South African Policing Union v National Commissioner: South African Police Services and Others (J1740/14) [2014] ZALCJHB 455 (24 July 2014)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: J1740/14

DATE: 2014-07-24

In the matter between

SOUTH AFRICAN POLICING UNION

Applicant

and

NATIONAL COMMISSIONER:

SOUTH AFRICAN POLICE SERVICES

First respondent

MINISTER OF POLICE

Second respondent

PSCBC

Third respondent

POPCRU

Fourth respondent

J U D G M E N T

STEENKAMP, J:

This is an application brought as a matter of urgency during the recess to interdict the National Commissioner of the South African Police Services from extending the 18-month leave cycle in which an employee may be granted leave for the 2013 cycle for a period of 18 months until 30 September 2014. The relief sought is of an interim nature until the dispute that the applicant, that is the South African Policing Union, has referred to the Public Service Co-ordinating Bargaining Council (the third respondent).

The first issue to deal with is that of urgency. The application stems from an instruction issued by the Commissioner on 10 June 2014 in which she noted that the 18-month period within which an employee can be granted leave for the 2013 cycle would lapse on 30 June 2014; that due to operational requirements of SAPS owing to the general elections, the granting of leave was not always possible; and, as a result, she purported to extend the period to 30 September 2014.

The union wrote to the Commissioner as soon as that instruction came to its attention, asking her to rescind it. No such undertaking

was forthcoming. And although the union threatened with an interim interdict on 26 June, the final indication from the Commissioner that she would not give the undertaking sought was only forthcoming on 4 July.

The union launched this application some six days later, on 10 July. It gave the Commissioner as well as the other respondents an opportunity to file answering affidavits, in what appears to be -- in circumstances that the union considered urgent -- a fairly generous period, until Tuesday, 15 July. As it happens, the Answering Affidavit was only filed on 21 July. And the union filed its Replying Affidavit immediately after that, on 22 July, to enable the matter to be heard two days later, that is today, 24 July.

Given that the union immediately made use of the prescribed dispute resolution procedures by referring the underlying dispute to the Bargaining Council on 26 July and then endeavoured to obtain an undertaking from the Commissioner to withdraw the instruction pending the resolution of that dispute, I do not consider the period of six days -- which is really the relevant period from the Commissioner’s final response on 4 July -- to be an excessive one. Both parties have filed voluminous papers. The Commissioner has taken significantly more time than the union to file a comprehensive Answering Affidavit. The union responded with alacrity in filing a Replying Affidavit.

The matter is properly before Court and I do not consider, as I have said, that period to impact on urgency. As far as what I would call prospective urgency is concerned, it is obvious that the union seeks interim relief pending the merits of the main dispute to be resolved at arbitration. It is not clear when that arbitration will be heard, but in the interim, the period in which the union’s members will be forced either to take leave or to forfeit it is running and will expire at the end of September. On that ground as well, I consider the matter to be urgent.

I turn then then to the merits, and I will address the aspects pertaining to interim relief at the hands of the well-known dictum in Setlogelo v Setlogelo 1914 AD 221 at 227 and, as Mr Makola pointed out, that was reiterated recently by the Constitutional Court in OUTA, that is National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) at paragraph 41.

The first question is whether the union has a prima facie right for the relief it seeks. I think it is important to note that the test is whether it has a prima facie right, though open to some doubt. Any doubt that may exist is to be either confirmed or dispelled by the Arbitrator when the proper forum, that is the Bargaining Council, hears the main dispute in arbitration.

At this stage, the union founds its right in a collective agreement. There is no dispute that there is a collective agreement between the parties as defined in the Labour Relations Act 66 of 1995 and that that agreement regulates the taking of leave. That agreement, Resolution 7 of 2000, records in clause 7.1(d):

“[W]here leave due is not taken due to the employer’s service delivery requirements, such leave shall be paid at the end of the 18 month period.”

Quite clearly the union’s members are being deprived of that right. Mr Makola has argued eloquently that the Commissioner, on the other hand, founded her right to extend the leave period in an instruction that was issued pursuant to section 25 of the SAPS Act[1]. However, a collective agreement, as the Court debated with Mr Makola, varies any contract of employment between an employee and employer, while both are bound by the collective agreement in terms of section 23(3).

Mr Makola’s argument that this instruction merely amounts to a change in work practice, and not to a change in terms of conditions of employment, therefore, cannot be upheld. This is a unilateral change to a collective agreement that varies the contract of employment. That the Commissioner could not do without having negotiated such a change and having come to a new agreement with the union.

Furthermore, the LRA states clearly in section 210 that, if any conflict relating to the matters dealt with in this Act (the LRA) arises between this Act and the provisions of any other law, save the Constitution or any Act expressly amending this Act, the provisions of this Act will prevail. The collective agreement is binding on the parties in terms of section 23 of the LRA. Insofar as section 25 of the SAPS Act may be in conflict with section 23 of the LRA, the LRA prevails. The SAPS Act does not purport to amend the LRA and neither does the Constitution.

I conclude, therefore, that the union has at this stage made out a case for a prima facie right, albeit open to some doubt, and whether it can establish a clear right is to be decided in the main arbitration at the Bargaining Council.

I then turn to the issue of a well-grounded apprehension of irreparable harm. As Mr Makola has pointed out, the Arbitrator may or may not find in the union’s favour. Should the finding go in its favour, he argues that, as a matter of law, the members will be entitled to the money due to them.

However, there are two problems with this submission. The first is that, in the interim period pending the arbitration, the union’s members are in the invidious position that they have to decide whether or not to apply for leave before 30 September. As Ms McLean put it, they have to take a gamble.

The other problem is that, although Mr Makola makes the point in his argument that the fact that they have taken leave should not compromise their ability to be repaid if the finding goes in their favour, when it threw down the gauntlet to the Commissioner to make a tender in those terms, which would have obviated the need for these proceedings and for any further costs, the Commissioner declined that invitation.

The union, quite understandably, is in those circumstances not willing to take its chances that the Commissioner will indeed act in accordance with the position that Mr Makola has set out in his argument, whatever his advice to the Commissioner may be. I am satisfied that at this stage there is at least an apprehension of irreparable harm pending the determination of the main dispute.

Turning then to the balance of convenience, it is difficult to see what the inconvenience will be to the SAPS if the interim relief is granted. Mr Makola argues that there will be administrative chaos. It is difficult for the Court to understand how that purported administrative chaos could be any worse than the administrative chaos that will result if those members of the applicant who are entitled to leave that they were not able to take earlier, will now all take during the next three months. It appears to me that that will impact more severely on service delivery in a country that is already under-policed and under-resourced. The applicant’s

members, on the other hand, suffer great inconvenience in that they are now forced to take leave during a period when it may well not be convenient to them. Had it been convenient, one surmises they would have applied for leave during this period in the following leave cycle in any event.

In conclusion, I am satisfied that there is also at this stage no other satisfactory remedy to the union. The union has acted

expeditiously in using the remedy that is prescribed by the dispute resolution processes in the Act. They have already referred a dispute to the Bargaining Council. That dispute has already been unsuccessfully conciliated. As an aside, the conciliation would no doubt have been successful, had the Commissioner made the tender that she was invited to make by the union today. The matter is now ripe for hearing at arbitration.

The only criticism that the Court has of the union’s conduct is that, on the papers before me, it does not appear as if the union has attempted to expedite the arbitration hearing by requesting the Bargaining Council to set the matter down for an urgent or expedited arbitration.

In conclusion, the union is entitled to the interim relief it seeks. Both parties have asked for costs to follow the result. I can see no reason in law and fairness to interfere with that request. I am also satisfied that given the complexity of the matter that had to be dealt with under severe time constraints, the union was entitled to the use of two counsel.

Therefore, an order is granted in the following terms:

1. The forms and service in the rules of court are dispensed with and the matter is heard as one of urgency in terms of rule 8.

2. The first respondent, that is the National Commissioner of the SAPS, is interdicted from extending the 18-month leave cycle in which an employee may be granted leave in the 2013 cycle, to 30 September 2014, or to any other period later than 30 June 2014, until the dispute initiated by the applicant in its referral to the Public Service Co-ordinating Bargaining Council is finally resolved.

3. The first respondent is ordered to pay the applicant’s costs, including the costs of two counsel.

________________________

STEENKAMP J

APPEARANCES

APPLICANT

C Watt-Pringle (with him K McLean)

Instructed by

VDT attorneys

FIRST RESPONDENT B L Makola

Instructed by

The State Attorney.

[NOTE: This judgment was handed down ex tempore on 24 July 2014. A copy of the transcript was emailed to the Registrar by iAfrica transcription services on 10 November 2014, apparently at the request of the applicant’s attorneys. I received the file and signed the transcribed judgment on 20 November 2014].

[1] South African Polices Services Act 68 of 1995.