IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO573/04
In the matter between
THE PUBLIC SERVANTS ASSOCIATION
Appellant
and
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN
POLICE SERVICE Respondent
________________________________________________________________________
CORAM: HOWIE P, STREICHER, NUGENT, LEWIS JJA et MAYA
AJA
________________________________________________________________________
Date Heard: 1 November 2005
Delivered: 25 November 2005
Summary: Police employment regulations – retention of incumbent of upgraded
post in terms of reg 24(6) – despite p ermissive language of subregulation,
Commissioner obliged to retain incumbent if requirements of subregulation met.
The order of the Court appears in para [22].
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
2
HOWIE P
[1] In the employment regulations promulgated under the South African
Police Service Act 68 of 1995 (the Act) 1 reg 24 deals with the grading of
posts and effect of grading on remuneration. Reg 24(6) says this:
‘(6) If the National Commissioner raises the salary of a post as provided
under subregulation (5), sh e or he may continue to employ the incumbent
employee in the higher-graded post w ithout advertising the post if the
incumbent –
(a) already performs the duties of the post;
(b) has received a satisfactory ra ting in her or his most recent
performance assessment; and
(c) starts employment at the minimum notch of the higher salary
range.
[2] On the basis that uncertainty prev ailed as to whether the subregulation
afforded the National Commissioner a di scretion to continue to employ the
incumbent in the higher-graded post, or imposed an obligation to do so, he
applied in the High Court at Pretoria for a declarator. The order sought was
to the effect that continuation of the incumbent’s employment in the
1 The South African Police Service Employment Regulations, 1999 Govt Notice R.389 of 14 April 2000.
3
upgraded post was a matter for the Commissioner’s discretion. Seven
respondents were cited. Only the first two respondents opposed. The
Court (Ponnan J) granted the declarator and subsequently gave the second
respondent, the Public Servants Associat ion, leave for the present appeal. (It
was the only party to seek leave.) Fo r convenience I refer from here on to
the parties on appeal as ‘the appellant’ and ‘the Commissioner’ respectively.
[3] The appellant is a registered trad e union. As its name indicates, its
members are drawn from the national public service. The Commissioner is
the executive commander of the South African Police Service (‘the
Service’)
2, whose duties include maintenance of an efficient service.3
[4] Regulation 24 reads in full –
‘24. GRADING AND REMUNERATION
(1) The National Commissioner must determine the grade of a post to correspond
with its job weight and set the commencing salary of an employee on the minimum notch
of the salary range attached to the relevant grade, unless the salary proves inadequate
under the criteria in subregulation (3).
(2) If the job has a weight that applies to more than one salary range, the National
Commissioner must determine which of the relevant salary ranges to use.
(3) The National Commissioner may set the sa lary for a post or an employee above
the minimum notch of the salary range indicated by the job weight –
2 S 6(1) of the Act read with s 216(2)(a) of the Interim Constitution, Act 200 of 1993.
3 S 218(1) of the Interim Constitution.
4
(a) if she or he has evaluated the job, but cannot recruit or retain an employee
with the necessary competencies at the salary indicated by the job weight;
and
(b) she or he shall record the reason why the salary indicated by the job
weight was insufficient.
(4) If the job weight demonstrates that a filled post is overgraded or undergraded, the
National Commissioner must either effect changes to the wo rk organisation or regrade
the post according to the job weight and the relevant collective agre ements as provided
for in subregulations (5), (6) and (7).
(5) The National Commissioner may increase the salary of a post to a higher salary
range in order to accord with the job weight, if –
(a) the job weight as measured by the evaluation system indicates that the post
was graded incorrectly; and
(b) the budget of the service and the medium-term expenditure framework
provide sufficient funds.
(6) If the National Commissi oner raises the salary of a post as provided under
subregulation (5), she or he may continue to employ the incumbent employee in the
higher-graded post without advertising the post if the incumbent –
(a) already performs the duties of the post;
(b) has received a satisfactory rating in her or his most recent performance
assessment; and
(c) starts employment at the mini mum notch of the higher salary range.
5
(7) If the National Commissioner determines th at the salary range of an occupied post
exceeds the range indicated by a job weight, she or he must –
(a) if possible –
(i) redesign the job to equa te with the post grade: or
(ii) transfer the incumbent to a nother post on the same salary range;
a n d
(b) abide by relevant legislation and collective agreements.
(8) As far as possible, the National Commissi oner must set the salary of a part-time,
sessional or temporary employee proportional to the salary of an equally graded full-time
employee.’
[6] The focus in this case is essentia lly on subregs (4) to (7). They are
aimed at regulating the consequences of a filled ‘post’ having been
incorrectly ‘graded’. What those words mean appears from the definitions in
reg 2 and a reading of the ensuing regulations. Suffice it to say that the work
which a member of the Service does is hi s or her job. ‘Post’ is the name or
description of that job. Each job has a job weight. This is a numerical value
assigned to the job by a job evaluation. A grade is the relative value of a job
as reflected by the job weight. Each grade is linked to a salary range. A
salary range comprises a range of notches – minimum to maximum.
Similarly, all the salary ranges in the Service – minimum to maximum –
make up its salary scale.
6
[7] Subregulation (4) gives the Co mmissioner a choice when the job
weight of a filled post shows that the post is wrongly graded. Broadly,
correction is achieved either by alteri ng the post’s workload up or down, or
regrading the post, again, up or down. Subregulations (5) and (6) concern an
upgrade and subreg (7) a downgrade.
[8] The court below decided, particular ly in the light of the regulations
dealing with recruitment 4 and promotion, 5 that the matter fell to be decided
broadly as follows. Upgrading created , notionally at least, a new vacant
post. Vacant posts could normally be filled only after advertising them.
Continuation with the incumbent in a su breg (6) situation was in effect to
promote him or her. Generally, promotions also had to follow only after
advertising. Transparency demanded that advertising should be the rule and
dispensing with it, as subreg (6) pe rmitted, should rather be the exception.
This meant that the Commissioner had, in line with the use of the word
‘may’ in the subregulation, a discretion whether to advertise or to retain the
incumbent in the upgraded post without advertising.
[9] At first blush it might too readily appear that the drafter’s use of
‘must’ and ‘may’ signifies consistent ly an intended difference between
peremptory and permissive provisions in the regulations. That impression
4 Reg 36.
5 Reg 38.
7
could well be reinforced by instances where, for example in reg 24(1), (2)
and (3), ‘must’ and ‘may’ correctly indicate that difference. Furthermore, it
does not seem that ‘must’, wherever it is used in the regulations, has
anything but an imperative connotation. The crucial enquiry, however, is
whether ‘may’, even if unquestionabl y constituting permissive provisions
elsewhere in the regulations, has, in subreg (6), the permissive connotation
found to be the case by the learned Judge in the Court below.
[10] The thrust of the appellant’s argument was that if the upgraded post
were advertised and the incumbent em ployee were not appointed to it the
latter would be liable to lose his or her employment. The profound
unfairness of that outcome, so the argument continued, was highlighted by
the irony that subreg (6) postulated that the incumbent was, at the relevant
time, not only performing the duties of the upgraded post but doing so well
enough to have achieved a recent satisfact ory rating. By contrast, subreg (7)
required, if possible, that the incumben t of an overgraded, and thus overpaid
post, would remain in the service. The fate of the displaced incumbent
referred to in subreg (6) was theref ore in conflict with the Constitutional
values of equity and reasonableness and in particular with the right to fair
labour practices.
8
[11] The heads of argument for the Co mmissioner did not address the fate
of the displaced erstwhile incumbent. They proceeded on the basis that the
Commissioner’s alternatives were re tention of the employee in accordance
with subreg (6) or reduction of the workload of the undergraded post in
terms of subreg (4), neither of whic h would involve any unfairness. Pressed
in argument, however, with the gravam en of the appellant’s argument as
summarised above, counsel for the Commissioner were driven to submit that
if the former incumbent responded to the Commissioner’s advertisement but
were not appointed, the only resort of such person would be an action for
whatever compensatory relief would be appropriate. Th e concession was
that the employee concerned could indeed lose his employment if his post
were upgraded.
[12] There can be no doubt that on the Commissioner’s approach that
concession was unavoidable. If the Co mmissioner decided to advertise and
the former incumbent were not appointed , the latter would be left without a
job. The post that he or she had o ccupied having beco me upgraded, there
would be no post left behind to which such person should then, as a matter
of course, be transferred. In this re gard I disagree, with respect, with the
Court a quo that a new vacant post would be created. What I have so far
referred to as displacement would in truth become dismissal if the employee
9
could not be accommodated in another post. Natu rally it might be possible
in practice to avoid the drastic result of dismissal if ther e were an existing
vacant post to which the person in ques tion could be transferred without loss
of employment, status or pay. But th e availability of existing vacant posts
would no doubt be more likely at the lower end of the Service’s employment
scale. The problem of incorrect grading with which reg 24 is concerned is, as
a matter of probability, going to o ccur in the case of higher and more
specialised posts. Accordingly, the issu e we have to decide is not to be
resolved by assuming the existence of possible vacant posts.
[13] Comparison of the provisions of th e Act with those of the regulations
discloses the following situation in so far as dismissal is concerned. The Act
deals with conditions and termination of service in sections 27 to 49. It
refers to dismissal as ‘discharge’. Discharge is the subject of sections 35 to
37. Only s 35 is presently of importan ce and only paragraphs (a) and (b) of
that section:
’35 Discharge of members on account of redundancy, interest of Service or
appointment to public office
The National Commissioner may, subject to th e provisions of the Government Service
Pension Act, 1973 (Act 57 of 1973), discharge a member –
(a) because of the abolition of his or he r post, or the reduction in the numerical
strength, the reorganisation or th e readjustment of the Service;
10
(b) if, for reasons other than the unfitness or incapacity of such member, his or her
discharge will promote efficiency or econom y in the Service, or will otherwise be
in the interest of the service; …’
[14] Chapter VII of the Regulati ons is headed ‘PROCEDURES FOR
APPOINTMENT, PROMOTION AND TE RMINATION OF SERVICE.’ It
encompasses regulations 34 to 40. Noth ing they contain deals either with
discharge as meant in any section of the Act or any circumstances which
involve or approximate to the job loss to which, as the pr esent case reveals,
reg 24(6) could give rise on th e Commissioner’s approach. The only
termination situatio n referred to is automatic resignation 6 and that is
presently irrelevant. No other regula tion deals or purports to deal with
dismissal. But the employment is al so governed by the Labour Relations
Act 66 of 1995, which confers a right (in s 185) not to be unfairly dismissed.
A dismissal is unfair if the reason for the dismissal is not a ‘fair reason’ that
is either related the employee’s conduc t or capacity or is based on the
employer’s operational requirements. (s188(1). I doubt very much that the
dismissal of an employee – which woul d be inevitable if he could not be
placed in an alternative post – merely be cause the post was regraded so as to
link it to a higher salary can be said to be a ‘fair reason’ for the dismissal.
6 Reg 39.
11
[15] The conclusion is unavoidable, th erefore, that the drafter of the
regulations had no intention that upgrad ing in terms of reg 24 would expose
an incumbent who is satisfactorily perfor ming the function to dismissal. It is
equally clear that, ignoring the already mentioned possibility of transfer to
an existing vacant post, the only way in which the incumbent would retain
employment would be in the upgraded post. It must follow that if the
circumstances in subreg (6)(a) and (b) obtain, the drafter’s intention was that
the Commissioner had to continue to employ the incumbent in the upgraded
post and for that reason he was permitted not to advertise it.
[16] The scheme of reg 24 does offer the Commissioner some choice. That
choice is afforded by subreg (4) and onl y if the funds referred to in subreg
5(b) are available. Upgrading and its consequences can certainly be avoided
by resorting to reducing the workload of the overgraded post. But once the
Commissioner chooses to upg rade he has two obligations. The first, as I
have said, is to continue with the in cumbent in the upgraded post. The other
is to increase the incumbent’s salary in terms of subreg (5).
[17] I mention the latter obligation b ecause it serves to disclose another
instance in which the drafter’s use of the word ‘may’ is inapposite. Salary
increase under subreg (5) is subject to two circumstances. One is the
availability of funds. Obviously, w ithout the necessary money subreg (5)
12
cannot be resorted to. The other is the fact of incorrect grading coupled with
the decision to regrade. Plainly this re fers to an undergraded, not overgraded
post, otherwise a salary increase w ould not be called for. Given those
circumstances it is not for the Commissi oner to choose to increase the salary
attaching to the post. Reg 2 defines ‘grade’ to mean
‘the relative value of a partic ular job as reflected by the jo b weight which is linked to a
salary range in a salary scale used in the Service’.
Consistently with that definition reg 24(1) speaks of a salary range being
attached to the relevant grade and para (c) of subreg (6) refers to ‘the higher
salary range’ to which the upgrade woul d apply. Consequently, increasing a
grading must inevitably lead to increasing the accompanying salary range.
There is no room for a discretionary choice.
[18] The next point to bear in mind is that, in contrast with the word ‘may’
in subregs (5) and (6), one finds in subreg (7) the use of ‘must’. (Admittedly
subreg (7) also contains the qualification ‘if possible’ but that is no different
in effect than the qualification in subreg (5) that there has to be enough
money, and the qualification in subreg (6) that comprises the provisions in
paras (a), (b) and (c).) The position is that when correcting an overgrade the
Commissioner must keep the incumbent in the Service. As I have said, there
is no reason to think that ‘must’ has b een inappropriately used anywhere in
13
the regulations. If retention of the em ployee is required in the case of an
overgrade there is every reason to require retention in the case of a
satisfactorily performing employee who has been significantly underpaid.
[19] Next, if the drafter’s intention ha d indeed been to confer a discretion
in subreg (6) there are no indications as to how it was to be exercised.
Naturally the Commissioner is not bo und to retain the incumbent if the
requirements in paras (a) and (b) are not met but once they are, the expected
indications are lacking. That being so, it is unlikely that the drafter intended
to confer a discretion. 7 Despite the incumbent’s performing all the duties
attaching to the post satisfactorily, shou ld the emphasis be on trying, in the
interests of the Service, to get somebody even better or should it be on
adherence to fairness seeing that the incumbent’s performance is acceptable?
[20] Finally, if subreg (6) did give the Commissioner a discretion its
exercise could lead to the earlier me ntioned disparity between (speaking
loosely) the upgraded incumbent and the downgraded incumbent. The stark
unfairness inherent in the difference in their respective outcomes was rightly
stressed by the appellant. The employment of the incumbent of an
overgraded post is unendangered by regrading. In correct grading would be
cured either by a workload adjustment or transfer to another post on the
7 See South African Railways v New Silverton Estate Ltd 1946 AD 830, 842-3.
14
same salary scale. Th e incumbent of the upgraded post, on the other hand,
who happens to be coping with all th e duties of the ‘new’ post and doing so
satisfactorily, would lose his or he r employment if somebody else were
appointed to it. This would infringe th e incumbent’s right to a fair labour
practice and right not to be unfairly di smissed and be mani festly inequitable
particularly seeing that in subreg (7), and elsewhere in the regulations, the
Labour Relations Act and collective agr eements between the service and its
employees are acknowledged and, by inference, respected.
[21] To sum up, there are two approaches to the issue raised. The first is
that the Commissioner’s interpretation could lead to job termination and the
drafter could never have intended that consequence. The second is that on a
proper interpretation of reg 24(6) it is not, after all, permissive. On either
approach I am drawn to the conclusion that the subregulation does not
confer a discretion on the Commissioner. Provided the requirements of
paras (a) and (b) are met the Commission er is not only empowered to retain
the incumbent in the upgraded post without advertising it but under a duty to
do so and to do so at the salary pres cribed by para (c). Accordingly, the
application to the Court below ought to have failed.
[22] The appeal succeeds, with costs. The order of the Court a quo is set
aside. It is replaced by the following:
15
‘The application is di smissed, with costs.’
__________________
CT HOWIE
PRESIDENT
CONCUR
NUGENT JA
LEWIS JA
STREICHER JA:
[23] I have read the judgment of my colleague, Howie P, but, for the
reasons that follow, I do not agree that the appeal should succeed. The issue
to be decided in this appeal is whether reg 24(6) of the regulations
promulgated under s 24(1) of the Sout h African Police Service Act 68 of
1995 (‘the Act’) conferred a discretion on the National Commissioner of the
Police Service (‘the Service’), in th e event of a post being upgraded, to
continue to employ the incumbent of the post in the upgraded post without
advertising the post or whether it impos ed an obligation on him to do so
notwithstanding the use of the word ‘may’ in the subregulation.
[24] ‘[C]lauses [in empowering legi slation] couched in permissive
language have often been construed as making it the duty of the person in
whom the power is reposed to exerci se that power when the conditions
16
prescribed as justifying its ex ercise have been satisfied’.8 Whether or not it
should be so construed de pends on the language used and the general scope
and objects of the empowering legislation. 9 In Jaga v Dönges NO 1950 (4)
SA 653 (A) Schreiner JA said in this regard at 664E-F:
‘Seldom indeed is language so clear that the possibility of differences of meaning
is wholly excluded, but some language is much clearer than other language; the clearer
the language the more it dominates over the context, and vice versa, the less clear it is the
greater the part that is likely to be played by the context.’
[25] Regulation 24 is quoted in full in the judgment of Howie P and need
not be repeated here. Subregulation (1) read with subreg (3) provides that the
National Commissioner ‘must’ determine the grade of a po st to correspond
with its job weight 10 and set the commencing sala ry of an employee on the
minimum notch of the salary range attach ed to the relevant grade, unless the
salary proves inadequate, by reason of the fact that an employee with the
necessary competencies at the salary indicated by the job weight cannot be
recruited or retained. In the latter event the National Commissioner ‘may’, in
terms of subreg (3), set the salary for a post or an employee above the
minimum notch of the salary indicated by the job weight.
8 Per Tindall JA in South African Railways v New Silverton Estate Ltd 1946 AD 830 at 842.
9 Loc. cit.
10 Job weight means workload.
17
[26] If the job has a weight that applie s to more than one salary range the
National Commissioner ‘must’, in terms of subreg (2), determine which of
the relevant salary ranges to use.
[27] If, having regard to the job weight , a filled post is either overgraded or
undergraded the National Commissioner, in terms of subregulation (4),
‘must’ either effect changes to the work organisation i.e. increase or
decrease the job weight or regrade the post according to the job weight.
[28] If a post is undergra ded and if the budget of the Service and the
‘medium-term expenditure framework’ provide sufficient funds the National
Commissioner, in terms of subreg (5), ‘may’ increase the salary of the post
in order to accord with the job weight i.e. he ‘may’, in these circumstances
elect to upgrade the post.
[29] Subregulation (6) provides that if the National Commissioner elects to
raise the salary of a post he ‘may ’ continue to employ the incumbent
employee in the higher-graded post w ithout advertising the post if the
incumbent –
(a) already performs the duties of the post;
(b) has received a satisfactory rati ng in her or his most recent
performance assessment; and
18
(c) starts employment at the minimum notch of the higher salary
range.
[30] If a post is overgraded i.e. if th e salary range of an occupied post
exceeds the range indicated by the j ob weight the National Commissioner
‘must’, in terms of subreg (7), if possible, redesign the job to equate with the
post grade or transfer the incumbent to another post on the same salary range
and must abide by relevant agreements and collective agreements.
[31] In terms of subreg (8) the Na tional Commissioner ‘must’ as far as
possible set the salary of a part- time, sessional or temporary employee
proportional to the salary of an equally graded full-time employee.
[32] I agree with Howie P that when ‘mus t’ is used in subregs (1), (2), (4),
(7) and (8) it has an imperative connotatio n. I also agree with him that when
‘may’ is used in subreg (3) it has a permissive connotation.
[33] Section 24(5) reads:
‘The National Commissioner may increase th e salary of a post to a higher salary
range in order to accord with the job weight, if –
(a) the job weight as measured by the eval uation system indicates that the post
was graded incorrectly; and
(b) the budget of the Service and the medium-term expenditure framework
provide sufficient funds.’
19
If the subregulation is to be read: ‘Having upgraded the post the National
Commissioner may increase the salary of a post to a higher salary range in
order to accord with the job weight . . .’ I would agree with Howie P that
‘may’ has an imperative connotation. I do, however, not think that it would
be a correct reading of the subregulati on. A ‘grade’ is by definition linked to
a salary range. To increase the salary of a post to a higher salary range is to
upgrade the post to a higher-graded post . The subregulation, therefore, in
effect, deals with the circumstances in which a post may be upgraded. The
intention could hardly have been th at the post may be upgraded without
having regard to the requirements of (a ) and (b) but that the salary may only
be increased if those requirements ar e met. The phrase ‘may increase the
salary of a post to a highe r salary range’ in subreg (5) is, therefore, in my
view, but another way of saying ‘may regrade the post to a higher-graded
post’. If that is so ‘may’ has a permissive connotation. In terms of subreg (4)
the National Commissioner must eith er effect changes to the work
organisation or regrade the post accordi ng to the job weight if the filled post
is overgraded or undergra ded. In terms of subreg (5) he may select the
upgrading option instead of the work organisation option if the requirements
of (a) and (b) thereof are met. There is no reason to think that it was the
intention that the National Commissioner should be obliged to select the
20
upgrading option and not the work or ganisation option if there were
sufficient funds available.
[34] The language used in reg 24 i ndicates an intention to distinguish
between what the National Commissioner ‘must’ do and what he ‘may’ do.
The draftsman had no compunction about telling the National Commissioner
what he was obliged to do and ther e would seem to be no reason why he
would not have said that the National Commissioner was obliged to continue
to employ the incumbent employee in the higher-graded post if that was the
intention. The question now is whether there are indications, having regard
to the scope and objects of the regulations, that the draftsman,
notwithstanding the use of the word ‘m ay’ in contradistinction to the word
‘must’, should be understood to have us ed the word ‘may’ in subreg (6) in
an imperative connotation.
[35] Regulation 24 forms part of the employment regulations of the
Service and is contained in Chap ter V, which deals with employees’
remuneration for services rendered. The object of the sections forming part
of chapter V is described in reg 22( 1), which is headed ‘Principles’, as
follows:
‘Remuneration in the Service must aim, within fiscal constraints, to support –
21
(a) efficient and effective service delivery and provide appropriate incentives for
employees; and
(b) equal pay for work of equal value and other labour standards.’
[36] The procedures for appointment and promotion of employees in the
Service are dealt with in Chapter VII, regulations 34 to 40. Regulation 34
provides as follows:
‘PRINCIPLES
Employment practices must en sure employment equity, fairness, efficiency and the
achievement of a representative Service. Affirmative action must be used to speed up the
creation of a representative a nd equitable Service and to give practical support to those
who have been historically disadvantaged by unfair discrimination to enable them to
fulfil their maximum potential. Employment practices must maximize flexibility,
minimize administrative burdens on both empl oyer and employee, and generally prevent
waste and inefficiency. . . ’
[37] When a post is upgraded the exis ting post is abolished. The incumbent
employee does not, however, lose his employment as a result of the abolition
of his post as was submitted by the appe llant. Section 35 of the Act provides
that the National Commissioner may, subject to the provisions of the
Government Service Pension Act 37 of 1973 discharge a member because of
the abolition of his post. A discharge upon the abolition of a post is,
therefore, not automatic and the regul ations did not and could not provide
otherwise. The National Commissioner has a discretion to dismiss an
22
employee when his post is abolished. But, in terms of s 31(2) of the Act, for
as long as the employee remains in the employ of the Service, his salary may
not be reduced without his consent, ex cept in certain circumstances which
are not presently relevant. The Nationa l Commissioner also has a discretion
in terms of reg 36(2)(e) to appoint th e member whose post is abolished to a
post of equal grading to the one that ha d been abolished, without advertising
the post.
[38] I did not understand the responde nt to concede that an incumbent
employee would lose his employment when his post is abolished. I
understood his argument to be that the National Commissioner would in
those circumstances have a discretion to appoint him in the upgraded post or
to appoint him in another post or to retrench him for being redundant. He
submitted that should the incumbent employee, who qualifies for
appointment in the upgraded post, not be appointed in that post he may in
appropriate circumstances be entitled to a review of the decision of the
National Commissioner.
[39] I agree that it may in certain circ umstances be unfair or not in the best
interests of the Service not to continue to employ the incumbent employee in
the higher-graded post. That will, howev er, not necessarily be the case. It
may for example only be possible to upgrade some of a number of similar
23
posts which need to be upgraded in order to correspond with their job
weights. In these circumstances fairne ss may require that all the incumbent
employees, who had been performing the duties of the post satisfactorily, be
allowed to compete for the upgraded po sts. In deciding whether or not the
incumbent employee should be appointed in the higher-graded post the
National Commissioner will have to ad here to the employment practice of
the Service which, accordin g to reg 34 is, inter alia, to ensure fairness.
Should the decision be unfair it would be the exercise and not the conferring
of the discretion which is unfair.
[40] The position is different when the salary range of an occupied post
exceeds the range indicated by the job weight. Should the National
Commissioner in those circumstances el ect to increase the job weight the
existing post is not abolished and a new post is not created. The National
Commissioner is obliged, in the case of a reorganization of the workload
within the post, to either retain the incumbent employee in that post or to
transfer him to another post. The em ployee is not promoted to a higher-
graded post with a higher salary scale. It is, in my view, fallacious to argue
that because an employee is retained in a post in those circumstances, it must
have been the intention, in the event of an upgrading of the post, that the
incumbent employee should be appointed in the upgraded post. It is clear
24
that that was not the intention in the case where the incumbent employee
performed the duties of the post satisf actorily but was employed at a salary
notch higher than the minimum notch of the higher salary range. Unless such
an employee is prepared to accept a re duction in salary he would, like an
employee who had not received a satisf actory rating in his most recent
performance assessment, lose his post as a result of the regrading of the post,
the post will have to be advertised a nd the incumbent employee will have to
compete with other applicants for appointment to the newly created
upgraded post. That being the position of an incumbent employee who does
not qualify for appointment to the highe r-graded post without the post being
advertised I cannot see any reason to in fer that it was not the intention that
the National Commissioner should have a discretion not to appoint an
incumbent employee, who does qualify for such appointment.
[41] I, therefore, agree with the submission by the respondent that upon the
upgrading of a post the National Commi ssioner has a discretion to continue
to employ the incumbent employee in the higher-graded post with or without
advertising the post. Should he not be employed in the higher-graded post he
may, in the circumstances mentioned in subreg 36(2), without the post being
advertised, be appointed to a post similar to the one that had been filled by
him and he may also be discharged in terms of s 45. Although reg 24(6) does
25
not contain any guidance as to how the discretion is to be exercised such
guidance is to be found in reg 22(1), wh ich, in my view, requires that the
discretion be exercised with due rega rd being had to the requirements of
efficient and effective service delivery and the provision of appropriate
incentives for employees. It is also to be found in reg 34 wh ich, in my view,
requires that the discretions referred to be exercised in the light of the
principle that employment practices must ensure employment equity,
fairness, efficiency and the achievement of a representative Service.
[42] Being administrative actions the decisions taken by the National
Commissioner would in appropriat e circumstances be reviewable.
11
Furthermore, should the incumbent employee in the particular circumstances
of the case have a legitimate expectat ion to be appointed to the higher-
graded post the administrative action will have to be procedurally fair. 12
Should it not be administratively fair it would likewise be reviewable.13
[43] For these reasons I would have dismissed the appeal with costs
including the costs of two counsel.
__________________
STREICHER JA
CONCUR:
MAYA AJA
11 Section 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
12 Section 3(1) of PAJA.
13 Section 6(2)(c) of PAJA.