IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN CAPE TOWN
CASE NO C295/04
Date of Hearing: 27/08/2004
Date
of Judgment: 28.01.2005
In the matter between
RIAZ SALOOJEE Applicant
and
KAREN McKENZIE N.O. 1st Respondent
INDEPENDENT COMPLAINTS
DIRECTORATE 2nd Respondent
MINISTER OF SAFETY & SECURITY 3rd Respondent
JUDGMENT DELIVERED BY
THE HONOURABLE MR JUSTICE NGCAMU
FOR THE APPLICANT: ADVOCATE P A
GAMBLE SC
WITH ADVOCATE H RABKIN-
NAICKER
FOR THE 1ST &
2ND RESPONDENTS: ADVOCATE N
ARENDSE SC
TRANSCRIBER
SNELLER RECORDINGS (PTY) LTD - DURBAN
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JUDGMENT
NGCAMU AJ
[1] The applicant is the Head of the Independent Complaints
Directorate, Western Cape Office. The first respondent is the
Executive Director of the Independent Complaints Directorate,
who has been cited as the person who took the decision which is
the subject of the present review. The second respondent is an
organizational component of the public service, falling under the
authority of the National Minister of Safety and Security. The
third respondent is cited as an interested party. No relief is
sought against that respondent.
[2] The applicant filed an application in which the following order is
sought:
(a) The decision of the first respondent to transfer the
applicant to the post of Provincial Head of the ICD in the
Mpumalanga Province announced on 25 June 2004 be
reviewed and set aside.
(b) The first respondent be directed to reinstate the applicant in his
post as Provincial Head, ICD in the Western Cape.
(c) Costs of this review be paid by the respondents should the
application be opposed.
(d) Further and/or alternative relief.
[3] The applicant was charged with eight counts of misconduct. He
was found guilty of only one, of contravening section 8.3(a)(vi) of
the ICD's media policy, in that he participated in an interview of
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national television without informing the Chief Information Officer
or Deputy Chief Information Officer or obtaining approval for such
action.
[4] At the disciplinary hearing the respondent argued for the
dismissal of the applicant. The chairperson of the disciplinary
hearing was not convinced that the nature of the transgression
warranted a dismissal. The following sanction was imposed:
(a) that the applicant be provided with a final written warning;
(b) that he be demoted to the third notch of salary scale of someone
on salary level 12 within the public service with effect from 1 July 2004
for a period of one year and thereafter he may apply for promotion;
(c) that he should not communicate with the media;
(d) the evaluation and discipline of members be done in consultation
with the national office;
(e) that he should not be involved in the career incidents of
Ms Cornellisson and Mr Lalla;
(f) that he should undergo an intensive team- building exercise with
the staff of his office;
(g) that he should formally apologise to the MEC for any
embarrassment his actions caused.
The chairperson indicated that he seriously considered his
transfer from Cape Town office if the provisions of the
disciplinary code provided for it.
[5] The applicant was formally informed of the sanction by letter from
the Executive Director, the first respondent. The letter is dated
27 May 2004 and contained the recommendations of the
chairperson.
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[6] On 2 June 2004 the applicant lodged an appeal against the
sanction. On 4 June 2004 the first respondent served the
applicant with a notice of an intention to transfer him to
Mpumalanga office and placement on special leave. The letter
stated that the intended transfer was in terms of section 14(1) of
the Public Service Act of 1994. The transfer would be with effect
from 1 July 2004. The applicant was to become the Provincial
Head of the Mpumalanga office in Nelspruit. The reasons for the
transfer were set out as, inter alia:
(a) The breakdown of the trust relationship between certain of
the applicants' employees and himself.
(b) The breakdown of the trust relationship between the applicant
and key stakeholders in the Western Cape Province.
[7] The applicant was invited to make written submissions regarding
the proposed transfer to Nelspruit. The letter advised the
applicant that he was placed on special leave with effect from
4 June 2004 until 30 June 2004. Alternatively, until a decision
was taken on his possible transfer.
[8] The applicant responded that he was dismayed about the
intended transfer because his appeal was pending. He further
mentioned that the special leave was not in accordance with the
leave policy of the second respondent. He submitted that the
special leave was tantamount to a suspension. The applicant
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submitted his reasons against the intended transfer.
[9] On 25 June 2004 the first respondent announced that the
applicant was being transferred to Mpumalanga Province.
[10] The applicant seeks to review and to set aside this decision. The
respondents are opposing the review.
[11] The review application has been brought on the following
grounds:
(a) The empowering provision relied upon by the first
respondent, that of section 14(1) of the Public Service Act,
does not authorise a transfer where the reason for that
transfer is that the employer has failed to obtain a desired
result in a disciplinary process.
(b) The decision to transfer was taken for an ulterior motive or
purpose.
(c) The first respondent did not consider the relevant considerations
when confirming the decision to transfer the applicant.
(d) The first respondent took the decision to transfer in bad faith or
arbitrarily and that the administrative act was not rationally connected to
the purpose for the empowering provision.
(e) The administrative decision to transfer was unconstitutional.
[12] The respondent's defence to the matter is that the transfer of the
applicant from the Western Cape Province is in the public
interest. The transfer of employees in the public service is
governed by section 14(1) of the Public Service Act. This section
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provides:
"1. Subject to the provisions of this Act, every officer or
employee may, when the public interest so requires,
be transferred from the post or position occupied by
him or her to any other post or position in the same or
any other department, irrespective of whether such a
post or position is in another division or is of a lower or
higher grade or is within or outside the Republic.
2. (a) The transfer of an officer or an employee from
one post or position to another post or position
may, subject to the provisions of paragraph (b)
be made on the authority of the person having
the power to transfer."
[13] The Public Service Act does not define "the public interest". This
gives rise to different interpretations. The Courts have attempted
in several cases to define what is meant by the term. In Ex Parte
President of the Conference of Methodist Church of South Africa
N.O: in re William Marsh Will Trust 1993 (2) SA 697 (CPD), at
703C-E BERMAN J, quoting HERBSTEIN J in Argus Printing
and Publishing Company Ltd v Darby's Artware (Pty) Ltd and
Others 1952 (2) SA 1 (C), stated:
"One must adopt, in giving effect to the phrase 'a broad
common- sense view of the position as a whole' --- (and
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it must be considered whether) ---- the public should
be better served if the applicant were to be allowed to
proceed with its scheme than by a continuation of the
existing state of affairs."
[14] In Rail Commuter Action Group and Others v Transnet Ltd
trading as Metro Rail and Others 2003 (3) BCLR 288 (C), the
Cape Town High Court at page 320A-B stated:
"In our view this narrow definition of public interest is
inappropriate within the context of the present dispute.
While the term 'public interest' may not be capable of
precise definition, the use of the phrase is, to our mind,
designed to ensure that the first and second
respondents adopt a policy which promotes the
general welfare of the public which uses the public
facility in question. In this case the railway service."
The New Shorter Oxford English Dictionary defines "public
interest" as "the common welfare".
[15] In Transnet trading as Metro Rail v Rail Commuter Action Group
v Minister, Safety and Security 2003 (12) BCLR 1363 (SCA) at
page 1369, paragraph 15, the Court observed that:
"The phrase by itself is not capable of clear and
comprehensive definition. The answer must lie in an
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analysis of the context provided by the Act and its
predecessor, the 1981 Act."
The Court here was referring to the South African Transport
Services Act No 9 of 1989. The Court preferred a narrow
approach confined to the purpose of the Act.
[16] The first respondent has authority to transfer an officer from one
position to another or from one area to another. In Simelela and
Others v Member of the Executive Council for Education,
Province of the Eastern Cape and Another (2001) 22 ILJ 1688
(LC) at page 1703, paragraph 56, the Court per FRANCIS AJ (as
he then was) stated that:
"In addition to fair administrative action, the
State employees are afforded a constitutional
right to fair labour practices. Although the unfair
transfer of an employee is not catered for
expressly in the Labour Relations Act, an
employee is not precluded from relying directly
on the Constitution to enforce his or her right not
to be subjected to unfair labour practices. A
decision to transfer an employee without prior
consultation amounts to unfair labour practice."
[17] In SAPU v SAPS and Others (2004) 5 BLLR 567 (LC) at
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page 576, paragraph 29, NDLOVU AJ stated:
"Where the transfer of a government official was, on
the facts of the case, in the interests of the department
concerned and where the decision to transfer was not
influenced by any arbitrary attitude or actuated by bias
or malice or by any ulterior or improper motive on the
part of the transferring authority it did not lie with the
Court to interfere."
[18] See also Pharmaceutical Manufacturers Association of South
Africa and Others: in re ex parte application of the President of
the Republic of South Africa and Others 2000 (3) BCLR 241 (CC)
at page 271, paragraph 82, where the Court stated that
interference would be possible and right if the officer acted mala
fide or from ulterior motives.
[19] The challenge to the transfer can be dealt with on one point,
although five grounds of review have been set out. I can safely
conclude that the application for review is based on the fact that
the decision to transfer was for an ulterior motive. The applicant
has disputed that there is any breakdown in the relationship with
the employees/staff, the MEC. The first respondent has alleged
that the problem about the applicant's managerial style had been
in existence since July 2001. It was alleged that the applicant
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has been an abject failure as a manager of the Cape office of the
ICD. It was alleged that Mr Kekana proposed the transfer of the
applicant in July 2001 on the allegations of information which
was confidentially conveyed to him. These allegations were
never tested in the open court or in any disciplinary hearing.
[20] The first respondent also stated that Miss Elsie Verster had
found evidence of mistrust, favouritism and poor managerial
performance by the applicant. She also recommended the
transfer of the applicant to another office.
[21] Advocate S Lakhi was instructed to investigate disciplinary
charges against the applicant. Advocate Lakhi could not find
anything on which the applicant could be charged. However, she
found the applicant's managerial style and approach to the
people had given rise to the situation. These are instances that
had occurred before the applicant was charged.
[22] I am satisfied that the respondent had the idea of removing the
applicant. The suggestion was that the applicant be transferred.
This step was not taken, for reasons unknown to the Court. It
may well be that there were not sufficient grounds for transferring
him or it waited for the opportunity of removing him from the
service by way of a dismissal. This latter option appeared to
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have been favoured. The charges were then formulated and the
applicant was charged. The desired result of a dismissal was not
achieved.
[23] The allegations against the applicant are serious. According to
the respondent, there have been problems with the applicant's
management style and managerial efficiency since 2001. If this
is correct, the applicant should have been charged for incapacity
or poor work performance. It is true that the employer has a
prerogative of whether to charge the employee for a particular
misconduct. It can therefore be said that the respondent was not
obliged to charge the applicant for these acts of misconduct. An
explanation is required for failure to charge the applicant. More
so when it is alleged that his managerial skills are lacking and
this has caused divisions in his staff.
[24] The question then arises whether such a bad manager, as
described in the papers, is good for the Mpumalanga Province. It
cannot, in my view, be accepted that transferring a person to be
a head of the second respondent is in the public interest in
circumstances where it is alleged in no uncertain terms that he
lacks managerial skills. That would suggest that the
Mpumalanga Province is prepared to be a dumping place. I do
not think the Mpumalanga Province needs a manager with no
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managerial skills who will cause divisions in the existing staff.
[25] The clinical psychologist, Johan Greeff, filed an affidavit in which
he has stated that the Cape Town office was a seriously
dysfunctional team. He stated that this related to leadership
decision-making and communication. He further stated that the
applicant over-estimated his managerial abilities as a leader. He
was not realistic and accurate in his assessment of himself and
of events. Applicant, according to Greeff, was not totally focused
and was not committed to improve himself as a manager or as a
leader. Some of the information contained in Greeff's affidavit
was not available at the time that the decision to transfer the
applicant was made. The affidavit is filed to support the decision
already made. In my view, this supports the allegation that the
respondent wants to get rid of the applicant from the Cape Town
office. The assessment of the applicant, as suggested by Johan
Greeff, was not compared with any other manager in the office of
the second respondent.
[26] The allegation has also been made that there is a breach of trust
as the MEC for Safety and Security in the province does not trust
the applicant. I do not accept that one instance of breach of the
media policy can be so serious that there would be a breach of
trust requiring the transfer. Besides this, the chairperson of the
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disciplinary hearing mentioned that the policy was not clear and,
for that reason, it would be unreasonable to transfer the applicant
on that ground.
[27] The applicant disputed that the office was dysfunctional and
stated that the problem was with one Patrick, who was not
performing to the required standard. There is no other evidence
to demonstrate the office was, in fact, not functioning. The
decision was with the first respondent to take action against
Mr Patrick. In any event, one of the suggestions made by Greeff
was a complete change of the team. This was not followed by
the respondent, who sought to remove only the applicant from
the office.
[28] Throughout the disciplinary inquiry the applicant was working. If,
in fact, there has been a breach of trust, it is strange that the
applicant was always allowed to perform his functions. It is also
strange that he was not transferred until the results of a
disciplinary hearing were received. It is difficult to understand
why the applicant was allowed to work when there was a
breakdown in trust the relationship between him and certain
employees.
[29] Another reason set out for the transfer was the breakdown of the
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relationship between the applicant and stakeholders. There is no
evidence of complaint from the members of the public. The
Minister's complaint that there were 57 cases being investigated
by the ICD in respect of which he had not been briefed and only
got to know about them when confronted during the interview by
e.tv cannot be a sufficient ground to warrant a transfer. I say that
because it has not been suggested that there is any rule which
requires a head of the ICD to brief the Minister on each case
being reported. There is also no evidence that, by not briefing
the Minister, the applicant intended to embarrass the Minister. In
any event, the applicant has testified that he has a working
relationship with the Minister.
[30] In the letter of 25 June 2004 the first respondent stated that the
Commissioner of Police and the MEC only had a formal
relationship with the applicant and that both cannot trust the
applicant. There are no reasons set out as to why they do not
trust him, and yet the decision to transfer is based on this
allegation.
[31] I am not satisfied that the transfer of the applicant is in the
interests of the public or the ICD. I say that because if the allegations
against the applicant are true, he does not deserve to be the Head of
the ICD at Mpumalanga. It is therefore not in the public interest to keep
the applicant in service.
[32] On the contrary, I am satisfied that the transfer is being done with
an ulterior motive. I say that because the respondent wanted to
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remove the applicant by means of a dismissal. Now that it had
failed to achieve the dismissal the move is being taken to remove
him on account of the public interest. Section 14(1) of the Public
Service Act was, in my view, enacted for the situation where the
State has to use its resources where they are required. It was
not intended to be a form of sanction, as the respondent has
done.
[33] The applicant's personal circumstances were not considered as
the respondent was mainly concerned with the breakdown of the
trust relationship between the applicant and the stakeholders. I
do not accept that the decision to transfer the applicant has
nothing to do with the disciplinary hearing. If there was no
ulterior motive, the first respondent would have waited until the
appeal had been finalised.
[34] It was submitted that the disciplinary hearing and the transfer are
two different processes. I have no problem with this submission.
The Court, however, has to consider if the applicant has been
subjected to an unfair labour practice as a result of the first
respondent's actions. In my view, the applicant has been
subjected to an unfair labour practice and therefore has the right
to approach the Court for protection.
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[35] The decision to transfer the applicant undermines the appeal. If
the applicant succeeds in his appeal, the recommendations by
the chairperson of the disciplinary hearing would have no effect.
The applicant would remain as the Head of the Cape office. If he
is transferred, he will have to come back. If the appeal is
unsuccessful and the recommendations are accepted, the
applicant would have to undergo and intensive team- building
exercise with the staff, as recommended. This would not only be
impossible if transferred, but unnecessary as he would now be
heading a new team.
[36] The submission has been made that the position at Mpumalanga
is of a lower grade. This has not been disputed. If that is
correct, the applicant is being demoted as per recommendation
to have him demoted. It is unfair to demote the applicant while
there is a pending appeal. If a party acts as if there is no appeal,
the affected party has a right to approach the Court. The
chairperson of the disciplinary hearing hinted at the transfer of
the applicant but did not recommend it because there was no
provision for it in the disciplinary rules.
[37] The first respondent used section 14 of the Public Service Act to
get the transfer which could not be achieved in the disciplinary hearing.
In my view, such a transfer is effected with an ulterior motive for section
14(1) does not allow a transfer amounting to a sanction.
[38] A further reason for my finding that the transfer was effected for
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an ulterior motive is that the applicant was immediately placed on
special leave. There is no motivation for where the first
respondent gets the power to place the applicant on special
leave while considerations for transfer are being made. There is
not sufficient reason to bar him from the office and take away
from him the tools he uses to perform his services. In effect, the
applicant was suspended.
[39] In the light of what I have said above, I am of the view that the
transfer of the applicant was not made in the public interest but
effected for an ulterior motive.
[40] It was submitted that the applicant is not entitled to prayer 2
because the appeal is pending. I do not agree with this
submission. This prayer is intended to stop the special leave
which bars him from the office. If the second prayer is not
granted the applicant would remain on unfair suspension.
[41] In the result, I am of the view that the applicant is entitled to the
order. I accordingly make the following order:
(1) The decision of the first respondent to transfer the applicant
to the post of the Provincial Head of the ICD, Mpumalanga
Province, announced on 25 June 2004, is reviewed and set
aside.
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(2) The first respondent is directed to reinstate the applicant in his
position as Provincial Head, ICD, Western Cape, pending the appeal.
(3) There is no order as to costs.
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__________
Ngcamu AJ