Lamastra v National Commissioner of Police and Another (C641/2009) [2011] ZALCCT 79 (4 February 2011)
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...
Source-derived case information.
- Citation
- [2011] ZALCCT 79
- Parties
- Applicant: Gordon Robert Lamastra; Respondent: National Commissioner of Police; Respondent: Provincial Commissioner of Police
- Court
- Labour Court Cape Town
- Jurisdiction
- South Africa
- Case Number
- C641/2009
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment on Review and Condonation
- Outcome
- Leave to appeal is granted. Costs are to be costs in the appeal.
- Judges
- Steenkamp
- Legal Topics
- Condonation, Review of Internal Disciplinary Hearing, Reasonable Decision Maker, Sanction Substitution
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gordon Robert Lamastra
Applicant
National Commissioner of Police
Respondent
Provincial Commissioner of Police
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Review and Condonation
Legal Issues
- 1 Whether the applicant has reasonable prospects of success on appeal.
- 2 Whether the findings on condonation and the merits are reviewable.
- 3 Whether the sanction imposed in the internal disciplinary hearing was so lenient that no reasonable decision maker could have imposed it.
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.
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.
Full Case Text
Judgment text and source record
37 paragraphs
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)