REVISED/ REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D550/2000
DATE OF JUDGMENT: 2001/04/17
DATE OF EDITING: 2001/05/30
In the matter between:
M PERUMAL Applicant
and
THE MINISTER OF SAFETY AND SECURITY First Respondent
THE NATIONAL COMMISSIONER,
SOUTH AFRICAN POLICE SERVICE Second Respondent
THE PROVINCIAL COMMISSIONER,
SOUTH AFRICAN POLICE SERVICE Third Respondent
N.T. JANSE VAN RENSBURG Fourth Respondent
________________________________________________________
JUDGMENT DELIVERED BY THE HONOURABLE MS JUSTICE
PILLAY ON 17 APRIL 2001
________________________________________________________
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD DURBAN
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J U D G M E N T
PILLAY J
[1] This is an application to declare the transfer of the applicant from his position as Station
Commissioner of the Chatsworth Police Station to the office of the Area Commissioner
Durban South as being unconstitutional and unlawful. The applicant further seeks to set aside
the decision to transfer him and to be reinstated as the Station Commissioner of Chatsworth
Police Station.
[2] The first point raised in limine is whether the Court has jurisdiction in terms of section 157(2) of
the Labour Relations Act No 66 of 1995, (the LRA), as the respondent when taking the
decision to transfer the applicant acted in terms of the South African Police Service Discipline
Regulations GNR 2086 promulgated on 27 December 1996 (hereafter referred to as
"the Regulations") read with the south African Police Service Act No 68 of 1995.
[3] In support of the submission that the Court does not have jurisdiction, Mr Moodley for the
respondent, relied on an interpretation of section 157(2). He advocated that paragraphs (a)
and (c) and paragraphs (b) and (c) of subsection 157(2) should be read conjunctively. A
wholly conjunctive interpretation would lead to absurdity and various unintended
consequences. So it was submitted.
Section 157(2) provides:
"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 2 of the Constitution of
the Republic of South Africa and arising from
(a) employment and from labour relations;
(b) 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; and
employer; and
(c) the application of any law for the administration of which the Minister is responsible."
The omission of the word "and" at the end of paragraph (b) of subsection 157(2) in the South
African Labour Law by Thompson and Benjamin (Juta) has contributed to some of the
controversy in interpreting the subsection.
[5] Subsection 157(2) confers jurisdiction on the Labour Court to hear any dispute about the
violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic
of South Africa, Act No 108 of 1996 ("the Constitution"). The fundamental constitutional rights
that may be adjudicated in terms of this subsection are not restricted only to the labour rights
referred to in section 23 of the Constitution. Mcosini v Mancotywa and Another [1998] 19 ILJ
1413 TK at 1414 DE, Walters v Transitional Local Council of Port Elizabeth and Another
[2000] 21 ILJ 2723 LC at 2726 F to 2728 B.
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[6] The element that brings a constitutional rights dispute within the purview of the Labour Court and
not any other Court in terms of the LRA, is the connection between a violation of rights and
employment, labour relations and labour law. ( Naptosa and Others v Minister of Education,
Western Cape Government and Others 2001 (4) BCLR 388 (c)). Each paragraph of
subsection 157(2) has such a connection independently of the other paragraphs. (See, for
example, Independent Municipal and Allied Trade Union v Northern Pretoria Metropolitan
Substructure and Others [1999] 20 ILJ 1018 T. Contrast with Fourways Mall (Pty) Limited and
Another v South African Commercial Catering and Allied Workers Union and Another [1999]
20 ILJ 1008. Food and General Workers Union and Others v Minister of Safety and Security
and Others [1999] 20 ILJ 1258 LC.)
[7] Each paragraph has a distinct purpose. Paragraph (a) ensures that employment in the private
sector is covered. It also enables effect to be given to the horizontal application of the
constitutional right. Paragraph (b) manifests an appreciation for the complexity of the State
acting as an employer. Its actions or conduct which could be the subject of a dispute, could
be both executive and administrative. This paragraph enables both types of actions or
conduct to be adjudicated before the same forum. It also minimizes jurisdictional disputes as
to whether the actions or conduct are in the executive or administrative. Paragraph (c)
enables the Labour Court to adjudicate in matters involving employment and labour legislation
other than the LRA, i.e. Basic Conditions of Employment and the Employment Equity Laws.
As each paragraph has a distinct purpose it can stand independently of the others. The effect
of each paragraph individually is enabling, logical and consistent with the primary objectives of
the Act.
[8] Section 157(2) is therefore not superfluous to section 3(b) of the LRA. The latter clarifies the
ambit of the jurisdiction of the Labour Court. In this regard I respectfully disagree with my
brother NGWENYA in C N Ndumo v The Minister of Correctional Services and Others
D873/1999 (unreported) at paragraph 20.
[9] A wholly conjunctive interpretation would be restrictive and would defeat the purpose of each
paragraph. For instance, section 157(2) would not be applicable to private employment at all.
A wholly conjunctive interpretation could also lead to absurdity. Support for a disjunctive
approach can be found in Walters above at 2727 EG.
[10] More than one paragraph of subsection 157(2) may apply to a violation. However, more than
one paragraph need not be present in order to confer jurisdiction of the Court. Neither is it
necessary for all three paragraphs to prevail before the Court has jurisdiction. In the
circumstances, Mr Moodley's approach to section 157(2) is rejected.
[11] In this case the Court can have jurisdiction because the circumstances described in paragraphs
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(a) and (b) of subsection 157(2) obtain. The jurisdiction of the Court is not ousted by
paragraph (c). Terms and conditions of public employment are usually founded in legislation
applicable to the service, industry or administration. The LRA provides the machinery through
which the application of such legislation in so far as they relate to employment, labour
relations and labour law can be tested. The provisions of the LRA therefore apply to test
whether the application of the regulations in transferring the applicant were lawful and fair.
The first point in limine is accordingly dismissed.
[12] The second and alternative point pleaded in limine was that the dispute should have been
referred to arbitration in terms of Item 2(1)(c) of Part B of Schedule 7 of the LRA. Accordingly,
it was submitted that section 157(5) precluded the Court from having jurisdiction. Section
157(5) of the LRA provides:
"Except as provided in section 158(2), the Labour Court does not have jurisdiction to
adjudicate an unresolved dispute if this Act requires a dispute to be resolved through
arbitration."
[13] Item 2(1)(c) of Part B of Schedule 7 of the LRA provides:
"For the purposes of this item, an unfair labour practice means any unfair act or omission that
arises between an employer and an employee, involving…
(c) the unfair suspension of an employee or any other disciplinary action short of dismissal in
respect of an employee."
[14] A suspension is always disciplinary action, irrespective of whether it is implemented as a
temporary measure to maintain the employee's status or as a sanction for misconduct. The
words "any other" fortifies this interpretation. The phrase "disciplinary action" is also not
restricted to mean "disciplinary sanction". ( Koka v DirectorGeneral: Provincial Administration
North West Government [1997] 7 BLLR 874 LC.) A transfer can be effected for disciplinary
and for nondisciplinary purposes. If the transfer amounts to disciplinary action in this case
then the dispute should have been referred to arbitration.
[15] Turning to the facts of the case, the applicant was informed by letter dated 10 March 2000 as
follows:
"1. Notice of contemplated suspension or transfer:
It is alleged: YOU CONTRAVENED THE UNDERMENTIONED REGULATIONS OF THE
SAPS DISCIPLINE REGULATIONS:
1.1 REG.18(4) in that you failed to comply with or Contravened a National or Provincial Order or
other Lawful Order or instruction, TO WIT: you failed to attend the queries raised by National
Inspectorate satisfactorily or did not attend to them at all (Inspection Report 23/1/6/225 dated
98/07/17 refers)
1.2 REG 18(21) in that you neglected your duty or performed your functions in an improper manner,
TO WIT you cannot account for fifteen (15) firearms which are reflected on your Station
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Inventory.
2. Disciplinary proceedings have been instituted against you.
3. As a result of the allegations against you, the Area Commissioner is
contemplating either suspending you from duty, or temporarily transferring you.
4. Before he makes a decision he wishes to hear your version of the allegation within
three (3) working days after receipt of this notice."
[16] After the hearing the applicant was informed as follows:
"You are hereby informed that your client NR 01617338 Snr Supt M Perumal will be
temporarily transferred from Chatsworth to the office of the Area Commissioner Durban South
until such time as the disciplinary steps have been concluded.
The transfer is with immediate effect and your client must report to the Area Commissioner
Durban South Assistant Commissioner Ntanjana not later than 16:00 on 20000403.
[17] In response to a request for reasons for the transfer the fourth respondent replied on 20 April
2000:
"The decision to transfer Senior Superintendent Perumal was based on the evidence placed
before me at the time. It is in the interests of the S A Police to have transferred the officer as
Regulated by the Disciplinary Regulations.
Please be advised that your attendance on 31 ST March 2000 was not a disciplinary hearing
but merely an opportunity for the officer or his representative to make a representation to the
possible suspension or temporary transfer of the latter.
As you are aware, the National Commissioner has subsequently ordered the immediate
transfer of all the officers at Chatsworth."
[18] The transfer in this case was undoubtedly disciplinary action as contemplated in Item 2(1)(c). In
the circumstances the dispute should have been referred to arbitration. The Court has no
jurisdiction to hear the dispute. Accordingly, the second and alternative point pleaded in
limine succeeds.
limine succeeds.
[19] In so far as I may be wrong in declining jurisdiction, I turn to the merits of the matter. The
basis on which the decision to transfer the applicant was challenged on the merits was
pleaded as follows in paragraph 38 of the founding affidavit:
"The decision by the Fourth Respondent to transfer me is an administrative act as
contemplated in Section 33 of the Constitution of the Republic of South Africa. I have been
advised, that at the very least, the decision of the fourth respondent must be "reasonable". I
respectfully submit that, having regard to the information properly before him, the decision of
the Fourth Respondent does not meet this test. Consequently, it was unconstitutional and
unlawful. In the premises, it falls to be set aside."
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[20] According to the applicant, the only information before the fourth respondent who took the
decision to transfer him were the written (MP6) and oral representations (JVR1) made by him
or on his behalf at the hearing. In deciding to transfer the applicant the fourth respondent had
taken into account four documents which the applicant had filed with his founding affidavit
(MP1 to MP4 inclusive), the oral submissions made by or on behalf of the applicant (JVR1),
the applicant's response to MP1 (JVR2), an affidavit by the Area Commissioner dated 8 March
2000 (JVR3), a logistical audit inspection report dated 9 March 2000 (JVR4) and policy
procedure for suspension and temporary transfer in the South African Police Service (JVR5).
[21] In his reply the applicant expanded the basis of his complaint by pleading:
"The approach of Van Rensburgh resulted in a fundamental breach of my rights to fair
administrative action as contemplated by the Constitution. There was a violation of my rights
to a fair hearing, as contemplated in the Respondents own procedure as envisaged in
Annexure ‘JVR5’."
[22] This was provoked by the fourth respondent's disclosure that he had taken into account
documents JVR3 and JVR4. The applicant alleged that he had no knowledge of the existence
of these documents, nor was he aware that they would be taken into account when deciding
what action should be taken against him.
[23] >From the founding affidavit it would appear that the applicant had not placed Annexures MP1
to MP4 before the fourth respondent in order that they be considered when the latter made his
decision. The fourth respondent had nevertheless taken these documents into account. The
applicant's criticism of the fourth respondent does not relate to his having taken into account
documents about which he had knowledge but only about considering documents about which
documents about which he had knowledge but only about considering documents about which
he alleged he had no knowledge.
[24] It must be remembered that the administrative act complained of is the decision to transfer the
applicant. It is not a dismissal. The applicant is not deprived of his remuneration nor is he
denied employment. Consequently, the form of hearing contemplated prior to the transfer
may be far more attenuated than a hearing preceding a dismissal. [See Baxter Administrative
Law Pages 542 to 550 and 596 to 597.]
[25] The requirements for a fair hearing prior to transfer are far less onerous for the employer than
a dismissal hearing. What is not expected of the employer at a hearing prior to transfer is a
full scale trial of the charges. Not every issue relevant to the charges needs to be canvassed.
Whether a hearing prior to a transfer is fair or not would depend on the circumstances of each
case.
[26] In this case the applicant was informed of the charges that were being investigated against
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him. He was invited to make representations about them. He did so with the assistance of an
attorney. No restrictions were placed on the content of his representation. He was free to
place any information he wished in order to influence the decision of the fourth respondent.
The fourth respondent was entitled to consider all material that was relevant to the charges
and to his decision as to whether the applicant should be suspended or transferred. He was
not obliged to disclose the material to the applicant beforehand. The purpose of the hearing
was not to test the truth of the allegations against the applicant. All the material that the fourth
respondent considered related to the charges and were relevant to his decision. For this
reason the fourth respondent's decision was rationally connected to the material before him.
The applicant ought to have been aware that the fourth respondent would be considering all
material relevant to the charges and the decision to transfer or suspend him. He appears to
have tacitly accepted that the fourth respondent was entitled to do so in relation to material of
which he, the applicant, was aware. The complaint was not that the fourth respondent took
into account material other than that to which the applicant had referred him.
[27] The applicant also criticized the fourth respondent at length for giving as a reason for the
transfer "the interests of the South African Police Service" without raising it first as an issue at
the hearing. It is implicit when disciplinary action is taken that the interests of the service
would be an important consideration. As a Station Commissioner, which is a managerial
position, the applicant ought to know this.
[28] Having regard to the charges, they are serious. The prejudice that the respondents would
suffer if the applicant had not been transferred outweighs any inconvenience or prejudice that
the applicant may suffer as a result of the transfer. In this regard, the only prejudice it seems
that the applicant may endure as a result of the transfer is that the transfer may be a slight on
his integrity. However, Mr Soni, for the applicant, pointed out in his address that the applicant
had still not been charged for misconduct despite the lapse of about a year since the transfer.
While this is disturbing, there were no supplementary affidavits filed to include the delay in
finalising the disciplinary action as a further ground in support of the application. The reasons
for the delay would also have had to be placed properly before the Court before they could be
considered.
[29] The applicant further submitted that his transfer was also unfair because the National
Commissioner had decided to transfer all the officers at Chatsworth, which must have
included him. The basis for the transfer of the applicant relied upon by the respondents is a
decision of the fourth respondent. The fourth respondent denied that the National
Commissioner's decision had applied to the applicant. The National Commissioner's decision
"was contemplated and announced" after the disciplinary action against the applicant was
contemplated. This is a dispute of fact which must be decided in favour of the respondent.
[30] In the circumstances the application is dismissed with costs.
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JUDGE D, PILLAY
__________________________________________________
Advocate V. Soni
Attorneys R. Bandulalla
Advocate I. Moodley
State Attorney Durban
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