IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case Nr: JR11802/2002
In the matter between:
THE NATIONAL COMMISSIONER OF Applicant
THE SOUTH AFRICAN POLICE SERVICE
and
SAFETY AND SECURITY SECTORAL 1st Respondent
BARGAINING COUNCIL & OTHERS
P ROOPA N.O. 2ND Respondent
J P GREYLING 3RD Respondent
JUDGMENT: MUSI J
HEARD ON: 2 MARCH 2005
DELIVERED ON: 21 APRIL 2005
[1] The third respondent is a Captain in the South African
Police Service stationed at Potchefstroom, Northwest
Province. In 2000 he, along with other police officers,
responded to an advertisement issued by the South African
Police Service inviting candidates to apply for the newly
created post of Area Head: Crime Intelligence, at
Potchefstroom. His application was unsuccessful. The
post was given to a Captain Nel, who has since been
promoted to the rank of Superintendent (Nel). The third
respondent declared a dispute on the basis that the failure
to appoint him amounted to an unfair labour practice. The
matter was ultimately referred for arbitration under the
auspices of the Safety and Security Sectoral Bargaining
Council (the SSSBC). The second respondent was
appointed Commissioner to conduct the relevant hearing.
[2] The second respondent subsequently issued an undated
Award in terms of which he found in favour of the third
respondent that the South African Police Service had
committed an unfair labour practice in the handling of the
third respondent’s application. The second respondent
found that he had no power to grant any relief and referred
the matter to the Labour Court to consider relief. The Court
however, referred the matter back to the second
respondent with a direction that he should consider an
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appropriate relief. The second respondent then issued an
amended Award that included an order of compensation in
the following terms:
“I direct that the respondent is to pay the applicant an amount
which is the difference in renumeration and benefits between the
posts of Superintendent and Captain from the date of appointment
of Superintendent Nel to such date that the employment contract
between them comes to an end.”
The amended Award is also undated but it is undisputed
that the applicant received it on 3 October 2002.
[3] I should note that in the arbitration proceedings the SAPS
was cited but the Commissioner of the SAPS has, by
proper notice, joined these proceedings and replaced the
South African Police Service as applicant. The applicant
now seeks to have the awards of the second respondent
reviewed and set aside. The application is opposed by the
third respondent, to whom I shall henceforth refer simply as
the respondent.
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[4] There has been a dispute as to whether applicant needed
to apply for condonation of the late filing of the instant
application in regard to the first award. This award was
also undated but was received by the applicant on the 16
July 2002. Technically the application is out of time in
regard thereof. However the applicant adopted the attitude
that as the first award contained no order and no prejudice
to it, there was no need to apply for its review. It is only
when the second award was made that the need arose to
want to review the matter. The applicant nevertheless filed
an application for condonation ex abundanti cautela. It is,
however, not a substantive application in the sense that it is
not supported by affidavit. On the other hand, the
respondent took the view that a proper, substantive
application for condonation was needed and went on to
cide the applicable case law in the heads of argument filed
on his behalf.
[5] In my view, condonation is unnecessary. The two awards
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cannot be treaded as if they were separate, distinct awards.
They are for all practical purposes part and parcel of one
arbitration process, which was concluded with the second
award. It is significant that the second award is entitled
“Amended Award” which implies that it flows from and
encompasses the first award. Nor can the aspect of
compensation be divorced completely from the merits.
Review of the amended award necessarily entails
considering the merits of the first award. Otherwise, in so
far as it may be necessary, I would grant condonation. The
reasons why the applicant did not file the application
timeously emerge clearly from the papers and there was no
need to file any supporting affidavit.
[6] The root cause of the dispute between the parties herein is
to be found in the conduct of the Selection Panel that was
appointed to consider the applications for the relevant post.
It is not disputed that one of the panellists, Area
Commissioner Moloi, informed the other panellists that Nel
was the best candidate in that he had set up the same unit
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whose head was to be appointed, had headed it for some
time and had gained the necessary experience in the post.
The other panellists accepted that and the panel proceeded
to simply appoint Nel without considering the applications
of the other candidates, including the respondent. That
was clearly a gross irregularity and on that basis the
arbitrator found that the respondent was a victim of an
unfair labour practice.
[7] The applicant does not dispute the correctness of the
second respondent’s finding in this regard, though Mr.
Hiemstra, for the applicant, somewhat suggested that the
finding was irrelevant. The gist of the applicant’s
contention, as articulated in oral argument, was that the
finding was not in itself sufficient to support the grant of the
relief contained in the amended award. Mr. Hiemstra
argued that the respondent had to establish a causal
connection between the irregularity and the harm suffered.
To do that the respondent had to show that, but for the
irregularity, he would have been appointed to the post.
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Counsel cited WOOLWORTHS (PTY) LTD v WHITEHEAD
(2000) 21 ILJ 571 LAC and UNIVERSITY OF CAPE TOWN
V AUF DER HEYDE (2001) 22 ILJ 2647 LAC. He
submitted that the respondent needed to show not only that
he was better qualified and suited for the post than Nel but
also that he was the best of all the candidates. This, it was
submitted, the respondent had not shown in the arbitration
proceedings.
[8] The applicant also attacked the compensation aspect of the
award on the basis that it is irrational. There is merit in this
criticism but in the view that I take of the matter, it is
unnecessary to deal with it.
[9] In his response, Mr. Branford, for the respondent
submitted that the second respondent has in effect rejected
the allegation that Nel had set up and headed the unit
concerned and he referred to the passages in paragraph
4.4.1 and 4.4.2 of the first award which read as follows:
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“4.4.1 The reasons tendered by the respondent in respect of
Superintendent Nel’s experience in respect of acting in the
post he was eventually appointed to are unsatisfactory on a
proper conspectus of the evidence presented, which does not
support such contention;
4.4.2 For Commissioner Moloi to have suggested same to the provincial
panel who made the decision in this regard is therefore dubious.”
Mr. Branford contended that the evidence before the
arbitrator clearly shows that the respondent was far more
experienced and better qualified for the post than Nel and
therefore that the respondent should have been preferred
over Nel.
[10] I indicated to counsel during argument that I was prepared to
accept that, on the evidence, the respondent was indeed better
suited for the post than Nel and I then broached with counsel the
subject of whether the respondent was the best of rest of the
candidates. It was accepted that Nel and the respondent were not
the only candidates. However, very little was known about others
precisely because their applications, just like that of the
respondent, had not been considered at all. Mr. Branford could
not find his way past the fact that it had not been established that
the respondent was the best of all the candidates. And the
respondent did not deal specifically with such aspect in his
evidence precisely because he had been preoccupied with
exploding the myth that Nel was a better candidate than him. This
aspect also eluded the arbitrator.
[11] In WOOLWORTHS (PTY) LTD v WHITEHEAD supra at
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580 paragraph 24 Zondo, AJP (as he then was) endorsed
the principle that there must be a causal connection
between the act complained of and the prejudice suffered
for the act to be branded an unfair labour practice. This
decision was cited and followed in UNIVERSITY OF CAPE
TOWN v AUF DER HEYDE supra. See also MINISTER
FOR SAFETY AND SECURITY AND OTHERS v JANSEN
N.O. AND OTHERS (2004) 25 ILJ 708 LC at 27.
[12] Applying the principle to the facts of the instant case, it is
clear that there was a causal connection between the
serious irregularity committed by the Selection Panel in
failing to consider the respondent’s application and the
prejudice he sustained by not being appointed and Nel
being appointed instead. However that is not the end of the
matter. If Nel and the respondent had been the only
candidates the matter would probably have ended there.
But they were not the only candidates and it has not been
shown that but for the irregularity the respondent would
have been preferred over and above the rest of the
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candidates. In that sense there is no causal connection
between the irregularity and the fact that the respondent
was not appointed. The conduct of the applicant was in
that context not an unfair labour practice. In this respect,
the second respondent committed a serious error of law
and the award stands to be reviewed on that basis.
[13] There is a further and, dare I say, more serious problem.
The applicant prayed in the alternative that this Court
should refer the matter to a newly constituted Selection
Panel of the South African Police Service to reconsider the
respondent’s application together with those of the other
candidates. In oral argument, counsel for the respondent
supported such a course and it was in fact agreed that that
would be an appropriate order to make. However as I was
preparing this judgement, it struck me that Nel had not
been joined in the arbitration proceedings nor in the
proceedings before this Court. This raises serious practical
difficulties and I then requested counsel to either arrange to
present oral argument in court or submit Supplementary
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Heads of Argument on the issue of Nel’s non joinder. I
addressed the following memo to counsel:
“Whether the proposed referral to a new Selection Panel to
consider the applications afresh would be competent in view of the
following:
1. The post is now held by Superintendent Nel and is no
longer vacant.
2. In order to consider the applications afresh Nel’s
appointment will have to be set aside.
3. Can this Court set aside Nel’s appointment when he has
not been joined in these whole proceedings? See
PUBLIC SERVANTS ASSOCIATION v DEPARTMENT
OF JUSTICE AND OTHERS (2004) 25 ILJ 692 LAC.”
Counsel opted to submit Supplementary Heads of
Argument.
[14] Mr. Hiemsta, for the applicant, opened his Supplementary
Heads of Argument as follows and I quote paragraph 2
thereof:
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“I am indebted to Honourable Judge for pointing out the failure of the
second respondent to join Nel in the proceedings before him and I
apologise for failing to alert the Honourable Court to the judgement in
PUBLIC SERVANTS ASSOCIATION v DEPARTMENT OF
JUSTICE AND OTHERS as well as the common law position.”
This gives the impression that counsel was aware not only
of the relevant authority but also of Nel’s nonjoinder but
somewhat failed to bring it to the attention of the Court. Be
that as it may, he went on to concede that the alternative
order that the applicant had proposed would certainly affect
Nel adversely. Counsel seems to suggest that the referral
itself would have the effect of setting aside Nel’s
appointment and submits that that could not be done
without giving him a hearing. Counsel concedes that the
matter may have to be referred for a fresh arbitration with a
direction that Nel be joined. But then he alludes to practical
problems that may arise in such a scenario. In the end, Mr.
Hiemstra submits that the correct order would be to simply
set aside the awards.
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[15] Mr. Branford, for the respondent, focuses on the
submission that the awards should simply be set aside and
submits that such order would be fatally flawed. He
contends that such approach would be tantamount to
condoning the gross irregularity committed by the
applicant’s Selection Panel in its total disregard of
procedural fairness in the appointment of Nel and would
leave the respondent without any remedy in circumstances
where a clear unfair labour practice has been committed. I
read in this that Mr. Branford prefers that the matter be
referred to the first respondent for arbitration de novo
before another Commissioner with instructions that Nel be
joined.
[16] In essence, both counsel appeared to accept that on the
authority of the Public Servant Association case supra the
second respondent committed a gross irregularity in failing
to join Nel in the arbitration proceedings. The issue therein
was basically whether the respondent was better suited for
the post than Nel and any decision thereon would clearly
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have adversely affected Nel. And there can be no doubt
that Nel had a direct and substantial interest in the matter.
[17] In the Public Servants Association case supra Zondo, JP
pronounced himself on some very important issues of law.
The points that have a direct bearing on the issues in this
case can be summarised as follows:
a. Where a party has a direct and substantial interest
in arbitration proceedings he/she must be joined in
such proceedings or at least be given an opportunity
to be heard. The duty to join the affected party rests
primarily on the arbitrator. Of course the parties
themselves have a duty to alert the arbitrator in this
regard and can apply for the joinder of the affected
party.
b. Failure to join the affected party would be a gross
irregularity. The following statement at page 704 H
– I sums up the legal position and I quote:
“In conducting the arbitration proceedings to finality and
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making such a damaging finding against the appointees
without affording them any opportunity to be heard or joined
in the arbitration proceedings, the Commissioner committed a
gross irregularity which vitiates the entire arbitration
proceedings over which he presided. The parties before him
must also bear some blame for not drawing his attention to
the need to join or hear the appointees.”
c. An adverse order thus made in the absence of the
affected party would not be binding on him.
d. It is no good a defence to a non joinder point to say
that the affected party had knowledge of the
proceedings and decided not to join.
[18] When taking into account the legal position as stated
above, it becomes clear that referral of the matter to a
newly constituted Selection Panel would be an exercise in
futility. In the first place, there is no longer any vacancy for
which applications can be reconsidered since Nel’s
appointment still stands. Secondly any such referral would
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have to be preceded by the setting aside of Nel’s
appointment, which this Court cannot do since Nel has not
been joined in the proceedings nor was he given a hearing
during the arbitration proceedings wherein adverse findings
were erroneously made against him.
[19] The only option to be considered is remittal of the matter to
the first respondent for arbitration to be commenced de
novo before another Commissioner with instructions that
Nel be joined together with those other candidates who are
still interested in the post. There are, however, practical
difficulties in the way of this option. Firstly, it is almost five
years now since Nel was appointed to the position.
Reversing the appointment now is likely to cause serious
disruption in the operations of the relevant Unit and the
SAPS generally, especially taking into account that a new
arbitration process would in all probability take considerable
time to conclude. With the prospects of the new award
being subjected to the same challenge that we are now
dealing with, it could be another four years before the
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matter is finally brought to an end. This would be a
complete negation of the underlying principle that labour
disputes should be resolved expeditiously. Granted that
the blatant disregard of procedural fairness by the
applicant’s Selection Panel should not be seen to be
condoned and that the respondent deserves some
atonement for the resultant unfair treatment he received, it
has to be borne in mind that the respondent is not without
blame. He was legally represented throughout and it
should have been obvious to his representatives that Nel
needed to be joined. Besides, the respondent has failed
on another score. He failed to establish that, but for the
irregularity committed by the selection panel, he would
have been appointed over all other candidates.
[20] In the Public Servants Association case supra the LAC
declined to remit the matter to the CCMA. In doing so, it
remarked that it was up to the aggrieved party to
commence arbitration proceedings afresh. I intend to
follow a similar course.
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[21] As far as costs are concerned, the matter was argued on
the basis that costs should follow the cause. However this
Court has a discretion in the matter of costs. I am of the
view that this Court must show its displeasure to the
improper manner in which the Selection Panel, comprising
senior police officers, who should lead by example,
conducted themselves in the appointment of Nel and there
are indications that one of them falsified information. It is
largely due to the improper conduct that this matter is
before this Court. The best way of expressing the Court’s
displeasure is to deny the applicant his costs.
[22] In the result, the following order is made:
1. The arbitration awards issued by the second
respondent in the dispute between the applicant and
the third respondent are reviewed and set aside.
2. There shall be no order to costs.
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___________
H.M MUSI, J
On behalf of Applicant: Advocate J Hiemstra
Instructed by
The State Attorneys
PRETORIA
On behalf of Respondents: Advocate D Branford
Intructed by
Willem Koekemoer Attorneys
PRETORIA
/em
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