Somfongo and Another v Government of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Pickering J
• Judgment Date: 30 September 1994
• Docket Number: 1265/94
• Court: Transkei Supreme Court
• Hearing Date: 22 September 1994
• Citation: 1995 (4) SA 738 (TkS)

Pickering J:

On 14 July 1994 a rule nisi was issued by this Court calling J upon respondents to show cause why the following order should not be made:

Pickering J

'2.1

A That the respondents be and are hereby compelled to pay applicants their respective emoluments at their applicable new scales with effect from 1 April 1994 forthwith.

2.2

That the respondents be and are hereby compelled to provide meals for 218 cadet officers who are presently on training at the Umtata Police College forthwith. B

2.3

That the respondents be and are hereby restrained and interdicted from removing the 218 cadet officers from Umtata Police College.

2.4

That the respondents be and are hereby restrained from interfering with the promotions that were effected pursuant to the Court order dated 19 April 1994. C

2.5

That the respondents pay the costs of this application.'

First and second applicants are both policemen in the employ of the South African Police Service. First applicant, together with certain other policemen, had previously instituted proceedings in this Court against the D then Transkeian Minister of Police; Commissioner of Police and the Public Service Commission under case No 627/94 and on 19 April 1994 Madala J made an order, inter alia compelling respondents to meet and to negotiate with the applicants therein about the terms and conditions 'which govern their existing employer-employee relationship' as well as about 'promotion E procedure, salary adjustments and other related issues'.

The correctness or otherwise of this decision is not in issue herein but it is worth noting that in the later case of Mbebe and Another v Minister of Police and Others, unreported case No 940/94, Beck JP refused to make a similar order on the ground that there was no legal basis therefor.

F In consequence of the order made by Madala J, a delegation of police members was formed to represent the interests of those policemen seeking promotion in the negotiations. This delegation met with a delegation of high-ranking police officers who were representing the interests of the Minister of Police. The form these negotiations took is the subject of G massive and heated dispute between the parties. Applicants contend that in the course thereof agreements were reached, inter alia, to the effect that 2 829 non-commissioned and 274 commissioned officers would be promoted. Respondents, however, contend, that everything that was 'agreed to' on behalf of the Minister of Police in the course of the 'negotiations' was in fact agreed to under duress and in the face of H coercion, violence and intimidation which was brought to bear upon their delegation by members of applicants' delegation. They contend, inter alia, that the negotiations took place at gunpoint; that members of their delegation were not allowed to express their views at all on the question of the promotions and that they were told that the masses of police I members would deal with them unless they agreed to the proposed promotions.

What is common cause between the parties is that the promotions were effected without regard to the procedures for the promotions of members of the police force laid down in the regulations promulgated by the Minister of Police in terms of s 40(1)(a) of the Transkeian Police Act 16 of 1979 J (Government Notice 42 dated 24 July 1987) and

Pickering J

A Mr Skweyiya SC, who with Mr Madlanga appeared for applicants, accepted that there had been what Mr Alkema SC, who with Mr Gaju appeared for respondents, termed 'absolute non-compliance' with the aforesaid procedures.

Applicants aver further that it was agreed at the conclusion of the negotiations that the promotions would be referred to the Military Council B for its approval and that it would be asked to waive compliance with the normal promotion procedures. This was conceded by respondents, save that they aver that this 'agreement', too, was induced by violence and entered into under duress.

It is further common cause that the Military Council, despite being aware C of the allegations of violence, agreed to waive compliance with the procedures pertaining to promotions and approved of the promotions. Despite this approval the second respondent herein, the Minister of Safety and Security has since issued an order to the effect that no promotions effected in the Transkei Police Force after 19 April 1974 would be confirmed, reversed or altered until a task team appointed by him to investigate all such promotions had made...