National Commissioner of South African Police Service v Safety and Security Bargaining Council and Others (JR 1760/2015) [2022] ZALCJHB 7; (2022) 43 ILJ 1685 (LC) (10 February 2022)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

CASE NO: JR 1760/2015

In the matter between:

NATIONAL COMMISSIONER OF SOUTH AFRICAN

POLICE SERVICE

Applicant

and

THE SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL First Respondent

VUYO BASHOLO

Second Respondent

POPCRU obo MSINDO PATRICK MABASO

Third Respondent

Date of hearing: 8 February 2022

Date of judgment: 10 February 2022

JUDGMENT

VAN NIEKERK J

[1] The applicant seeks to review and set aside an arbitration award issued by the second respondent (the arbitrator) on 4 August 2015, in which a settlement agreement concluded between the applicant and the third respondent was made an arbitration award in terms of section 142A of the Labour Relations Act (LRA).

[2] The award under review records that at a hearing held in Bloemfontein on 27 January 2015, at which both parties were present and represented, the parties concluded a settlement agreement in terms of which the third respondent would be paid certain amounts in respect of overtime and allowances. At issue in the present proceedings is the applicant’s agreement to pay the third respondent a service allowance in circumstances where the applicant now contends that the third respondent was not entitled to the allowance and that in any event, the settlement agreement is ultra vires.

[3] Specifically, the applicant contends that the settlement agreement signed on 27 January 2015 is null and void ab initio since it did not comply with the provisions of the safety and security sectoral bargaining council agreement, 4 of 2001 and was not mandated in terms of section 15 (1) (a) of the South African Police Service Act, 1995. The collective agreement to which the applicant refers was concluded on 2 March 2021 in circumstances where the trade union representing the third respondent during the course of his dispute was a signatory to the agreement. In terms of the agreement, a severance allowance was established, payable to members who physically perform operational duties, defined in clause 4.3.2 of the collective agreement. Although the third respondent contends that the nature of the duties that he undertook were such that they fell within the ambit of those defined in clause 4.3.2 of the collective agreement, this is not in dispute that this court is in a position to resolve on the papers and is probably best resolved by an arbitration hearing on the merits.

[4] Insofar as the applicant relies on lack of authority, Section 11 of the SAPS Serve Act provides that the National Commissioner shall perform any illegal act or act in any legal capacity on behalf of the service; section 15 (1) (a) provides that the national or provincial commissioner may delegate in writing any power conferred on him or her by the act to any other member or person in the employ of the service. The power to perform any illegal act for the service to act in any legal capacity on behalf of the service was delegated in writing to the deputy national commissioner in January 2012.

[5] The deponent to the founding affidavit in the present application avers that when the document purporting to be a written settlement agreement was referred to him, he requested a copy of the written mandate authorising the settlement. In response, a document purporting to constitute a written mandate was received from the office of the provincial commissioner. It is not in dispute that the settlement was not mandated by the applicable delegated authority, i.e. the deputy national commissioner. The applicant submits that the official that concluded the settlement agreement on behalf of the SAPS acted ultra vires when doing so, and that the settlement agreement is accordingly void ab initio. Any arbitration award making the agreement an arbitration award in terms of section 142A is accordingly susceptible to review.

[6] Counsel for the third respondent did not dispute that the settlement agreement was concluded in circumstances where the representative of the applicant lacked the necessary authority to enter into the agreement and to bind the SAPS. He submitted that the court ought properly to examine all of the surrounding facts and circumstances, and that the arbitrator’s decision fell within a band of decisions to which a reasonable decision-maker could come on the available evidence. In particular, the surrounding circumstances disclosed that the SAPS’s representative had held out that he had the requisite authority to conclude the agreement.

[7] What this submission ignores is that the settlement agreement was signed in breach of the statutory regulation of the performance of any legal act on behalf of the SAPS and the subsequent delegation of powers and authorisation to perform duties, vested in deputy national commissioners. The signatory to the agreement is a warrant officer, who is the applicant’s counsel pointed out, in the scheme of things, is a junior functionary and wholly without authority to bind the SAPS. In these circumstances, I fail to appreciate how it can be said that the settlement agreement is not null and void, and of no legal effect. That being so, there was nothing before the arbitrator to make an arbitration award and the award stands to be reviewed and set aside.

[8] Insofar as an appropriate remedy is concerned, the dispute referred to the bargaining council concerned a complaint regarding payment for overtime and for the service allowance. The applicant has settled the claim regarding overtime pay, notwithstanding its contention that the settlement agreement is invalid, on the basis that it was satisfied that the third respondent had worked in the overtime concerned and was thus entitled to payment. In respect of the service allowance,

there appears to be a dispute of fact as to whether the nature of the third respondent’s duties were such that he qualified for the payment of the severance allowance in terms of the bargaining council’s Agreement 4/2001. That is a matter best pursued by the parties in an appropriate forum.

I make the following order:

1. The settlement agreement concluded between the parties on 27 January 2015 is null and void and of no legal effect.

2. The arbitration award issued by the second respondent on 4 August 2015 under case number PSSS 496 – 13/14

and PSSS 516 – 13/14, is reviewed and set aside.

André van Niekerk

Judge of the Labour Court

APPEARANCES

For the applicant: Adv BK Hlangwane, instructed by state attorney.

For the third respondent: Adv NS Nxumalo, instructed by Letheba Makgato Attorneys