IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG REPORTABLE
CASE NO. J1099/01
IN THE MATTER BETWEEN:
THE MINISTER OF JUSTICE 1ST APPLICANT
THE DEPARTMENT OF JUSTICE 2ND APPLICANT
AND
BOSCH, DAWIE, N.O. 1ST RESPONDENT
WEPENER, CHRISTO 2ND RESPONDENT
GENERAL PUBLIC SERVICE SECTORIAL
BARGAINING COUNCIL 3RD RESPONDENT
JUDGMENT
GUSH, A J
1. The first and second Applicant apply to review and set aside the award of the
first respondent who found that the second Applicant had committed an unfair
labour practice related to a related to the demotion of the 2 nd Respondent
and the provision of benefits to the second Respondent.
2. The parties agreed to proceed by stating a special case. It is recorded in the
stated case that as the tape recordings of the arbitration proceedings were
lost, it was not possible to file a complete record of the proceedings. The
award by the 1 st Respondent is reported and the parties agreed that, in the
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absence of a record, and for the purposes of arguing the merits they would
rely on the award reported as:
Department Of Justice V Wepener (2001) 22 ILJ 2082 (BCA)
3. The parties agreed that the Judgement was to be accepted in all respects
save for:
" those aspects dealing with the 1 st Respondent's interpretation of the
law, the conclusion of the findings on the points in dispute and the award
(order) that was granted and the third bullet point of paragraph [17] of the
award. In so far as the third bullet point is concerned the parties agree
that the statement should be understood to mean that it was common
cause that the 3 rd Respondent was a competent person as contemplated
in section 9(4) of the Magistrates' Court Act."
4. The parties agreed further that the question of law that the Court was to
determine was whether the 1 st Respondent's award stood to be reviewed and
set aside “on the grounds that were listed in the stated case” under the
heading THE APPLICANTS CONTENTIONS .
5. Although the background to the dispute is set out in the reported award of the
1st Respondent, I will briefly summarise it here.
6. The 2 nd Respondent, an employee of the 2 nd Applicant, held the rank of
Senior Administrative Clerk. In 1995 the Respondent had been appointed to
the relief component based at the Randburg Magistrates' Court. This did not
in any way alter his rank. The relief component’s responsibility was to relieve
other staff employed by the 2 nd Applicant. The relief functions performed by
the relief component were confined to the roles of interpreter, State
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Prosecutor or Acting Assistant Magistrate. The posts and locations where the
relief component would perform and the nature of the relief function were
determined and decided by the Chief Magistrate of Randburg from time to
time.
7. Section 9(3) and (4) of the Magistrates Courts Act (the Act) governs the
appointment of acting assistant magistrates.
8. At the time of the dispute Section 9(3) of the Act provided inter alia that “a
person occupying the office of Chief Magistrate …… may appoint any
competent person to act …… as assistant magistrate.” This sub section
specifically provided for the appointment of “any other competent person” to
act as an assistant magistrate whenever by reason of absence or incapacity
an assistant magistrate is unable to carry out the functions of his or her office,
or whenever such office becomes vacant, in the place of the absent or
incapacitated magistrate during the absence or until the vacancy is filled.
9. Section 9(4) also allowed the appointment of a competent person to act as an
assistant magistrate but specified that such acting appointment should be
temporary.
10. From the date of his appointment in 1995 to the end of January the 2 nd
Respondent had been appointed temporarily to act as an assistant Magistrate
in terms of section 9(4) of the Act. Where the appointment was for a duration
of in excess of one month the appointment was renewed at the end of each
month by the chief magistrate. It was common cause that the 2 nd
Respondent was only appointed to act in accordance with section 9(4) and
consequently could only act on a temporary basis.
11. On the 31 st January 2000 the 2 nd Applicant's Regional Head for Gauteng
informed the 2 nd Respondent that he was "relinquished of all functions of a
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judicial officer with immediate effect" .
12. The matter came before the 1 st Respondent who was required to determine
whether the Applicant had committed an unfair labour practice against the
2nd Respondent by:
12.1 unfairly demoting the 2 nd Respondent; and
12.2 committing unfair conduct relating to the provision of benefits.
13. The 1 st Respondent was required to decide two further subordinate issues
namely;
13.1 whether the withdrawal of certain functions can amount to a
demotion; and
13.2 whether non patrimonial losses can be taken into consideration
when setting compensation.
Department Of Justice V Wepener Supra (at p2084 F & G)
14. The question of law which the parties require this Court to determine was
specifically set out in the stated case viz whether the 1 st Respondent's award
stood to be reviewed and set aside on the grounds set out in the special case
under the heading "Applicants contentions" .
15. Given that the parties specifically agreed the grounds of review I include them
as they appear in the stated case.
“The Applicants contend that:
1. to the extent that the 2 nd Respondent sought reinstatement of his
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judicial functions, he ceased to be an employee as defined by the
Labour Relations Act and the 1 st Respondent:
1.1 lacked jurisdiction to hear the dispute: and
1.2 lacked the power to make an award which had the effect of
reinstating the 2 nd Respondent to those functions.
2. the 1 st Respondent accordingly exceeded his powers and the award
stands to be reviewed and set aside.
3. the 2 nd Respondent was not qualified to be appointed as an Acting
Additional Magistrate. Although the 2 nd Respondent was considered
by the 2 nd Applicant to be a competent person as contemplated in
s9(4) of the Magistrates Courts Act, that section is subject to s10 of the
Magistrates Courts Act which stipulates that no person may hold
appointment as magistrate unless he or she “has passed the civil
service lower examination declared by the Public Service Commission
to be equivalent thereto”. The 2 nd Respondent was accordingly
disqualified by operation of law and not by any “act or omission” as
contemplated in item 2(1)(b). The 1 st Respondent accordingly failed to
properly apply his mind and exceeded his powers and the award
stands to be reviewed and set aside.
4. Section 9(4) of the Magistrates Courts Act contemplates the
appointment of a person on a “temporary basis” only. The 2 nd
Respondent had already been appointed as an Acting Additional
Magistrate for a period of approximately five years and accordingly he
had no right or legitimate expectation to continue in that post. The 1 st
Respondent failed to appreciate this and accordingly failed to properly
apply his mind to the facts and issues before him. The award
accordingly stands to be reviewed and set aside.
5. The subsistence allowance was only payable in circumstances where
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relief duty was actually performed by the 2 nd Respondent. The
withdrawal of the 2 nd Respondent’s judicial functions had the effect
that the 2 nd Respondent ceased to perform relief duties and
accordingly his entitlement to the subsistence allowance ceased. The
1st Respondent failed to properly apply his mind to this and his award
stands to be reviewed and set aside.
6. The 1 st Respondent had no power to award sentimental damages and
that the 1 st respondent exceeded his powers in awarding the amount
of R9 887.50. The award accordingly should be set aside to this
extent.
16. The 2 nd Respondent contended in reply that:
16.1 As the first four contentions weren’t raised by the Applicant at the
Arbitration, the Applicant was precluded from now raising them;
16.2 the 2 nd Respondent had at all times been an employee and
remained an employee;
16.3 Section 9 (4) of the Magistrates Courts Act was not subject to
Section 10 of the Act.
16.4 the Applicants fourth contention that whether or not the 2 nd
Respondent had a legitimate expectation was irrelevant to the
dispute arbitrated by the 1 st Respondent.
16.5 the subsistence allowance was payable either as a reimbursive
allowance for expenses actually incurred or as an all inclusive tariff.
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It was contended that the 2 nd Respondent having elected to
receive the all inclusive tariff, he was not required to incur actual
expenses in order to receive the allowance.
16.6 that the award made by the 1 st Respondent did not separate
sentimental damages from the actual amount which had not been
paid to the 2 nd Respondent; and
16.7 the award was justifiable in terms of the reasons given by the 1 st
respondent and that the 1 st Respondent had committed no
reviewable irregularity.
17. During arbitration the 2 nd Respondent had complained that the decision of
the 2 nd Applicant that he be relinquished of all functions of a judicial officer
with immediate effect constituted demotion. Placed in context, the 2 nd
Respondent had for some time and on a purely temporary basis only as
envisaged by s9(4) of the Magistrates Courts Act acted as an additional
magistrate. He was not vested with the functions of a judicial officer. On the
occasions he had acted, he was expressly doing so only on a temporary
basis.
18. Of necessity this raises the question as to whether the decision of the 2 nd
Applicant could constitute a demotion and particularly where it could
constitute a “withdrawal of functions”.
19. The 1 st Respondent in coming to the conclusion that the 2 nd Respondent
was demoted disregarded the expressly temporary nature of a s9(4)
appointment and found that whether it was temporary or not was not relevant
to the issue.
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20. Demotion is defined in the New Shorter Oxford Dictionary , 1993 Edition as
“The act of demoting; reduction to a level such as class”
Whilst at common law demotion without consent is a repudiation of the
contract of employment, the Labour Relations Act in section 186(2)(a)
suggests that if done fairly, demotion is permitted.
Workplace Law: Grogan, 8 th Edition p264 and 265
Van Der Riet v Leisurenet Ltd t/a Health & Racquet Club (1998) 5 BLLR
471 (LAC)
Norman Scoble: The Law of Master and Servant (1956) p176
21. Demotion must, in the context of a labour practice, mean at least that
something to which the employee is entitled is taken away or withdrawn. That
which is taken away can include status as well as a condition of employment.
22. The enquiry into whether or not a demotion has taken place must commence
with determining whether or not the employee has had taken from him that to
which he is entitled or enjoys as a matter of right. In this matter the directive
that the 2 nd Respondent was to be relinquished of all functions of a judicial
officer, in order to constitute a demotion, must depend upon whether the
second Respondent was either a judicial officer or at least enjoyed the right to
be temporarily appointed as a judicial officer.
23. The second Respondent was on his own admission not a judicial officer. He
did not have the qualifications. His appointment to the relief staff did not vest
him with the status of a judicial officer nor an entitlement as of right to perform
the functions of a judicial officer. It simply implied that he could be temporarily
appointed to act as an assistant magistrate. No more. The right to appoint the
2nd Respondent was a right enjoyed by the Chief Magistrate of Randburg.
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24. The effect of the directive was simply to curtail the Chief Magistrate of
Randburg discretion to temporarily appoint the second Respondent as an
assistant magistrate. The fact that he had been temporarily appointed in the
past in terms of section 9(4) of the Act could not create an entitlement. At all
times the second Respondent was a senior administrative clerk. The
possibility or even the probability of a temporary assignment as an assistant
magistrate could not confer status, rank or class on the applicant. In the
absence of the directive, the 2 nd Respondent was no longer temporarily
appointed as an assistant magistrate by the Chief Magistrate of Randburg. He
could not complain that he had been demoted.
25. The 1 st Respondent simply assumed that the actions of the 2 nd Applicant
constituted a reduction in the 2 nd Respondents status. This conclusion is not
supported by the 2 nd Respondents’ reasoning. The 1 st Respondent states:
"The Departments actions amount to a removal of the discretion of the
Chief Magistrate to appoint the grievant as an Acting Magistrate. There is
ample evidence that there was a need for such relief capacity, and that
the Chief Magistrate had been satisfied that the grievant was a person
competent to be so appointed. It is clear that the Departments actions
amounted to a reduction in status for the grievant."
26. The second Respondent was not of right entitled to be appointed temporarily
as an acting assistant magistrate. The appointment lay in the discretion of the
Chief Magistrate of Randburg. The possibility of appointment cannot confer
status. The need for relief capacity and the competence or otherwise of the
second Respondent does not alter this.
27. The directive issued by the second Applicant in the circumstance does not
amount to a demotion. It could not have the effect of diminishing the second
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Respondents status. It might well be the manner in which the directive was
issued and the background circumstances were unfair but they do not
contrive to constitute an unfair demotion.
28. It is clear therefore that the actions of the Applicant in preventing the 2 nd
Respondent from being appointed to the position of Acting Additional
Magistrate was exactly and only that. It did not have the effect of rendering
the appointment of the 2 nd Respondent to the relief staff nugatory. It does
not appear in the award of the 1 st Respondent that this formed part of the
2nd Respondent's case. It must be assumed therefore that in those
circumstances the 2 nd Respondent was entitled to and would still remain a
permanent member of the relief staff. His duties within the relief staff would
however be confined to that of interpreter or prosecutor but not acting
assistant magistrate.
29. The test to be applied in a review of an award is whether the award is rational
and justifiable. It is not an appeal and the Court cannot review the decision of
the 1 st Respondent simply on the grounds that the 1 st Respondent was
incorrect.
30. In the matter of Crown Chickens Proprietary Limited trading as Rocklands
Poultry v Capp (2002) 23 ILJ 863 (LAC) Nicholson J A deals with what
constitutes grounds of review. Referring to the decisions in Shoprite
Checkers Proprietary Limited v Ramdoor NO and Others (2001) 22 ILJ 1603
(LAC), Pharmaceutical Manufacturers Association of SA and Others: in re ex
parte application of the President of the RSA and Others (3) BCLR 241 (CC)
and Carefone Proprietary Limited v Marcus NO and Others (1998) 19 ILJ
1425 (LAC) he holds:
"The decision of the arbitrator can also be set aside if it is not rationally
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related to the purpose for which the power was given from an objective
view or if it is not justifiable as to the reasons given… By rational I
understand that the award of an arbitrator must not be arbitrary and must
have been arrived at by a reasoning process as opposed to conjecture,
fantasy, guess work and hallucination. Put differently the arbitrator must
have applied his mind seriously to the issues at hand and reasoned his
way to the conclusion. Such conclusion must be justifiable as to the
reasons given in the sense that it is defenceable, not necessarily in every
respect, but as regard to the important logical steps on the road to his
order."
31. However, not only have the parties agreed on the specific grounds of review,
the 2 nd Respondent has questioned the right of the Applicant’s to raise
contentions which had not been raised at the arbitration.
32. Having considered the "question of law for determination" which formed part
of the stated case and the Applicants' Heads of Argument it is clear that the
question of whether the conduct of the Applicants, in removing the Chief
Magistrate of Randburg's discretion to appoint the 2 nd Respondent as an
Acting Magistrate amounted to a demotion, is not an agreed ground of review.
33. Subsequent to Judgement having been reserved the Applicant filed what
purported to be Supplementary Heads of Argument again submitting that the
legal point not raised before the 1 st Respondent could be argued on review
and secondly that the 1 st Respondent's award should be reviewed on the
grounds that he had incorrectly found the actions of the Applicant to be
tantamount to a demotion.
34. The Respondent objected to the filing of these Supplementary Heads.
35. Had the matter not proceeded by the noting of a special case and had the
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parties not specifically agreed on the question of law for determination I am of
the view that the question as to whether the acts of the 2 nd Applicant
amounted to a demotion, could have been argued.
36. Had I been in the position of being able to consider as a ground of review,
whether the 1 st Respondent's decision that the actions of the Applicant
amounted to a demotion I would have concluded that the decision was
reviewable.
37. The Applicants are however bound by the agreed grounds of review and in
those circumstances I am unable to interfere with that aspect of the 1 st
Respondent's award viz that the second Applicants’ directive constituted a
demotion.
38. It is then necessary to consider the Applicants grounds of review as set out in
the stated case.
39. The first ground is that in so far as the relief sought would result in the second
Respondent becoming or at least expecting to be temporarily appointed as an
assistant magistrate, the second Respondent ceased to be an employee and
therefore the 1 st Respondent did not have jurisdiction and accordingly
exceeded his powers. There is no merit in this submission. The second
Respondent’s case was never that he should be appointed a magistrate and
accordingly the 2 nd Respondent was at all times an employee.
40. The second ground of review was that the second Respondent was not a
competent person as contemplated in section 9(4) by virtue of the provisions
of section 10 of the Act which require a magistrate to have certain minor
qualifications and as a result the second Respondent could not be appointed.
This too is without substance. Section 10 of the Act does not qualify section
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9(4).
41. The third ground of review is based on the averment that as the appointment
was temporary, the second Respondent could not have had a legitimate
expectation to be appointed. Whilst this might be so the second Respondent’s
complaint was not based on a legitimate expectation. This ground also does
not succeed.
42. The fourth and fifth grounds of review concern that part of the first
Respondents’ award, which deals with the provision of benefits and the award
of sentimental damages.
43. The second part of the 1 st Respondent's finding that the decision of the
Applicant that the 2 nd Respondent could not be appointed as a relief
Magistrate resulted in an unfair act on the part of the Applicant regarding the
provision of benefits was raised by the Applicant as a ground of review in the
stated case. The Applicants aver that the subsistence allowance was only
payable in circumstances where relief duty was actually performed and that in
this respect the 1 st Respondent had failed to properly apply his mind to this
contention.
44. The 1 st Respondent finds that the subsistence and travel allowance is a
benefit for reasons that the 1 st Respondent enumerates as follows:
"It was a material benefit with a monetary value for employees and a cost
for the employer (Sithole v Nogwaza NO and Others (1999) 20 ILJ 2710
(LC): [1999] 12 BLLR 1348 (LC))” ; and
“It was a supplementary advantage conferred on employees for which no
work is required (Northern Cape Provincial Administration v Hambridge
NO and Others (1999) 20 ILJ 1910 (LC): [1997] 7 BLLR 698 (LC);
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Schoeman and Another v Samsung Electronics SA Proprietary Limited
(1997) 18 ILJ 1098 (LC); [1997] 10 BLLR 1364 (LC))”; and
“It was a benefit to which an employee would have been entitled by virtue
of the Contract of Employment or a Collective Agreement or by virtue of a
statute, e.g. the Public Service Act or any other applicable Act (Hospersa
and Another v Northern Cape Provincial Administration (2000) 21 ILJ
1066 (LAC))”.
45. In my view none of these reasons are sustainable. Subsistence and travel is
paid only in circumstances where an employee is required to perform his or
her duties at a place other than the office at which they are stationed. Whilst
it is accepted that subsistence and travel can be paid either by settling the
employee's actual expenses or by the payment of a set amount it remains in
essence a reimbursive payment and is at all times dependant upon the
recipient actually being away from his usual place of work.
46. It can only be paid when the employee is actually stationed elsewhere and is
not an amount which can in any way be construed in isolation as a material
benefit nor a supplementary advantage for which no work is required nor is it
an entitlement by virtue of the contract of employment or any other
agreement.
47. The 2 nd Respondent's evidence that he preferred to do relief duties as this
supplemented his income does not convert the nature of the payment into a
benefit. The 2 nd Respondent in determining compensation takes into
account the submission made by the 2 nd Respondent that 'he would most
likely have received a subsistence and travelling allowance for all or most of
the period between 31 st January 2000 and today" . The nature and purpose of
the allowance in either guise is to reimburse or compensate for expenses
incurred for subsistence and for travelling costs. The word allowance itself is
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defined in the New Shorter Oxford English dictionary as being “a limited
quantity or sum especially of money or food granted to cover expenses or
other requirements”.
48. The 1 st Respondent fails to take into account that had the Applicant in fact
been away from his normal place of work and received the allowance he
would have of necessity incurred additional expenses. That in itself would
have reduced the extent of the amount by which the 2 nd Respondent’s claims
to have been prejudiced or unfairly deprived.
49. I am satisfied for the said reasons that the decision by the 1 st Respondent,
that as a consequence of the Applicant's instruction the 2 nd Respondent was
unfairly deprived of a benefit, is reviewable and should be set aside.
50. The fifth ground of review to be considered is whether an award of
sentimental damages is justifiable. The Applicants argued that that portion of
the monetary award relating to sentimental damages should be set aside on
the grounds that in the absence of an injustice the Labour Relations Act does
not permit the award of sentimental damages.
51. The Respondent's justification for awarding sentimental damages is:
"The substantial lowering of the grievant’s status and negative effect on
his professional reputation;
The fact that the Department did nothing to correct erroneous and defamatory
allegations regarding the grievant's lack of qualifications and implications of
impropriatory on his side, as published in the press, allegations which probably, at least
in part, arose from information supplied to the press by departmental staff; and
The detrimental affect on the grievant's health due to stress and depression caused by
the demotion, including serious loss of weight, consistent gastritis, anaemia and
sleeping problem."
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52. The reasons are premised on the 1 st Respondents finding that the 2 nd
Respondent had been unfairly demoted. However, having considered
sentimental damages the 1 st Respondent does not directly distinguish
between the sentimental damages and the compensation for the loss of
benefits. The 1 st Respondent awarded compensation in the amount of
R40,000 arising from what he found to be an unfair labour practice committed
by the 2 nd Applicant in terms of item 2(1) of Schedule 7 of the LRA.
53. Damages are awarded as either patrimonial or sentimental. In order to
succeed with a claim for sentimental damages, the party seeking such
damages must establish that a wrong has been committed and that wrong
constitutes an inuria. In this matter the wrong complained of which may have
justified sentimental damages was an unfair demotion. Having found that the
action of the second Applicant did not amount to an unfair demotion, it must
follow that in the absence of a wrong the second Respondent is not entitled to
sentimental damages.
54. As I cannot interfere with that part of the 1 st Respondent declaring the
second Respondent to have committed an unfair labour practice involving the
demotion, I make the following order:
54.1 The Applicant's application succeeds in part.
54.2 The finding that the 2 nd Applicant committed an unfair labour
practice relating to the provision of benefits in terms of item 2(1) of
Schedule 7 of the LRA is set aside.
54.3 The order that the Applicant pay the 2 nd Respondent an amount of
R40,000.00 within a period of fortyfive days from the date of the
award is set aside.
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54.4 There is no order as to costs.
___________
Gush AJ
28 September 2005
For the Applicant: Adv. G. Hulley
Instructed by: Geldenhys Lessing Maltji Inc.
For the Respondent: Adv. Heystek
Instructed by: State Attorney
Date of Judgment: 20 October 2005
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