POPCRU obo Kgope v Minister for Safety And Security and Another (J1536/12) [2014] ZALCJHB 352; (2015) 36 ILJ 760 (LC) (16 September 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Of interest to other judges

Case no: j 1536/12

In the matter between:

POPCRU OBO R N KGOPE

Applicant

and

MINISTER FOR SAFETY AND SECURITY

First respondent

THE NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICE Second

respondent

Heard: 4 September 2014

Delivered: 16 September 2014

Summary: Interpretation of SAPS regulation 15 – deemed discharge for misconduct – constitutionality.

STEENKAMP J

Introduction

[1] The applicant trade union, POPCRU, seeks to have regulation 15(5) of the SAPS regulations declared unconstitutional. It also seeks an order that the respondents – the Minister of Safety and Security and the National Commissioner of the South African Police Service – be ordered to rectify their internal documents to reflect that POPCRU’s member, R N Kgope, has resigned from SAPS and was not dishonourably discharged.

Background

[2] This case turns on the interpretation of regulation 15 of the regulations issued under the old Police Act.[1] That Act was repealed by the South African Police Service Rationalisation Proclamation.[2] However, the regulations were preserved by s 12(2)(d) of the Proclamation and, in turn, by s 72(4) of the South African Police

Service Act[3] (the SAPS Act).

[3] The employee, R N Kgope, was dismissed by SAPS on 18 March 2009. POPCRU appealed on his behalf on 23 March 2009. Six months later SAPS had done nothing to hear the appeal. Kgope “purchased his discharge” on 28 September 2009 and notified SAPS as follows:

“I hereby tender my resignation in terms of reg 15(1)(e). My last day of service will be 2009-09-30.”

[4] In order to understand what this means, one has to consider the provisions of regulation 15. The relevant clauses read as follows:

“15(1) Subject to the provisions of the Government Service Pensions Act, 1973 (Act 57 of 1973), and of sections 3, 8, 10E and 17 of the Act, a member may be discharged or dismissed from the Force –

…

(e) on account of voluntary resignation … Provided further that … any member … may, after written notice of at least 30 days or such shorter period as the Commissioner may determine and with the approval of the Commissioner, purchase his discharge for the following amounts …

(5) A member who has been suspended from his office in terms of section 14 of the Act, read with regulation 60, or against in respect of whom [sic] a board of enquiry has been convened in terms of regulation 64, or who is accused of misconduct and on whom the notice referred to in regulation 61 of the summons referred to in regulation 61A has been served, and who resigns or purchases his discharge from the Force before –

(a) the suspension has been raised [sic]; or

(b) such inquiry or trail [sic] has been finally disposed of;

as the case may be, shall, notwithstanding the provisions of section 3(2) of the Act and subregulation 1(e) of this regulation be deemed as discharged on account of misconduct on the date on which his resignation or discharge becomes effective in terms of subregulation (4), unless –

(i) in the case of a commissioned officer, the State President; and

(ii) in the case of any other member, the Commissioner,

in writing otherwise directs.”

[5] Stripped of its convoluted language, the regulations in essence provide that:

5.1 A member of SAPS may resign by purchasing his discharge.

5.2 He/she may also be dismissed for incapacity.

5.3 If he is suspended from office at the time that he buys his discharge, he is deemed to be discharged for misconduct.

[6] Regulation 16 of the SAPS discipline regulations[4] is also relevant. In terms of regulation 16(4)(a), if the employee is dismissed and he appeals, he is deemed to be suspended until the conclusion of the appeal proceedings.

[7] In this case, Kgope was dismissed on 18 March 2009. He appealed. When he purchased his discharge on 28 September 2009 the SAPS had, inexplicably, still not dealt with his appeal. The question is whether he was therefore still on suspension; and if so, whether he should be deemed to have been discharged rather than having resigned.

[8] But back to the chronology. SAPS accepted Kgope’s application for discharge. His commanding officer, J M Tau, noted that “he was a normal person who did his work reasonably”. On 1 October 2009 the provincial commissioner of SAPS for Gauteng, A L Mudau, sent a letter to the national commissioner attaching Kgope’s discharge form (SAP 221) and resignation letter.

[9] On the same day, 1 October 2009, Kgope was to have started working for a new employer, the Gauteng Shared Services Centre (GSSC). But on 11 November 2009 GSSC wrote to Kgope and said:

“We refer to our correspondence (offer of appointment as Specialist: Integrity Management) dated 3 August 2009.

This serves to inform you that your offer of employment is withdrawn with immediate effect due to the fact that you failed to disclose that you were dismissed from the South African Police Service (SAPS) on grounds of misconduct.”

[10] It transpired that the SAPS had informed the GSSC that Kgope had been dismissed for misconduct, hence the withdrawal of the offer. Kgope referred an unfair dismissal dispute to the SSSBC. SAPS raised a point in limine that he was not dismissed, but had resigned. The arbitrator agreed and ruled that the Bargaining Council did not have jurisdiction.

[11] For some inexplicable reason, SAPS only finalised the appeal on 9 December 2009, eight months after Kgope’s dismissal and more than two months after he had purchased his discharge. His dismissal was upheld.

[12] On 14 October 2010 the “section head: service termination and absenteeism management: Gauteng” of the SAPS, M L Molepo, wrote to GSSC and stated (grammar as in original):

“EX WARRANT OFFICER R N KGOPE

According to our records the above mentioned was dismissed from the Service on 2009-03-15.

After that the member lodged an appeal against his dismissal.

Before his case could be finalised, he went to his HRM and purchase discharge, of which it was wrong. The member himself knew and was aware that he was dismissed from the service.

The station was questioned as to why did they allow the member to resign after dismissal and the respond was that they were not informed by Niky (the lady who works with the cases).

Decision on the appeal was made on 2009-12-07 and was not successful.

Attached find the member’s SAP 96 and 2.9.50 printout for referral.

The matter can be regarded as finalised.”

[13] The form referred to in the letter reflected as “reason for resignation: dishonourable discharge”.

[14] POPCRU then applied to this Court on behalf of Kgope to order SAPS to “rectify” its internal records to reflect that Kgope had resigned. It also asked for a declaratory order that regulation 15(5) was unconstitutional.

Interpretation of regulation 15

[15] Mr Kirstein, for the applicant, urged the court to interpret the words “shall be deemed” in regulation 15 as being merely prima facie or rebuttable, and that, on the facts of this case, the court should disregard the determination of the disciplinary hearing and the appeals authority and find that Kgope had resigned, despite the deeming provision.

[16] He relied for this argument on the following dictum from S v Rosenthal:[5]

“The words ‘shall be deemed’ (‘word geag’ in the signed, Afrikaans text) are a familiar and useful expression often used in legislation in order to predicate that a certain subject matter, e.g. a person, thing, situation, or matter, shall be regarded or accepted for the purposes of the statute in question as being of a particular, specified kind whether or not the subject matter is ordinarily of that kind. The expression has no technical or uniform connotation. Its precise meaning, and especially its effect, must be ascertained from its context, and the ordinary canons of construction. Some of the usual meanings and effect it can have are the following. That which is deemed shall be regarded or accepted (i) as being exhaustive of the subject matter in question and thus excluding what would or might otherwise have been included therein but for the deeming, or (ii) in contradistinction thereto, as being merely supplementary, i.e., extending and not curtailing what the subject matter includes, or (iii) as being conclusive or irrebuttable, or (iv) contrarily thereto, merely prima facie or rebuttable. I should add that, in the absence of any indication in the statute to the contrary, a deeming that is exhaustive is also usually conclusive, and one which is merely prima facie or rebuttable is likely to be supplementary and not exhaustive.”

[17] Mr Kirstein argued that the deeming provision in regulation 15(1)(e) should be interpreted as being merely prima facie or rebuttable on the following basis:

17.1 SAPS regards the real reason for the termination of the employee’s services as being the deeming provision in regulation 15(1)(e).

17.2 His dismissal for misconduct in a disciplinary hearing, confirmed on appeal, is not the reason for the termination of his services.

17.3 A SAPS member who appeals against dismissal remains an employee pending the determination by the appeals authority.

17.4 The deeming provision is applicable if a member purchases his discharge before the enquiry had been “finally disposed of”; and in this case, it had not been finally disposed of, as he purchased his discharge before SAPS had determined the appeal.

[18] Mr Hulley, on the other hand, was quick to say that the real reason for dismissal remained the employee’s serious misconduct. (He had,

in short, accepted a bribe from a member of the public). After his dismissal, and while the appeal was still pending, he purchased his discharge. In those circumstances, regulation 15(5) applied: he was deemed to be on suspension pending the appeal; and when he purchased his discharge, he was deemed to be discharged on account of misconduct. As a matter of fact and law, he was dismissed.

[19] The principles relating to the interpretation of statutes and other documents are well established. The most recent summary is to be found in Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk[6]:

"In Natal Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) the current state of our law in regard to the interpretation of documents was summarised as follows:

'Over the last century there have been significant developments in the law relating to the interpretation of documents, both in this country and in others that follow similar rules to our own. It is unnecesary to add unduly to the burden of annotations by trawling throught the case law on the construction of documents in order to trace those developments. The relevant authorities are collected and summarised in Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School. The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in the document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammer and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.'

... We had cited to us the well-known and much cited summary of the earlier approach to the interpretation of contracts by Joubert JA in Coopers & Leibrandt and Others v Bryant [1995] ZASCA 64; 1995 (3) SA 761 (A) that:

'The correct approach to the application of the golden rule of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard:

to the context in which the word or phrase is used with its inter-relation to the contract as a whole, including the nature and purpose of the contract ...

to the background circumstances which explain the genesis and purpose of the contract, i.e. to matters probably present to the minds of the parties when they contracted ...

to apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent conduct of the parties showing the sense in which they acted on the document, save direct evidence of their own intentions.'

That summary is no longer consistent with the approach to interpretation now adopted by South African courts in relation to contracts or other documents, such as statutory instruments or patents. Whilst the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages, but is 'essentially one unitary exercise'.

Accordingly it is no longer helpful to refer to the earlier approach."

[20] The literal meaning of regulation 15 (including the deeming provision) is clear. In circumstances such as the current one, where the employee purchases his discharge before the disciplinary process “has been finally disposed of” he is deemed to be discharged on account of misconduct.

[21] What, then, is the context? And I would suggest that, in interpreting the deeming provision, one should also have regard to the harm that the legislature tried to avoid.

[22] Even if one were to follow a purposive approach, the purpose of the deeming provision must be clear. It is to prevent a situation (such as the current one) where a member of the SAPS is dismissed for gross misconduct (such as bribery or corruption, a scourge in our society as a whole and even in the SAPS); but then, by snatching at the bargain of purchasing his discharge, that member gets off scot free by claiming that he had resigned.

[23] Regulation 15(1)(e) – allowing a member to purchase his discharge – must be read in the context of regulation 15(5). That regulation makes it clear that, where the member purchases his discharge before a disciplinary enquiry has been finally disposed of, he is deemed to be discharged on account of misconduct. That makes eminent sense. It prevents an employee such as Mr Kgope from purchasing his discharge while his misconduct remains unpunished.

[24] It is unconscionable that the SAPS took nine months to finalise a simple appeal. But that does not make the deeming provision a prima facie or rebuttal one. The deeming provision is clear and conclusive. It is, in the words of Rosenthal, exhaustive of the subject matter in question. Kgope was dismissed for misconduct. He appealed. He purchased his discharge before the appeal had been finally disposed of. He is therefore deemed to be dismissed for misconduct.

Constitutionality of regulation 15(5)

[25] The applicant also submitted that regulation 15(5) is inconsistent with sections 23 and 34 of the Constitution. To his credit, Mr Kirstein did not pursue this argument with any vigour.

[26] Section 23 of the Constitution is oft quoted in this court. It provides that everyone has the right to fair labour practices. And section 34, dealing with access to courts, provides that:

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

[27] I shall deal, firstly, with the attack on regulation 15 based on s 34 of the Constitution. Quite simply, regulation 15 does not in any way detract from the basic right to a hearing. Kgope had the opportunity to have the dispute with his employer, concerning his having accepted a bribe, decided before a forum in the form of a disciplinary hearing and a subsequent appeal. There is no suggestion that either of those fora was not independent or impartial. But instead, Kgope chose not to pursue the appeal but to purchase his discharge instead, knowing full well that he would then be deemed to be dismissed for misconduct.

[28] The applicant’s other argument is that regulation 15 is inconsistent with the right to fair labour practices guaranteed by s 23 of the Constitution. The basis of that attack appears to be that the employee did not have the opportunity “to be heard and to defend himself against charges of misconduct”. But that is simply not so. He had that right, but chose not to pursue it to its conclusion. There is no merit in that attack.

[29] A Bill of Rights challenge to a statutory provision entails two steps[7]:

29.1 The court must first determine whether the statute infringes a right in the Bill of Rights. The onus is on the applicant to demonstrate prima facie that there is an infringement.

29.2 If the court does so find, it must then determine whether the limitation on the right is one of general application and, if so, whether it is justifiable. The burden of proof is on the state.

[30] In this case, the regulation does not infringe either section 23 or section 34 of the Bill of Rights. Therefore the question of justifiability does not arise.

Conclusion

[31] The applicant has not succeeded in meeting the well-known requirements for a final interdict.[8]

[32] It has not demonstrated a clear right; an injury actually committed or reasonably apprehended; or the absence of a suitable alternative remedy, neither with regard to the prohibitory interdict nor the mandatory order it sought. It follows that the application must fail.

[33] The question of costs remains. I take into account that there is a continuing relationship between POPPCRU and SAPS; and that POPCRU sought clarity on the constitutionality of the relevant regulations. In law and fairness I do not consider a cost order to be appropriate.

Order

The application is dismissed.

_______________________

A J Steenkamp

Judge

APPEARANCES

APPLICANT:

P H Kirstein

Instructed by Grosskopf attorneys, Pretoria.

RESPONDENTS: G I Hulley (with him S Tilly)

Instructed by the State Attorney, Johannesburg.

[1] Act 7 of 1958.

[2] Proclamation R5 of 1995.

[3] Act 68 of 1995.

[4] Notice no R 643, Government Gazette 28985, 3 July 2006.

[5][5] 1980 (1) SA 65 (A) 75-76.

[6] 2014 (2) SA 494 (SCA) 499-500 paras 10-12.

[7] Coetzee v Government of the RSA; Matiso & ors v Commanding Officer, Port Elizabeth Prison & ors [1995] ZACC 7; 1995 (4) SA 631 (CC) 641 G-H.

[8] Cf Setlogelo v Setlogelo 1914 AD 221.