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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT BRAAMFONTEIN

CASE NO:  J499/16

DATE:  2016-03-23

In the matter between

AJ BALOYI                                                                                                                 Applicant

and

SAPS                                                                                                              First respondent

PROVINCIAL COMMISSIONER OF GAUTENG                                       Second respondent

LT COL FALK                                                                                                Third respondent

CAPT NAIDOO                                                                                           Fourth respondent

Heard:           23 March 2016        

Judgment:    23 March 2016

Date edited and signed: 22 April 2016

J U D G M E N T

[EX TEMPORE]

STEENKAMP J: 

[1] This application is brought to court on an urgent basis. It was originally delivered to the respondents, the SAPS and three of its officials, on three days’ notice to be heard on the 18^th of March 2016 when it came before my brother van Niekerk J. It was then postponed to today’s date, the 23^rd of March, in order for the applicant to file a replying affidavit, which he did.

[2] The background to the dispute is that the applicant, Warrant Officer AJ Baloyi, seeks to interdict his dismissal. He was informed that in terms of Regulation 18(5) of the Regulations for the South African Police Service, he had been dismissed with effect from 24 December 2015. I will return to the issue of urgency. It suffices to say that despite the fact that the dismissal dates from December 2015, the applicant says he was only informed of that fact on the 14^th of March of this year.

[3] At the outset, I must record that there was a dispute between the parties as to the valid regulations governing the South African Police Service. That becomes important because it is common cause that regulation 18(5)(a)(ii) is the applicable regulation that led to the employee’s discharge.

[4] Mr Teffo, for the applicant, referred in his argument to a document that he handed up that is headed ‘Regulations for the South African Police Service’ and that has some annotations on it that appear to be initials. I do not know whose initials they are and I do not know what its relevance is. What is important, though, is that, although that document appears in all respects to contain the same as the regulations that Mr Pheto, for the SAPS, handed up, in Regulation 18(5)(a)(ii) it says, read with 18(5)(a):

“In the event that the employee fails to appear at the disciplinary hearing on any date which the disciplinary hearing has been postponed, or a date to which it was postponed in terms of subregulation 3 -- …

The chairperson must postpone the disciplinary hearing indefinitely and the disciplinary hearing shall only reconvene at the instance of the employee concerned after liaising with the employer representative as contemplated in subregulation 1(b): Provided that in the event that the employee fails to take steps to reconvene the hearing within two months of such date, the chairperson must record such failure on the record of the disciplinary hearing and the employee shall forthwith be deemed to be discharged from the service in terms of regulation 15(1)(f).” [my underling]

Regulation 15(1)(f) refers to suspended dismissal for a period not exceeding six months.

[5] On the other hand, the regulations to which Mr Pheto referred and which the Court also accessed from the relevant Government Gazette is that implemented under the auspices of Minister Charles Nqakula, the then Minister for Safety and Security, and published in the Government Gazette of 3 July 2006, Gazette number 28985 under Government Notice number R643 dated 3 July 2006. The important proviso in regulation 18(5)(a)(ii) in those published regulations reads:

“Provided that in the event that the employee fails to take steps to reconvene the hearing within two months of such date, the chairperson must record such failure on the record of the disciplinary hearing and the employee shall forthwith be deemed to be discharged from the service in terms of regulation 15(1)(e).” [my underlining again].

[6] Regulation 15(1)(e) refers to dismissal. The discrepancy is clear as this dispute relates to the dismissal of the applicant, Mr Baloyi, in terms of that regulation. I have no hesitation in accepting that that dismissal is indeed governed by regulation 18(5)(a)(1)(ii) read with regulation 15(1)(e) as published in the Government Gazette under the hand of the Minister.

[7] That brings me back to the background of this dispute. It has a long and unfortunate history. The applicant, Warrant Officer Baloyi, was called to a disciplinary hearing as long ago as February 2015, more than a year ago. He was then already represented by his counsel, Mr Teffo. They both left before the hearing could start. He reconvened the hearing in terms of regulation 18(5) on the 7^th of May 2015. He was at that stage suspended and his suspension was not uplifted, despite his request for it to be uplifted.

[8] The hearing reconvened for a third time on the 7^th of May 2015 and again on the 22^nd of June 2015 when the applicant sought and was granted a postponement. It was set down for, I think, the fourth time on the 27^th of July 2015 when he again asked for his suspension to be uplifted and it was not granted. It was set down again for the fifth time on the 22^nd of October; and once again the applicant did not arrive.

[9] SAPS says that since October W/O Baloyi has not reconvened the disciplinary hearing and that is why regulation 18(5) came into effect, leading to his deemed discharge. The applicant says, to the contrary, that he did reconvene the hearing on the 11^th of December. SAPS acknowledges that there was such an attempt, but explains the circumstances as follows in its answering affidavit:

“On 10 December 2015 the applicant came to the chairperson’s office, seeking reconvention in terms of regulation 18(5) and the chairperson referred him to the disciplinary officer, Captain Naidoo, to make those arrangements as required by regulation 18(5). The applicant went to Captain Naidoo with one Mr Ledwaba. He is a representative from POPCRU. However, Mr Ledwaba came back to the chairperson, indicating that he could not find Captain Naidoo. It transpired he eventually met up with Captain Naidoo and the reconvention was scheduled for 11 December 2015 at 08:00. On the morning of 11 December 2015 Captain Naidoo met Mr Ledwaba at the parking lot and Mr Ledwaba informed Captain Naidoo that he had spoken to the applicant and the applicant did not come back to him as to what should happen. This was in the presence of Warrant Officer Jan Mofokeng. Yesterday, on the 16^th of March 2016 during consultation for the urgent application, we called Warrant Officer Mofokeng and he confirmed that Mr Ledwaba told Captain Naidoo that he did not have any instructions as to what will happen on 11 December 2015, the date of reconvention in terms of regulation 18(5). Both the chairperson and Captain Naidoo met at the place, date and time indicated for the reconvention, but the applicant did not appear. Therefore, reconvention did not take place. On 24 December 2015 the chairperson recorded a failure to reconvene a hearing within two months by the applicant; and the applicant was forthwith deemed to be discharged in terms of regulation 18(5).”

[11] It is indeed common cause that in terms of the notice dated 24 December 2015 the applicant was dismissed or deemed to be discharged in terms of regulation 18(5), although the applicant says he was only informed of that on the 14^th of March of this year. It is that discharge that led to this urgent application. The relief sought by the applicant is fourfold. He seeks the following relief:

“1.   Declaring that the decision made by the third respondent [that is Lieutenant Colonel Falk, the chairperson of the disciplinary enquiry] of dismissing the applicant from the employ of first and second respondents [SAPS and the Provincial Commissioner, Gauteng] is interdicted, pending the consent to be granted by the first and second respondents in terms of regulation 14(3) of the South African Police Service Discipline Regulations of 2006 and declaring that this application is urgent; see copy of notice of dismissal marked ANNEXURE AJB1 attached hereon.

2.    Declaring further that the decision made by the third respondent to dismiss the applicant in terms of regulation 18(5) of the SAPS Discipline Regulations is interdicted, pending the resolution of the dispute of unfair suspension lodged by the applicant at the Bargaining Council [hereinafter referred to as SSSBC] as per case number PSSS413-15/16;

3.    Declaring further that the decision made by the third respondent to dismiss the applicant in terms of regulation 18(5) of the regulations is grossly irregular due to the fact that the rights of the applicant as the employee of the first and second respondents were grossly violated by the conducted of the third and fourth respondents;

4.    Ordering that the suspension of the applicant in terms of regulation 18(5) of the regulations be uplifted and the applicant be paid his salary in arrears from the 1^st of April 2015 to the uplifting.”

[12] Prayer 1 is easily disposed of, as Mr Pheto submitted. It asks for interim relief, pending consent to be granted by SAPS to have a pre-dismissal arbitration convened. Warrant Officer Baloyi asked for such a hearing to be convened at the SSSBC in October 2015. And on 29 October 2015 the SAPS, represented by Brigadier Ramashan Naidoo, stated that the SAPS does not consent to the process of pre-dismissal arbitration. Therefore, there is no longer any pending issue. The consent to be granted is no longer pending and the relief sought in prayer 1 falls away.

[13] The relief sought in prayer 2 refers to the pending dispute of unfair suspension lodged by the applicant at the bargaining council. He argues that that dispute is still pending, despite the fact that since the time that he referred that suspension dispute to the bargaining council he has been dismissed. I will assume, for the benefit of the applicant, that it is theoretically possible that, despite his dismissal, the bargaining council would still have jurisdiction to hear an unfair labour practice dispute relating to his earlier suspension and may even conceivably, should it find that that suspension was unfair, grant him some relief.

[14] However, the applicant has not set out any basis for declaring that a decision to dismiss him should be interdicted pending the resolution of the unfair suspension dispute. These are two discrete disputes and there is no reason why his dismissal should be suspended, pending the resolution of the suspension dispute. The more important relief sought is in the nature of final relief and that is the one in prayer 3, declaring that the decision to dismiss him in terms of regulation 18(5) is ‘grossly irregular’. I will return to the merits of that aspect in a moment, but first the question of urgency.

[15] As is apparent from the history of this matter, the applicant has known since early 2015, and by the very latest October 2015, that if he did not reconvene the disciplinary hearing that he had failed to attend, regulation 18(5) would kick in and he would be deemed to be discharged. Despite that, he did not proceed with his efforts in December 2015 to reconvene the hearing; and any perception of urgency created by the fact that he was only informed of his subsequent discharge in December in March of this year is entirely self-created.

[15] In any event, he has not set out why urgent relief is necessary in his founding affidavit in terms of rule 8 of the rules of this court. The application should either be struck from the roll or dismissed for that reason alone. However, there would be little purpose in striking the matter from the roll and having it return to clog up the roll of this court. It is in the interests of justice to proceed on the merits.  

[16] The applicant asks in prayers 1 and 2 for interim relief and in prayer 3 for final relief. He has not addressed any of the elements for interdictory relief in his founding affidavit. And his counsel, Mr Teffo, could not tell the court in debating with the court what the requirements, trite as they are, for either interim of final relief are. Firstly, the applicant has not established a prima facie right, much less a clear right to the relief he seeks.

[17] Mr Pheto referred in his argument to Hlope v Minister of Safety and Security [2006] 3 BLLR 297 (LC) where the court referred back to Zwakala v Port St Johns Municipality (2002) 21 ILJ 1881 (LC) where the court said:

“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.”

[18] That principle was confirmed by the Labour Appeal Court in a matter involving the SAPS as well, namely Booysen v Minister of Safety and Security [2011] 1 BLLR 83 (LAC) where the court said, per Tlaletsi JA, in paragraph 55:

“To answer the question that was before the court a quo, the Labour Court has jurisdiction to interdict any unfair conduct, including disciplinary action. However, such an intervention should be exercised in exceptional cases. It is not appropriate to set out the test. It should be left to the discretion of the Labour Court to exercise such powers, having regard to the facts of each case. Among the factors to be considered would, in my view, be whether failure to intervene would lead to grave injustice or whether justice might be attained by other means.”

[19] In the case before me Mr Baloyi has not set out any exceptional circumstances why he should be treated differently and ahead of the queue as opposed to any other member of SAPS or indeed any other employee who is dismissed. That brings me to the second aspect of the requirements for interim relief, namely whether the applicant has an adequate alternative remedy. He clearly does. With regard to suspension, he has already exercised that remedy by referring an unfair labour practice dispute to the SSSBC, which is the proper forum to deal with that dispute. In that regard, Murphy AJA noted in MEC for Education v Gradwell (2012) 8 BLLR 747 (LAC) at paragraph 47:

“I am therefore of the view that the judge a quo ought not to have exercised his discretion to grant the declarator. I doubt also whether he had the legal competence to do so. Without the benefit of legal argument, however, I hesitate to pronounce on the jurisdictional question of whether the existence of the arbitration remedy precludes relief in the form of a declarator in all cases. There is no need to do so, since in the final analysis I am satisfied that the suspension was both fair and lawful and that there was compliance with the audi rule…”

And then:

“A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of the unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances.”

[20] In the case before me there are no extraordinary or urgently compelling circumstances and the applicant has an adequate alternative remedy. The same applies to his dismissal. He has the same remedy as any other dismissed employee has, i.e. to refer an unfair dismissal dispute to the bargaining council. That is interrelated with the question of an apprehension of irreparable harm. The applicant clearly has suffered harm, as does any employee who is dismissed. That harm is not irreparable. He can refer a dispute to the bargaining council. And if he is successful, he will be reinstated, and the harm will be addressed. It is not irreparable. The applicant has not made out a case for the relief he seeks.

[21] With regard to costs, the applicant did not have any prospects of success in succeeding with this case on an urgent basis. There is no reason in law and fairness why the taxpayer should be held liable for his costs.

Order

[22] The application is dismissed with costs.

                                   

AJ STEENKAMP

Judge of the Labour Court

Appearances:

 

Counsel for Applicant:           Adv M D Teffo

Instructed by:                        Phaladi & associates.

                       

Counsel for Respondents:    Adv A M Pheto

Instructed by:                       The State Attorney.

 

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