Lamastra v National Commissioner of Police and Another (C641/2009) [2011] ZALCCT 79 (4 February 2011)
- Citation
- [2011] ZALCCT 79
- Status
- Ruling
- Jurisdiction
- South Africa
- Court
- Labour Court Cape Town
- Panel
- Steenkamp
- Case number
- C641/2009
More details
- Court
- Labour Court Cape Town
- Panel
- Steenkamp
- Case number
- C641/2009
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, although it is doubtful another court would conclude that the South African Police Services should retain an employee found guilty of theft, the anomalous legal position regarding the reviewability of internal disciplinary hearings, as highlighted in recent Constitutional Court and Supreme Court of Appeal decisions, creates sufficient uncertainty. Therefore, leave to appeal is granted to allow the Labour Appeal Court to address both the condonation and merits aspects of the judgment.
Court disposition
Leave to appeal is granted. Costs are to be costs in the appeal.
Orders
- Leave to appeal is granted.
- Costs are to be costs in the appeal.
02
Material facts
Parties
Gordon Robert Lamastra
Applicant Counsel: Attorney Dave HeggieNational Commissioner of Police
Respondent Counsel: Adv Ewald De Villiers - JansenProvincial Commissioner of Police
Respondent Counsel: Adv Ewald De Villiers - JansenAmounts and remedies
- Fine Imposed in Disciplinary Hearing: ZAR 500
03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Review and Condonation
04
Questions and positions
Legal issues
- 01
Whether the applicant has reasonable prospects of success on appeal.
- 02
Whether the findings on condonation and the merits are reviewable.
- 03
Whether the sanction imposed in the internal disciplinary hearing was so lenient that no reasonable decision maker could have imposed it.
- 04
Whether the anomalous situation regarding review of internal disciplinary hearings justifies leave to appeal.
Party arguments
- Applicant
- The applicant contends that the court erred in dismissing the condonation application for late filing of the answering affidavit and heads of argument, and in substituting the sanction imposed in the internal disciplinary hearing. He argues that there are reasonable prospects that another court may reach a different conclusion, particularly in light of conflicting jurisprudence on the reviewability of internal disciplinary hearings.
- Respondent
- The respondents maintain that the court correctly dismissed the condonation application and properly substituted the sanction, as the original sanction was unreasonably lenient given the facts. They argue that the applicant has not demonstrated reasonable prospects of success on appeal and that the review was justified under section 158(1)(h) of the Labour Relations Act.
05
Court’s reasoning
Legal principles
- 01
Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering 1986 (2) SA 555 561 E
Leave to appeal should be granted only if there are reasonable prospects of success or if another court could come to a different conclusion.
- 02
Chirwa v Transnet 2006 (4) SA 367 (CC); Gcaba v Minister of Safety and Security (2010) 31 ILJ 296 (CC); Ntshangase v MEC for Education, KwaZulu-Natal 2010 (3) SA 210 (SCA)
The reviewability of internal disciplinary hearings is affected by the Constitutional Court decisions in Chirwa and Gcaba, and the Supreme Court of Appeal decision in Ntshangase.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, although it is doubtful another court would conclude that the South African Police Services should retain an employee found guilty of theft, the anomalous legal position regarding the reviewability of internal disciplinary hearings, as highlighted in recent Constitutional Court and Supreme Court of Appeal decisions, creates sufficient uncertainty. Therefore, leave to appeal is granted to allow the Labour Appeal Court to address both the condonation and merits aspects of the judgment.
Obiter and limits
- It is not sensible to separate the issues of condonation and merits for the purposes of leave to appeal; both should be considered together.
- The anomalous situation in the law regarding review of internal disciplinary hearings warrants consideration by a higher court.
Court disposition
Leave to appeal is granted. Costs are to be costs in the appeal.
- Leave to appeal is granted.
- Costs are to be costs in the appeal.
Source and reliance status
Labour Court Cape Town
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Cape Town
Ruling
Not reportable
Not of interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case no: C 641 / 2009
In the matter between:
GORDON
ROBERT LAMASTRA Applicant
and
THE
NATIONAL COMMISSIONER OF POLICE First
respondent
THE
PROVINCIAL COMMISSIONER OF POLICE Second
respondent
RULING
ON LEAVE TO APPEAL
STEENKAMP J:
[1] On 19 November 2010 I made an order in the following terms:
1.1 The second respondent's application for condonation for the late filing of his answering affidavit and heads of argument is dismissed.
1.2 The first respondent's award dated 1 April 2009 is reviewed and set aside in terms of section 158(1)(h) of the Labour Relations Act.
1.3 The award on sanction is substituted with the following award: "The second respondent (i.e. the employee, Gordon Robert Lamastra) is dismissed with effect from 1 April 2009".
1.4 There is no order as to costs.
[2] As appears from the order, the second respondent in the matter was the employee, Lamastra. He has now applied for leave to appeal.
[3] The application for leave to appeal is directed at my findings on condonation as well as the merits. I do not think it would be sensible for me to separate the two. Were I inclined to grant leave on either aspect, it would make sense for the Labour Appeal Court to address both aspects of the judgment.
[4] The test for granting leave to appeal is by now trite. The applicant must show that he has reasonable prospects of success on appeal.[1] It has also been stated as the question whether another court could come to a different conclusion.
[5] The background facts are set out fully in the judgment, which I enclose. In short, Lamastra, who is a police officer, stole darts from a shop. In an internal disciplinary hearing, the chairperson imposed a sanction of a “suspended dismissal” for six months and a fine of R500. I found that, given the facts of the case, this was so lenient that no reasonable decision maker could have come to the same conclusion.
[6] I think it is doubtful that another court would come to the conclusion that it could be expected of the South African Police Services to keep a thief in its employ. However, in paragraphs [27] – [39] of my judgment, I set out the anomalous situation with regard to the review of internal disciplinary hearings that has arisen in the light of the judgments of the Constitutional Court in Chirwa v Transnet[2] and Gcaba v Minister of Safety and Security[3]; and that of the Supreme Court of Appeal in Ntshangase v MEC for Education, KwaZulu-Natal.[4]
[7] Given that anomaly, it may be possible that another court could come to a different conclusion on the question of reviewability.
[8] The application for leave to appeal is therefore granted.Costs are to be costs in the appeal.
_______
STEENKAMP J
Date of judgment: 4 February 2011
For the applicant: Attorney Dave Heggie
For the respondents: Adv Ewald De Villiers - Jansen
Instructed by
The State Attorney
[1] Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering 1986 (2) SA 555 561 E.
[2] 2006 (4) SA 367 (CC)
[3] (2010) 31 ILJ 296 (CC)
[4] 2010 (3) SA 210 (SCA)
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