IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
OF INTEREST
CASE NO D332/03
DATE HEARD : 2003/06/20
DATE DELIVERED : 2003/06/03
In the matter between:
NICHOLAAS WILLEM DANNHAUSER & 19 OTHERS Applicant
and
eTHEKWINI MUNICIPALITY Respondent
JUDGMENT DELIVERED BY THE HONOURABLE MS JUSTICE PILLAY
ON 20 JUNE 2003
ON BEHALF OF APPLICANTS : MR S M
GOVENDER
ON BEHALF OF RESPONDENT : MR M G MAESO
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD DURBAN
JUDGMENT 20 JUNE 2003
PILLAY J
[1] The applicants seek urgent relief, inter alia , in the following terms.
"2.1 That the appointments to the nine (9) Superintendent and
two (2) Senior Superintendent posts advertised in circular
No 56 be and is hereby stayed pending the finalisation of
this matter.
"2.2 That the respondent be and is hereby ordered to place the
Applicants in the posts with the Durban Metropolitan Police
Services as set out hereunder in accordance with Staff
Placement Policy and Process dated 3 September 1996
retrospectively to November 2000."
The current title, name of each applicant and the post to which the
applicants seek appointment are listed thereunder.
[2] An alternative order making the award of Arbitrator Naidoo dated 29
January 2002 an order of court was also sought.
[3] The applicants founded this relief on the Staff Placement Policy and
Process ("SPPP") agreement and the award of Arbitrator Naidoo. The
terms of reference for the arbitration before Naidoo were as follows:
"7. The arbitrator will decide whether the non
placement/placement is reasonable/unreasonable.
8. If the grievance is upheld it will be referred to the placement committee for
reconsideration."
[4] Arbitrator Naidoo issued an award in which he found that the applicants
had been unreasonably placed. He recommended that they be
appointed to the posts to which they now seek appointment. In the
case of a few applicants, he also referred the matter to the placement
committee for reconsideration.
[5] The recommendations are just that. If they were to amount to more
than recommendations, as Mr Govender, for the applicant, urges me to
hold, then it would be an award for specific performance which fell
outside Arbitrator Naidoo's terms of reference. The award would then
be ultra vires .
[6] The award is capable of being so interpreted as to give effect to its
legality. Effect can only be given to the finding that their placements
were unreasonable. That is the declarator that the parties to that
arbitration sought.
[7] The Court is not bound by Arbitrator Naidoo's recommendations to
appoint the applicants to the posts they seek. The recommendations
are unenforceable.
[8] The Court will have to conduct its own investigation to determine
whether, factually, the applicants are entitled to the posts to which they
aspire, on the basis that they are a "close match" (discussed below) to
the posts they currently hold. A case for such an investigation has not
been made out in these papers, assuming that this is the proper forum
to advance such a cause of action, which I doubt.
[9] Turning to the second basis relied on by the applicants, namely that the
SPPP agreement confers a right on the applicants to the posts, the
agreement provides as follows:
"5. Each Area Industrial Council is required to create a
Placement Committee consisting of equal numbers of
employer and employee representatives. The terms of
reference of these Committees will be to consider and reach
consensus regarding the placement of existing employees into
posts in the new structures.
6. Staff are to be placed in these structures on a permanent
basis. Every attempt (my underlining) will be made to place all
existing staff within these new structures. New or major
changed posts will only be advertised where no “close match”
placement is possible including the consideration of staff in the
Metropolitan Staff Placement Pool which will be created to
accommodate any surplus staff.
……
9.1.4 Major Changed Posts
These are posts which have undergone a major change to
their duties and responsibilities and as such require
submission for grading. Wherever possible , consideration
in the first instance should be given to the placement of
existing staff in these posts on a “close match” basis.
These posts with existing and proposed duty schedules
should be submitted to the Committee together with the
names and service numbers of employees to be placed in
posts on a “close match” basis. Following publication of the
decision of the Placement Committee and finalisation of
any grievances arising therefrom, the post/s concerned will
be submitted for grading.
…..
9.3 The decisionmaking process
The Placement Committee shall strive to reach consensus
on the staff placement submissions under consideration.
Where consensus cannot be achieved, the Council’s
proposal will be published in the decision circular indicating
that no consensus was reached. Notwithstanding any
decision of the Placement Committee, individual
employees or Trade Unions on behalf of their members
retain the right to lodge grievances against published
decision/s. Any grievances lodged will be dealt with in
terms of the grievance procedure as set out in clause 12
below. Following the standard grievance period of 10 days,
staff placements against which no grievances have been
lodged will be deemed to be final.
…..
12.5 Should the arbitrator rule that the placement proposal is
unreasonable and that the parties concerned are still not able to
resolve the matter, the following will apply:
The employee will be placed in the Metropolitan Staff
Placement Pool for a period of not more than 6 months or
such agreed extension thereof, during which period
alternative employment will be sought for the employee
who would, in addition, be expected to
• Identify alternative positions to which placement
would be acceptable (and the employer will
canvass the feasibility thereof on his behalf); and
• actively make application for suitable
vacancies at the time; and
• carry out any reasonable alternative duties assigned."
[10] Nothing from the aforegoing extracts relied on by the applicants give
them a right to appointment to the posts they seek.
[11] As it emerged during argument, only the five applicants who seek
appointment as senior superintendent and superintendent,
respectively, have an interest in the first order prayed, namely for the
staying of the appointments. With regard to the remaining applicants,
there is a dispute as to whether the posts to which they aspire in fact
exist and are funded or whether they exist only on an organogram.
Such a dispute must be resolved, for the purposes of this application,
on the respondent's version.
[12] I have disposed of this application on the merits. I am nevertheless not
convinced that the matter is urgent or that there is no alternative
remedy. From the SPPP agreement it would appear that the applicants
may grieve as often as they wish about any appointment or non
appointment. That is the remedy they should pursue.
[13] In the circumstances, the application is dismissed. With regard to costs
and there is no order on the basis of the submission by Mr Govender
that there is an ongoing relationship.
PILLAY D, J
10 September 2003.