and recorded that
the application for acting appointment of Number
0454254-1 Captain TA Du Preez was not recommended due to the fact
that the post
is not on the approved structure.
He further
recorded that
in accordance to Agreement 2/2002 an employee must
be appointed in writing by the Divisional Commissioner.
Despite
all that, apparently, Du Preez continued to perform the duties
attached to the post departed by LT Col Meyer.
[5]
Later in 2015, Du Preez lodged a grievance seeking to be paid an
acting
allowance owing to the fact that he was performing the tasks
of a vacant post. After following various stages, at stage 4 an
agreement
was reached that Du Preez be compensated. Allegedly, the
agreement was informed by a policy in respect of Acting Allowance.
For
reasons not necessary to be traversed in this judgment, the
agreement was not honoured.
[6]
Aggrieved thereby, Du Preez referred a dispute in terms of section 24
of the LRA to the Bargaining Council. Apparently, the dispute was not
conciliated upon. The third respondent was appointed to arbitrate
the
dispute. On 6 April 2017, the third respondent issued the impugned
award. Aggrieved by the award, the applicant launched the
present
application. A counter application was lodged to make the award an
order of this court.
The
issue of jurisdiction
[7]
The applicant raised two points relevant to the jurisdiction assumed
by
the third respondent. The first one was belatedly raised. A point
of law can be raised at any time before judgment. The point being
that since the third respondent failed to issue a certificate on
non-resolution in terms of section 135(2) of the LRA, he lacked
jurisdiction to arbitrate the dispute. Reliance was placed on the
Constitutional Court judgments of
September
and
Intervale
.
I do not agree with Advocate Thys, appearing for the applicant, on
this point.
[8]
His reliance on the Constitutional Court judgments is misplaced. In
casu
, it is common cause that on 18 April 2016, Du Preez
referred the dispute for conciliation to the second respondent. The
jurisdictional
requirements for arbitration are set out in section
191(5)(a) of the LRA. Those are (a) if the council or commissioner
has certified
that the dispute remains unresolved or (b) if 30 days
or any further period as agreed between the parties have expired
since the
council or the commission received the referral and the
dispute remains unresolved. It is clear from these requirements that
what
found jurisdiction is the referral as opposed to the actual
conciliation itself. Issuing a certificate is an administrative
function
and does not found jurisdiction. Therefore, this point is
not upheld.
[9]
The second point is that of
locus standi
. The applicant
contends that Du Preez does not have the right to refer a dispute in
terms of section 24 of the LRA in that he is
not a party to the
collective agreement in question. There is some legal force in this
submission. Advocate Lamprecht, appearing
for Du Preez, submitted
that in line with section 23(1)(d) of the LRA, Du Preez as an
identified employee is entitled to refer
the dispute. In the
alternative, he submitted that clause 11 of Agreement 2/2002 provides
that the provisions apply to Du Preez.
I have this to say with regard
to the submissions. Section 23(1)(d) specifically deal with the
binding effect of a collective agreement.
In other words, Du Preez
cannot escape the binding effects of Agreement 2/2002 on him on the
basis that he is not a party to the
agreement. Section 23(1)(d) is
there to bring into the fold, non-parties to an agreement in so far
as its binding effects are concerned.
Clause 11 buttresses the
provisions of the section. It identifies Du Preez as a person to whom
the agreement applies. By virtue
of being an employee of the SAPS, Du
Preez is bound and the agreement applies to him, despite being a
party to the agreement.
[10]
The issue
of
locus
standi
does affect the issue of jurisdiction. It is a jurisdictional fact
that must exist before a power can be exercised. The dispute
referred
to the Bargaining Council is one of application and interpretation of
a collective agreement. On the facts of this case
it is undisputed
that the collective agreement does apply to Du Preez. His complaint
was more centred on the interpretation of
the collective agreement.
However, I venture to say, the true dispute of Du Preez is that of
breach of an agreement to be paid
acting compensation. According to
him, at stage 4 an agreement was reached that he shall be compensated
for acting. By not paying
him, the applicant was in breach of the
agreement achieved in stage 4. The agreement in stage 4 is not a
collective agreement.
Therefore, in my view, the dispute is not about
interpretation of a collective agreement. In the matter of
Arends
v SALGBC and others
[1]
,
I had an occasion to say the following:
[16]
It must follow axiomatically that an individual employee cannot be a
party to a collective agreement.
A party can either be a registered
trade union or an employer or employer’s organisation…The
issue of who a party
is, is distinct from the binding nature of the
agreement. Alive to the concept of
stipulatio alteri,
the
legislature introduced section 23(1)(c)-(d). Employees can derive
benefits from a collective agreement even if not parties.
To my mind
employees only derive benefits from a collective agreement and are
not parties to the agreement…
[17]
…I conclude by saying that a
non-party cannot refer a
dispute in terms of section 24 of the Act
. Since employees are
generally non-parties but beneficiaries
, they cannot in my view
refer a dispute in terms of section 24.
[11]
The matter of
Arends
was taken on appeal. On appeal, the LAC
did not upset the above finding. By necessary implication, the
findings were approved by
the LAC. It must therefore follow that Du
Preez had no
locus standi
to refer a dispute to the Bargaining
Council. Also, the third respondent had no jurisdiction to entertain
the dispute. An award
issued without the necessary jurisdiction is a
nullity. On this basis alone, the award is susceptible to review.
The
correctness of the award
[12]
Assuming that the third respondent possessed the necessary
jurisdiction, I now consider
the correctness of the award. In my
mind, the applicable test in this regard is one of correctness as
opposed to reasonableness.
Nonetheless a legally incorrect award does
not pass the muster of reasonableness. In order for Du Preez to have
a claim arising
from the collective agreement, all the requirements
of the agreement must be met. The appointment must be made by a
person with
authority. Clause 1 of the agreement stipulates that the
appointing person must be an assistant commissioner, a higher ranking
official or area commissioner. Brigadier Botha is none of those. The
post must be vacant and funded. Major General Khunou indicated
few
days after the Brigadier appointment that the position does not
exist. There was no evidence from Du Preez, who bore the overall
onus, that the position was funded. The acting may not be for a
period in excess of 12 months. Based on the claim, upheld by the
third respondent, Du Preez acted for a period of about 2 years.
[13]
In the
light of the above, it must follow that the interpretation by the
third respondent that the collective agreement entitles
Du Preez to
be paid an acting allowance is wrong and cannot be upheld. The LAC in
MEC:
Department of Health: Eastern Cape v Saville Kops and 16 others
[2]
made it absolutely clear that if the requirements of the instrument
relied upon have not been met, a claim to be paid an acting
allowance
is non-existent in law. I am bound by this decision. Besides being
bound by the decision, I fully agree with its reasoning
and find it
to be on all fours with the matter before me.
Enforcement
application
[14]
The discretionary powers approbated to this court can only be
exercised where a valid and
binding award exists. An award issued
without jurisdiction is a
brutum fulmen
. Equally an incorrect
award is invalid in law and cannot be made an order of this court.
The enforcement application is doomed
to fail.
Conclusions
[15]
In summary, it is my considered view that Du Preez lacked the
necessary
locus standi
to refer the dispute, thus, the third
respondent lacked the necessary jurisdiction. If he did have
jurisdiction, his award is wrong
in law and ought to be reviewed and
set aside. Axiomatically, the section 158(1)(c) application is bound
to fail.
[16]
For all the above reasons, I accordingly make the following order:
Order
1.
The
award issued by the third respondent under the auspices of the second
respondent is hereby reviewed and set aside.
2.
It is replaced with an order that Captain Du
Preez’s claim is dismissed.
3.
The application in terms of section 158(1)(c) is
dismissed.
4.
There is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Advocate M Thys
Instructed
by:
State Attorney, Port Elizabeth.
For the First
Respondent: Advocate J Lamprecht.
Instructed
by
Brown Braude & Vlok Inc, Port Elizabeth.
[1]
Case number P107/12 dated 1 March 2013.
[2]
Case number PA5/2014