Raedene v Minister of Police and Another (1624/2020) [2024] ZALMPTHC 28 (15 April 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, THOHOYANDOU

CASE NO: 1624/2020

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

DATE:15/04/2024

In the matter between:

RAEDANI NNDWAMATO MACHEL APPLICANT

And

MINISTER OF POLICE 1st RESPONDENT

PROVINCIAL COMMISSIONER, SAPS 2ND

RESPONDENT

JUDGMENT

DENGE AJ

INTRODUCTION

1. The Applicant is an ex-Warrant Officer, who, before his resignation from the South African Police Service (SAPS) on 17/07/2020, was stationed at Mutale Police Station, Limpopo Province. The 1st respondent, the Minister of Police is cited in the applicant's papers in his official capacity, as the political head of the National Ministry of the Police of the Republic of South Africa. The 2nd respondent, the Provincial Commissioner of the SAPS, is cited in his official capacity, as the provincial head of the SAPS, Limpopo.

2. The respondent's resignation from the SAPS, came immediately after he had been arrested, and charged for robbery, among other charges. At the time of the hearing of the application relating to this matter, criminal court proceedings in relation the aforesaid charges, were underway, and the applicant had been released on bail.

3. The respondents refused to pay the applicant the cash value of his capped leave, on account of what they referred to as the applicant's having taken a "dishonorable discharge" service termination "on account of misconduct", in terms of sub paragraph5(2)(a), read with subparagraph 15(2) of the SAPS' National Instruction 3 of 2017 Service Terminations , hereinafter referred to as "National Instruction".

THE ISSUES

4. Aggrieved by the respondents' decision, applicant approached this Court, seeking relief for review and the setting aside of that decision in terms of Rule 53 of the Uniform Rules of Court, read together with sections 1, 6 (2) and 7 of the Promotion of Administrative Justice Act (PAJA), and also under common law. Applicant also seeks various orders, where by the aforementioned provisions of the National Instruction, are declared constitutionally invalid, in terms of section 172 of the Constitution of the Republic of South Africa, 1996, as amended (the Constitution).

5. Flowing from that, applicant seeks an order:

5.1. that, insofar as the review relief claim is concerned, he be exempted from the obligation to exhaust any internal remedies available, if any, in the interest of justice and fairness;

5.2. declaring that applicant is legible for leave gratuity payment;

5.3. that leave gratuity be paid as prescribed by the law, and that it be paid within a period of 30 (thirty) days from the date of the order;

5.4. alternatively, that, should it be found that the relevant provisions of the National Instruction are valid, that, it be declared, that, such provisions are not applicable to the applicant, in the circumstances of this case;

5.5. making any unsuccessful respondent to pay costs, on an attorney and client scale; and

5.6. granting further and or alternative relief.

6. The respondents are opposed to the application. First, the respondents submit, that, this Court lacks jurisdiction, to entertain the application that, according to them, falls to be determined, exclusively, within the labour domain. They contend in that regard, that, the decision that they have taken, is not an "administrative decision or action", as defined in PAJA, but occurred by operation of the law. Secondly, the respondents raise the preliminary issue that, the failure, by the applicant, to give a Uniform rule 16A notice, to the Registrar of this Court, precludes the Court from entertaining the various declaratory relief claims brought by the applicant.

7. Thirdly, the respondents submit, in relation to the review relief claim, that, the applicant has failed to exhaust internal remedies. Alternatively, they submit that, the impugned decision is not, arbitrary, ma/a fide or unreasonable; also contending in the same regard, that, the Court cannot order them to approve the application for leave pay, as, doing so, will offend the doctrine of separation of powers. Lastly, the respondents submit, in the main, in relation to, the declaratory relief claims, that, their decision, is, in no way constitutionally invalid. They accordingly pray, that, the application be dismissed, with costs, including costs of 2 (two) counsel.

8. The applicant, raises another preliminary issue, lo the effect that, Mr. Livhuwani Jeofrey Sinthumule, who deposed to the respondent's answering Affidavit, does not have locus standi, and as such, the application should be dealt with, as if unopposed.

LACK OF UNIFORM RULE 16A NOTICE

9. It is in my view prudent to deal with the issue of the lack of the Uniform rule 16A notice, before I touch on the other preliminary issues. Counsel for the respondents, Advocate Ngoetjana, submitted, before this Court, that, the failure by the applicant to furnish a Uniform rule 16A notice to the Registrar of this Court, precludes this Court from entertaining his application. The attack by Mr. Ngoetjana, in that

regard, is limited to the review relief claim, whereas, in my view, it was supposed to have extended to the declaratory relief claims, as well.

10. The review challenge, is a constitutional challenge, as much as the declaratory challenges are constitutional challenges. See the judgment of the Constitutional Court, in National Education Health & Allied Workers' Union /NEHAWU) v University of Cape Town and Others (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002); particularly, in paras 15 and 16, where the point is made, that, the Labour Relations Act number 66 of 1996 (LRA), has been enacted to give content to the constitutional right to fair labour practice provided in section 23 of the Constitution, and therefore, that, the proper interpretation or application, of such statute, is, in itself, a constitutional matter.

11. Similarly, the challenge to the review relief claim herein, raises a constitutional question, as PAJA has been enacted to give content to the constitutional right to just administrative action, which right, is provided in section 33 of the Constitution.

12. That notwithstanding, I am empowered by Uniform rule 16A(10) to, among others, dispense with the need for the admission of an amicus curiae or a friend of court, if it is in the interests of justice, to do so.

13. A determination whether it is in the interests of justice, to dispense with any of the requirements of Uniform rule 16A, is cased-based -see the judgment of the High Court, in Rates Action Group v City of Cape Town , 2004 (5) SA 546 (C)).

14. The fact that the matter has been unreasonably delayed, for almost five years, now, and the fact that the respondents' insistence on the notice, was belated, in my view, compellingly weigh, in favour of, the matter, having to be disposed of, as soon as possible, in the interests of justice. Thus, it is in the interests of justice, that, the notice be dispensed with. I pause here, to deal with the way I shall deal with the alleged common law grounds of judicial review.

THE ALLEGED COMMON LAW GROUNDS OF JUDICIAL REVIEW

15. When I hereinafter refer to the alleged grounds of judicial review, I shall confine myself to PAJA, which legislative piece, is, largely, a codification of the common law grounds of judicial review of administrative action - See Ian Currie, "The Promotion of Administrative Justice Act, A Commentary, "2nd edition, Siber Ink, Cape Town, 2007, pages 6 and 155. See also the judgments referred to therein, namely, Pharmaceutical Society of South Africa v Tshabalala Msimang NO, 2005 (3) SA 238 (SCA) at para 94, and Fuel Retailers Association of South Africa v Director-General, Environmental Management. Department of Agriculture, Conservation and Environment. Mpumalanga (CC) 7 June 2007, unreported, at para 37.

16. In fact, reading of the work of Ian Currie (above) - particularly on pages 157 to 174, under the part titled, "Commentary on the Grounds of Review", shows that, the common law grounds of review, that the applicant raise, in his papers, have all been subsumed under PAJA. I turn now to deal with the other preliminary issues.

THE REMAINING PRELIMINARY ISSUES

17. Of the preliminary issues that I have not decided on yet, I find it prudent, to only deal with, the locus standi one; followed by one that relates to the court's jurisdiction. I have decided to do so, because, first, where necessary, I shall refer to the evidence contained in the affidavits. I will not be able to do so in relation to the respondents' answering affidavit, unless I have first established, that, Mr. Sinthumule has focus standi. Unless that is established, the answering affidavit will stand to be regarded not as evidence, but as just another piece of paper.

18. Lastly, once it has been established that Mr. Sinthumule has locus standi, I will then proceed to deal with the issue of jurisdiction. And naturally, if I find that, this Court's jurisdiction is not engaged, that outcome shall be dispositive of the part of this matter that has to do with the review application.

THE ALLEGED LACK OF LOCUS STANDI BY MR. SINTHUMULE.

19. The applicant complains, that, Mr. Sinthumule, does not have locus standi or authority to represent any of the respondents in this matter. That point, is premised on the argument that, Mr. Sinthumule, does not proffer to be duly authorized, by both respondents, both in terms an appointment, or in terms of a delegation of authority by either respondent, or a resolution of the respondents, attesting to such authority.

20. The applicant simply makes a bald averment, in that regard. For he does not dispute Mr. Sinthumule's deposition, relating to the alleged capacity, in which, he, deposed, to the answering affidavit. Namely, that, he is "a Sergeant: Legal Administration Officer: Labour Litigation Provincial Legal Services; Limpopo, in the employ of South African Police Service," who is thus authorized to depose to the answering affidavit, on behalf of the respondents, where, he, of necessity, has to deal with legal issues, on the advice of the respondents' legal representatives.

21. For these reasons, I find, that, the "locus standi'' point in limine that has been raised by the applicant, lacks a basis, and thus falls to be dismissed.

THE LEGISLATIVE FRAMEWORK

22. Before I touch on the issue of jurisdiction, it is important that I set out the legislative framework, within which that issue should be understood, and be determined.

23. Section 40/b) of the Basic Conditions of Employment Act (BCEA), number 75 of 1997 provides that "[o}n termination of employment, an employer must pay an employee remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that an employee has not taken; "

24. However, sub-clause 7.3 of Resolution 7/2000 of the Public Service Coordinating Bargaining Council (PSCBC), on the 'Improvement in the Conditions of Service of Public Service Employees For 2000/2001 Financial Year' (the Resolution), which binds both the applicant and his former employer, provides for payment of the value of annual leave, that accrued, before 1stJuly 2000, by employer, on death, retirement or medical boarding.

25. Subsection 23(1)(a) and (c) of the LRA, under Part B provides that a collective agreement binds the parties to it, if it regulates the terms and conditions of employment, or the conduct of the employers in relation to the employees, or vice versa.

26. It is evident from the Resolution, or the collective agreement, that, employees who resigned are also another category of employees, who, upon termination of employment, do not get paid the cash value of the annual leave that accrued before 1st July 2000, or capped leave. This, in my view posed, and still poses a twin challenge, to the applicant, of him having been deemed to have taken a "dishonorable discharge service termination on account of misconduct", and of him not having been paid, the cash value, of his capped leave.

27. Sub-clause 14(1) of the Resolution or collective agreement, provides, that, the

interpretation, or application of the Resolution, or the collective agreement, shall be dealt with, according, to, the dispute resolution procedure, of the PSCBC. This is so, because, in terms of section 33A of the LRA, a bargaining council is empowered to enforce its collective agreement.

28. It appears that the Resolution or collective agreement does not provide for the resolution procedure, in this instance. This, is, where subsections 24(2), (4) and (5) of the LRA come in. They provide that "when there is a dispute on the interpretation of such an agreement (the collective agreement), and the same agreement does not provide for a procedure as required by subsection (1), any party to the agreement may refer such dispute to the Commission, that must attempt to resolve the dispute through conciliation, If the dispute remains unresolved, any such party may request that such dispute be resolved through arbitration." Any party to the collective agreement who complains about an alleged defect in the arbitration proceedings may approach the Labour Court for the setting aside of the arbitration Award.

29. Subsection 157 (5) of LRA provides that "[E]xcept as provided in section 158 (2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act or any employment law requires the dispute to be resolved through arbitration."

30. Subsection 158(2) of LRA provides, that, if it becomes apparent to the Labour Court that, a dispute, ought, to have been referred to arbitration, that Court, may either stay the proceedings, and refer the dispute to arbitration, or if ii is expedient to do so, continue with the proceedings, and, may only make any order that a commissioner or arbitrator would have been entitled to make.

31. Notably, "[T]he Labour Court may refuse to determine any dispute other than an appeal or review before the Court, if the Court is not satisfied that an attempt has been made, to resolve the dispute through conciliation" (subsection 157(4) of LRA).

32. Subregulation 78/1) of the Public Service Regulations, 2016 provides that "[C]o/lective bargaining shall be regulated by the Labour Relations Act." Subsection 5/4)/a) of the Public Service Act, number 103 of 1994 (PSA) provides that "[A]ny act by a functionary in terms of this Act may not be contrary to the provisions of any collective agreement contemplated in item 15(i) of Schedule 7 to the Labour Relations Act.."

30. Subsection 207(2) of the Constitution provides that "[T]he National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing." Subsection 11/2)/q) of the South African Police Service Act provides that "a National Commissioner shall perform any legal act or act in any legal capacity on behalf of the Service."

31. The South African Police Service Act number 68 of 1995 provides in subsection 25/1)/a) that, "the National Commissioner may issue national orders and instructions regarding all matters that fall within his or her responsibility in terms of the Constitution or this Act".

32. Paragraph 5 of the National Instruction provides for types of service terminations, one of which is resignation. The other category of service termination, is "dishonorable discharge". As appears in subparagraph 5(2)(a) of the National Instruction, a resignation is regarded as dishonorable discharge, on account of misconduct that happened before resignation, under a given set of circumstances, as provided in the same subparagraph 5(2)(a), of the same Instruction or collective agreement.

33. sub-clause 5(2)(a) of the National Instruction provides as follows:

"An employee who has been suspended from his or her office, or against whom a board of enquiry has been convened, or who is accused of misconduct and on whom a notice of the summons has been served and who resigns from the Service before the suspension has been raised; or such inquiry or trial has been finally disposed of will be deemed as discharged on account of misconduct on the date on which his or her resignation becomes effective."

34. Paragraph 15 of the National Instruction provides for payment of the cash value of leave upon service termination. I quote:

"(1) If an employee terminates his or her service, .... , (2) If an employee has capped leave the cash value of such capped leave must be paid out to the employee in the event of the termination of his or her service on account of medical boarding, retirement, death and termination of service in terms of section 35 of the SAPS Act....."

35. Also in this instance, a member who, ordinarily resigned from the Service, and, the one who is deemed lo be discharged, on account of misconduct, are among others, persons, who, are excluded from the list of those, who, qualify, to be paid, the cash value, of their capped leave, upon termination of service. As expected, that is in line, with the PSCBC Resolution. I turn now to deal with, the in limine point of jurisdiction.

IS THIS COURT'S JURISDICTION ENGAGED?

36. In order to determine the question of jurisdiction, it must first be determined whether the impugned decision is an administrative action, within the definition provided for in section 1 of PAJA, which appear immediately below:

37. ""[A]dministrative action" means any decision taken ... by_

(a) an organ of state, when_

(i) exercising a power in terms of the Constitution.................... ; or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) ..............

which adversely affects the rights of any person and which has a direct, external legal effect, but does not include ---

(aa) the executive powers or functions of the National Executive, including the powers or functions referred to in sections 79(1) and (4), 84(2J(a). (b), (c), (d}, (f), (g), (h), (i) and (k), 85(2)(b), (c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97, 98,

99 and 100 of the Constitution;

(bb) .......

(cc) .....

38. "A decision'". The definition section. namely section 1 of PAJA. provides among others, that. a decision means. any decision, of an administrative nature, made, as the case may be, under an empowering provision, including, a decision relating to (g) doing any other act, or thing of an administrative nature.

39. In "Promotion of Administrative Justice Act: Administrators" Guide", by Professors Ian Currie and Jonathan Klaaren (University of Witwatersrand) 3rd edition, August 2009, particularly in Part 4, page 20, it is stated that decisions "of an administrative nature" are the ones that administrators take, as part of their job. Further that, for such a decision to qualify as an "administrative action", it must be taken by an administrator. in terms of an empowering provision. According to PAJA"s definition section, "an empowering provision" includes a law, in terms of which, an administrative action, was purportedly taken.

40. That the decision must be made, as the case may be, under an empowering provision. contradicts Mr. Ngoetjana's contention, that the respondents" decision could not have amounted to an administrative action, because, it resulted from a piece, of legislation. This, is. beside the point though. It remains to be decided, whether, the decision of the respondents, amounted to an "administrative action" as defined in PAJA.

41. It appears, that. the approving officer or the Commander, as appears in Part 4 of SAP 584 form. that forms part of the record of proceedings, that the respondents furnished, in complience with Uniform Rule 53 is, or, was empowered by sub­paragraph 5(2)(c) read together with sub-paragraph 5(2)(a) of the National Instruction, legislative provisions, to effect a change, on the exit documents, of the type of service termination, from resignation to "dishonorable

discharge."

42. "Not specifically excluded by PAJA". Some actions of some organs of the state, like the making of legislation by Parliament, or the exercise of some of the executive powers or functions of the National Executive, the exercise of judicial functions by the officers of courts and by other bodies, are, specifically excluded by PAJA.

43. "An organ of state". Section 1 of PAJA provides that the decision must be taken by "an organ of state". The same section 1 of PAJA provides that "organ of state" carries the meaning given to it in section 239 of the Constitution. Section 239 of the Constitution provides that ""[o]rgan of state" means (a) any department of state or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer."

44. In this instance, an administrator, in the administration of the provincial sphere of government was involved, in taking the decision, of an administrative nature. Therefore, the decision was taken by "an organ of State, as required by section 1 of PAJA. It is to be noted that, that does not necessarily mean, that, that decision is or was an "administrative action", as defined in PAJA.

45. "Adversely affects rights". Professors Ian Currie and Jonathan Klaaren (above), on page 21, in Part 4, describe the impact of the decision such as was taken or similar to the one taken by the functionary, in the SAPS administration, in Limpopo Province, in relation to the applicant, as an "adverse determination of a person's right".

46. The applicant avers that he seeks a review and setting aside of the respondents' decision, because, his constitutional right to be presumed innocent until proven guilty (section 35(3)/h) of the Constitution); his constitutional right to fair labour practices (section 23 of the Constitution); his constitutional right to just administrative action (section 33 of the Constitution), and his constitutional right to human dignity (section 10 of the Constitution) have been unjustifiably infringed . I have to comment, in passing, that, his fair trial right, in terms of section 35(3)(h) of the Constitution apply only to criminal proceedings. See Magashule v Ramaphosa and Others, Case number 2021123795 [2021] ZAGPJHC, where, it was held, among others, that "this right regulates the conduct of criminal proceedings. Its operation is confined to those proceedings."

47. "Direct external legal effect". On pages 22 and 23, in Part 4, Ian Currie and Jonathan Klaaren (above) submit, that, "direct effect" means that the decision must have a final effect, and "can be taken to court for judicial review''. They further submit that "legal effect" means that the decision must be "a legally binding determination of someone's rights or obligation." They also submit that "external effect" means that the decision has to affect someone who is not part of the organ of the state. However, they submit that in the context similar to the one at hand, where the affected person is a public servant, within the organ of the state, that person's individual rights must be affected, not through measures that are part of the daily business of the organ of State, in order for that person to seek to have the particular decision reviewed, and set aside.

48. Ian Currie and Jonathan Klaaren made those submissions, long before the position was clarified, by the unanimous decision of the Constitutional Court, in Vuyile Jackson Gcaba v Minister for Safety and Security and Others, case CCT 64/08 [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC); (2010) 31 ILJ 296 (CC); [2009] 12 BLLR 1145 (CC) (7 October). It was held in para [64] of Gcaba, that "when a grievance is raised by an employee relating to the conduct of the state as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action." That was the position that was properly taken by Mr. Ngoetjana, during arguments.

49. To illustrate that point, the Court gives a historical context, in para [65], which, I quote below:

"Employment is not a relationship of equals, but a relationship of demand. Since the 1980s in South Africa, the legislature has realized that leaving the regulation of employment purely within the realm of contract law could foster injustice; therefore the relationship is regulated carefully through the LRA. Section 23 is an express constitutional recognition of the special status of employment relationships and the need for legal regulation, outside of the law of contract."

50. Further illustrating the same point, in para [64] of the judgment, that Court drew a parallel, as it were, between the LRA and PAJA. I quote:

"Generally, employment and Jabour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognized by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship between the state as bureaucracy and citizens, and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate

the relationship between the state as employer and its workers."

51. The Cambridge Dictionary (dictionary.cambridge.org) describes "dishonourable discharge" as "an occasion when someone is made to leave the armed forces because they have broken the law or rules." That, in my view, is equivalent to a dismissal.

52. The applicant deems that dismissal, which is a typical example of employment, and labour related issue, based on the right to fair labour practices, unfair. The impact of the decision that the respondents took against the applicant, must, have been mainly felt, by the applicant, and, maybe, also felt by a very few people also, if any. The impugned decision, cannot be described as an "administrative action", within the meaning of PAJA, therefore.

53. I must immediately point out, that, I have deliberately omitted the respondents' decision, to refuse the applicant, the cash value of his capped leave, for the reasons that I spell out in the ensuing paragraphs.

54. The respondents submit, that, this Court's jurisdiction is not engaged, because the impugned decision had its genesis, in sub-clause 7.3 of the Resolution. The respondents' attitude is that, if one wants to challenge the interpretation or the application of the Resolution, or the collective agreement, one must declare a dispute with the Bargaining Council.

55. In his written submissions, Mr. Ngoetjana, submitted that, the Labour Court does not have jurisdiction to entertain a matter such as this, either. In the process, he made reference to subsection 157(4)(a) of LRA, that provides that "the Labour Court may refuse to determine any dispute, other than an appeal or review before the Court, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation."

56. During arguments, counsel for the applicant, Mr. Vanesa, contended, that, the applicant is not saying, in his papers, that, he is aggrieved by the interpretation, or the application, of the collective agreement. He also submitted that, certain contractual obligations have not been met, by the respondents, and therefore, that, the applicant has recourse.

57. I agree with the argument that applicant is not saying that he is aggrieved by the interpretation or the application, of the collective agreement. However, the collective agreement (the Resolution) is implicated here, and, therefore, something needs be said, about it.

58. Mr. Ngoetjana's submission, that, both this Court and the Labour Court, do not have jurisdiction to entertain this matter, relates to the respondents' refusal, to pay the applicant, the cash value of his capped leave. I have unambiguously expressed that, the power that had informed the respondents' decision not to pay the cash value of the applicant's capped leave, can be traced back to the collective agreement, or the Resolution, to which the applicant is part. However, it must be noted, that, that is only relevant to the one part of what I have referred to hereinabove, as the applicant's twin challenges.

59. While it is clear that, the Labour Court will not entertain this kind of a challenge, until it is satisfied that there was an attempt to conciliate; I think, I need not limit the scope of this enquiry to that. I have to be mindful of the dismissal aspect of this matter, because, rightly or wrongly, the applicant based his challenge in relation to non-payment, on ii. Effectively the two aspects are potentially indivisible.

60. Subsection 169 (1) of the Constitution provides that "[T]he High Court of South Africa may decide_ (a) any constitutional matter except a matter that (i) the Constitutional Court has agreed to hear directly in terms of section 167(6)(a); or (ii)is assigned by an Act of Parliament to another court of a status similar to the High Court of South Africa, and (b) any other matter not assigned to another court by an Act of Parliament."

61. The Labour Court is "another court of similar status to the High Court". Contextually, sub-section 157 (1) of the LRA is a provision of an Act of Parliament that assigns to the Labour Court, a court of similar status to the High Court, exclusive jurisdiction "in respect of all matters, that, elsewhere, in terms of that Act, or in terms of any other law, are to be determined by the Labour Court."

62. Mr. Vangesa submitted that subsection 157 (2) of the LRA does provide for the Labour Court's concurrent jurisdiction, with the High Court, in matters of alleged, or threatened violation, of, any fundamental right, entrenched in Chapter 2 of the Constitution, and arising from, employment, and, from labour relations. He further submitted, that, the violation has been committed, and continued up to that stage.

63. As was held in the unanimous judgment of the Constitutional Court, in Louisa Basani Baloyi v Public Protector & Others, Case CCT 03/20, Neutral citation, Baloyi v Public Protector and Others [2020] ZACC 27, at para [33], whether or not the High Court, and the Labour Court enjoy concurrent jurisdiction, is determined by the pleadings, as opposed to the merits. The following part of the citation appear to me helpful here:

""In the event of the Court's jurisdiction being challenged ... , it is not for the court to say that the facts asserted by the applicant would also sustain another claim, recognizable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim under LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction." '[own emphasis.].

64. The applicant avers that the decision taken by the respondents (1) was unlawful, in that, it was not authorized by law, or contravenes a law, or was not authorized by an empowering provision (sub-section 6(2)(f)(i) of PAJA); (2) was procedurally unfair (sub- section 2( c), read together with sub-section 3(1), of PAJA) that is, it materially and adversely affected applicant's rights or legitimate expectations, in that (a) the respondents (the administrators} were biased or reasonably suspected of bias (sub-section 6(2)(a)(iii), of PAJA), (b) the respondents failed to notify the applicant about the proposed administrative decision, as required by sub-section 3(2)(b)(i) of PAJA , thus precluding him from participating in decision-making, and (c) the respondents failed to provide the applicant with reasons for the decision, or action, after the decision had been taken by them; (3) was taken because irrelevant considerations were taken into account or relevant considerations were not considered (sub-section 6(2)(e)(iii), of PAJA); (4) was taken arbitrarily or capriciously (sub-section 6(2)(e)(vi), of PAJA); (5) was taken in bad faith (sub-section 6(2)(e)(v), of PAJA); (6) was taken for an ulterior motive or purpose (sub-section 6(2)(e)(ii), of PAJA). and (7) the exercise of power; on the basis of which the administrative action was purportedly taken was, grossly unreasonable, such that no reasonable person could have so exercised the power, or performed the function (sub-section 6(2)(h) , of PAJA).

65. Notably, I have indicated earlier on, that, the applicant also avers that he seeks a review and setting aside of the respondents' decision, because his constitutional rights, including his right to fair labour practices in terms of section 23 of the Constitution have been unjustifiably infringed. That, particularly, reference to, the right to fair labour practices, in my view, puts this aspect of the matter, beyond the jurisdiction of this Court.

66. I will not be doing justice to this matter, if I do not deal focussedly with Mr. Vangesa's argument, in relation to the overlapping jurisdiction of the High Court and the Labour Court. The relevant provision, subsection 157 (2) of the LRA, provides as follows:

"The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from_

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or administrative act or any threatened executive or administrative act or conduct by the State in its capacity as an employer; and

(c) the application of any law for the administration of which the Minister is responsible."

67. In paragraphs 71 - 73 of the Gcaba matter (above), the Court went about to explain what the purpose of subsection 157(2) of the LRA is, how subsection 157(2) of the LRA, should, and, should not be interpreted, and that the LRA does not intend to wipe out remedies.

68. The said Court held the following in para [71]:

"Section 157(2) confirms that the Labour Court has concurrent jurisdiction with the High Court in relation to fundamental rights entrenched in Chapter ...., .... or..... The purpose of this provision is to extend the jurisdiction of the Labour Court to disputes concerning the alleged violation of any right......., which arise from employment and labour relations, rather than to restrict or extend the jurisdiction of the High Court. In doing so, section 157(2) has brought employment and labour relations disputes that arise from the violation of any right in the Bill of Rights within the reach of the Labour Court. This power of the Labour Court is essential to its role as a specialist court that is charged with the responsibility to develop a coherent and evolving employment and labour relations jurisprudence. Section 157(2) enhances the ability of the Labour

Court to perform such a role."

69. In paragraph [72], the Court held the following:

"Therefore, section 157(2) should not be understood to extend the jurisdiction of the High Court to determine issues which (as contemplated by section 157(1)) have been expressly conferred upon the Labour Court, by the LRA. Rather, it should be interpreted to mean that the Labour Court will be able to determine constitutional issues which arise before it, in the specific jurisdictional areas which have been created for it by the LRA, and which are covered by section 157((2)(a), (b) and (c )."

70. Lastly, the Court held the following, in paragraph 73:

"Furthermore, the LRA does not intend to destroy causes of action or remedies and section 157 should not be interpreted to do so. Where a remedy lies in the High Court, section 157(2) cannot be read to mean that it no longer lies there and should not be read to mean as much. Where the judgment of Ngcobo J in Chirwa speaks of a Court for labour and employment disputes, it refers to labour and employment-related disputes, for which the LRA creates specific remedies. It does not mean that all other remedies which might lie in other courts like the High Court and Equality Court, can no longer be adjudicated by those courts. If only the Labour Court could deal with disputes arising out of employment relations, remedies would be wiped out, because the Labour Court (being a creature of statute with only selected remedies and powers) does not have the power to deal with the common law or other statutory remedies."

71. What all this mean, in my view, is, that, one should not think that subsection 157(2) of the LRA was meant to expand the jurisdiction of the High Court, to include matters specifically reserved for the Labour Court, and thus stray, and encroach upon the Labour Court terrain.

72. As demonstrated above, already, the Labour Court, and not this Court, has the jurisdiction to entertain this part of the matter. I turn now to deal with the declaratory relief part of this matter.

THE CONSTITUTIONAL CHALLENGE

73. Under this rubric, the applicant alleges that the respondents' decision has, and continues to infringe (1) his right to a fair trial, which includes his right to be presumed innocent, until proven guilty; (2) the right to fair labour practice; the right to have his dignity respected, and (4) the right to just administrative action.

74. The applicant challenges the respondents to justify the alleged infringements in terms of section 36 of the Constitution. On the other hand, the respondents contend that, there has been no infringements of the said rights, and therefore, that, the question

of justifiability does not arise.

75. Now turning to deal with the alleged specific rights infringements, respectively.

The Alleged Infringement of Subsection 35(3)(h) of the Constitution

76. The applicant avers that subparagraph 5(2)(a) and subparagraph 15 of the National Instruction unjustifiably infringe his right to be presumed innocent, until proven guilty, for classifying the service termination of a member, accused of misconduct, and resigned from the service as dishonourable discharge, and as a consequence of which a member is denied leave gratuity payment.

77. Subsection 35(3)(h) of the Constitution provides as follows:

"Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings." It appears that, the applicant takes it only as far as having to be presumed innocent, though.

78. Unfortunately, the applicant cannot avail himself of that right, which belongs in criminally accused persons. Although the applicant was charged criminally, and criminal proceedings were pending, when he tendered his resignation, the impugned provisions of the National Instruction dealt with him, administratively, and not criminally.

79. In Magashule (above), a similar matter, in the South Gauteng High Court, the applicant challenged the validity of the ANG rule, Rule 25.70 that was invoked, to temporarily suspend the applicant's membership, in the organisation, as he was facing criminal charges. The challenge was premised on the alleged violation of the applicant's right to presumption of innocence, in that, it was contended, while the applicant was criminally charged, he was not convicted.

80. The Court there, made the point that, the presumption of innocence applies to criminal proceedings, in the context of an accused's right to a fair trial (para [151]). In para [153], the Court pertinently and unambiguously expressed itself as follows:

"If Mr. Magashufe were correct, the presumption of innocence would preclude any disciplinary proceedings or, indeed, any civil litigation against the perpetrator of a crime. That, according to the respondents, would be an absurdity."

81. That said, this challenge cannot succeed. I turn now to deal with the alleged infringement of the right to just administrative action.

The Alleged Infringement of the Right to Just Administrative Action, in terms of Section

33, of the Constitution

82. In my view, the applicant cannot avail himself of the right, to just administrative action, in view of my finding above, that the respondents have not performed an "administrative decision", within the meaning of PAJA. This challenge, cannot succeed, therefore.

The Alleged Infringement of Subsection 23 (1) of the Constitution

83. The applicant avers that he was advised that the impugned provisions of the National Instruction unjustifiably violate his fair labour practice right, provided for in subsection 23 (1) of the Constitution; apparently for the same reasons as he provided for the alleged infringement of his supposed right to be presumed innocent.

84. This challenge cannot succeed, because of the doctrine of avoidance. This doctrine " ...dictates that "remedies should be found in common law or legislation before resorting to constitutional remedies, and the related principle that norms of greater specificity should be relied on before resorting to norms of greater abstraction." See Ian Currie & Johan de Waal (in association with Lawyers for Human Rights and the Law Society of South Africa), "The Bill of Rights Handbook", Fifth Edition. Juta, 2005. See also N F Jayiya v Member of the Executive Council for Welfare. Eastern Cape Provincial Government and Another. Case no.264/02, para [9].

85. Our courts have held time and again. that. the LRA was promulgated lo give effect to the constitutional right to fair labour practices (section 23 of the Constitution). In this instance, therefore. instead of seeking declaratory relief indirectly from the Constitution the applicant should have sought it under the LRA. I turn now to deal with the alleged infraction of the right to dignity (section 1O of the Constitution).

The Alleged Infringement of the Right to Human Dignity

86. The applicant avers that the respondents· decision that he took a dishonourable discharge service termination category. and that there would be no leave gratuity payment. suffices for one to conclude that the respondents are drawing their own. untested. defamatory conclusion that further violates his right to dignity. as enshrined in section 10 of the Constitution. The respondents deny that. and put the applicant to proof.

87. Section 10 of the Constitution provides that "[E]veryone has inherent dignity and the right to have their dignity respected and protected." In S v Dodo, [2001] ZACC 16; 2001 (3) SA 382 (CC), Ackerman J expressed himself in para [38], as follows:

"Human beings are not commodities to which a price can be attached; they are creatures with inherent worth and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end."

88. The importance of the right to human dignity cannot be overemphasized. Actually, one can describe this right, as the pivot around which all the other rights in the Bill of Rights, revolve.

89. In S v Makwanyane, [1995] ZACC 3; 1995 (3) SA 391 (CC) para 144, O' Regan expressed herself in relation to the right to human dignity as follows:

"Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in... [the Bill of Rights]."

90. In Makwanyane (above) the point made was re-iterated by Chaskalson P (as he was then), as follows:

91. 'The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in the Bill of Rights. By committing ourselves to a society founded on the recognition of human rights, we are required to value these two rights above all others."

92. Sachs J is quoted in "The Bill of Rights Handbook" (above), on page 275, as having expressed himself in August v Electoral Commision, 1999 (3) SA 1 (CC) at para 17, in relation to human dignity and democratic government:

"The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of person hood. Quite literally, it says that everybody counts."

93. Prima facie, the applicant's right to human dignity has been infringed. This is firstly, because, the applicant was deemed to have taken a dishonourable discharge service termination, whereas, he had tendered a resignation, just like any other member of the SAPS would have done. Secondly, that kind of treatment, was based on the fact, that, he resigned while criminal proceedings in which he was involved, as an accused, and which involved a robbery charge, among other charges, were still pending.

94. Lastly, he was excluded from the category of members, who qualified for payment, of the cash value of their capped leave, upon termination of their services _ that was despite the fact that he would still have been disqualified, even if his were a normal resignation. All those factors, taken together, must have put a stain on the applicant as a person. That must have negatively affected his good reputation, hence the suggestion of defamation.

95. I must pause here, to deal with a very vital aspect of this matter. It transpired during arguments, that that there is a common misapprehension, that, the treatment that was meted out to the applicant by the respondents, was triggered by the fact that, the applicant resigned, when he was accused of misconduct, but before he was charged internally, or departmentally. Paragraphs 65 and 66 of the answering affidavit is also to the same effect. I suppose it was this error that led the applicant, into averring that the impugned provisions of the National Instruction, were not applicable to him.

96. The erroneous understanding contradicts the contents of "Annexure NMRS" to the supplementary founding affidavit, a communication from M.J Makhabane, the Provincial Head, Human Resource Management, Limpopo, and dated 03/02/2021, addressed to the Provincial Head: South African Police Services, Legal Services, Limpopo Province. The said communication states that the applicant has resigned from the Service, after he had been arrested and detained, and that, the resignation of a member, who is accused of misconduct, would be regarded as dishonourable discharge, in terms of the relevant provisions of the National Instruction, that I referred to above. It further makes reference to paragraph 15 of the National Instruction. It also bears mentioning, that, Annexure NMR9 to the supplementary founding affidavit almost mirrors Annexure NMR9 to the supplementary founding affidavit, a correspondence dated 15 July 2020, from the applicant's Commander, Captain Alidzulwi, the Station Commander, SAPS, Mutale , addressed to the Provincial Commissioner, SAPS, Polokwane.

97. There are various categories of employees or members of the service who are or were deemed to be discharged on account of misconduct, or who get a dishonourable discharge service termination category, in terms of subparagraph 5/2)/a) of the National Instruction. An employee who is accused of misconduct and who resigns from the Service before the trial has been finally disposed of, falls under one of those categories. As alluded hereinabove, the applicant is one such person, in my view.

98. Furthermore, it bears noting that Regulation 5(4) of the Regulations for the SAPS (Government Notice no. R 1361, of 01 November 2016): Discipline Regulations: lists some crimes, as types of misconduct that warrant expeditious handling. It follows therefore, that, the phrase "accused of misconduct', in subparagraph 5(2)(a) of the National Instruction should also bear the meaning "accused of a crime". In this instance, a crime is one, in relation to which, trial proceedings were still pending, when, the applicant resigned. On this score, the aforesaid provisions of the National Instruction, applied to the applicant, at all material times.

99. Back to rights analysis. The respondents have not advanced any evidence, to justify the alleged infringement, as I alluded above. However, in his written submissions, Mr. Ngoetjana submitted that, had the applicant not resigned from the SAPS, he could have been dealt with in terms of section 36 of the South African Police Service Act. In that regard, counsel referred to Khongoana v Minister of Police and Others (45970/13) [2014] ZAGPPHC 972 (11 November 2014), where, subsection 36(1) of the SAPS Act, that provides that a member convicted and sentenced to a term of imprisonment, without the option of a fine, shall be deemed to have been discharged from the Service with effect from the date following the date of such sentence, was found to be a reasonable and justifiable in an open and democratic society as contemplated in section 36 of the Constitution (para [39]).

100. Counsel also referred to Popcru obo Minister of Safety and Security and Another (J1536/12) [2014] ZALCJHB 352 (2015) 36 LIJ 760 (LC) (16 September 2014], where the Court, dealing with provisions of a legislative measure, similar to the those of subparagraph 5(2)(a) of the National Instruction, found, without even having to embark on a limitation analysis, that, the right to fair labour practices (section 23 of the Constitution) and the right of access to courts or another independent and impartial tribunal or forum (section 34 of the Constitution) were not infringed thereby.

101. For the fact that different rights featured in the Popcru matter, I find that matter to be not helpful here. Dealing with a reference by the respondents to subsection 36(1) of SAPS Act elsewhere in their answering affidavit (where that has nothing to do with rights-analysis, but I find relevant to this exercise, still), in his reply, applicant questioned the relevance of this legislative provision, to this matter.

102. I find this provision to be relevant, in that, the applicant tendered his resignation, while he was still facing very serious and dismissible criminal charges, bearing in mind, subsection 36(1) of the SAPS Act. That, then meant that, if his resignation was not changed to dishonourable discharge service termination, it was going to be regarded as a normal one, with no adverse consequences. That is, notwithstanding that, he would still not have received the cash value for his capped leave.

103. However, I can think of two built -in mechanisms within the respondents' systems, that would have saved the situation, had the applicant reconsidered and withdrew his resignation application. First, subparagraph 5(2)(b) of the National Instruction provides that "[T]he employee must be informed by his or her commander that his or her service termination will be regarded as dishonourable discharge on account of misconduct before the service termination is processed." It is clear from this provision that the timing of information provisioning, leaves room for any such member to reconsider.

104. Lastly, SAPS 584 form, titled "Application for Service Termination/Dismissal", that forms part of respondents' records, that they filed in compliance with Uniform rule 53, shows that the Commander is supposed to inform the applicant or members that their resignation will be deemed as a dishonourable

discharge, on account of misconduct. It further provides that in that event, the member will not be paid the cash value of his or her capped leave. Provision is also made for the member to declare that he or she has been so informed. This form, clearly, ensures compliance with subparagraph 5(2)(b) of the National Instruction, by the Commander.

105. In my view, the dignity of the member or any other member (as this measure is of general application, as it applies to all the members of the SAPS), is, or was safeguarded by the two facilities. Although the applicant says no such explanation was given to him (which allegation cannot stand, in the face of the explanation by the respondents that I find to be not such as can be described as inadequate, unlikely or clearly untenable), that, is of no moment, in the circumstances. Or else, that is a matter for another forum.

106. In my view, therefore, the limitation of the applicant's right to dignity through subparagraph 5(2)(a) of the National Instruction, is reasonable, and justifiable, in an

open and democratic society, as envisaged in section 36 of the Constitution.

107. As I intimated, hereinabove, I avoid to express myself in the same regard, in relation to subparagraph 15 of the National Instructions, in view of the primacy of collective agreements, and deference to the sanctity of agreements, as acknowledged, authoritatively in Cusa v Tao Ying Metal Industries and Others (CCT 40/07 [2008] ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC); [2009] 1 BLLR 1 (CC); 200829 ILJ 2461 (CC) (18 September 2008), where, dealing with the application for leave to appeal, Ngcobo J (as he was then), writing for the majority, held the following in paras [55] and [56]:

"55. The issues.... . This case also concerns the enforcement of a bargaining council agreement which sets out minimum wages and other conditions of employment and requires us to apply the provisions of the LRA. The right of every trade union and every employers' organisation and employer to engage in collective bargaining is entrenched in section 23(5) of the constitution (30). The concomitant of the right to engage in collective bargaining is the right to insist on compliance with the provisions of the collective agreement which is the product of the collective bargaining process." [own emphasis.].

"56. Complience with a collective bargaining agreement is crucial not only to the right to bargain collectively through the forum constituted by the bargaining council, but it is also crucial to the sanctity of collective bargaining agreements. The right to engage in collective bargaining and to enforce the provisions of a collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched." [own emphasis.].

COSTS

108. It is trite that costs follow the event.

CONCLUSION

109.1 The respondents' point in Ii mine, in relation to the non-observance by the applicant, of Uniform rule 16A(a), (b) and (c), is dismissed. It is ordered that the relevant notice be dispensed with, in the interests of justice;

109.2 The applicant's point in limine, in relation to the locus standi, of the deponent to the respondents' answering affidavit, is dismissed;

109.3 In view of the finding that the respondents' decision to alter the applicant's service termination, from "resignation" to "dishonourable discharge on account of

misconduct", was not "an administrative decision", within the meaning of PAJA and in view of the further finding, that, the matter fell to be determined by the Labour

Court, this Court's jurisdiction is not engaged.

109.4 The application for declaration of constitutional invalidity, of subparagraph 5(2)(a) of SAPS National Instruction 3/2017 (National Instruction) on account of the alleged infringement of subsection 35 (3) (h) of the Constitution, is dismissed;

109.5 The application for declaration of constitutional invalidity, of subparagraph 5(2)/al of the SAPS National Instruction on account of the alleged infringement of subsection 23 (1) of the Constitution, is dismissed, on the basis of the "doctrine of avoidance." That is to say, that the applicant should have located his remedy exclusively in the LRA.

109.6 The application for a declaration of constitutional invalidity, of subparagraph 5(2)(a) of the National Instruction on account of the alleged infringement of section 33 of the Constitution, is dismissed; for the Court having found that the impugned decision is not an "administrative decision" within the meaning of PAJA.

109.7 The application for a declaration of constitutional invalidity, of subparagraph 5(2)(a) of the National Instruction, on account of the alleged infringement of section 10 of the Constitution, is dismissed.

109.8 Subparagraph 15 of the National Instruction remains intact, or no real determination thereon was made on account of (1) the primacy and sanctity of the collective agreement or Resolution, Resolution 7/2000 of the Public Service Coordinating Bargaining on the "Improvement in the Conditions of Service of Public Service Employees For 2000/2001 Financial Year, from which it originated (2) and particularly, as held in paragraphs [55] and [56] of Cusa v Tao Ying Metal Industries and Others[2008] ZACC 15; , 2009 (2) SA 204 (CC); and

109.9 Applicant is ordered to pay costs, including, costs of two (2) counsel.

ACTING JUDGE OF THE HIGH COURT

LIMPOPO LOCAL DIVISION, THOHOYANDOU

APPEARANCES

FOR THE APPLICANT: Shemaya Vengesa Attorneys

INSTRUCTED BY:

NIA

FOR THE RESPONDENTS: Advocate M. E Ngoetjana

INSTRUCTED BY:

State Attorney, Thohoyandou

DATE OF HEARING:

07/09/2023

DATE OF JUDGEMENT: 15/04/2024