Several contributions to CLL

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1 Contemporary Labour Law Vol. 18 No. 10 May 2009 Applications to review decisions of the CCMA The nuts and bolts process by P.A.K. Le Roux Managing Editor: P.A.K. Le Roux Contributing Editor: Carl Mischke Hon.Consulting Editor: A.A.Landman Published by Gavin Brown & Associates Box Tokai 7966 Tel: Several contributions to CLL over the last few years have dealt with the question of what test the Labour Court must apply when asked to review and set aside an arbitration award or ruling (hereafter referred to as a decision ) made by a Commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA) or an arbitrator acting under the auspices of a bargaining council. The processes which accompany an application to review are often little understood and this contribution sets out to explain this procedure required, which is regulated in rule 7A of the Rules of the Labour Court. Various types of awards and rulings can be reviewed. The most common of these are, of course, awards in terms of which an employee has been found to have been fairly (or unfairly)dismissed, an award in terms of which an employer has been found to have committed (or not committed) an unfair labour practice, and rulings relating to condonation applications and other jurisdictional matters. The examples referred to in this contribution will mostly deal with unfair dismissal disputes, but the same principles will usually apply to the review of other awards and rulings. Step One: The Notice of Motion and Founding Affidavit The relief sought A party wishing to review a decision of an arbitrator must, in the first place, prepare a notice of motion in which the relief requested from the Court is set out. This relief will take the form of an order in terms of which the Court reviews (ie considers) and sets aside the decision. The effect of such a decision being set aside is that it no longer has any validity. The decision of the employer that led to the CCMA proceedings comes back in force. However, the fairness of his Inside... Settlement agreements and the Labour Court p95 The price of neglecting to replace a company s statutory proxy p98 Page 91

2 decision still has to be considered. Typically, this will be achieved by the matter being referred back to the CCMA or the relevant bargaining council and the applicant will seek an order in terms of which the Court will remit the matter back to the CCMA or bargaining council so that the matter can be reheard by another arbitrator. In some cases, often as an alternative, the Court can be requested not to remit the matter to the CCMA or bargaining council but rather to decide the matter itself. For example, if the arbitrator made a reviewable error of law and there are no important or relevant factual disputes the Court may decide the matter itself and make a finding, for example, that the dismissal was fair or unfair. However, the situations where the Labour Court will decide the matter itself after setting aside a decision are relatively rare. A party considering whether or not to apply to have an award set aside must therefore not only consider the prospects of successfully reviewing the award, but also consider what its position will be if it is successful in having a decision set aside. Will it have the necessary witnesses and evidence to persuade the new arbitrator of its case - remembering especially that a review application will usually take more than a year to finalise? It is also possible that the applicant may not seek to overturn the whole of the award made by the arbitrator but only one aspect thereof. For example, an employer may not have a quarrel with a finding that a dismissal was procedurally unfair but then seek to have the finding that the dismissal was substantively unfair overturned. An employee may not wish to overturn a finding that his dismissal was unfair, but may wish to overturn a finding that reinstatement was not an appropriate remedy. The parties to be cited Any applicant will, of course, have to cite the parties that have an interest in the matter and that may wish to oppose the review application. In the typical case these respondents will be the arbitrator who made the decision. She is cited in her official capacity and, to illustrate this, applicants will often place the letters NO after the arbitrator s name. This is an abbreviation for the Latin phrase Nomine Officio ; the CCMA or the bargaining council under whose auspices the arbitration took place; in the case where the employer seeks to review the decision, the employee concerned and/or the union that represented him at the arbitration. Often the employee s union will be cited as representing the employee; but it can also be cited as an independent respondent; in the case where the employee, or his union on his behalf, seeks to review the decision, the employer; in some cases, where an employee is alleging that the employer acted unfairly in not promoting him, it may also be necessary to cite the employee or employees who were in fact promoted. Other details Rule 7A(2) also provides that the notion of motion must; call upon the arbitrator to show cause why the decision should not be reviewed and corrected or set aside ; "call upon" the arbitrator and the CCMA or bargaining council to provide the registrar of the Labour Court with the record of the arbitration proceedings together with such reasons as are required by law or are desirable to provide and to notify the applicant that this has been done This rule provides an arbitrator with an opportunity to oppose the application for review and to motivate or explain her decision. In practice this happens extremely rarely. This may be the case if the integrity of the arbitrator is being questioned or if the CCMA thinks that an important legal principle or policy will be dealt with by the Court. Usually the record of the proceedings is simply provided to the Registrar of the Court and it is indicated that the arbitrator and the CCMA do not oppose the application. The applicant is informed of this fact by notice. It is left to the other respondents, ie the employer or the employee concerned, to oppose the review application. Page 92

3 The founding affidavit The notice of motion must be accompanied by an affidavit (called the founding affidavit) in which the applicant (or a person acting on behalf of the applicant) gives details of the parties, the relevant facts and the grounds on which the applicant seeks to have the decision reviewed. The grounds for review which can be relied upon have been set out in various contributions to CLL and will not be discussed here. (See, for example CLL Vol 19 No 3 at 1, Vol 17 No 9 at 84 and Vol 18 No 8 at 79. See also Anton Myburgh Sidumo v Rustplats: How Have The Courts Dealt With It (2009) 30 ILJ 1.) The primary test formulated by the Constitutional Court in Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) is whether a reasonable arbitrator could not have come to the decision reached. It is worth emphasising, however, that the test for successfully reviewing an award is not as wide as an appeal. For example, a Court cannot overturn an award simply because it feels that the arbitrator s decision got the facts wrong. To prove the applicant s case, the founding affidavit must primarily deal with what occurred at the arbitration and the evidence and arguments presented during the course of the arbitration. It must not simply canvas the merits of the original decision of the employer General The application to review must be served on all the respondents. There are various ways in which service can be achieved, for example, by hand delivery or facsimile. The application must also be filed with the Registrar of the Labour Court. If an applicant is seeking to review an arbitration award the application to review must be instituted within 6 weeks of the date on which the award came to the attention of the reviewing party. If the applicant seeks to review a ruling, application must be made within a reasonable time. If these time limits are exceeded, the applicant must apply for condonation for the late institution of the application for review. It is possible that the Court will require proof that the application has been filed and served. This is usually accomplished by the party who served and filed the documents submitting an affidavit setting out how service was effected. If application for condonation is not applied for and granted the Court does not have jurisdiction to consider the application. Step two: preparation of the record If an arbitrator, the CCMA or a bargaining council receives an application to review, a decision will have to be made whether or not to oppose the application or to motivate the decision in any way. As indicated above, this rarely happens. The CCMA or bargaining council must also ensure that the record of the proceedings that led to the decision being made must be provided to the Registrar of the Labour Court. What constitutes the record will depend on the circumstances, but typically the CCMA or bargaining council will provide the tape recordings of the proceedings, the documents handed in during the proceedings and the original decision itself. It must do so timeously. If the CCMA or bargaining council fails to do so an application can be made to the Labour Court to compel this body to provide the record. The applicant must then collect the record from the Registrar in accordance with the procedures that apply at that particular seat of the Labour Court. Copies of the record must be prepared. In practice this usually means having the tape recordings of the arbitration proceedings transcribed. The transcription and documents utilised at the arbitration must then be served on the respondents and the Registrar. Often this is the most problematic part of the process as it is not unusual for the transcripts of the proceedings to be incomplete, either because of a faulty tape recording or because all or some of the tapes are missing. In this situation there may be a need to reconstruct the record, especially if the grounds for review being relied upon are based on what was said or done during the hearing. (See in this regard CLL Vol 17 No 5 at 45.) Step Three: The Supplementary affidavit After delivery of the records by the Registrar the applicant has an opportunity to file a supplementary Page 93

4 affidavit expanding upon, or adding to, the grounds on which he seeks to have the decision reviewed. This can be done by serving a notice on the respondents (and filing it with the Registrar) amending his notice of motion and/or by submitting a further, supplementary affidavit. Such amendments will obviously be occasioned by the applicant having had sight of the record of the proceedings and being able to formulate more detailed grounds for review. If the applicant decides not to amend or supplement its grounds for review it must then serve and file a notice to this effect. The grounds for review set out in the founding affidavit, and as amended or supplemented by the those set out in the supplementary affidavit, are the only grounds on which review can be sought. Rule 7A(8) provides that the applicant must take the above steps within seven days of the Registrar making the record available to it. In most cases this time limit will be impossible to comply with. The transcription of the tape recordings of the hearing take far longer than this. In practice this is taken into account by the Labour Court. Step Four: The Respondent s Answering Affidavit It is only at this stage that the respondents have to decide whether or not to oppose the application. If a respondent decides to oppose the application it must serve and file an answering affidavit within 10 Court days of the receipt of the applicant s notice in terms of rule 7A(8). In this affidavit it will attempt to counter the applicant s contentions set out in the founding affidavit and the supplementary affidavit. As indicated above, there is normally only one respondent who Contemporary Labour Law is published monthly from August to July of each year. Visit our website at www. workplace.co.za for information and subscription details. Subscription Enquiries : Tel : (021) Fax : (021) workplace.co.za ISSN X Copyright held by the authors. No part of this publication may be reproduced in any form without the prior written consent of the publishers. opposes such an application - either the employer or the employee party, depending on whom the applicant is. If all the respondents indicate that they will not oppose the application, or if the applicant receives no indication one way or the other within the stipulated time period, the applicant can place the matter on the unopposed role of the Labour Court. The Court will only then hear arguments from the applicant. However, the Court will usually insist that the applicant proves that the notice of application and the founding affidavit were properly served on the respondents and that the inference can therefore be drawn that the respondents do not wish to oppose the application. The time period between a matter being placed on the unopposed role and being considered by the Court is often lenghty and the parties to a dispute may want to finalise the matter sooner. It is therefore not unknown for the parties to seek an expedited consent order from the Court to the effect that the matter is referred back to the CCMA or bargaining council. Alternatively, the parties may agree to private arbitration to finalise the matter. Step Five: The Applicant s Replying Affidavit The final step in the exchange of pleadings envisaged in rule 7A is that the applicant may then file a replying affidavit in response to the contentions of the respondent. Nevertheless, it is not unknown for parties to file additional affidavits and request the Court to take cognisance of them. Step Five: Placing The Matter on the Role and the Hearing It is then up to the applicant to take steps to have the matter placed on the role for opposed motions. It must paginate the pleadings and other documents on the Court file and draw up an index. The index must be provided to the respondents. Although this is not provided for in the rules of the Court, the Registrar usually requires that the parties submit heads of argument prior to placing the matter on the role. Notice of the date of the hearing is then provided to the parties in due course. On the date of the hearing no evidence is led. The parties representatives argue the matter on the basis of the evidence and contentions set out in the affidavit. Page 94

5 Compliance with time limits and the effect of an application to review If a party fails to comply with any of the time limits set out in rule 7A it must apply for condonation for such a failure. Where the applicant fails to proceed with the matter with due despatch the respondents can apply for the application to be dismissed on this basis. It will be up to the applicant to show why it has delayed proceeding with the matter. However, even the most expeditious applications for review will usually take more than a year to complete and the question often arises as to what the status of the decision of the decision is during this period. The answer is that the decision remains in effect. The lodging of a review application does not suspend the effect of a decision. In the case where an employee has been found to have been unfairly dismissed the employee is entitled to take steps to have the award enforced by making it an order of court. It seems that most employees are unaware of the legal position and do not take steps to enforce the award if a review application is launched. They await the outcome of the review proceedings. But if an employee does decide to take steps to enforce the award an employer will normally then have to apply to the Labour Court to have the effect of the award stayed pending the finalisation of the review proceedings. To be successful in this type of application the employer will have to show that it has reasonable prospects of success and that it has launched the review application timeously. This should be done as soon as the employer becomes aware of an attempt to enforce the award. Comment Review proceedings can be time consuming and expensive. Given the relatively strict test for review, a favourable outcome for the applicant is far from certain. A review application should therefore only be embarked upon after careful consideration. Perhaps the most important consideration (other than the legal merits of the case) is what will be the position if the application is successful? As indicated above, the normal outcome of a successful review application is that the decision is set aside and the matter is referred back to the CCMA or a bargaining council for a new hearing. Will the successful party be able to prove its case at the rehearing? Does it have the necessary evidence at its disposal more than a year later? Finally, the costs of a review application can be significant. Legal fees will be incurred for the drafting of affidavits and notices, the drafting of heads of argument and for preparing for, and attending at Court to argue the matter. The costs of transcribing the record can also be significant. These costs may outweigh any compensation order granted. These practical considerations should be taken into account. In these circumstances compliance with the award or ruling or a settlement of the dispute may be preferable. The Labour Court and settlement agreements by PAK le Roux Settlement agreements forged to resolve disputes between employers and employees are a common feature of proceedings at the CCMA and in the form of collective bargaining outcomes. Quite often, a dissaffected party may later consider challenging these agreements and in two recent cases before the Labour Court, decisions have dealt in some detail with some aspects of these agreements. When a settlement agreement could be made an order of court and, in what circumstances could such an agreement be set aside? Molaba & Others v Emfuleni Municipality (J 1438/07, J 14452/07 and J1439/07 17/3/08) The employees in this matter had all been employed by the Emfuleni Local Municipality. During 2006 they complained that they were performing the same jobs as certain other employees but were being paid less. They each had individual meetings with the municipality s acting human resources director. As a result he wrote similar letters to each of the employees Page 95

6 in which he informed them that they had been granted wage increases subsequent to negotiations and agreement on the issue. The municipality failed to comply with the terms set out in these letters. It argued that it was not bound to do so because these individual agreements had been supplanted by a later memorandum of understanding that had been concluded with the South African Municipal Workers Union (SAMWU). The employees admitted that they were members of SAMWU but argued that SAMWU had no mandate to enter into the agreements on their behalf, that they were not parties to the agreements and that their individual agreements trumped the memorandum of understanding. The municipality, for its part, argued that the acting human resources manager had not had the authority to enter into the agreements and that they were therefore nul and void. The employees responded by arguing that the municipality was estopped from denying that the acting human resources manager did not have authority. This impasse led to the employees filing applications to the Labour Court for an order in terms of which the settlement agreements would be made an order of court. These applications were heard together by the Court. The applicants relied on the provisions of s 158(1)(c) of the Labour Relations Act, 66 of 1995 (LRA) which explicitly provides that the Labour Court can make an arbitration award and a settlement agreement an order of Court. In considering whether s 158(1)(c) applied to this case, the Court pointed out that the LRA does not define a settlement agreement. The only other place, apart from s 158(1)(c) where it is referred to, is s 142A of the LRA, which makes provision for settlement agreements to be made arbitration awards. This section, which was introduced into the LRA in 2002, provides that - (1) The Commission may, by agreement between the parties or on application by a party, make any settlement agreement in respect of any dispute that has been referred to the Commission, an arbitration award. (2) For the purposes of subsection(1), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is entitled to refer to arbitration in terms of either section 74(4) or 75(7). The Court pointed out that there were certain limitations inherent in s 142A. Firstly, the dispute must have been referred to the CCMA for conciliation. Secondly, the disputes must concern matters that are either arbitrable or justiciable by the Labour Court. Thirdly, the settlement agreement must be in writing. [6] The wording of s 142A suggests that for an agreement to constitute a settlement agreement, a number of requirements relating to nature and form must be met. First, the dispute that is the subject of the settlement must have been referred to the Commission. Referred cannot mean referred to arbitration in terms of s s 142A (1) requires that the dispute must be one that a party has the right to refer either to arbitration or to the Labour Court. Referred to the Commission therefore means referred for conciliation in terms of section 134. This section, read with the requirement that the dispute be one that a party has the right to refer either to arbitration or to the Labour Court, means that it is only settlements of disputes about a matter of mutual interest that are either arbitrable or justiciable by this Court that may be the subject of an arbitration award in terms of s 142A. This excludes, for example, a settlement agreement in respect of a dispute about wages. Finally, the agreement must be in writing. Those cases that deal with the definition of a collective agreement (which in terms of s 213 must be a written agreement ) would obviously be helpful in giving content to this requirement. (See, for example, SAMWU v Weclogo [2000]10 BALR 1160 (CCMA)). The typical context in which section 142A will find application seems clear. An employee refers an unfair dismissal dispute or an unfair labour practice dispute to the CCMA. At the conciliation proceedings, a settlement of the dispute is agreed to. The parties can further agree that such an agreement be made an Page 96

7 award of the CCMA itself. If no such agreement is reached, the employee would approach the CCMA for an order to the effect that the settlement agreement is declared an arbitration award. Once the settlement agreement acquires the status of an arbitration award it can be enforced in the same way as such an award in terms of section 143 of the LRA. (See CLL Vol 17 No 2 at 14 for a discussion of the enforcement of awards.) The reference to ss 74(4) and (5) indicate arbitration disputes in essential services are excluded. But could the Court rely on its analysis of s 142A to interpret s 158(1)(c)? The hurdle that van Niekerk J faced in this regard was the earlier decision of the Labour Court in Harrisawak v La Farge (SA) (2001) 22 ILJ 1395 (LC). In this matter the Court was approached to have an oral settlement agreement made can order of Court. The agreement was not entered into under the auspices of the CCMA. The respondent argued that such an order could not be granted in respect of this type of settlement agreement. Pillay J rejected his argument in the following terms. [5] The interpretation that Mr Lawrence seeks to place on s 158(1) (c) is restrictive and not justified by the use of the word any before the word settlement in the section. Furthermore, the settlement agreement relates to the employment relationship. The stated purpose of the LRA is to provide effective dispute resolution in labour disputes. That includes the provision of services by personnel competent and qualified to resolve labour disputes. Moreover, the dispute at the time the settlement agreement was entered into was pending as arbitration before the CCMA. [6] In the circumstances, the court has the jurisdiction to hear a dispute relating to the enforcement of the settlement agreement about an employment dispute concluded without the direct intervention of the CCMA Van Niekerk J pointed out that the decision in the Harrisawak case dealt with a settlement agreement that had been entered into after unsuccessful conciliation had taken place, but prior to arbitration proceedings commencing. He also pointed out that this judgment was delivered prior to the 2002 amendments to the LRA, which introduced s 142A. After the introduction of this section the settlement agreement made in these circumstances could have been made an arbitration award in terms of s 142A. The question was whether the Harrisawak decision survived the 2002 amendments. The Court rejected the notion that might be inferred from the Harrisawak decision that it can make an agreement an order of court simply because it settles an employment related dispute. If this was the case any party to an employment related agreement could approach the Court to have the settlement made an order of court It would also entitle a party to a collective agreement to have that agreement made an order of court. This would blur the line between a constitutive and a judicial act - a line that s 142A clearly draws and which the architecture of the LRA preserves. Such a broad interpretation would also suggest that the limitations established by s 142A could be entirely undermined - none of the conditions attached to having a settlement agreement made an arbitration award would apply if a party could simply approach the Labour Court to have an employment related agreement made an order of court. It would also blur the line between what are properly contractual claims enforced in the civil courts or by the Labour Court in terms of s 77(3) of the Basic Conditions of Employment Act, 75 of The Court came to the conclusion that a narrower interpretation of s 158(1)(c) had to be adopted it only applies to a settlement agreement relating to a dispute that had been validly referred to the Labour Court for adjudication. [10] An alternative, narrower interpretation of s 158(1)(c) is to limit its application to those instances where a party has validly referred a dispute to this court for adjudication and where the dispute, at any time after the referral, has been settled. An interpretation to this effect would preserve the integrity of s 142A. It would also avoid all of the difficulties, conceptual and practical, that the broad interpretation presents. [11] In the present instance, at best for the applicants, they raised a grievance about their remuneration, discussed their concerns with the respondent s human resources manager who then presented them, in writing, with what amounted to a mutually agreed variation of their employment Page 97

8 contracts. At no stage prior to the signature of the letters did they declare a dispute, or refer a dispute to the bargaining council. For the reasons stated above, the letters addressed to them confirming the arrangements that they reached with Mokoena were not settlement agreements as contemplated by s 158(1) (c) Finally, the Court also indicated that s 158(1)(c) gave the Court a discretion not to make an agreement an order of court. The Court came to the conclusion that, even if it was wrong in its argument set out above, it would still exercise its discretion against making the agreement an order of court. The decision of the Court in the Molaba decision seems correct. The attraction of a broad interpretation to s 158(1)(c) should be resisted. A broad interpretation could, for example, lead to the LRA provisions dealing with the enforcement of collective agreements being undermined. It would also enable an applicant to, in essence, avoid the need to utilise contractual remedies to enforce contractual rights Department of Health v Jones & Another [2009] 3 BLLR 195 (C). In this case the applicant did not want to enforce a settlement agreement but rather to have it declared invalid. The respondent in this case had been subjected to a disciplinary enquiry for making disparaging remarks about her colleagues. She stated that they were incompetent and manifested a slack attitude towards their surgical responsibilities. The outcome of the disciplinary hearing was that she was found guilty and of misconduct and suspended without pay, initially for three months but, after an appeal, to two months. She then referred an unfair labour practice dispute to the bargaining council with jurisdiction. After she had given evidence at the ensuing arbitration a settlement was reached in terms of which her suspension was overturned. She also agreed not to have further contact with the medical officers that she had criticised, save in so far as her responsibilities may require such contact. Subsequently, at a farewell tea arranged for her, she allegedly made certain defamatory comments against certain doctors. This, and certain alleged misrepresentation she was alleged to have made, persuaded her superiors to launch an application to the Labour Court to have the settlement agreement set aside. The basis for this argument was that the respondent had not acted in good faith. The Court rejected this argument. It pointed out that the settlement agreement had been made an arbitration award in terms of s 142A. This meant that it now had the status of an arbitration award. Until such time as the settlement agreement had been deprived of its status as an award, either through review proceedings or a rescission application, the Court did not have jurisdiction to set aside the agreement. The Court also found that, in any event, the agreement could not be set aside because it had not been established that the respondent had acted in bad faith. Two comments can be made with regard to this interesting decision. The first is that, assuming that the settlement agreement (in the form of an award) can be set aside or rescinded, it is far from clear if the Court would then have the power to set the agreement aside. The second is the question why the applicant could not have relied on ordinary contract principles and claimed that the respondent s conduct constituted breach of contract? If the respondent had attempted to enforce the settlement agreement, her alleged breach could also have formed the basis for a defence. The price of neglecting to replace a company s statutory proxy by A.A. Landman Acompany or other corporate body, including an association has, as the expression goes, No body to kick; no soul to damn. But the state at national, provincial and local level nevertheless seeks to put a human face on a company; sometimes merely so that a person can receive documents or point the way to the real offender. One such provision is found in Regulation 336 of the National Road Traffic Regulations, which are contained in Government Notice R225, published in Government Gazette of 17 March 2000 and promulgated in terms of the Road Traffic Act 93 of In summary, its provides Page 98

9 that in the case of a motor vehicle registered in the name of an association, eg the National Cancer Association, the association must identify a proxy or a representative. In Van Rensburg v City of Johannesburg 2009 (2) SA 101 (W) the Court presumed (but did not decide) that the person thus identified is someone upon whom summonses intended for the relevant association may be served. Employees leave, retire or pass on. The employer and the employee (where possible) should take effective steps to replace the name of the proxy or representative with that of another current employee or officer of the company. The failure to do so can have unpleasant consequences - as the facts in Van Rensburg s case show. Van Rensburg s name had been recorded in the appropriate vehicle registry as the proxy or representative of the National Cancer Association. When he left the employ of the National Cancer Association, his name remained on record. Nine years later he was a seventy-four year old gentleman, a retired accountant; an apparently decent person, dignified, courteous, softly-spoken and urbane. One morning, on his way to the Vereeniging airfield, he was confronted with a roadblock. A male Metro Police official indicated to him to pull his motor vehicle off the road and to stop. He heeded this instruction. A female Metro Police official then approached him and asked him for his driver s licence and he handed it to her. She went way with it, returned a while later and instructed him to accompany her to a kombi motor vehicle. Again he obeyed. When they reached the kombi, she turned to him and in Afrikaans said: Meneer, u is onder arres. He enquired of her the reason for his arrest but she just smiled and walked off. There was a male police officer nearby and he asked the latter as well why he was being arrested but the latter just ignored him. About fifteen to thirty minutes later, after about ten people had been arrested, they were all loaded into the kombi and taken to a police station in Johannesburg. Despite his age he was hustled up the four flights of stairs and locked up in a cell. He noticed people being released so he enquired from an official how these people had managed to secure their release. The official informed him that they had paid their fines. He asked the official what he had to pay to be released. The official looked up a list in his possession and told him he had to pay fines totalling R He eventually located a friend who arrived and assisted him to make payment of what he allegedly owed and he was released between 17h00 and 17h30. Aside from having learnt from the official at the cell door that he owed fines totalling R1 780, nobody informed him why he had been arrested; no-one offered him anything to eat or to drink. Two days later, Van Rensburg paid the Magistrates Court a visit to ascertain why he had been arrested. He learnt that five summonses for traffic violations had been issued against the National Cancer Association. His name had been recorded in the appropriate vehicle registry as the responsible person. Despite his having left the employ of the Association, his name had remained on record. None of the summonses had been served on him. Van Rensburg successfully sued the Johannesburg City Council for damages. The Court, in delivering judgment, said: Had the police then behaved as they should have done, they would have learnt that according to the information recorded on the summonses, not one of them had been served on the plaintiff but that they had been served on two other individuals whose physical characteristics, as I have said, did not fit those of the plaintiff. Their dereliction of duty is palpable. (At 106B) The Court also pointed out in its judgment that: The issue of a warrant of arrest by a magistrate is a complete defence to a claim for wrongful arrest and that, in the ordinary course of events, would render the ensuing imprisonment lawful. That presupposes that the arresting officer has access to a valid warrant to back up the arrest. In respect of four of the summonses, there were warrants of arrest, albeit that they were not physically available at the scene of the roadblock and, therefore, at the time of the arrest. (At 106H-107 A) The Court noted that in terms of section 45 of the Criminal Procedure Act 51 of Page 99

10 A telegraphic or similar written or printed communication from any magistrate, justice or peace officer stating that a warrant has been issued for the arrest of any person, shall be sufficient authority to any peace officer for the arrest and detention of that person. When a magistrate issues a warrant for the arrest of a person, it is not the function of the arresting officer to sit on appeal, as it were, and decide whether the magistrate was correct or not in issuing the warrant. If a police officer executes a warrant, he or she cannot be faulted for having done so and, if it later transpires that the warrant should in the first place not have been issued, that is not something that can be laid at the door of the police officer. What took this case out of the scope of the general rule was the proviso to section 55 of the Criminal Procedure Act. It reads: Provided that where a warrant is issued for the arrest of an accused who has failed to appear in answer to the summons, the person executing the warrant- (a) may, where it appears to him that the accused received the summons in question and that the accused will appear in court in accordance with a warning under section 72; or (b) shall, where it appears to him that the accused did not receive the summons in question.. or that there are other grounds on which it appears that the failure of the accused to appear on the summons was not due to any fault on the part of the accused, for which purpose he may require the accused to furnish an affidavit or affirmation, release the accused on warning under section 72 in respect of the offence of failing to appear in answer to the summons, whereupon the provisions of that section shall mutatis mutandis apply with reference to the said offence. The Court accepted that the court that issued the warrants of arrest for Van Rensburg should not have done so. But that was not the arresting officer s concern, insofar as the initial arrest was concerned. Nevertheless, the same did not hold true for the further detention of Van Rensburg thereafter. Paragraph (b) of the proviso vests an arresting officer with the power to make a judgment call. A Court will not readily interfere with it. The officer must apply an element of subjectivity in reaching a decision and a Court is not entitled, in such circumstances, to adopt an entirely objective approach to determine whether the officer s decision was a proper one or not. But the Court said it was abundantly clear that in this case the arresting officer or officers did not remotely bother to do anything at all towards fulfilling the duty imposed under the proviso to decide whether to detain Van Rensburg or release him with a warning to appear in court. The Court was satisfied that the Metro policemen who arrested the Van Rensburg acted unlawfully in detaining him (albeit that the initial arrest was lawful) and that they did so in reckless disregard of whether they were acting lawfully or not. The Court awarded Van Rensburg damages in an amount of R The judgment may have satisfied Van Rensburg and one supposes that it did. But it is not at all inconceivable that a proxy in Van Rensburg s position may have sued his or her former employer for damages for failing to have him or her duly replaced as a proxy or representative when the employment ended. This claim would be based on an express or tacit undertaking that this would be done on termination of service. A delictual claim for damages could be mounted on the same basis but then it may be possible for the employer to show that the proxy, especially, if he or she were a senior employee, should have taken steps to have altered the proxy or caused the employer to do so. The lesson is obvious. A A Landman Page 100