South African Police Service v Public Servants Association

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 13 October 2006
• Citation: 2007 (3) SA 521 (CC)
• Docket Number: CCT 68/05
• Hearing Date: 18 May 2006
• Counsel: R Sutherland SC (with D Mashigo) for the applicant. G J Marcus SC (with K W Luderitz) for the respondent.
• Court: Constitutional Court

Sachs J:

[1] This case started as a dispute over how the word 'may' should be interpreted in a provision in the Police Service Regulations. It developed into a wider enquiry on how regulations should be purposefully and contextually interpreted when they are designed to serve diverse purposes in a complex context. F

[2] Regulation 24(6) of the regulations for the South African Police Service (SAPS), promulgated in 2000, [1] reads as follows:

'(6) If the National Commissioner raises the salary of a post as provided under subreg (5), she or he may continue to employ the incumbent employee in the higher-graded post without advertising G the post if the incumbent -

(a)

already performs the duties of the post;

(b)

has received a satisfactory rating in her or his most recent performance assessment; and

(c)

starts employment at the minimum notch of the higher salary range.' H

(My emphasis.) The National Police Commissioner (the commissioner) on the one side, and the unions representing police officers [2] on the other, found themselves in disagreement on how the subregulation should be understood and applied..

Sachs J

[3] The commissioner claimed that although subreg (6) vested a A discretion in him when upgrading a post to allow an incumbent to remain undisturbed and enjoy a higher salary without competing for the newly regraded post, it did not oblige the commissioner to do so automatically and mechanically. The police unions on the other hand insisted that the subregulation did not give a discretionary power to the commissioner, but rather established that the ordinary process of filling posts through advertisement was not to be applied in situations B where an incumbent employee is working satisfactorily in a post which is upgraded and carries a higher salary.

[4] It appears that disagreement on the issue of interpretation led to great uncertainty which in turn threatened to have a negative C effect on the efficiency of the SAPS and the morale of its members. Many incumbents dissatisfied at not receiving automatic promotion when their posts were upgraded, resorted to arbitration.

[5] In October 2002 the commissioner launched proceedings in the D Pretoria High Court for a declarator that on a proper interpretation of reg 24(6) he was entitled either to advertise the post which he had decided to regrade to a higher grade, or to continue to employ the incumbent employee in the newly higher-graded post without advertisement. He sought a further declarator to the effect that such incumbent was not entitled to automatic promotion. A E supporting affidavit [3] stated that the declarator would resolve real disputes as to the meaning of reg 24 and prevent further disputes arising. It averred further that the commissioner was expending huge amounts of manpower and money in dealing with such disputes. For their part, two of the police unions opposed the application, alleging that the declarators should be refused because, properly F interpreted, the regulation provided for automatic promotion of an officer, certified as efficient, whose post was upgraded.

[6] The High Court granted the application [4] and issued the declarators as requested by the commissioner. It held that within the framework of the regulations, promotions are made only after the post in question is advertised; if G the legislation intended that retention of an incumbent in a post with an increased salary was in each instance to occur without the process of advertising, the use of the word 'may' by the drafter was irreconcilable with that intent. According to the High Court the word 'may' in the context in which it was used was unambiguous and had to H be given its ordinary meaning, which implied a discretionary power. The judgment emphasised that 'there is a powerful and legitimate public interest in an efficient and effective police service' and that a procedure which would oblige the commissioner to elevate the status of a police officer without transparency and openness is inimical to that interest.. I

Sachs J

[7] The High Court accordingly granted an order declaring: A

'1.

That the applicant is vested with a discretion in terms of reg 24(6) of Regulation 389, the Regulations for the South African Police Service, published in the Government Gazette 21088 on 14 April 2000 either:

(a)

to advertise the post which he has decided to regrade to a higher grade, or; B

(b)

to continue to employ the incumbent employee in the newly higher graded post without advertising the post, provided that the requirements of reg 24(6)(a), (b) and (c) are satisfied.

2.

That the incumbent of a post is not entitled to an automatic promotion to a more senior rank upon the decision of the applicant in terms of reg 24(6) to continue to employ the incumbent in a post which the applicant has decided to regrade to a higher grade. C

3.

That the costs of this application be borne by the applicant.'

[8] The Public Servants Association (the union) appealed to the Supreme Court of Appeal, which divided on the matter. [5] Three Judges [6] stated that if the High Court interpretation of the regulation were to be upheld the effect would be that an incumbent of the upgraded post, who happened to be coping with all the duties of the D 'new' post and doing so satisfactorily, would lose his or her employment if somebody else were appointed to it. This would infringe the incumbent's right to fair labour practices and the right not to be unfairly dismissed. This consequence, the majority of the Supreme Court of Appeal held, would be manifestly inequitable particularly seeing E that in subreg (7), [7] and elsewhere in the regulations, the Labour Relations Act [8] and collective agreements between the service and its employees are acknowledged and, by inference, respected. The majority accordingly decided that provided the requirements of paras (a) and (b) of reg 24(6) are met, the commissioner is not only empowered to retain the incumbent in the upgraded post without advertising it, but under a duty to do so and to F do so at the salary prescribed by para (c). In the view of the majority, the application to the High Court ought to have failed. The order of the High Court was accordingly set aside and the application for a declarator was dismissed.

[9] The minority in the Supreme Court of Appeal [9] held that upon the upgrading of a post the commissioner H had a discretion whether to continue to employ the incumbent employee in the higher-graded post. Should he or she not be employed in the upgraded post he or she could,

Sachs J

in the circumstances mentioned in reg 36(2), [10] without the post being advertised, be appointed to a post A similar to the one that had been filled by him or her, and he or she could also be discharged in terms of reg 45. [11] Although reg 24(6) did not contain any guidance on how the commissioner's discretion was to be exercised, such guidance could be found in regulations which, first, required that the discretion be exercised with due regard to the requirements of efficient and B effective service delivery and the provision of appropriate incentives for employees, [12] and, second, that the discretion be exercised in the light of the principle that employment practices must ensure employment equity, fairness, efficiency and the achievement of a representative service. [13] C

[10] Being administrative action, the minority judgment continued, a decision taken by the commissioner would in appropriate circumstances be reviewable. Furthermore, should the incumbent employee in the particular circumstances of the case have a legitimate expectation to be appointed to the higher-graded post, the administrative action would have to be procedurally fair. Should it not D be administratively fair it would likewise be reviewable. For these reasons the minority would have dismissed the appeal.

[11] The commissioner has now applied to this Court for leave to appeal against the whole of the judgment and order of the Supreme Court of Appeal. Before it is possible to reach the merits of the E application, however, two anterior questions have to be considered. The first is

Sachs J

whether the issue raised is a constitutional one. [14] The second is whether it is in the interests of justice A for leave to appeal to be granted.

[12] The matter concerns the capacity of the commissioner to fulfil responsibilities entrusted to him by the Constitution of the Republic of South Africa, 1996. [15] Furthermore, reg 24(6) was interpreted by the Supreme Court of Appeal in the light of s 23(1) of the Bill of Rights, which B guarantees to everyone the right to fair labour practices. Prominent among these rights is the right not to be unfairly dismissed. At the heart of the decision being appealed against, then, is the manner in which the majority and minority in the Supreme Court of Appeal differed over how appropriately to balance two constitutional requirements, C namely, capacity-building of the SAPS, on the one hand, and respecting job security, on the other. Two constitutional issues are engaged, and the matter is clearly a constitutional one.

[13] In support of his claim that it is in the interests of justice that the appeal be heard, the commissioner relied on the following: D

•

There is self-evidently a reasonable prospect of the appeal succeeding given the divergent judicial views.

•

The issue was controversial and litigious. Many decisions had been taken by the commissioner upon the authority of the initial E judgment of the High Court that might have to be reversed. Accordingly there was a dire need for clarity and finality on the proper interpretation of reg 24(6), a result which was not satisfactorily achieved by the division of judicial opinion.

•

The proper interpretation and application in...