REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING AT DURBAN
CASE NO: D1038/98
In the matter between:
PHILIPPUS LODEWICUS SCHOLTZ Applicant
and
THE MINISTER FOR SAFETY AND SECURITY First Respondent
THE NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICES Second Respondent
THE PROVINCIAL COMMISSIONER,
KWAZULU-NATAL, OF THE SOUTH AFRICAN
POLICE SERVICES Third Respondent
SUPERINTENDENT ND NTOYI Fourth Respondent
J U D G M E N T
(1) The Applicant is a career police officer and holds the rank of
Superintendent in the South African Police Services ("the SAPS"). Since 1 June
1996 he had been the unit commander of the Natal Midlands unit of the
National Intelligence Task Unit ("the NITU"). With the restructuring of this unit
and it being renamed the Violence Investigation Unit ("the VIU") the Applicant
was replaced by the present Fourth Respondent, Superintendent N Ntoyi, on 2
October 1998 and transferred to the office of the Midlands KwaZulu-Natal Area
Commissioner. It is this transfer, as well as the alleged failure by the First to
Third Respondents to give reasons and supply information relating to the
Applicants replacement by Superintendent Ntoyi, that has brought about to
the present application.
(2) The Applicant seeks an order in the following terms:
"1. Declaring the actions of the Respondents’ in failure to furnish
information requested by the Applicant and/or relevant to the Respondents'
decision to transfer the Applicant to be unlawful and unconstitutional;
2. Declaring the actions of the Respondents in failing to provide the
Applicant with the reasons for the Respondents' decision to transfer the
Applicant to be unlawful and unconstitutional;
3. That the decision by the Respondents to transfer the Applicant from
his position as Commander be and is hereby reviewed and set aside;
4. The Respondents are ordered forthwith to provide written reasons for
their decision to transfer the Applicant;
5. The Respondents are ordered forthwith to provide the Applicant all
material information relevant to their decision to transfer the Applicant;
6. The Respondents are ordered forthwith to reinstate the Applicant in
his former position within the South African Police Services on conditions no
less favourable to him than those enjoyed by him at the time of his transfer;
7. The Respondents are ordered to pay the costs of this Application;
8. The Applicant is granted such further and/or alternative relief in its
application dated 17 December 1998 as to this Honourable Court deems
meet."
(3) In dealing with the facts Mr Swain, who appeared for the Applicant,
asked me to find that the papers as a whole place a big question mark over
the bona fides of the Respondents and that for this reason the Applicant’s
version must be accepted. Because of the ultimate view that I take as will
appear from this judgment I intend to, except as I will indicate below,
approach the matter applying the normal test where there is a dispute of fact
on affidavit. The following is what then emerges.
(4) The NITU was established to deal in the main with political violence.
The Richmond area was particularly troublesome and it is this area that the
Midlands unit of the NITU was principally involved with. By July 1998 the
situation in Richmond had flared up again with the result that the First
Respondent called a meeting in Pretoria for 12 July 1998 to urgently deal with
the matter. After being given a report on the situation the First Respondent
requested urgent proposals as to the way forward.
(5) After a meeting between the First Respondent and Director Nkabinde
of the KwaZulu-Natal SAPS with (then) Deputy President Mbeki, Director
Nkabinde on 12 August 1998 submitted a comprehensive proposal to the
Second Respondent in which he suggested that the previously deactivated
Investigation Task Unit (the “ITU”) be re-established. This was because it
appeared that the NITU was unable to adequately address the progressively
worsening situation. He was unable to determine the precise cause for this
inability but stated that it was common knowledge that the NITU units did not
enjoy the co-operation of the communities in which they were deployed. The
new unit would then also absorb the Provincial Project Team which had
investigated political massacres prior to the 1995 elections. Command of the
unit would be centralise under a Provincial Commander.
(6) This proposal was largely taken up in a report dated 10 September
1998 to the Second Respondent in which the structure and mandate of the
new unit was set out. The intention was inter alia that all officers of NITU be
transfer to the new unit. The Second Respondent approved this
recommendation on 16 September 1998 as follows:
"1. Approved
2. D/Comm's Schoeman, Pruis and Asst. Comm Williams were tasked to
insure that the incumbents (especially the Commander of the Midlands Unit)
are the best possible quality detectives".
(7) In a letter dated 28 September 1998 Director Nkabinde then informed
the different NITU Units in KwaZulu-Natal of the new situation. Paragraph 2 of
this letter reads as follows:
"2. The National Investigation Task Unit is now closed and is replaced by
the Violence Investigation Unit (VIU). The members attached to the NITU are
automatically transferred to the VIU.
2.1 Members who do not desire to be part of the VIU must indicate in
writing their preferences where they would like to be placed. This must be
done on or before 1998/10/02.
2.2 The only change in the VIU is the Commanders for VIU Durban and
Midlands.
2.2.1 NO. 0488481/7 Supt EN Masinga will be the new Commander for VIU
Durban.
2.2.2 NO. 0513536.2 Supt ND Ntoyi will be the new Commander for VIU
Midlands."
(8) The endorsement by the Second Respondent of 16 September 1998
must have been preceded by his verbal approval. I say this because the
Provincial Commissioner for KwaZulu-Natal endorsed the recommendation of
Director Nkabinde already on 10 September 1998 and the following day he
issued a directive to the affect that the establishment of a Violence
Investigation Unit for KwaZulu-Natal had been approved by the Second
Respondent. In this document he gives details of this unit and also refers to
the fact that Superintendent Ntoyi, the Fourth Respondent, had been
appointed Commander of the Midlands unit.
(9) This changeover from the NITU to the VIU was then the result of
extensive consultations and discussions both at National and Provincial level in
order to find a solution to the violence problem, particularly in the Richmond
area. Here it was found that the lack of success of the NITU was largely the
result of the local community having no faith in the police. This was then also
stated by Assistant Commissioner Truter in paragraph 13 of his answering
affidavit:
"During these discussions and consultations, there was general consensus that
the problem lay not with the quality of the detective work but with the fact
that the community had no faith in the police service and the unit headed by
the Applicant. They had also demanded the removal of the Applicant from the
area. All of this was common knowledge. The Applicant knew of this."
(10) Although claiming that the Applicant knew what was going on, what
stands out to me is how vague Truter becomes, in an otherwise detailed
affidavit, when it comes to the Applicant’s inclusion in all that was going on
relating to the re-structuring. The Applicant claims that he was kept in the
dark. This being the case, one would have thought that Truter would for
instance have put up minutes of meetings showing the Applicants presence.
There is none of this.
(11) According to Truter he visited the NITU offices on 3 September 1998.
At this meeting, according to him, the members of the unit were told about the
decision to restructure the unit and the reasons for this. He presented them
with an organogram setting out the new structure.
(12) He goes on to say that after the other members left he then told the
Applicant that the Second Respondent had decided that he should be replaced
as head of the unit. He told the Applicant that he was of the opinion that "that
it was better for him to be removed from the political playground, where he
had to put up with constant pressure." He suggested to the Applicant that
there was a need for a staff officer at the provincial head office. He made this
suggestion because he was under the impression that the Applicant lived in
Pinetown. When the Applicant told him that he lived in Pietermaritzburg he
then discussed with him the possibility of transferring him to the office of
Senior Superintendent Delport, the area head of Detective Services in the
Midlands. He would then be second in command to Delport. He went on to
tell the Applicant that he should think about these suggestions and then revert
to either him or Delport.
(13) The Applicant insists that all that took place at this meeting was that
Truter suggested that it might be better if he, the Applicant, got out of the
political arena. He goes on to say that he did not understand what was meant
by this suggestion.
(14) I cannot accept that the Applicant was told by Truter on 3 September
that he was to be replaced by the Fourth Respondent. The Applicant after all
did nothing about it and simply went on leave. However, on his return on 2
November 1998 and on discovering that the Fourth Respondent had been
appointed in his place, he immediately took the steps that I have referred to
above. Had Truter informed him of his being replaced on 3 September
already he would surely have done something about it then already.
Furthermore, Truter only requested the Second Respondent on 3 September
1998 to appoint the Fourth Respondent in an acting capacity. The approval by
the Provincial Commissioner of Director Nkabinde recommendation and the
Second Respondent’s approval only came thereafter.
(15) I accordingly find that the Applicant was not informed of his
replacement by the Fourth Respondent and only found out about it when he
returned from leave on 2 November 1999.
(16) But even if I am wrong, on the Respondent’s own version the Applicant
was not consulted before the decision was taken to transfer him. No reason is
given for this failure. The approach in the answering papers is basically to the
effect that in terms of their conditions of employment all policemen can be
transferred and that they know this. They also do not have a “fundamental
right” not to be transferred. The affidavit of Truter then goes on to say the
following:
"Nor can there be an interest or legitimate expectation not to be transferred
where such transfer is not of a punitive nature."
(17) The suggestion then as I understand it is that unless the transfer
involves some form of sanction the policeman concerned is not given an
opportunity to be heard before the decision is taken. To this the Applicant in
reply put up two letters which show the very opposite. There is no objection
to this evidence and I accept these letters for what they are. The first one is a
letter dated 14 January 1999 to a certain Sergeant Selolo. In it it is explained
that due to a shortage of personnel his Area Commissioner was considering
transferring him from Tembisa to Norkem Park. The letter then continues as
follows:
"6. Should you wish not to be transferred to SAPS Norkem Park you are
afforded the opportunity to submit a representation stating your reasons and
personal circumstances within three (3) days upon receipt of this letter. The
representations must be handed to Captain Subbiah not later than 1999-01-22
at 10:00.
7. Should you not submit a representation within the specified time limit
it would be assumed that you have no objection to the said transfer and your
transfer will be finalised."
In the second letter, dated 26 January 1999, from the manager of legal
services for the SAPS, North Rand, Adv TF Van Tonder, one finds the following
paragraph:
"2. I confirm that the Acting Area Commissioner has decided to proceed
with the process of transferring members of the Police Service in adherence to
the audi alteram partem principle."
(18) Apart from Truter telling the Applicant that he was of the opinion that
it was better for him to be removed from the "political playground", no reasons
were given to the Applicant for his replacement and transfer. When the
Applicant arrived from leave on 2 November 1998 to find the Fourth
Respondent installed in his position, he immediately sent a fax to Senior
Superintendent Delport protesting this and also asking for reasons. Delport
replied on 5 November 1998 stating that he could not reverse the transfer.
Delport did not give any reasons and simply referred the Applicant to the
departmental procedures which he suggested he should follow if he had any
grievance. The Applicant then handed the matter over to his attorneys who on
the same day wrote to Delport demanding the Applicant’s reinstatement and
also asking for reasons for the decision as well as any underlying
documentation. Nothing happened and a reminder was sent to Delport on 11
November. On 13 November Assistant Commissioner Reid of the SAPS legal
services responded. Instead of supplying reasons and documents the
attorneys were "advised that we are of the opinion that your client, as a
member of the SAPS, must follow the internal remedies available to him which
are contained in the SAPS Grievance Procedure Regulations." Further
correspondence followed which I do not propose setting out in detail. Suffice
to say that the actual reasons and the underlying documentation to which I
have referred were only filed in response to the bringing of this application. A
bundle of documents was filed in terms of Rule 7A(3) on 3 February 1999 and
the actual reasons were filed on 28 April 1999.
(19) The Applicant bases his relief on sections 32 and 33, as well as section
23, of the Bill of Rights in the 1996 Constitution.
(a) Section 23 (1) provides:
“(1) Everyone has the right to fair labour practices.”
(b) Item 23 of Schedule 6 to the Constitution provides:
"(2) Until the legislation envisaged in sections 32(2) and 33(3) of the new
Constitution is enacted -
(a) section 32(1) must be regarded to read as follows:
'(1) Every person has the right of access to all information held by the state or
any of its organs in any sphere of government in so far as that information is
required for the exercise or protection of any of their rights'; and
(b) section 33(1) and (2) must be regarded to read as follows:
'Every person has the right to -
(a) lawful administrative action where any of their rights or interests is
affected or threatened;
(b) procedurally fair administrative action where any of their rights or
legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action which affects
any of their rights or interests unless the reasons for that action have been
made public; and
(d) administrative action which is justifiable in relation to the reasons given for
it where any of their rights is affected or threatened".
(20) The first issue argued before me is whether section 157 of the LRA
gives this Court jurisdiction to grant this relief. Sub-sections (1) and (2) read
as follows:
“(1) Subject to the Constitution and section 173, and except
where this Act provides otherwise, the Labour Court has exclusive jurisdiction
in respect of all matters that else where in terms of this Act or in terms of any
other law are to be determined by the Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental right
entrenched in Chapter 3 of the Constitution of the Republic of South Africa,
1996, and arising from -(a) employment and from labour relations;
(b) in respect of any dispute over the constitutionality of any executive or
administrative act or conduct, or any threatened executive or administrative
act or conduct, by the State in its capacity as an employer;
(c) the application of any law for the administration of which the Minister is
responsible.”
(21) Section 157(1) gives the Labour Court exclusive jurisdiction in respect
of unfair labour practices which stand to be adjudicated by the Labour Court,
including the residual unfair labour practices included in Schedule 7 which
have to be adjudicated by the Labour Court. These are then procedures
created to give effect to the fundamental rights entrenched in terms of section
23 of the Constitution. In respect of the other fundamental rights entrenched
in the Constitution the Labour Court has concurrent jurisdiction with the High
Court. See Denel Informatics Staff Association and another vs Denel
Informatics (Pty) Ltd (1999) 20 ILJ 137 (LC) at 140G-141B.
(22) It was argued by Mr Soni, who appeared on behalf of the First to Third
Respondents, that in order for this Court to have jurisdiction under section
157(2) to deal with alleged violations of the rights in sections 32 and 33 of the
Constitution the relief sought must also fall within the ambit of section 23. In
other words it must violate the right to fair labour practices. In this regard he
has referred me to the judgment of the Constitutional Court in Shabalala and
others vs Attorney-General of the Transvaal and another 1995 (12) BCLR 1593
(CC) at paragraphs 33 and 34 (at p.1607).
(23) Such an interpretation in my view firstly militates against the plain
reading of section 157(2). It would also make the sub-section largely
superfluous. As was stated in the Denel case at 140H, the High Court does not
have unfair labour practice jurisdiction. This is the sole preserve of the Labour
Court in terms of sub-section (1). This being the case, the concurrent
jurisdiction referred to in sub-section (2) must refer to jurisdiction other than
that already conferred on the Labour Court by sub-section (1).
(24) Such other jurisdiction then relates to violations of other fundamental
rights, provided such violations relate to the matters described in sub-
paragraphs (a), (b) and (c) of section 157(2). One of the rights protected in
the Bill of Rights is the right to fair administrative action. If the alleged
violation involves the State as employer, then the Labour Court has jurisdiction
to deal with it in the same way as does the High Court. Such jurisdiction is
then separate and distinct from the jurisdiction conferred upon the Labour
Court under section 157(1).
(25) In Shabalala’s case the Constitutional Court in the passage referred to
dealt with a general right to information, section 23 of the 1993 Constitution,
and a species of that right as provided for in section 25(3). That is not the
case here.
(26) The second issued is then whether on the papers the Applicant has
made out a case for relief under sections 32 and 33 of the Constitution.
(27) In the Sixth Edition of Administrative Law Sir William Wade in the
chapter entitled “The Right To A Fair Hearing” states the following at page
520:
“The classic situation in which the principles of natural justice apply is where
some legal right, liberty or interest is effected, for instance where a building is
demolished or an office-holder is dismissed or a trader’s licence is revoked.
But good administration demands the observance in other situations also,
where the citizen may legitimately expect to be treated fairly”.
(28) It seems to me that it is basically this right which is now entrenched in
section 33(1) of the Constitution. As was stated in Administrator, Transvaal,
and others vs Traub and others 1989 (4) SA 731(A) at 758G to I, fairness in the
context of a legitimate expectation to be heard will depend on the facts of
each case. This will include for instance the observance in the past of an
established practice. See in this regard also Minister of Justice, Transkei vs
Gemi 1994 (3) SA 28 (Tk AD). The right to procedurally fair administrative
action must also be interpreted generously - Van Huyssteen vs Minister of
Environmental Affairs and Tourism 1996(1) SA 283 (CPD) at 305G.
(29) The Applicant had been in charge of the Midlands unit since June
1996. He clearly had an interest in his transfer from the unit 2 years later. By
all accounts this was a high profile police unit. His transfer to an unspecified
post in circumstances where the unit’s performance was being questioned
must have been a clot on his record. The question mark placed over the unit’s
performance inevitably reflected in particularly on its commander. This is
more particularly so where everything indicates that the failure by the unit
was at least to some extent placed at the door of the Applicant. Why
otherwise, one asks oneself, was he the only one in the unit that was replaced.
(30) This furthermore all happened against the background of the evidence
of a practice that police officers be given an opportunity to be heard before
being transferred. This evidence as I have pointed out is not disputed.
(31) In my view then the Applicant was treated unfairly. This in turn
violates the Applicant’s entitlement to procedurally fair administrative action
as protected in section 33(1)(b) of the Constitution.
(32) Despite repeated requests the Applicant was not furnished with
reasons for his transfer and replacement. Such reasons were only furnished
after this application was brought and clearly in response to it. He is then also
entitled to this part of the relief sought. This aspect has in any event not been
seriously challenged before me.
(33) With regard to costs it seems to me that these should be borne by the
First to Third Respondents. Although the Fourth Respondent opposed the
application, he is before the Court as a result of an application for him to be
joined which was made by First to Third Respondents. In all the circumstances
it seems to me that he should not be burdened with a costs order.
(34) Certain of the prayers overlap. Also, the information sought has by
now been provided. For this reason it would in my view suffice to declare the
initial failure to supply such information to have been a violation of the
Applicant’s constitutional rights.
(35) There will accordingly be an order in terms of prayers two, three and
six of the notice of motion, together with an order that First to Third
Respondents pay the Applicant’s costs, jointly and severally.
GH Penzhorn AJ
1. Matter argued on 29 October 1999.
2. Judgment delivered on - December 1999.
3. For the Applicant Advocate KGB Swain SC, instructed by Von Klemperer
Davies and Harrison Incorporated of Pietermaritzburg.
4. For the First to Third Respondents: Advocate V Soni, instructed by the
State Attorney, Durban.
5. For the Fourth Respondent: Attorney PR Falconer of Larson Bruorton and
Falconer Incorporated of Durban.
penz\judgment03