Smit v South African Police Service and Others (JR2208/2012) [2014] ZALCJHB 402 (2 October 2014)

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD IN BRAAMFONTEIN)

Case No: JR2208/2012

In the matter between:

G J SMIT

Applicant

and

SOUTH AFRICAN POLICE SERVICE

First Respondent

J L MTHUKWANE

Second Respondent

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL

Third Respondent

Delivered: 02 October 2014

JUDGMENT: LEAVE TO APPEAL

1. This is an application for leave to appeal against my judgment, in terms of which I found that the arbitration award of the second respondent was reviewable and directed that the matter should be remitted to the third respondent to conduct fresh arbitration proceedings before a different arbitrator. The applicant is the South African Police Service (“SAPS”), although I have kept the parties the same as in the review application.

2. In the Heads of Argument filed on behalf of the SAPS it is submitted that my judgment is wrong because I did not follow the decision of the Labour Appeal Court in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others [2014] (1) BLLR 20 (LAC) and only considered the judgment of the Supreme Court of Appeal in Herholdt v Nebank Limited (Congress of South African Trade Union as amicus curiae) [2013] 11 BLLR 1074 (SCA).

3. The argument made is that I should have followed the judgment of the LAC in Gold Fields, not the SCA decision in Herholdt because as a result of the amendments to the Constitution, which came into effect on 23 August 2013, the SCA and the LAC “may thus well be of equal standing.”

4. Furthermore, it has been submitted that I erred in finding that the failure to process and pay the employee (or Mr Smit, the applicant in the review applicant) his pension was indicative of the fact that his discharge was not completed. Also, it is submitted that there was no agreement between the applicant, Mr Smit, and the SAPS concerning the reinstatement of Mr Smit.

5. None of these grounds have substance.

6. To start with the issue of the correct test, the SAPS appears to proceed on the assumption that the test postulated in the judgment of Gold Fields and that set out in Herholdt are different. At paragraph 58 of the Heads of Argument filed by the SAPS the following is sated:

“It is submitted that the reviewing court also erred to the extent that it did not consider the important aspect of reasonableness, as misconceiving the nature of the enquiry is not sufficient for the award to be reviewed and set aside.”

7. It is not a correct statement of the law that “misconceiving the nature of the enquiry is not sufficient for the award to be reviewed and set aside”. The correct statement of the law, as explained in Herholdt and endorsed in Gold Fileds is that a gross irregularity within the contemplation of section 145(2)(a) of the Labour Relations Act, 66 of 1995 (“the LRA”)

“is committed where decision makers misconceive the whole nature of the enquiry and as a result misconceives their mandate or duties in conducting the enquiry.” [1]

8. The Gold Fields judgment did not quibble with this finding. The LAC simply explained that reviews under section 145(2)(a) are not limited to instances where an arbitrator has misconceived the nature of the enquiry. They extend to the question whether the result is unreasonable. This is precisely the same finding which was made by the SCA. There is accordingly no basis for the complaint that I applied the test set out in Herholdt, which somewhat differs from what was impressed by the LAC in Gold Fields.

9. The next complaint is that I made reference to the pension pay out as being indicative of the fact that discharge application by Mr Smit was not yet concluded. This issue does not seem to me relevant to the question of the application for leave to appeal brought by the SAPS. My finding is that the flaw in the approach of the arbitrator relates to his failure to address pertinently the question whether the discharge of the employee, Mr Smit, complied with Regulation 15 of the SAPS Employment Regulations, which govern his discharge from the SAPS. I have made no finding that the failure to process the pension pay out of Mr Smit indicates that he was not discharged as contemplated by Regulation 15. That is a question to be decided by an arbitrator in any subsequent arbitration

proceedings. In my view, however, it is clearly a relevant and material fact that the reason given why the request for a pension pay out was not processed can be laid at the door of the SAPS. It will be recalled that it was the SAPS which had failed to forward the papers of the employee to the pension fund for processing. Accordingly, I do not find this ground persuasive to allow leave to appeal.

10. In relation to the third issue, namely the agreement with the SAPS that Mr Smit would be reinstated, my conclusion was that the award was unreasonable because of the following grounds.

10.1 Mr Smit was criticised for not calling Mr Engelbrecht as a witness and also that he produced no documentary evidence to back up his claim of the agreement. The point is that Ms Taljaard, who was present in the discussion with Mr Engelbrecht testified and confirmed the agreement. The averments of Taljaard were uncontested. Accordingly, it was unfair for the arbitrator to then require the applicant to call Mr Engelbrecht to confirm evidence which is uncontested.

10.2 There was no basis for the finding that documentary evidence was not produced to substantiate the claim of the agreement. As referenced in my judgment, at least 3 documents were produced by the applicant substantiating his claim for agreement.

11. Accordingly, there does not appear to be a reasonable of prospect that another court might arrive at a different conclusion.

12. The application for leave to appeal is refused.

_________________

NGCUKAITOBI AJ

Acting Judge of the Labour Court of South Africa

[1] Herholdt v Nedbank at para 10.