IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J1828/05
In the matter between:
HLOPE, VICTOR Z First Applicant
MVINJELWA, RICHARD NIXON Second
Applicant
THWALA, MUSA JEREMIAH Third
Applicant
NTHOROANE, GEORGE JEFFREY Fourth
Applicant
and
MINISTER OF SAFETY AND SECURITY First Respondent
NATIONAL COMMISSIONER OF POLICE Second
Respondent
PROVINCIAL COMMISSIONER OF POLICE (GAUTENG) Third
Respondent
AREA COMMISSIONER OF POLICE (JOHANNESBURG) Fourth
Respondent
PITOUT, S H Fifth
Respondent
___________________________________________________________________________________
_______________________________
JUDGMENT
______________________________________________________________
_
A VAN NIEKERK AJ
Introduction
[1] On 21 September 2005, this Court ruled that this application was
urgent and issued a rule nisi. The rule operates as an interim interdict
to prevent the Respondents from transferring the Applicants from their
existing posts or demoting them. The application itself is brought in two
parts. Part A is the application for urgent interim relief pending certain
final relief sought in terms of Part B. In these proceedings, the
Applicants seek to confirm the rule issued on 21 September 2005. The
Respondents oppose that confirmation and seek to have the rule
discharged.
[2] The facts giving rise to this application are largely common
cause. The Applicants are all members of the South African Police Services
(SAPS) and are engaged as plainclothes detectives. The dispute between
the parties has its genesis in a drugrelated search and seizure operation
conducted by a number of police officers, including the Applicants, on 30
January 2005. Consequent on this operation, complaints of robbery and
corruption were laid against the detectives involved, including the Applicants.
I do not intend in these proceedings to dwell further on developments
consequent on the operation and the Applicants’ involvement in it, save to say
that the Director of Public Prosecutions ultimately declined not to prosecute
the detectives concerned after criminal charges had been laid against them,
and that no disciplinary proceedings have been instituted against them.
[3] On 12 September 2005, the Fourth Respondent, the Area
Commissioner of Police (Johannesburg) issued a directive, inter alia , to
the Commander of the AntiHijacking Task Team in terms of which the
Applicants were to be transferred from the Task Team to various other
posts. The effect of the directive, which gave rise to this application, is
to transfer the First Applicant to the Detective Branch at the Jeppe
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Police Station, the Second Applicant to the Booysens Police Station,
the Third Applicant to the Client Services Centre at the Norwood Police
Station and the Fourth Applicant to the Client Services Centre at the
Hillbrow Police Station. The Applicants claim that the position of a
plainclothes detective is a prestigious one and that better promotional
prospects exist in this Division when compared with uniformed police.
They claim further that the Antihijacking Task Team, a specialised unit
within the Detective Branch, is even more prestigious, and that
membership of the team is an acknowledgement of inclusion in what
they termed the “top order”.
[4] Although none of the transfers that are the subject of the
Directive would have the effect of adversely affecting any of the Applicants’
rank or remuneration, they contend that the effect of the transfer is to demote
them in so far as their status and responsibilities are concerned, to demoralise
them and to ridicule and humiliate them in the eyes of their colleagues and the
public. The Applicants aver that they have been given no explanation for their
transfers but they speculate that these are connected with the criminal
charges previously levelled against them.
[5] The Fourth Respondent admits that on 12 September 2005, he
decided to transfer the Applicants away from their current stations to those
reflected in his letter of the same date. The Fourth Respondent avers that the
decision was taken consequent on written representations made by the
Applicants’ attorney on 25 February 2005, in response to a notice of possible
suspension and/or transfer issued to the Applicants individually earlier that
month. The Fourth Respondent denies that any unit or branch of the SAPS is
more prestigious than another, and that members of the different divisions of
the SAPS each believe that the division to which they belong is more
the SAPS each believe that the division to which they belong is more
prestigious and the work more illustrious than that of any other division. In so
far as there is a perception amongst plainclothes detectives that there is
prestige attached to their work, the Fourth Respondent states that this belief is
not shared by all members of the SAPS.
Interim relief
3
[6] The test to be applied for interim relief is well known. In SA
Investments v Van der Schyff and others 1999 (3) SA 340 (N) at 345G
– H the High Court recorded the various elements of the test in the
following terms:
“As the applicant seeks interim relief it has to show the
following: (a) a prima facie right; (b) a wellgrounded
apprehension of irreparable harm; (c) the balance of
convenience favours the applicants; and (d) the absence of any
other satisfactory remedy. See Olympic Passenger Services
(Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383AF .”
[7] The threshold test of a prima facie right is sometimes
differently reflected, and is qualified to the extent that the prima facie
right that an applicant is required to establish might be open to some
doubt. (See Spur Steak Ranches Ltd v Saddles Steak Ranch 1996 (3)
SA 706 (C), Webster v Mitchell 1948 (1) SA 1186 (W)). The prima
facie rights on which the Applicants rely are drawn from the
Constitution and from the common law. The Applicants contend that in
terms of the Constitution, they are entitled to fair labour practices, fair
administrative practices, and the rights of dignity and equality. At
common law, the Applicants claim that their transfers constitute a
demotion in status.
[8] In their defence, the Respondents have chosen broadly to
confine themselves to the facts. In so far as the Applicants base their claim
4
on a right to fair administrative action and contend that this right has been
infringed by a failure to consult them prior to a decision to transfer them, the
Respondents aver that the Applicants were afforded a hearing. In this regard,
the Respondents rely on the written invitation extended to the Applicants to
make representations on a proposal to transfer and/or suspend them, and the
response to that invitation. The Respondents contend further that the Fourth
Respondent was entitled to transfer the Applicants in the best interests of the
SAPS and that he had taken the decision to transfer them on that basis. In so
far as the claim of demotion is concerned, the Respondents deny that the
Applicants have been demoted, either actually or effectively. I intend to deal
with these and other factual allegations in due course. However, to the extent
that the Applicants have raised complex and controversial constitutional
arguments in support of their claim, these merit consideration.
[9] Under the rubric of the constitutional right to fair
administrative action, the Applicants have made no mention of the
Promotion of Administrative Justice Act (PAJA) and rely solely on
section 33 of the Constitution. The Applicants’ submission squarely
raises the question whether the Fourth Respondent, the Area
Commissioner of Police, is under a constitutional duty when exercising
any discretion to effect the transfer of a member of the SAPS. It also
raises the question whether once a constitutional right is regulated in
detail by statute, persons seeking to enforce the right are confined to
the statutory remedies and may no longer rely directly on the
constitutional provision. The latter question is relevant not only to the
right to fair administrative action that the Applicants have asserted, but
also to their claim to a constitutional right to fair labour practices. In
also to their claim to a constitutional right to fair labour practices. In
both instances, the Applicants’ claims what has been described, in the
context of a constitutional right to fair labour practices, as the doctrine
of avoidance. (See Du Toit et al Labour Relations Law (Butterworths
5
Lexis Nexis) at 462, citing Garbers ‘ The Battle of the Courts: Forum
Shopping in the aftermath of Wolfaardt and Fredericks’ (2002) Law
Democracy & Development 97. Garbers states “Before direct
infringement of a Constitutional right is relied on, the applicable norm
should be sought in the common law or ordinary legislation, and before
constitutional remedies are used to rectify a wrong, the possibly more
specific remedies available at common law or in statute should be
applied.” (at footnote 26)). Du Toit et al suggest that in the case of the
Labour Relations Act, this means that employees seeking to enforce a
right to fair labour practices may only do so within the parameters
established by the LRA. Alternatively, it is open to them to challenge
the constitutionality of the statute. (See NAPTOSA & Others v Minister
of Education, Western Cape and others (2001) 22 ILJ 889 (C) ,
especially at 898A where Conradie J said “ Yet I cannot conceive that
it is permissible for an applicant, save by attacking the constitutionality
of the LRA, to go beyond the regulatory framework which it
establishes. “)
[10] I deal first with the claim to a right to fair administrative action, which,
as I have noted, the Applicants found on section 33 of the Constitution.
Whether the enactment of PAJA has confined the Applicants’ rights to
a claim under that statute is not a matter that was either raised on the
papers or argued at the hearing, and I do not intend to make any ruling
6
in this regard. I am persuaded though, after a review of a number of
recent judgments dealing with the nature and extent of administrative
action, that the decision to transfer the Applicants does not amount to
administrative action either for the purposes of PAJA or section 33 of
the Constitution. In South African Police Union and Another v The
National Commissioner of the South African Police Service and
Another (unreported, case number J1584/05) Murphy AJ (as he then
was) sitting in this Court, considered whether the Commissioner of
Police, when acting as an employer, is under a constitutional duty to
consult with members of the South African Police Services, or their
representatives, about the amendment or alternation of their terms of
employment or labour practices. After a comprehensive review of the
authorities, the Court concluded that there was nothing inherently
public about the issue in dispute in that matter, which concerned the
working hours of police officers. The Court stated the following:
“The nature of the power exercised and the function performed
in the setting or agreeing of shift times does not relate to the
government’s conduct in its relationship with its citizenry to
which it is accountable in accordance with the precepts of
representative democracy and governance. The powers and
functions concerned derive from employment law and are
circumscribed by the constitutional rights to fair labour practices
and to engage in collective bargaining. One is instinctively
drawn to the conclusion that the concept of administrative action
is not intended to embrace acts properly regulated by private
law. To render every contractual act of an organ of state a
species of administrative action carries the risk of imposing
species of administrative action carries the risk of imposing
burdens upon the State not normally encountered by other
actors in the private sphere.” ( At paragraph 51 of the
7
typewritten judgment.)
[11] The Court concluded that since the SAPS’s introduction of a new shift
system did not constitute administrative action, the applicants in that
matter were not entitled to seek review of the Commissioner’s decision
either in terms of section 6 of the PAJA or directly under section 33 of
the Constitution. Murphy AJ acknowledges that his conclusion is at
odds with decisions of other Courts of equal standing. In particular, he
refers to Mbayeka and another v MEC for Welfare, Eastern Cape
[2001] 1 All SA 567 (Tk). That matter concerned an urgent application
for an order declaring a suspension from duty without emoluments to
be unconstitutional. The High Court held that when the MEC
concerned suspended the applicants, she had exercised her public
power and that the failure to afford the applicants a hearing prior to
their being suspended amounted to unconstitutional administrative
action that fell under the jurisdiction of the High Court. Similarly, this
Court (Francis J) in Simela and Others v MEC for Education Eastern
Cape and Another [2001] 9 BLLR 1685 (LC), has held that a decision
to transfer an employee without prior consultation amounted to both
unjust administrative action and an unfair labour practice.
[12] Murphy AJ noted that to the extent that these judgments confirm the
proposition that transfers or suspensions in contravention of the audi alteram
partem principle violate the constitutional right to fair labour practices, he was
in agreement with them. However, he considered that it does not necessarily
follow that because the power to suspend or transfer is sourced in legislation,
it axiomatically follows that the power or function concerned is a public one.
8
He concluded that disciplinary or operational transfers and suspensions are
employment or labourrelated matters, not administrative acts. (See
paragraphs 59 and 60 of the typewritten judgment).
[13] I agree with Murphy AJ’s conclusions, and they are obviously apposite
in this matter, being a challenge to an employmentrelated decision by
the Fourth Respondent, a Commisioner of Police. To the extent that
the courts previously extended the reach of administrative law to
ensure fairness in the exercise of employment discipline in the public
sector, the extension of the Labour Relations Act to that sector now
guarantees labour rights to public sector workers. The approach
adopted by Murphy AJ, as he notes at paragraph 55 of the judgment,
acknowledges this development and gives effect to the important policy
consideration that the resolution of employment disputes in the public
sector should be accomplished by the same mechanisms that apply in
the private sector. In other words, collective bargaining and the
adjudication of rights disputes in terms of the LRA rather than the
judicial review of administrative action are the appropriate institutions
for balancing employer and employee interests in the public sector.
(See also Public Servants Association obo Haascke v MEC for
Agriculture and others (2004) 25 ILJ 1750 (LC), and Western Province
Workers Association v Minister of Labour (unreported C22/2005)).
[14] I consider therefore that the Commissioner’s decision to transfer the
applicants, to use the wording of section 6 of PAJA, does not involve
9
the exercise of a public power or the performance of a public function
having a direct external effect. On this basis, the decision to transfer
the Applicants does not constitute administrative action that invites
review either under PAJA or section 33 of the Constitution, and it
cannot found a prima facie right for the purposes of this application.
The right to fair labour practices
[15] Section 23 of the Constitution establishes the right to fair labour
practices, the right to engage in collective bargaining, the right to freedom of
association and the right to strike. In this instance, the Applicnts rely on right
to fair labour practices.
[16] The specific protections against unfair labour practices extended by the
LRA are limited in their scope, and in accordance with the framework
established by the Act, any protection not statutorily afforded must be
claimed and won through collective bargaining.
Section 186(2) of the LRA reads as follows:
“(2) ‘Unfair labour practice’ means any unfair act or
omission that arises between an employer and an employee
involving
a) unfair conduct by the employer relating to the
promotion, demotion, probation (excluding disputes
about dismissals for a reason relating to probation) or
training of an employee or relating to the provision of
benefits to an employee;
b) the unfair suspension of an employee
or any other unfair disciplinary action
short of dismissal in respect of an
employee;
c) a failure or refusal by an employer to
10
reinstate or reemploy a former
employee in terms of any agreement;
and
d) an occupational detriment, other than
dismissal, in contravention of the
Protected Disclosures Act, 2000 (Act
26 of 2000), on account of the
employee having made a protected
disclosure defined in that Act.”
[17] Section 186 (2) does not refer to the transfer of an employee at the
behest of an employer. In the absence of any specific protection
against transfers effected in what are alleged to be unfair
circumstances, relief must be sought outside of the provisions of that
section, perhaps, as the Applicants have submitted, through the direct
application of what has been termed a constitutional unfair labour
practice. On the other hand, employer conduct in relation to a
demotion is capable of being held to be an unfair labour practice. The
wording of section 184(2)(a) makes it clear that it is conduct of the
employer that gives rise to the consequence of demotion, and not the
demotion itself, that is capable of being impugned in terms of that
section. This is where, as Murphy AJ notes, the absence of any right to
audi alterem partem prior to a demotion being effected becomes
significant both in constitutional terms and for the purposes of the LRA.
I do not intend to decide this matter directly on the basis of the
constitutional rights to fair labour practices that the Applicants claim,
nor do I intend to express any view on the two issues that the
Applicants’ submissions raise. To recap, these are whether in the case
11
of demotion, there is a right to assert a constitutional right in
circumstances where the LRA gives effect to that right and affords a
remedy for a breach of it, and in the case of employerinitiated
transfers, whether constitutional rights can be asserted in the absence
of any allegation that the LRA is constitutionally deficient. These are
not issues that the parties presaged or addressed in their arguments,
but they will no doubt do so at the hearing of the application for final
relief.
[18] For the purposes of these proceedings, and in the context of the
Applicants’ submission that they have not been afforded a fair hearing,
the threshold requirement of a clear right though open to some doubt is
established by the terms of the bargaining council agreement annexed
to the answering affidavit. The Respondents acknowledge that the
document, headed “Agreement 5 of 1999 : Agreement on Transfer
Policy and Procedures Agreement” is a collective agreement for the
purposes of the LRA. The agreement records the agreed policy and
procedures applicable to transfers within the SAPS. A number of
clauses are, on the face of it, pertinent to this application. Clause 2.1
requires that there be a valid and sufficient reason to transfer a
member. Clause 5 provides that transfers may not be used as a
punitive measure. Clause 8 provides for a right of representation and
assistance at every stage the process established by the agreement.
Clause 10 requires that members be afforded a reasonable opportunity
12
to make representations relating to proposed transfers. These must be
considered and the outcomes stated. If representations are not
favourably considered, the reasons for their rejection must be set out in
brief.
[19] Section 23 of the LRA confirms the binding nature of collective
agreements and provides for the incorporation of their terms into
individual contracts of employment. In terms of section 24, disputes
concerning the application and interpretation of collective agreements,
if unresolved, must be referred to arbitration. On the face of it, the
bargaining council is likely therefore to have the jurisdiction to arbitrate
any dispute between the Applicants and the Respondents concerning
the application of collective agreement 5/1999. Similarly, the LRA
confers jurisdiction on the bargaining council to arbitrate all disputes
concerning unfair employer conduct in relation to demotion.
[20] In so far as the Applicants’ contracts of employment and the
Applicants’ submissions absed on the hcommon law are concerned, this
Court exercises concurrent jurisdiction with the High Court under section 77 of
the Basic Conditions of Employment Act, and the nature and extent of any
incorporation of collective agreement 5/1999 into their employment contracts
and any breach of those contracts is justiciable. The same general principle
applies to any contractual dispute concerning demotion. The contract of
employment confers status, remuneration and benefits, and a unilateral
variation of these is a breach of contract. A demotion without consent is a
repudiation of the employment contract, and entitles the employee either to
enforce the terms of the contract or repudiate by resigning. In the later
instance, the employee will generally have a statutory right to claim unfair
dismissal, since continued employment in these circumstances will inevitably
dismissal, since continued employment in these circumstances will inevitably
be intolerable.
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[21] It is common cause that on 18 February 2005, each of the Applicants
was handed a letter giving notice of a possible suspension and transfer. The
reason proffered in each case was that disciplinary proceedings had been
instituted consequent on charges of misconduct. Each of the Applicants
responded, through his attorney, to the letter and submitted detailed
representations as to why each of them should not be suspended and/or
transferred. Nothing more was heard until the letter dated 12 September
2005, ordering that the transfers be effected. In the interim, the disciplinary
and criminal charges against the Applicants had been withdrawn. They did not
receive any response to their representations, or any reasons as to why they
had not been favourably considered.
[22] All that the Respondents rely on in these proceedings is the fact of the
invitation extended on 18 February, and the fact of the responses, and an
assertion to the effect that the decision to transfer the Applicants was taken in
the best interests of the SAPS. This clearly falls short of what the agreement
requires. The Applicants are entitled to expect the SAPS to comply with the
terms of collective agreement 4/1999 when effecting any transfer by which
they might be affected, and in particular, they are entitled to require that
transfer is not used as a punitive measure. They are also entitled to
considered reasons for the rejection of their representations. The collective
agreement also impliedly establishes that transfers and representations
concerning transfers will be dealt with professionally, expeditiously and
efficiently. In this instance, none of those objectives was met. The Applicants
were simply handed the directives transferring them, some 7 months after
submission of their representations.
[23] The Applicants have accordingly succeeded in establishing a prima
facie right on the basis of the Respondents’ breach of the collective
facie right on the basis of the Respondents’ breach of the collective
agreement. I express no view on whether, for the purposes of this part
of the enquiry, the effect of the transfer is to demote the Applicants,
either actually or effectively. I turn now to consider whether the other
requirements for interim relief have been met.
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Well grounded apprehension of irreparable harm
15
[24] The Applicants contend that their transfers will adversely affect
them. They contend that their homes would in some instances be
“a considerably greater distance from their places of work” than
their present work places. There is no merit in this submission.
Given the place at which the Applicants are currently in deploy
and the police stations, all within the greater Johannesburg area
to which the Fourth Respondent has directed that they should be
transferred, there is little if any prejudice to any of the Applicants.
I would hesitate in the absence of further evidence to label the
Applicants’ averments in this regard as false, but on their own
version, there cannot be any prejudice or significant
inconvenience to the Applicants in so far as any travelling
requirements are concerned. In so far as the Applicants allege
that their transfers would prejudice their promotional rights, I am
equally unpersuaded that a proper factual foundation has been
made out to sustain this submission. All of the Applicants will,
after their transfer, remain in the detective branch. To the extent
that the Applicants claim that the transfer will demoralise them or
cause them to suffer ridicule in the eyes of their colleagues and
the public, there is no factual basis for this averment which
appears to be largely a conclusion of the Applicants’ subjective
perceptions. In any event, this Court has previously and
consistently held that injury to reputation is not a ground for
16
urgent interim relief. See Hultzer v Standard Bank of SA (Pty) Ltd
(1999) 20 ILJ 1806 (LC). See also Zwakala v Port St Johns
Municipality & others (2002) 21 ILJ 1881 (LC) in which this Court
declined to grant urgent interim relief in circumstances where an
employee was suspended pending an allegation of misconduct. I
would also note the long standing practice in this Court of
refusing to grant urgent interim relief in the form of reinstatement
in circumstances where an employee is dismissed, unless
exceptional and cogent grounds exist. Where a dispute concerns
a transfer, the threshold must rise accordingly. For these
reasons, I am not persuaded that any harm to the Applicants
consequent on their transfer is irreparable.
[25] Even if I am wrong in coming to that conclusion, I am satisfied
that the Applicants have also failed to establish that there is no other
satisfactory remedy available to them. Since this requirement was
dealt with at some length during argument, I intend to set out my
reasons for coming to that conclusion.
[26] The Applicants contend that they have a right to have a constitutional
matter decided by this Court by virtue of a reading of section 169 of the
Constitution. That section reads as follows:
“A High Court may decide
(a) any constitutional matter except a matter that
i) only the Constitutional Court may decide;
17
or
ii) is assigned by an Act of Parliament to
another court of a status similar to a High
Court; and
(b) any other matter not assigned to another Court
by an Act of Parliament.”
This provision should be read with section 38 of the Constitution.
[27] These provisions should be read in conjunction with section 157(2) of
the LRA, which reads as follows:
“The Labour Court has concurrent jurisdiction with the High
Court in respect of any alleged or threatened violation of any
fundamental human right enshrined in Chapter 2 of the
Constitution of the Republic of South Africa, 1996, and arising
from
a) employment and from labour relations;
b) any dispute act or conduct, or any threatened
executive or administrative conduct, by the State in its
capacity as employer; and
c) …”.
[28] Mr Bishop, who appeared for the Applicants relied on Fredericks &
Others v MEC for Education & Training, Eastern Cape & Others [2002]
2 BLLR 119 (CC) and submitted that the provisions of section 24 of the
LRA did not (and could not) oust the jurisdiction of the High Court from
determining constitutional matters, where an alternative remedy
(referral to the CCMA in terms of section 24 (existed). Mr Bishop’s
argument, as I understood it, was that it followed from the Frederick’s
decision that no provision in the LRA that afforded the Applicants a
right to refer a dispute to the CCMA or a bargaining council could oust
18
this Court’s jurisdiction to decide the constitutional matter that the
Applicants had raised. Accordingly, it was submitted that any
submission by the Respondents that there are alternative remedies
available to the Applicants is without merit.
[29] I do not understand the Fredericks judgment to hold that the CCMA is
precluded from deciding a matter simply because the nature of the
dispute might have constitutional overtones or implications. The issue
decided by the Constitutional Court in Fredericks was whether section
24 of the LRA ousts the jurisdiction of the High Court to consider a
dispute concerning the application and interpretation of a collective
agreement. The Constitutional Court unanimously held that the High
Court had erred in holding that it lacked the jurisdiction to entertain the
matter merely because the LRA requires disputes concerning collective
agreements to be referred to the CCMA. While at one level the
Fredericks judgment may be read to the effect that the CCMA is
precluded from deciding a constitutional issue that arises in the context
of a dispute over which the CCMA has jurisdiction (see Du Toit et al
Labour Relations Law at 462), it does not necessarily follow, as Mr
Bishop appeared to suggest, that a party that has a constitutional
complaint arising from the interpretation or application of a collective
agreement is precluded from referring the matter to the CCMA, or in
this instance, the bargaining council. On the contrary, in the Frederick’s
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judgment, the Constitutional Court noted that the effect of its
conclusion was not that a person who has a constitutional complaint
arising out of the interpretation or application of a collective agreement
is precluded from referring that matter to the CCMA. On the contrary,
the CCMA was advised by the Court in these circumstances to seek to
give effect to constitutional commitments in the exercise of its powers
(at page 134 AC).
[30] If the Applicants’ submissions are correct, a party to a labour dispute
need only claim that the matter in dispute is a constitutional matter for the
CCMA to be deprived of jurisdiction. Given the broad remit of section 23 of the
Constitution, virtually all employment disputes would be capable, in one form
or another, of being described as ‘constitutional matters’. It would not take
much imagination on the part of litigants to bypass the CCMA or a bargaining
council with jurisdiction and refer their disputes, which the LRA requires be
resolved by arbitration, to this Court or to the High Court for adjudication.
While the directorate of the CCMA and most bargaining councils would no
doubt welcome a decline in the number of referrals to arbitration, if this
practice were permitted, it would fundamentally undermine the system of
statutory dispute resolution established by the LRA.
[31] In deciding the narrow jurisdictional question that is was called upon to
decide, the Constitutional Court in Fredericks effectively drew a
distinction between a labour dispute and a constitutional dispute. It
decided that the High Court was not deprived of the jurisdiction to
entertain a constitutional dispute that arose from the application of
section 24 of the LRA. In this instance, the Applicants have not placed
section 24 within the scope of their constitutional attack. The terms of
the agreement were only disclosed when an answering affidavit was
the agreement were only disclosed when an answering affidavit was
filed, and the Applicants assert that a concession by the Respondents
20
to the effect that they did not comply fully with the procedure rendered
the transfers unlawful. The real dispute between the parties is a dispute
about the interpretation and application of a collective agreement. In
my view, this is a matter properly categorised as a labour matter rather
than a constitutional complaint. This distinction is premised on a
recognition that collective agreements establish the broad parameters
of the relationship between employers and employees, and that this
relationship is properly regulated through arbitration rather than the
courts, a forum to which the LRA has not assigned this task.
[32] There is accordingly no merit in the submission that the Applicants are
precluded from referring their dispute for conciliation and if necessary
arbitration, under the auspices of the bargaining council. Subject only to any
rules made by the bargaining council regulating the referral of disputes, and to
the extent that the Applicants rely on a breach of the collective agreement
either in the form of a breach of a constitutional right to fair labour practices or
on some other basis, it would seem to me that they have a perfectly adequate
alternative remedy before an arbitrator. In so far as the Applicants may have
a contractual claim, I have noted that the provisions of section 77 of the BCEA
afford them a remedy. In these circumstances, it cannot be said that the
Applicants have no other satisfactory remedy, and the application must fail on
that basis.
[33] Mr Hulley, who appeared for the Respondents, submitted that costs
should be awarded against the Applicants on a punitive scale, since they had
been less than honest in making some of their averments, particularly those
relating to the personal consequences of the decision to transfer them. While
the Applicants have no doubt exaggerated the inconvenience and other
consequences of the transfer, I cannot remove from the equation the inept
consequences of the transfer, I cannot remove from the equation the inept
handling of the transfer by the SAPS management, and the disregard for the
clear requirements of the applicable policy. For that reason, I intend to make
no order as to costs.
[34] I accordingly make the following order:
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1. The rule nisi granted on 21 September 2005 is discharged.
2. The application for urgent interim relief (Part A of the
application) is dismissed.
3. There is no order as to costs.
_________________________________
ANDRE VAN NIEKERK,
Acting Judge of the Labour Court
Date of hearing : ___December 2005
Date of judgment: : 13 December 2005
Counsel for Applicant : Adv. A Bishop
Attorneys for Applicant : Moleke Matsepe Attorneys
Counsel for Respondents Adv. G Hulley
Attorneys for Respondent: State Attorney
22