IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG )
CASE NO. J4833/02
In the matter between:
M M DANI Applicant
and
MINISTER OF SAFETY AND SECURITY First Respondent
NATIONAL COMMISSIONER OF SAPS Second Respondent
_________________________________________________________
JUDGMENT
_________________________________________________________
TIP AJ
1. The applicant is a Director in the South African Police Service (“SAPS”).
Until the events giving rise to this application he held the post of
Provincial Head Detective Services for the Northern Cape, stationed in
Kimberley. Whilst in that position, allegations were made concerning
sexual harassment on the part of the applicant. On 18 October 2001 he
was served with a notice that a departmental investigation was being
instituted. On 30 October 2001 he was served with a notice of
temporary transfer to the Provincial Evaluation Services of SAPS, also
in Kimberley.
2. An extended disciplinary enquiry followed. The applicant was found
guilty on two counts and, on 11 September 2002, a sanction of
dismissal suspended for a period of twelve months was imposed. An
appeal was lodged. It was successful, with the findings and sanction
being set aside on 13 January 2003.
3. In the interim, the applicant received a notice dated 27 September 2002
in the following terms:
“1 As a result of the disciplinary hearing and sanction imposed
on the officer, an administrative investigation pertaining the
placement and utilization of the officer is pending.
“2 Due to the functional requirements of the Service and the fact that the
relationship between the officer and employees has been severely affected, the
officer must remain in the post to which he was temporary transferred until the
investigation is finalized.
“3 It is Head Office’s intention to transfer the officer to one of the following
posts ….
“4 The written response of the officer is awaited at Head Office on or before
20021001.”
4. Various representations and items of correspondence followed. It is
unnecessary for me to analyse them all. On 27 November 2002 the
applicant informed the Provincial Commissioner for the Northern Cape
that he “ will be reporting for duty at my office at the Detective Services
at 08h00 on Monday the 2 nd December 2002 as the Provincial Head
Detective Services Northern Cape .” Notwithstanding a warning from the
Provincial Commissioner that this would amount to misconduct, the
applicant carried out his intentions. On 2 December 2002 the applicant
informed inter alios the National Commissioner (the second respondent)
and the Provincial Commissioner that: “ I have this day the 2 nd of
December 2002 reported to my office at the Provincial Detective
Service Northern Cape .”
5. Evidently in response, the second respondent issued a letter stating:
“1 The officer must remain in the post in which he was
temporary transferred. If he fails to adhere to the instruction,
disciplinary action should be considered.
“2 The officer’s representations were considered but due to the breakdown
of relations his transfer to Gauteng in the post Deputy Area Commissioner: West
Rand, is hereby approved. He must take up the post as soon as possible but not
later than 2 January 2003. ”
6. After further exchanges, the applicant launched the present proceedings
as a matter of urgency on 27 December 2002. The notice of motion
sets out the following prayers:
“1 Condoning the Applicant’s failure to comply with the Rules of
the above Honourable Court relating to service and time
frames and hearing this matter on an urgent basis.
“2 Declaring the 2 nd Respondent’s decision to transfer the Applicant to
Gauteng in the post Deputy Area Commissioner: West Rand to be
unconstitutional and unlawful.
“3 Declaring the 2 nd Respondent’s decision to transfer the Applicant to
Gauteng in the post Deputy Area Commissioner: West Rand to be irregular and
unprocedural.
“4 Declaring the 2 nd Respondent’s decision to transfer the Applicant to
Gauteng in the post Deputy Area Commissioner: West Rand to be unfair and
prejudicial.
“5 Declaring the 2 nd Respondent’s decision to transfer the Applicant to
Gauteng in the post Deputy Area Commissioner: West Rand to be contrary to
the Agreement reached by the Safety and Security Sectoral Bargaining
Chambers (hereinafter referred to as the “Agreement”.
“6 Interdicting the Respondents from transferring the Applicant to Gauteng in
the Post Deputy Area Commissioner pending the finalisation of the Appeal
against the finding of Director P van Vuuren.
“7 Interdicting the Respondents from transferring the Applicant to any Area
and Post pending the finalisation of the Appeal against the finding of Director P
van Vuuren.
“8 Directing the Respondents to reinstate the Applicant to the Post
Provincial Head Detective Services Northern Cape.
“9 Directing the Respondents to pay the Applicant’s costs on an attorney and
client scale.
“10 Directing that prayers 1,2,3,4,5,6,7 and 8 serve as Interim Relief with
immediate effect pending the finalisation of this Application.
“11 Further and/or alternative relief. ”
7. The application came before Court on 30 December 2002. By
agreement it was postponed sine die with costs reserved. The
respondents undertook not to implement the transfer of the applicant
which was to have taken place on 2 January 2003. Answering and
replying affidavits were thereafter filed and, on 17 April 2003, the matter
came before me.
8. Although no in limine points had been raised in the respondents’
papers, Ms Barnard who appeared on their behalf made the submission
in her heads of argument that a dispute about demotion fell within
section 186 of the Labour Relations Act 66 of 1995 (“LRA”) and,
accordingly, should have been referred for arbitration instead of being
placed before this Court. The role of ‘demotion’ has featured
prominently in the applicant’s papers on the basis that the transfer
measures taken in respect of himself amounted to a de facto demotion.
It was also the leading feature of the heads of argument lodged by his
counsel. When this issue of jurisdiction was raised, Mr Mathibedi for the
applicant stated that the demotion component of the applicant’s case
was not being proceeded with.
9. However, the jurisdictional obstacles in the path of the applicant are not
swept away through this redirection of his case. Crucially, there is in
place a collective agreement (No. 5/1999 concluded on 8 October 1999)
that comprehensively governs transfer policy and procedures. This
agreement was reached within the Safety and Security Sectoral
Bargaining Chamber.
10. It is the alleged contravention of this agreement that forms the subject
matter of prayer 5 of the relief sought, set out above. Whether or not
the applicant’s complaints are well founded is not something that I can
now decide, since the antecedent question is whether they fall within the
parameters of the collective agreement. Prima facie they do. According
to Mr Mathibedi, the main argument to be put forward for the applicant is
that the officer who made the decision to transfer him did not have the
requisite authority. That issue is expressly dealt with in clause 3 of the
agreement, which contains a set of particular provisions under the
rubric: “ In the following circumstances the persons who are mentioned
will be responsible for deciding whether or not a transfer must be
effected:”. Other provisions of the agreement stipulate matters such as:
the reasons that must be place for there to be a valid transfer; the
restriction on the use of a transfer as a punitive measure; its
permissibility as a temporary measure where misconduct is suspected;
procedural requirements; transfer in situations of urgency; the
submission of representations; and, the circumstances in which the
National Commissioner or his Deputy may play a role.
11. In short, the collective agreement contains a set of agreed provisions
that comfortably address the various complaints advanced by the
applicant in support of the declaratory orders and ancillary relief claimed
by him in this application. That is evident from a conjunction of the
applicant’s contentions and the terms of the collective agreement. Mr
Mathibedi, correctly, did not suggest that the agreement did not
accommodate the issues raised in this case.
12. All things being equal, it follows that the disputes raised by the applicant
in these proceedings are concerned with the interpretation and
application of a collective agreement. The agreement that has been
included in the papers before me does not itself contain any provisions
relating to dispute resolution in the event of a dispute about its
interpretation or application. Whether or not there is a governing or
regulatory agreement having that consequence is therefore unclear.
That fact does not affect the result. If there is, it will need to comply with
the requirements of section 24(1) of the LRA, namely that it must
provide for conciliation and, if necessary, arbitration. If the panoply of
collective agreements relevant to this case do not incorporate provisions
of that kind, the present dispute about the circumstances and terms of
the transfer here at issue will fall within the provisions of sections 24(2)
to 24(5) of the LRA, in which event the dispute remains one concerning
the interpretation or application of a collective agreement, save only that
it then must be processed through the CCMA. The same dispute
resolution course is prescribed: conciliation and, if unresolved,
arbitration.
13. If it should be the case that I am wrong in my view that the present
range of disputes before this Court are not embraced within the scope
of the collective agreements that regulate the affairs of the parties, they
would nevertheless be classifiable as disputes on matters of mutual
interest as between an employee and an employer. That
characterisation would place the present application within the
framework of section 51 of the LRA. Again, the result is that the same
dispute resolution sequence would have to be pursued, namely
conciliation and arbitration, this time under the auspices of the
Bargaining Council.
14. Shortly put, the grounds for relief advanced by the applicant in this case
are in one way or the other specifically catered for within the remedial
and dispute resolution provisions of the LRA. Each of them involves the
conduct, if necessary, of an arbitration. Each of them involves a
preliminary phase of conciliation. None of them involves the attention of
this Court.
15. The LRA sets out clear delineations in relation to jurisdiction. That has
been done in pursuit of clear policy objectives concerning the manner in
which disputes are to be resolved and the primacy that is to be
accorded within that framework to the role of collective agreements. In
accordance with that approach, section 157(5) of the LRA
unambiguously records that: “ Except as provided in section 158(2), the
Labour Court does not have jurisdiction to adjudicate an unresolved
dispute if this Act requires the dispute to be resolved through
arbitration.”
16. The importance attached by the legislature to the processes of
conciliation and arbitration is reflected also in section 157(4)(a): “ The
Labour Court may refuse to determine any dispute, other than an
appeal or review before the Court, if the Court is not satisfied that an
attempt has been made to resolve the dispute through conciliation .”
17. Mr Mathibedi sought to preserve the applicant’s quest for relief in this
Court by relying on the terms of section 157(2)(b) of the LRA:
“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, 1996, and arising from … 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; ”
18. In support of this approach, he argued that the applicant has cited a
constitutional ground in prayer 2 of the notice of motion and that this
should be read as a reference to the right to fair administrative action
guaranteed through section 33(1) of the Constitution. Hence, ran his
argument, since the act in question is the act of the State as an
employer, jurisdiction is conferred on this Court via section 157(2) of the
LRA.
19. The prayer itself refers merely to ‘unconstitutional’. However, even
assuming that a constitutional reference has been made with sufficient
clarity, I am unpersuaded that this is sufficient to take this dispute out of
the normal dispute resolution route set out in the LRA. That Act has
been put in place to give effect to relevant constitutional provisions and
values. Its administration is required to be carried out in accordance
with those provisions and values. But that is a far cry from the notion
that specific mechanisms and dedicated bodies that have been
established to provide and regulate the resolution of disputes can be
bypassed through an insubstantial reference to the Constitution.
20. In this case there is a collective agreement. The conclusion of a
regulatory instrument of that sort in itself gives expression to the values
and objects of the Constitution. Mr Mathibedi advanced no suggestion
that the agreement is in some way flawed. Likewise, he did not suggest
that the prescribed dispute resolution process, which I have described
above, is at odds with the Constitution or that it does not provide a
satisfactory manner through which this dispute can be resolved. In
short, an adequate remedy is available without recourse to a provision
of the Constitution.
21. In these circumstances, there is in my view no good ground for this
dispute to be translocated from the prescribed channel to this Court. If
section 157(2) were to have the meaning contended for by Mr
Mathibedi, the operation of the LRA would be undermined. For
instance, the prohibition against this Court hearing matters that were
required to go to arbitration, expressly set out in section 157(5) could be
rendered nugatory simply by attaching a constitutional tag to a dispute.
That was not the purpose of section 157(2) and I hold that it does not
vest this Court with jurisdiction in the present matter.
22. Comparable points have already been decided by this Court, in the
manner that I consider appropriate in this case. See Walters v
Transitional Local Council of Port Elizabeth & another [2001] 1 BLLR 98
(LC). Given that I consider that this case does not raise any
constitutional principle, the observations of the Constitutional Court are
analogously apposite: National Education Health and Allied Workers
Union v University of Cape Town & others (2003) 24 ILJ 95 (CC) at
paras [30] – [31].
23. In the result, the application is dismissed with costs, such costs to
include the costs reserved on 30 December 2002.
_________________________
K S TIP
Acting Judge of the Labour Court
Date of Hearing : 17 April 2003
Date of Judgment : 29 April 2003
For the Applicant : Adv T F Mathibedi with Adv M J Ramaepadi
Instructed by Bosman & Delpoort Attorneys c/o M N
Moabi Attorneys
For the Respondent : Adv M Barnard
Instructed by State Attorney