Vuma v National Commissioner of the South African Police Services (SAPS) and Others (J 1297/22) [2022] ZALCJHB 278 (14 October 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1297/22

In the matter between:

FRANCINAH NTOMBENHLE VUMA

Applicant

And

NATIONAL COMMISSIONER OF THE

First Respondent

SOUTH AFRICAN POLICE SERVICE (“SAPS”)

MINISTER OF POLICE

Second Respondent

THE PRESIDENT OF THE REPUBLIC OF SOUTH

Third Respondent

AFRICA

Heard: 13 October 2022

Delivered: 14 October 2022

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 14 October 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks this Court’s intervention, by way of an urgent application, to uplift her suspension and to order the first respondent to produce documents that she has requested for the purpose of making representations in response to the first respondent’s intention to suspend her. The relief sought in the notice of motion is more wide ranging but during argument, these were the orders ultimately sought.

[2] The applicant is employed by the first respondent. She is the deputy national commissioner responsible for support services and holds the rank of lieutenant general.

[3] On 13 January 2021, the High Court, Gauteng Division, Pretoria, delivered a judgment which among other things declared the applicant to have breached her duties by failing to furnish IPID with information and documents for the purposes of its investigations. Applications for leave to appeal against the judgment were dismissed by the High Court, and later the Supreme Court of Appeal and the Constitutional Court. In consequence of these rulings, on 8 July 2022, the employee was placed on precautionary suspension in terms of the SAPS Discipline Regulations. In terms of the Regulations, an employee may be placed on precautionary suspension pending after having been afforded a reasonable opportunity to make reasonable representations.

[4] A disciplinary hearing scheduled to commence on 19 August 2022 on charges involving the applicant’s alleged breach of her duties arising from the IPID Act did not proceed, since the charges of misconduct brought against the applicant had become the subject of a referral to the bargaining council in terms of section 188A of the LRA. That section contemplates the appointment of an arbitrator to conduct an inquiry where an employee alleges that the convening of a disciplinary hearing is an occupational detriment for the purposes of the PDA. The section 188A enquiry commenced before an arbitrator appointed by the bargaining council on 30 September 2022.

[5] In the interim, on 29 August 2022, the first respondent received a report from the SIU implicating the applicant in what is alleged to be the irregular and unlawful procurement of personal protective equipment, resulting in irregular expenditure of some R500 million. The first respondent addressed a letter to the applicant, expressing the intention to again place her on precautionary suspension and inviting her to address written representations, by 6 October 2022, as to why she should not be suspended.

[6] On 4 October 2022, the applicant’s attorney wrote to the first respondent recording receipt of the notice of intention to suspend and requested information for the purpose of making the representations that had been invited.

[7] On 6 October 2022, in a ruling on preliminary matters issued by the arbitrator in the section 188A(11) enquiry, he recorded that the 30-day extension of the applicant’s initial suspension had lapsed and that in terms of Regulation 10(4), her suspension was automatically uplifted, and that she was entitled to return to work from 7 October 2022. On the same date, the applicant was again suspended, following the letter dated 3 October 2022, and in the absence of any written representations submitted by her, on the basis of the seriousness of the allegations against her arising from the SIU report, and the fact that her presence in the

workplace had the potential to compromise the disciplinary process.

[8] The first and second respondents, who oppose the application, contend that the application is not urgent. In particular, they point to the applicant’s abortive attempt to have an application enrolled for hearing on the afternoon of 6 October 2022, and the later enrollment of the application on 12 October 2022. In essence, the respondents contend that any urgency is self-created.

[9] The principles regulating urgency are well-established. In Jiba v Minister of Justice and Constitutional Development and Others[1] the Labour Court said the following:

‘Rule 8 of the rules of this Court require a party seeking urgent relief to set out the reasons for urgency and why urgent relief is necessary. It is trite law that there are degrees of urgency. And the degree to which the ordinary applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.’

[10] The applicant was advised of her suspension on 3 October 2022. She took immediate but misguided steps to protect her rights. While the present application was filed only on 7 October 2022, the delay is not excessive. In my view, the applicant filed the application within a reasonable time after receiving notice of her suspension, and the application falls to be treated as one of urgency.

[11] The applicant seeks a final order. The essential requirements for a final interdict are usually stated as a clear right; an injury actually committed or reasonably apprehended; and the lack of an adequate alternative remedy available to the applicant (see Commercial Stevedoring Agricultural & Allied Workers Union & Others v Oak Valley Estates (Pty) Ltd & another (2022) 43 ILJ 1241 (CC)).

[12] The applicant asserts a clear right in the form of a breach of the Protected Disclosures Act, 26 of 2000. In her founding affidavit, the applicant sets out what she avers to be a series of protected disclosures made ‘over the years’. The respondents deny that the applicant has made any protected discloses as defined by the PDA. Given my finding below that the applicant has an adequate alternative remedy, it is not necessary for me to determine whether the applicant has made any disclosures as she avers, and whether these disclosures are protected. As the applicant herself acknowledges, these are matters that can be dealt with in the bargaining council, whether by way of the referral of a dispute concerning an unfair labour practice in the form of an unfair suspension, or by way of a second section 188A (11) enquiry, should the applicant be of the view that any disciplinary action that might flow from the SIU report constitutes an occupational detriment.

[13] This Court must be particularly cautious not to undermine internal disciplinary processes, and dispute resolution structures established in the CCMA or bargaining councils. The final order that the applicant seeks to the effect that she made a protected disclosure would have that consequence, since what the applicant seeks is to be granted immunity against all disciplinary processes. In National Institute for the Humanities & Social Sciences v Lephoto and another 2020 (41) ILJ 374 (LAC), the LAC said the following:

In a constitutional state committed to the principles of transparency and accountability, those exercising power, whether private or public, must be subject to adequate scrutiny. In this context, the PDA fulfills an important objective in the vindication of these commitments. There is, however, a danger that the act will be abused in order to justify wrongful conduct or melt performance by a disgruntled employee, who seeks to fend off consequential disciplinary action taken against him or her by way of recourse to the Act.

[14] The principles regulating the granting of final interdicts require that the alternative remedy must be a legal remedy, adequate in the circumstances, and grant similar protection (see Hotz v University of Cape Town 2017 (2) SA 485 (SCA)). As I have indicated, the applicant is fully entitled to invoke the dispute resolution structure established by the LRA by referring an unfair labour dispute to the bargaining council. Section 193 (4) of the LRA empowers an arbitrator to determine the dispute on any terms deemed reasonable, including the ordering of reinstatement, re-employment or compensation. In an arbitration hearing convened by the bargaining council, the applicant will be given the opportunity to make out a case for the relief she seeks in relation to the protected disclosures on which she relies, and any occupational detriments to which shemay have been subjected as a result.

[15] In so far as the applicant seeks to rely on special circumstances, and to the extent that special circumstances comprise a discrete factor to be considered when final relief is sought, it is not satisfied that the present matter falls into the category of the exceptional. The judgments to which I was referred (including Dlamini v MEC for Education KwaZulu Natal (D23/2002, 6 August 2022)) and Jacobs v National Commissioner of the South African Police Services (J 194/2021, 17 March 2017) are distinguishable on the facts. The former case concerned obviously egregious conduct on the part of the employer in circumstances where the employee had been suspended pending a disciplinary hearing that had been finalized on

the basis of a finding in favor of the employee, and where the applicant was again suspended after she reported to work. The court

found that the employee’s conduct was a breach of the applicable regulatory regime and a blatant abuse of power. In the latter instance, the court was concerned with a disciplinary inquiry that the employer sought to continue in the face of the employee

invoking section 188A (11). The court found that following the decision to invoke section 188A (11), the disciplinary inquiry should terminate and any disciplinary action against the employee should be under taken in terms of that section. In the present instance, the first respondent is in receipt of a report by the SIU that implicates the applicant in serious misconduct. The veracity of the allegations made against the applicant will be tested in due course, in an appropriate forum. There is no evidence to suggest that the first respondent, in suspending the applicant for the purpose of an investigation into the matters raised in the SIU report, is in any way arbitrary, capricious or malicious, thus placing the case in the category of the exceptional. In any event, in the present instance, the bargaining council is already seized with the applicant referral

in terms of section 188A (11) in respect of the charges arising from the IPID report, and the applicant averments that the bringing of those charges constitutes an occupational detriment. There is no basis in the circumstances for this court to intervene on the basis of exceptionality.

[16] Finally, in relation to costs, section 162 of the LRA affords the court a discretion to make orders for costs according to the requirements of the law and fairness. This formulation has the consequence that costs do not ordinarily follow the result – the result is not irrelevant, but the court must take into account competing considerations, particularly those that bear on access to justice, and in particular, access to this court by aggrieved employees for whom the spectre of an adverse order for costs might disincline them to pursue the remedies that the LRA affords.

[17] The costs of the proceedings on 12 October 2022 were reserved, when the application was stood down to 13 October 2022 to enable the applicant to file a replying affidavit. The applicant knew on 3 October 2022 that the first respondent was considering placing her on precautionary suspension. She sought to set the matter down for hearing on 6 October 2020 in circumstances where it is not clear that the applicant had been allocated a date and time for the hearing by the registrar. The signed founding affidavit was delivered only on 7 October 2022, with a series of additional annexure’s delivered over the weekend of 8 and 9 October 2022. The notice of motion in which the applicant specified the relief that she would seek was delivered only on 10 October 2022, with a supplementary founding affidavit delivered on the same afternoon. It was not until the afternoon of 10 October 2022 that the respondents were furnished with the applicant’s completed case and were in a position to prepare an answering affidavit. As I have indicated, that affidavit was filed on 12 October 2022 and the matter then stood down until the

next day. In my view, the matter was not ready to proceed on 12 October 2022 only on account of the applicant’s failure to file a full set of papers timeously, affording the respondent’s a reasonable opportunity to prepare an answering affidavit. In these circumstances, the requirements of the law and fairness are best satisfied by an order that the applicant bear the costs of proceedings on the 12 October 2022.

Order

1. The application is dismissed.

2. The applicant is to bear the costs of the proceedings on 12 October 2022.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

YS Ntloko, with her T Kgole

Instructed by:

MA Mphahlelema

For the first and second respondents:

N Stein

Instructed by:

State attorney

[1] reference