South African Police Services v Safety and Security Sectoral Bargaining Council and Others (JR699/2005) [2007] ZALC 147 (22 June 2007)

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