South African Police Service v Safety And Security Sectoral Bargaining Council and Others (JR699/2005) [2007] ZALCJHB 33 (22 June 2007)
The applicant failed to establish any reviewable irregularity as required by section 145 of the Labour Relations Act. The grounds advanced were appeal grounds, not review grounds, and the applicant did not provide evidence at arbitration regarding the availability of the post or budget. The arbitrator's decision was...
Source-derived case information.
- Citation
- [2007] ZALCJHB 33
- Parties
- Applicant: South African Police Service; Respondent: Safety And Security Sectoral Bargaining Council; Respondent: Moletsane, Russell N.O; Respondent: Lotter, Maria Antoinette
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR699/2005
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application for review dismissed.
- Judges
- Ngalwana AJ
- Legal Topics
- Unfair Labour Practice, Promotion, Review of Arbitration Award, Grounds for Review
Source-derived case record
Summary, issues, holding and outcome
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Parties
South African Police Service
Applicant
Safety And Security Sectoral Bargaining Council
Respondent
Moletsane, Russell N.O
Respondent
Lotter, Maria Antoinette
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the arbitration award should be reviewed and set aside under section 145 of the Labour Relations Act.
- 2 Whether the arbitrator committed a reviewable irregularity in ordering the promotion of the third respondent.
- 3 Whether the applicant advanced proper grounds for review rather than appeal.
Ratio Decidendi
The applicant failed to establish any reviewable irregularity as required by section 145 of the Labour Relations Act. The grounds advanced were appeal grounds, not review grounds, and the applicant did not provide evidence at arbitration regarding the availability of the post or budget. The arbitrator's decision was rational and justifiable based on the material before him. The reviewing court is not tasked with determining the correctness of the award, but whether it is irrational or unjustifiable. As the applicant did not meet this threshold, the review application must fail.
Court Disposition
Application for review dismissed.
Orders
- The application for review is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: JR699/2005
In the matter between:
SOUTH AFRICAN POLICE SERVICE Applicant
and
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL First
Respondent
MOLETSANE, RUSSELL N.O Second
Respondent
LOTTER, MARIA ANTOINETTE Third
Respondent
JUDGEMENT
NGALWANA AJ
[1] This is an application for the review and setting aside of an arbitration award made by the second respondent on 10 February 2005 under the auspices of the first respondent. In that award, the second respondent found that the applicant committed an unfair labour practice in not promoting the third respondent to the position of Senior Superintendent. He thus ordered the applicant to promote the third respondent with retrospective effect to 1 March 2002.
[2] Section 145 of the Labour Relations Act on which the applicant relies for this review application requires the applicant to prove one of four grounds of review. These are misconduct on the arbitrator’s part in relation to his duties as an arbitrator; gross irregularity in the conduct of arbitration proceedings; ultra vires conduct by the arbitrator in the exercise of his powers and an improper obtaining of the award. On a conspectus of all the cases, however, it seems to me the permissible grounds of review are wider than those set out in section 145 of the Act and can perhaps be reduced to this: for the applicant to succeed the decision must be shown to be irrational (in the sense that it does not accord with the reasoning on which it is premised or the reasoning is so flawed as to elicit a sense of incredulity) and unjustifiable in relation to the reasons given for it (Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp NO (2002) 23 ILJ 863 (LAC) at paragraph [19]; Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others (2001) 22 ILJ 1603 (LAC) at paragraph [26]; Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC) at paragraph [37]; Pharmaceutical Manufacturers’ Association of SA and Others: In re Ex Parte Application of the President of the RSA and Others [2000] ZACC 1; 2000 (3) BCLR 241 (CC)). It is not the reviewing court’s task to consider whether or not the decision is correct in law as that would be an appeal (Minister of Justice and Another v Bosch NO and Others (2006) 27 ILJ 166 (LC) at paragraph [29]).
[3] The applicant’s grounds on which it seeks to have the award set aside evidence more appeal grounds than review grounds. It submits that the second respondent “failed to enquire whether there is a post available within the Applicant department to which the Third Respondent could be promoted”. No evidence to that effect was advanced at the arbitration and so the second respondent could not have considered it. The applicant also charges that the second respondent “failed to enquire whether there is a budget for this post” to which it has now promoted the third respondent. It submits that, for these two reasons, the implementation of the second respondent’s award is not feasible. Again, the applicant did not advance any evidence in this regard at the arbitration and so the second respondent did not have it before him. It also submits that the second respondent “committed an irregularity” in substituting his own opinion for that of the panel without making a finding that the panel had committed an irregularity. This is no review ground either but a ground of appeal. The test is whether the decision of the arbitration is justifiable and rational when regard is had to the evidence and other material presented to him. The applicant has not sought to meet this test.
[4] While I consider the award to be wrong in numerous respects, that is not the test for review. In the result, the application for review cannot succeed.
____________________
Ngalwana AJ
For the applicant: Mr P Pio
Instructed by: State Attorney
For the 3rd respondent: Mr F van der Merwe
Instructed by: Public Servants Association of South Africa
Date of hearing: 12 June 2007
Date of judgment: 22 June 2007