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[2019] ZALCPE 11
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Police & Prisons Civil Rights Union In Re: South African Police Services v Jantjies NO and Another (PR314/2017) [2019] ZALCPE 11 (11 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not reportable
Case No: PR 314/2017
In the application of:
POLICE & PRISONS
CIVIL RIGHTS UNION Intervening
Party
in re
the matter between:
THE SOUTH AFRICAN
POLICE SERVICES
Applicant
and
BRIGADIER JN JANTJIES
N.O
First
Respondent
X S
KATOO
Second Respondent
Heard:
7 December 2018
Delivered:
11 June 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
This
application was brought before the Court in terms of the provisions
of Rule 22(2)(a) read with Rule 22(3) of the Rules of this
Court
[1]
.
The Intervening Party (POPCRU), seeks leave to intervene as
co-respondent in the main application brought by the Applicant (SAPS)
in which the latter seeks an order that the issuing of the final
written warning by the First Respondent (Brigadier Jantjies) to
the
second Respondent (Warrant Officer Katoo) on 27 February 2017
be reviewed and set aside, and further that the matter
be remitted to
SAPS, and to be determined afresh by a proper disciplinary process
convened under a different chairperson other
than Brigadier Jantjies.
[2]
The final written warning issued to W/O Katoo related to allegations
that
he had indirectly or negligently enabled an arrested subject to
abscond/escape from lawful custody. SAPS’ contention is that
in
the light of the misconduct in question having involved a violation
of its various Codes and National and Regional Instruments
that
specifically seeks to prevent escapes from police custody, a final
written warning as issued by Brigadier Jantjies was not
the
appropriate penalty in the circumstances, and thus ought to be
reviewed and set aside.
[3]
At these proceedings, POPCRU abandoned its
alternative remedy to intervene as
amicus
curiae
. It agreed with SAPS that the
decision of Brigadier Jantjies ought to be reviewed and set aside.
POPCRU as per its Notice of Opposition
and Counter-Applicant in the
main application however contends that it will further seek an order
that the disciplinary proceedings
be commenced afresh in accordance
with provisions of the Regulations; and that SAPS be required to
conduct those proceedings in
terms of clause 11 of the Regulations
and all other disciplinary hearings that are identified by SAPS to be
in terms of clause
9 of the Regulations.
The
submissions:
[4]
POPCRU in seeking leave to intervene contends
that
once granted the order sought, it will make new, useful and necessary
submissions in the main application in the form of a
counter-application
based on the following;
4.1
It is
entitled to be joined to the proceedings by virtue of the provisions
of section 200 of the Labour Relations Act (LRA)
[2]
,
as it has many members employed by SAPS, and is concerned with the
promotion and protection of the interests of those members
within
SAPS.
4.2
As a party to the collective agreement to which the regulations give
effect,
it has a direct and substantial interest in the main
application, as its members are adversely affected by the impact of
the summary
procedure currently being used in serious disciplinary
hearings falling within the scope of clause 9 of the Regulations.
4.3
SAPS
subjected its members, including W/O Katoo, to a disciplinary enquiry
in terms of an ‘Expeditious Process’ contemplated
in
Clause 9 of the Regulations for the South African Police Service (The
Discipline Regulations)
[3]
.
4.4
The process adopted in terms of clause 9 of the Regulations was
conducted in
a manner which ignored the provisions of clause 11 of
the same Regulations, and as such, the requirements and procedures in
the
latter clause were ignored, as presiding officers have
interpreted clause 9 to permit a process which disregards the
audi
alterem partem
rule to the detriment of employees and its members
accused of serious misconduct.
4.5
The approach and interpretation of clause 9 by presiding officers
threatened
the vested rights of SAPS’ employees and breached
the regulations, which are the product of a collective agreement as
well
as statutory rights of accused employees.
4.6
The interpretation accorded to clause 9 of the Regulations was such
that it
rides roughshod over the rights of accused employees provided
for in clause 11 of the Regulations. In this regard, employees are
simply advised verbally of the charges against them by presiding
officers; copies of documents to be used in any hearings are not
made
available to employees in advance; no witnesses are called as any
form of ‘evidence’ is merely presented to employees
who
are then expected to deal with the allegations; no representatives of
SAPS or the accused employees are allowed; and the presiding
officer
makes a finding which is conveyed to employees.
4.7
In its counter-application, it will seek an order that SAPS and its
chairpersons
have interpreted and applied clause 9 to the exclusion
of clause 11, and a judgment in this matter would have profound
effect on
the rights of Katoo and other officers throughout the
country similarly affected, as their constitutional and statutory
rights
are violated by an incorrect interpretation of the regulations
by SAPS
[5]
In the light of the above, it was submitted that POPCRU by virtue of
the
provisions of Rule 22 of the Rules of this Court is entitled to
be joined as it had a substantial interest in the subject matter
of
the main application, as its members are involved or where the
subject matter of the proceedings affects its members generally.
[6]
SAPS opposed the application to intervene on the grounds that;
6.1
POPCRU has no direct or substantial interest in the matter and has
further failed
to establish that it would make different submissions
in assisting the Court to arrive at a proper and just outcome in the
main
application. It was submitted that POPCRU would simply traverse
grounds already covered, and that leave to intervene may merely
and
unnecessarily extent the length of litigation.
6.2
POPCRU’s application should be denied as the ‘nuts and
bolts’
of both parties’ contentions are that the
expeditious process of the Regulations do not imply that the
traditional or required
pre-dismissal procedures should be
bypassed.
6.3
The provisions of section 200 of the LRA do not on their own
establish a right
to be joined to proceedings, and that it only
grants a right to represent.
The
legal framework and evaluation:
[7]
The principles applicable in instances a party seeks to intervene are
trite as summarised by the Constitutional Court in
South African
Riding for the Disabled Association v Regional Land Claims
Commissioner and Others
as follows;
‘
It
is now settled that an applicant for intervention must meet the
direct and substantial interest test in order to succeed. What
constitutes a direct and substantial interest is the legal interest
in the subject-matter of the case which could be prejudicially
affected by the order of the Court. This means that the applicant
must show that it has a right adversely affected or likely to
be
affected by the order sought. But the applicant does not have to
satisfy the court at the stage of intervention that it will
succeed.
It is sufficient for such applicant to make allegations which, if
proved, would entitle it to relief.
If
the applicant shows that it has some right which is affected by the
order issued, permission to intervene must be granted. For
it is a
basic principle of our law that no order should be granted against a
party without affording such party a pre decision
hearing. This is so
fundamental that an order is generally taken to be binding only on
parties to the litigation.
Once
the applicant for intervention shows a direct and substantial
interest in the subject-matter of the case, the court ought to
grant
leave to intervene. In
Greyvenouw CC
this principle was
formulated in these terms:
“
In
addition, when, as in this matter, the applicants base their claim to
intervene on a direct and substantial interest in the subject-matter
of the dispute, the Court has no discretion: it must allow them to
intervene because it should not proceed in the absence of parties
having such legally recognised interests.””
[4]
[Authorities
and citations omitted]
[8]
Having had regard to the above principles, I fail to appreciate the
reason
any conclusion can be reached that POPCRU does not have any
substantial or direct interests in the main application before this
Court. My reasoning in this regard is based on the following;
8.1
It is not in dispute in this case that POPCRU represents a large
number of its
members within SAPS, which invariably implies that it
regularly represents them in disciplinary and other processes that
take place
in accordance with the Regulations. W/O Katoo is one such
member, and irrespective of the merits of the dispute, it is common
cause
that the sanction issued to him followed upon a process
involving the application of the Regulations.
8.2
Inasmuch as both parties agree that the sanction imposed on W/O Katoo
ought
to be reviewed, set aside and that the matter be remitted for a
hearing
de novo
, different grounds are nonetheless advanced as
to the reason why this should be so. SAPS’ contention is that
the sanction
was lenient in the light of the misconduct in question,
whilst POPCRU’s approach is that the manner with which such
disciplinary
proceedings are conducted under clause 9 of the
Regulations, are not in sync with the provisions of clause 11 of the
same regulations.
8.3
In
applications for leave to intervene, it is trite that the applicant
need
not be overconcerned with the intrinsic merits of the dispute which
can be fully canvassed in the main application, and that
the party
seeking leave to intervene can rely on allegations which, if proved
in the main application, would entitle it to succeed.
[5]
In this case, POPCRU has made such allegations insofar as it contends
that the provisions of the Regulations are not properly applied
to
the detriment of its members.
8.4
In the light of the divergent reasons advanced by the parties, it
cannot therefore
be correct to suggest that POPCRU, once granted
leave to intervene, would simply rehash SAPS’ arguments as to
the reason
that the disciplinary matter involving W/O Katoo should be
remitted to SAPS for a re-hearing. I did not understand the purpose
of POPCRU’s counter-application to be to simply rehash SAPS’
arguments.
8.5
POPCRU
further relied on the provisions of section 200 of the LRA
[6]
in seeking to intervene, as it acts on behalf of its members, and
also in its own interests. SAPS however contends that these
provisions on their own, do not entitle POPCRU to be a co-respondent
in legal proceedings. Again, it is not in dispute that POPCRU
is a
party to the collective agreement to which the Regulations give
expression, and that the application and/or interpretation
of those
Regulations are at the core of the main dispute. How it can be said
that POPCRU does not have a substantial interests
in the judgment of
this Court particularly in regards to the interpretation of those
Regulations when that interpretation would
directly affect it as a
union, and its members is not clear.
8.6
It is further my view that to deny POPCRU leave to intervene would
not be in
the interests of justice nor legal certainty. This is so in
that to the extent that the Regulations are the basis of day to day
discipline that takes place at the workplace, and where it (POPCRU)
is regularly called upon to defend its members, this Court
will
benefit from its submissions in coming to an informed decision. As
already indicated, whether POPCRU’s submissions would
have
merit or not is not for this court to determine.
[9]
In the light of the above, it is concluded that
POPCRU has satisfied the requirements for, and made out a case for
leave to intervene.
I have further had regard to the issue of costs,
and it is my view that such an award should be in the cause.
[10]
Accordingly, the following order is made;
Order:
1.
POPCRU is granted leave to intervene in the main application
as the
third respondent.
2.
POPCRU is granted leave to file answering affidavits in the
main
application, and to do so within 30 (Thirty days) from the date of
this order.
3.
The Applicant, to the extent that is so desires, may file replying
affidavits within 14 days from the service of the answering.
4.
Heads of Argument are to be filed and served in accordance with
the
provisions of Paragraph 11.6.2 of this Court’s Practice Manual
5.
The costs of this application are to be determined in the main
application.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Intervening Party: Beyleveld
SC, instructed by Wheeldon Rushmere & Cole INC
For
the Applicant: M
Thys, instructed by State Attorney, Port Elizabeth
[1]
Rule 22: Joinder of parties, intervention as applicant or
respondent, amendment of citation and substitution of parties
(1)…
(2)
(a)
The court may, of its own
motion or on application and on notice to every other party, make an
order joining any person as a party
in the proceedings if the party
to be joined has a substantial interest in the subject matter of the
proceedings.
(b)
When making an order in terms of paragraph
(a)
,
the court may give such directions as to the further procedure in
the proceedings as it deems fit, and may make an order as
to costs.
(3)
Any person entitled
to join as a party in any proceedings may, on notice
to all parties,
at any stage of the proceedings, apply for leave to intervene as a
party and the court may make an order, including
any order as to
costs, or give such directions as to the further procedure in the
proceedings as it deems fit.
[2]
Act 66 of 1995 (as amended)
[3]
Regulation No 40389 of 1 November 2016 (
Made
under
section 24
of the
South African Police Service Act, 1995
Act
No. 68 of 1994)
[4]
2017
(8) BCLR 1053
(CC)
at
paras 9 – 11. See also
Snyders
v De Jager (joinder)
2017
(5) BCLR 604
(CC) at para 9
[5]
See
Ex
parte Moosa: In re Hassim v Harrop-Allin
1974 (4) SA 412
(T) at 416F;
Minister
of Local Government and Land Tenure
v Sizwe Development 1991 (1) SA 766 (TK)
[6]
200.
Representation of employees or employees
(1)
A registered
trade
union
or registered
employers’
organisation
may act in any one or
more of the following capacities in any
dispute
to which any of its members is a party -
(a)
in its own interest;
(b)
on behalf of any of its members;
(c)
in the interest of any of its
members.
(2)
A registered
trade
union
or a registered
employers’
organisation
is entitled to be a party
to any proceedings in terms of
this Act
if one or more of its members is a party to those proceedings.