Kotze v National Commissioner South African Police Service and Another (16736/2006) [2008] ZAGPHC 51; (2008) 29 ILJ 1869 (T) (18 January 2008)

THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NR: 16736/2006

REPORTABLE: INDUSTRIAL LAW JOURNAL DATE: 18/1/2008

In the matter between:

NJ KOTZE Applicant

and

THE NATIONAL COMMISSIONER, SOUTH AFRICANPOLICE SERVICE 1st Respondent

THE DIRECTOR, MEDICAL ADMINISTRATION, SOUTH AFRICAN POLICE SERVICE (SUPT KC MOLOKO) 2nd Respondent

JUDGMENT

FABRICIUS: AJ

In these review proceedings applicant sought relief in the following terms:

That the proceedings before the Director of Medical Administration of the South African Police Services in Pretoria, Gauteng on 19 December 2005 be reviewed and set aside due to gross irregularities committed.

That the ruling by the Director of Medical Administration of the South African Police Services on 19 December 2005, that applicant must resume duties in an alternative post on or before 1 February 2006, be set aside due to gross irregularities committed.

That applicant be retired due to ill-health, alternatively that the matter be referred back to first respondent for due consideration in accordance with the provisions of regulation 28 of the South African Police Services Regulations.

Costs of suit against first and second respondent, jointly and severally, the one paying, the other to be absolved.

It is alleged that during the course of his duties since about 1994 applicant had been exposed to a multitude of psychologically destructive incidents, besides witnessing numerous scenes of bloodshed and death, horrific and extremely dramatic, with applicant’s life endangered frequently. As a result applicant’s mental state deteriorated rapidly with the result that he suffers from post-traumatic stress disorders. He received treatment, was hospitalized but nevertheless continues to suffer from the mentioned stress disorders.

During March 2004 he lodged an application for ill-health retirement which was refused during December 2005, and a decision was made that applicant had to resume duties in an alternative post which was best suited to his health status.

Applicant relies on first respondent’s failure to comply with the provisions of regulation 28(4)(a) of the South African Police Service Regulations, which gives the Commissioner the power to convene a medical board for the purposes of examining a member and determining whether or not he is fit to remain in the force. Medical reports which may have a bearing on the case, as well as relevant reports which the members concerned may wish to submit, shall be placed before the board for consideration and shall be included in the particular proceedings. If a member so desires he may at his own expense be represented at the proceedings of the board by his private registered medical practitioner. The board shall after due consideration of all relevant facts arrive at a decision, and thereafter the Commissioner shall, taking into account various factors such as those stated in regulation 28(5)(a), decide whether the member should be discharged as being medically unfit for further service in the force, whether he shall be granted leave of absence, whether he shall again be examined, or whether he shall be ordered to resume duty.

In this context applicant’s counsel unequivocally stated in the written heads of argument and argued that “the crux of the matter calling to be reviewed is second respondent’s failure to inform applicant when the board was to convene in order to ensure that applicant could be represented by his chosen doctor or doctors, and not the fact that applicant’s doctor was absent when applicant was being evaluated by an independent physiatrist”. As a result, it was argued, respondent did not comply with the audi alteram partem rule, which was grossly irregular, and which irregularity was of such a nature that it per se vitiated the validity of the proceedings and the ruling handed down by the second respondent.

Respondents raised a number of arguments in limine, but before dealing therewith it may be convenient to refer to the actual decision taken by second respondent on 19 December 2005, which is contained in a letter of the same date addressed to the Area Commis-sioner of the South African Police Service as well as the Provincial Commissioner.

“1. The abovementioned employee was assessed for ill-health by the Health Risk Manager.

2. The findings and recommendations of the Health Risk Manager as well as reports from the treating doctor have been considered. It was decided that the employee must resume duties in an alternative post on or before 2006-02-01 which is supportive and best suit his health status.

3. The reason for the decision taken in paragraph 2 is to conform to requirements as stipulated in Labour Relations Act, 66 of 1995: Schedule 8 par 10 & 11, and to grant employee the opportunity to optimize his treatment.

4. Your attention is drawn to the fact that when a decision is made for the employee to resume duties, no further medical certificate for similar medical condition will be accepted.

5. The employee must be advised to continue optimizing his treatment. A member of Polmed whose psychiatric benefits are depleted, should apply for ex-gratia benefits through the Medical Administration Section: Head Office at Private Bag x 98, Pretoria, 0001.

6. You are requested to provide the office with the post number, post particulars, as well as a singed job description of the alternative post for the member on or before 2006-02-10.

7. It is the responsibility of the Area Commissioner, in conjunction with the Office of the Provincial Office to identify a suitable alternative placement for the employee. All endeavours should be made to try and accommodate the employee’s health status. However, if this at all is impossible, a report in this regard should be submitted to Medical Administration: Head Office for further intervention.

8. You are requested to report the date that the employee resumed duties on or before 2006-02-10. If the employee does not resume duty on the specified date, his or her absence must be treated as absence without salary.

9. The employee’s fire arm must be withdrawn until the employee regains a sound psychological status.

10. The employee must receive support from the Employee Assistance Services. A report from EAS as well as the Commander regarding work performance in the alternative must be submitted to Head Office within three months after resuming duties.

11. Attached find the pro-forma for compilation of reports by EAS and Commander.

12. The period of absence, if any, as well as the determination thereof will be dealt with by Head Office, Leave Management.”

It is important to note the contents of paragraph 3 of the said letter which refers to the relevant applicable provisions of the Labour Relations Act, 66 of 1995. The crux of respondents’ defence (apart from the facts relevant to the particular decision of 19 December 2005), is that the dispute must be determined within the confines of the relevant resolutions taken by the Public Service Co-ordinating Bargaining Council which apply to the particular employment relationship between the parties. The Council’s resolutions do no only deal with matters such as permanent disability, incapacity leave or ill-health retirement, but also contains certain dispute resolution procedures applicable in terms of collective agreements entered into between the State as employer and a number of employee parties. The particular decision is governed by Resolution 5 of 2001 and it was submitted that section 24 of the Labour Relations Act excludes the jurisdiction of the High Court to apply and interpret collective agreements.

It was also argued that the decision was also not capable or review in terms of the Promotion of Access to Justice Act, 3 of 2000, in that it was not an administrative decision as defined, and more precisely, it was not a decision taken in the exercise of public power. Regulation 7.5.2 of the relevant regulations pertaining to this issue deals with permanent disability leave, and it was argued on behalf of the respondents that should there be any dispute about that, such dispute had to be referred to statutory arbitration, ie to the PSCPC (keeping in mind of course the provisions of section 24 of the Labour Relation Act, which ousts the jurisdiction of the High Court to interpret, apply and enforce collective agreements).

The mentioned statutory arbitration would give the applicant more comprehensive and effective relief, and this adjudicatory route preferred by section 24 of the Labour Relations Act, differs materially from a review under PAJA, which was intended for a different purpose. An arbitrator would be required to interpret and apply resolution 5 and make a determination as to whether or not, in the wording of clause 7.5.2(c), he/she is convinced that “the employee will never be able to perform any type of duties at her/his level or rank …”. Should applicant not agree with the outcome in the Bargaining Council, he would be able to review the arbitration award under the statutory arbitration review provisions of the Labour Relations Act. In terms of resolution 5 and particularly its dispute and arbitration provisions, he would have a full and complete remedy to meet any complaint that he might have. At such proceedings, in all likelihood, oral evidence by various medical specialists would be presented in order to arrive at a proper consideration of applicant’s medical condition and its cause. By contrast, it was argued, applicant’s review application stands to be decided purely on the affidavit keeping in mind the applicability of the decision in Plascon Evans Paints LTd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 53; 1984 (3) SA 647 AD, and should he be successful, the matter would in all likelihood be referred back to the National Commissioner rather than decided by court, inasmuch as I certainly would not arrive at an opinion on applicant’s fitness for duty on the basis of the medical reports annexed to the affidavits. It is in any event clear from the provisions of the Administrative Justice Act (section 8(1)(c)(ii)), that a court would only in exceptional cases substitute its view for the administrative action.

At the time of argument the decision in Transnet Limited & Others v Chirwa of the Supreme Court of Appeal reported in 2007 (2) SA at 198 was available, but counsel for respondents informed me that the Constitutional Court would shortly hear an application for leave to appeal. Accordingly it was decided that it would be wiser to await the decision of the Constitutional Court before delivering judgment herein. This judgment has since become available and was delivered on 28 November 2007.

It is my view clear from this judgment that the forums provided for by the Labour Relations Act, and especially those created in terms of a collective agreement, allow for a variety of purpose-built, employment focused relief, none of which is available under the provisions of PAJA. Section 210 of the Labour Relations Act was regarded by the Constitutional Court as being of particular importance inasmuch as it appeared that the legislature intended that the provisions of PAJA should not detract from the pre-eminence of the Labour Relations Act and its specialized labour disputes mechanisms. It is important that the Labour Relations Act and its structures, which were crafted to provide a comprehensive framework of labour dispute resolutions were not undermined.

Having regard to applicant’s argument that he was entitled to a fair administrative process (which I accept for present purposes), I am of the view that that particular classification of the dispute does not take it out of the confines of the Labour Relations Act and the relevant collective agreements and places it within the ambit of the Administrative Justice Act. If that were otherwise, one could realistically imagine by the exercise of skilful legal drafting, an aggrieved person could merely as a result choose a forum allegedly best suited to him/her, either within the confines of the Labour Relations Act or the Administrative Justice Act. This could never have been the intention of the legislature nor, upon a proper reading of the judgment of the Constitutional Court, is a litigant entitled to do that. In any event, I am of the view that the relevant decision taken herein is not “administrative action” as defined in the Administrative Justice Act. I say that having regard to the nature of the power that was exercised by way of the mentioned letter of 19 December 2005.

I return to applicant’s argument, namely that no medical board was convened as prescribed by regulation 28(4)(c), and that applicant was never informed as to when such board was to convene, so that he could be represented thereat. In my view it is not necessary to decide this issue finally on the papers before me, but, if it is necessary, I do not agree with applicant’s submission. It is clear from the facts placed before me, including the various medical reports, that all relevant findings and recommendations and medical reports were considered over a period of time, and that applicant had indeed made an input in that process. It is not as if a board suddenly convened on a particular day and arrived at the finding in his absence. It is also clear that the common law cannot apply to these proceedings in the light of the decision in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Others [2004] ZACC 15; 2004 (4) SA 490 (CC). Applicant’s argument to the contrary cannot be upheld in this context. It is furthermore common cause that applicant did not lodge a formal complaint as a result of the decision taken on 19 December 2005, and, if the Administrative Justice Act applies, applicant has not provided any convincing reason why the provisions of section 7(2) of the Act should not be invoked.

As a result of all of the above I am of the view that applicant’s remedies lie within the provisions of the collective agreements applicable to the relationship between the parties and the provisions of the Labour Relations Act. Accordingly the application falls to be dismissed.

The question of costs remains. I have a discretion in this regard. It must be exercised judicially having regard to all relevant facts. It is my view that having regard to the issues raised by the parties, some of which were of a complex nature, and on which members of both the Supreme Court of Appeal and the Constitutional Court were divided, I deem it fair and proper to make no order as to costs.

My order is therefore as follows:

The application is dismissed.

No order as to costs is made.

DATED at PRETORIA on this 18th day of DECEMBER 2007.

__________________________________HJ FABRICIUS ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA TRANSVAAL PROVINCIAL DIVISION

HEARD ON: 21 FEBRUARY 2007

FOR THE APPLICANT: ADV C DE W VAN DER MERWE AND ADV W F PIENAAR

INSTRUCTED BY: WIM CORNELIUS INC IN ASSOCIATION WITH WILSENACH VAN WYK

FOR THE RESPONDENTS: ADV T J BRUINDERS SC

INSTRUCTED BY: BOWMAN GILFILLAN ATTORNEYS, SANDTON C/O KRAUT WAGNER & KERNICK, PTA