Police And Prisons Civil Rights Union v Acting National Commissioner of Police and Others (J2589/2015) [2016] ZALCJHB 226 (21 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: J2589/2015

DATE: 21 JUNE 2016

In the matter between

THE POLICE AND PRISONS CIVIL RIGHTS UNION Applicant And THE ACTING NATIONAL COMMISSIONER OF POLICE THE MINISTER OF POLICE THE SOUTH AFRICAN POLICE UNION THE SAFETY AND SECURITY SECTORAL BARGAINING COUNCIL First Respondent Second Respondent Third Respondent Fourth Respondent

Heard: 21 January 2016

Delivered: 21 January 2016

Edited: 21 June 2016

EX TEMPORE JUDGMENT

CELE, J

[1] The application before me is one brought in terms of section 158(1)(a) of the Labour Relations Act 66 of 1955, hereafter referred

to as the Act, where the applicant seeks to be granted an order which has now been amended to read the following:

‘That the rule nisi due issue calling upon the respondent and all interested parties to show cause on a day to be given by the registrar why an order in the following terms should not be granted.

[1] Pending the finalisation of the dispute declared by the applicant in terms of schedule 1 of the Constitution of the fourth respondent in respect of agreement 2 of 2009 concluded between the applicant, the 3rd Respondent and the South Africa Police Services, that is the SAPS, and rectified by the 4th Respondent, the 1st and 2nd Respondents are interdicted and restrained from:

1.1 Any further implementation of the new organisational structure of the management of the SAPS proposed by the 1st Respondent and attached as Annexure A3 to the founding affidavit hereto.

1.2 Any further restructuring or changes to the organisation of work of the management of the SAPS in terms of any structure whatsoever.

1.3 The 1st and 2nd Respondents shall pay the costs of this application jointly and severally, the one paying the other to be absolved. The remaining respondents shall be jointly and severally liable for the costs of the application only in the event of opposition hereto.

[2] Both parties seek a costs order in the case of a party who is successful. They agree that the losing party should bear the costs.

[3] I may indicate at this stage that whilst the notice of motion is framed in the form of a rule nisi, it has become common cause between the parties that a final order is sought because the matter has been fully argued and so we are talking of a final interdict that is sought.

[4] The application is opposed by the First Respondent in respect of whom an order is sought. No opposition has been filed by any of the other respondents.

[5] During the presentation of this matter, it has become common cause that certain changes were sought to be implemented by the First Respondent, being the Acting National Commissioner of the SAPS.

[6] I will summarise the facts very briefly and I will say that on 2 September 2015, the Minister of the Police who is the Second

Respondent, appeared before Parliament and presented the proposed new structure on 18 November 2015. [The Minister and he was with the Acting National Commissioner both presented the proposed new structure to Parliament]. On 26 November 2015, SAPS sent an e-mail

inviting POPCRU to a special meeting on 30 November to discuss the proposed new structure. It sent one page as an attachment and as an indication of what change was intended.

[7] On 30 November 2015, parties attended the first meeting at the TBLSBC. Oral presentation was made.

[8] 8 December 2015 is the date when the parties attended the second meeting at the TBLSBC. On 8 December as well, the applicant’s

attorney sent a letter which is Annexure CA6 to the First Respondent. Then on 10 December 2015, the First Respondent sent his reply stating that it would implement Annexure A7, which is attached here.

[9] What has remained clear if I may summarise the facts of the matter further, is that the First Respondent has decided to embark on a restructure of its organogram in terms of the Deputy National Commissioners. Initially and in the old structure, there were three Deputy National Commissioners and in the proposed change, they would change to five. The change to five is in fact a going back to what was in existence some time in 2010 under the previous Commissioner of the Police.

[10] The second change that the applicant seeks to address related to the organs of the members of the police, such as the Interpol and then the second organ is the International Relations Police Unit. The third change talks to a research unit or to some units including the research unit where it involves Zulu.

[11] I begin by looking firstly at the Interpol and my view of the matter is that the applicants have not really made out a proper case here on the merits. The case lacks credence particularly when one looks at the denials by the respondent in the answering affidavit. The basis on which the proposed change on this unit is alleged, for which the first respondent is responsible, lacks evidential support. Such change, moving International Relations unit to the Hawks, is alleged to have been announced by the National Head of the Hawks, General Ntlemeza. I accept evidence that General Ntlemeza reports directly to the second respondent and not the first respondent. Accordingly the first respondent ought not to be held responsible for any such representations. So the case of the applicant on this aspect is fairly weak.

[12] In relation to the Research Unit and together with the change about the deputies, there is common cause that there was a change there. I am prepared to accept that in terms of that unit, that could amount to a restructure. If a unit reports to the national commissioner and that unit is moved to report to a deputy, obviously there is a restructuring even of the organogram, of that position, it is moved from where it was to another place.

[13] So on a prima facie basis and for purposes of this application, I am prepared to accept that there was such a restructuring.

[14] It must follow, therefore, from what I have said that and having it been conceded by Mr Kennedy in relation to the deputies, that there was a restructuring.

[15] The collective agreement which is a subject matter of this matter takes care of what should happen when there is a proposed

restructuring. Of importance are clauses 4.4(a) and 4.4(d) of that collective agreement. 4.4 reads:

‘Specific matters for consultation. On lesser matters for consultation are regulated by a collective agreement, admitted trade unions are entitled [indistinct] to prior consultation by the employer about proposals, relating to the following matters, but not limited to

(a) restructuring.

(d) changes to the organisation of work.’

[16] I am mindful of what this collective agreement says, from paragraph 2, paragraph 3 and paragraph 4, the totality thereof but I will not refer specifically to those paragraphs.

[17] Of importance, I may just point out that before the employer implements a position in relation to matters referred to in paragraph

4.4:

‘The employer must consult formally with admitted trade unions. At this time the employer must furnish labour with all information pertaining to the matter under discussion.’

[18] That I was reading from paragraph 4.4 of the collective agreement.

[19] I have indicated that parties met at the TBLSBC and some discussions took place and an oral presentation took place there. The ideal situation would have been that the applicant should have been provided with enough information about this meeting, particularly,

what was to be presented there, so as to enable the applicant to take effective part in the discussion that would ensue.

[20] That is one way of looking at the issue between the parties. Another way of looking at it is to say that 30 November 2015, was an occasion where information was supplied by management. On the basis of that information, consultation was supposed to thereafter take place.

[21] One can easily say that one would not expect effective consultation to take place on 30th November when the other party is not properly armed with enough information. So one can very easily say that if 30 November 2015 was to be seen as a date for consultation, then the union should have been supplied with much more information which was the basis for the presentation itself.

[22] The applicant thereafter wanted to be supplied with information. It was prepared to deliberate further on issues that would be traversed later. Regrettably, on 8 December, parties could not because information which was outstanding had not been supplied and the union decided to walk out of that meeting.

[23] But one would realise that the consultation must not always be taken as an event; it can amount to a process. Unfortunately; the parties were restrained to sit down and regard whatever had happened on 30 November as the beginning and thereafter try and follow it. Somehow, they assumed it was already a consultation process.

[24] This has led to the restraining of relationships. According to the respondent, there was sufficient consultation forming the basis on which then proceeded to effect changes.

[25] Now I have to look at the application because it is an urgent application, there are requirements for an interdict that needs to be met by the applicant.

[26] Some question arise for consideration. Is the application urgent? Why is it brought now, why is it brought today on 21 January this year? Why could it not be brought earlier? It could possibly have been brought earlier when the applicants came to know that there was a proposed change to the organogram for the SAPS.

[27] I have not been told that the information about the change came late to the notice of application I have no reason to hold otherwise. The result of the application being brought a bit late is that this change about the deputies and about the research unit, has already taken effect. If I look now at the relief that is sought in the notice of motion it would be impracticable for the First Respondent to continue executing his duties, if the application is granted.

[28] The applicant ought to have included in the notice of motion a prayer that I should reverse the changes that have already taken place because you cannot have both systems running at the same time. You cannot have the organogram that was existing for 2014 and 2015 running at the same time. There would be a collision; there would be confusion existing in the imported organ of the state, which deals with the administration of crime, the investigation of crime.

[29] As the notice of motion stands, it makes it very difficult for the Acting National Commissioner to do his duties, if I were to grant the order as it is sought in the papers. I have raised this with Mr Ntsebeza as he stood there, I thought he would pick up the line when I said to him: ‘Are you only talking about what is yet to be done, and we leave the changes that are already in place.’ Those changes that are in place are a reality and they cannot co-exist with the older system.

[30] For the application to succeed, I therefore would have had to also reverse the changes that have been introduced but there is not such a prayer and I think it would make no sense for me then, under the further relief, to do so because that issue was never raised.

[31] On practical purposes, the order sought cannot be carried out. That is the first problem that I have with the application. The second problem as has been clearly over emphasised by Mr Kennedy is the absence of irreparable harm.

[32] The applicants should have shown me that between now and the date of the outcome of the conciliation and the arbitration, what is that harm which cannot be reversed which would be suffered by the applicants and its members. Unfortunately, I have searched hard to look for this but I could not find anything.

[33] Whatever is said appears more to be an expression of an opinion and a filling and a generalisation. Regrettably in an application of this nature, I cannot be guided by what is suggested in those papers.

[34] On the basis of what I have just said now, the application cannot succeed. It has to be dismissed.

[35] I have looked also at the question of the costs. Both parties say the successful party should benefit but I must be mindful also of the fact that there is a continuous relationship that should be encouraged, between the First Respondent and the applicant. I have a feeling that granting a cost order to the party that benefitted here, might turn to strain the relations.

[36] The application is dismissed and no costs order is made.

Cele J

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Adv. Ntsebeza SC, with him, Adv. K Pillay

Instructed by Makghalela Mashaba Attorneys

For the Respondent: Adv. Kennethy SC

Instructed by the State Attorney Pretoria