Phiyega was supposed to testify - Solidarity

National Police Commissioner Gen. Riah Phiyega was supposed to testify in the Johannesburg Labour Court today regarding Col. Kobus Roos' non-deployment in the police's crime intelligence unit, said trade union Solidarity. However, Gen. Phiyega did not show up at court, in spite of an earlier court order instructing her to do so. Instead, Phiyega sent representatives for the police to present the police's case.

A legal representative for the South African Police Service (SAPS) moreover claimed today that Gen. Phiyega was unaware that she had been summoned to court to testify. "On 16 January 2015 the court instructed that verbal evidence must be given regarding whether or not Gen. Phiyega issued a direct order for Col. Roos to be placed in a post outside crime intelligence," said Johan Kruger, Deputy General Secretary of Solidarity.

"It is unclear how the SAPS will prove that Gen. Phiyega did not issue such an instruction without calling her as a witness. That was one of the main reasons why the court ruled that verbal evidence must be given," according to Kruger.

A copy of the court order instructing Gen. Phiyega to give verbal evidence follows below See paragraphs 13 and 14 as well as the specific order:

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT

Not reportable

CASE NO JS 1043/12

In the matter between:

SOLIDARITY obo ROOS - Applicant

and

SOUTH AFRICAN POLICE SERVICE - 1st Respondent

MINISTER OF POLICE N.O - 2nd Respondent

NATIONAL COMMISSIONER OF THE SAPS N.0 - 3rd Respondent

Date of ruling: 16 January2015

RULING

VAN NIEKERK J

[1] On 17 October 2014, this court, per Steenkamp J, issued an order calling on the Minister and the commissioner to appear in court on 28 November 2014 to show cause why they should not be found guilty of contempt of court for their failu re to comply with a court order dated 22 April 2014 .

[2] In accordance with the Practice Manual, the respondents filed an answer ing affidavit on 26 November 2014. When the matter was called on 28 November 2014, by agreement between the parties, I made the following order:

The applicant is to file a replying affidavit by 3 December 2014.

Both parties are directed to file heads of argument by 5 December 2014.

The application will be re-enrolled, should that be necessary, on a date to be arranged with the Registrar.

[3] The respondent filed a replying affidavit as directed and the parties have filed heads of argument. I make the order reflected at the foot of this judgment for the reasons recorded below.

[4] The application has its roots in an order made on 22 April 2014 by Lagrange J. The relevant part of the order reads as follows :

[66] In light of the above, noting that the respondents have conceded the merits of the applicant's claim and the points of agreement reached between the parties cm the form that an order should take in relation to the applicant's return to useful employment, the following order is made:

For the avoidance of doubt it is recorded that:

Colonel JJH Roos ('Roos') is currently on the staff of the South African Police Services (Crime Intelligence) in the position of Colonel and is drawing benefits as such.

Nothing in this order shall effect-

66.1.2.1 his status as such;

66.1.2.2 his rank as Colonel;

66.1.2.3 his remuneration (that is, his basic salary and fringe benefits), which shall remain in full force and effect.

66.2 Nothing in this order shall entail the displacement of any person from his or her position in crime intelligence specifically, or in the South African Police Service generally.

66.3 The respondents are obliged-

66.3.1 to redeploy Roos preferably in the internal audit section of Crime Intelligence or failing that in an internal audit unit of the South African Police Service and to provide him with work of a comparable nature to that which he performed prior to his transfer to Inspection and Evaluation;

66.3.2 to give preference to Roos in any application for appointment or promotion in a post reasonably acceptable to him within the said department or in any other department in which his skills can properly be deployed, as soon as such a post becomes available.....

[5] At issue in the present proceedings is the respondents' compliance with paragraph 66.3.1 of the order. On 26 May 2014 the acting Divisional Commissioner: Crime Intelligence of SAPS wrote to Roos advising him that he could not be accommodated in Crime Intelligence: Internal Audit Section 'because all posts at salary level 12 in this section are filled'. Roos was advised that he would be performing in the Component: Internal Audit: Head Office which the SAPS considered 'of a comparable nature to the work that you performed prior to your transfer to the section Inspection and Evaluation.'

[6] Roos disputed that there was no post within the Crime Intelligence: Internal Audit section. In response, on 2 June 2014, the SAPS contended that there were no vacant posts at salary level 12 within the Internal Audit section of Crime Intelligence, on the basis that Crime Intelligence was functioning in terms of a structure approved in March 2011 in which there was 'no breakdown structure for Internal Audit Crime Intelligence.'

[7] Roos avers that at a meeting held on 6 June 2014, the persons present representing the SAPS stated that the National commissioner herself had given an explicit instruction that he be placed in a position outside of Crime Intelligence. To justify this stance, reliance was placed in a structure that appears not to have been formally approved.

Roos states that his reliance on a structure that had been previously approved and which he presented to the SAPS representatives was simply dismissed on the basis that it was not a final structure. Roos avers further that it became clear to him at the meeting that in breach of the order granted on 22 April 2014, the SAPS had no intention of appointing him to a position in Internal Audit within Crime Intelligence, indeed, as I have indicated, he avers that the instruction to deploy him to the posts that he currently occupies came directly and personally from the National Commissioner.

[8] It is not disputed that on 13 June 2014 Roos received a letter from the acting Divisional Commissioner: Crime Intelligence instructing him to report to the Component: Internal Audit: Head Office on 17 June 2014. Roos did so. Here, Roos avers that he was given an office used by another officer, in other words, he was obliged to share an office. This is denied by the respondents. Roos states further that there were only two posts for colonel available in the audit structure, and that both were filled, i.e. that the position to which he had been deployed did not exist in the SAPS infrastructure . This is denied by the respondents, who aver that Roos was placed in a vacant position within the existing establishment.

[9] Roos avers that on 8 August 2014 he was required to return his laptop, which was handed back on 12 August 2014. He has not received a laptop since, and has done virtually no work in his first two months except check audit reports in respect of two police stations and to attend two meetings regarding audits underway.

The respondents do not dispute this, but say that the allocation of a motor vehicle to Roos has been approved, and that his laptop will be allocated as soon as the necessary software has been loaded. Despite the fact that Roos was placed in the position he currently occupies as long ago as June 2014 and despite the averments that these had been allocated to Roos, as at the date of the replying affidavit, neither the motor vehicle nor the lap top had been furnished to him.

[10] Central to Roos's averments and to the present applications is the structure on which he relies to submit that there is indeed a vacant position within crime intelligence. Roos has annexed to his founding affidavit a document dated 25 November 2013 in which it would appear that the crime intelligence and protection seNices structure was withdrawn with immediate effect and replaced by the crime intelligence structure approved on 1 September 2011, and the protection and security services structure approved on 8 December 2010. On this basis, Roos contends that there are three colonel positions within the Crime Intelligence Internal Audit and that there is accordingly a vacant position in that unit to which the SAPS have declined to appoint him. In any event, he contends that of the three colonel positions, only one is currently being occupied. One of the two incumbents, he alleges, has for the last two years been acting in the position of Head Asset Management: Secret Service account.

[11] As I have indicated, the respondents deny any contempt of the order dated 22 April 2014. In relation particularly to the crime intelligence structure approved on 1 September 2011, the respondents do not dispute that the structure is currently applicable, however, they contend that there was no breakdown structure for the Internal Audit section of Crime Intelligence.

Roos's reliance on the breakdown structure annexed to his founding affidavit, the respondents contend, is a new draft that has not been approved by the National Commissioner. In terms of the currently applicable breakdown structure, only two colonel posts are available in the Internal Audit section of Crime Intelligence. The respondents aver that those posts are occupied and that there are currently no posts that are currently vacant.

[12] The respondents aver that the second leg to paragraph 66.3.1 of the court order permits Roos to be placed in an Internal Audit unit of the SAPS and to provide him with work of a comparable nature to that which he performed prior to his transfer to Inspection and Evaluation. The terms of the letter addressed to Roos on 26 May 2014 advised him that the work he would be performing in the Component: Internal Audit: Head Office is of a comparable nature to the work he performed prior to his transfer to Inspection and Evaluation. The respondents also deny that the National Commissioner gave explicit instructions that Roos be placed outside crime intelligence.

Insofar as Roos avers that his current position does not exist in the SAPS infrastructure, the respondents aver that the post indeed exists, and that Roos was appointed to a vacant post within the approved establishment. Insofar as Roos suggests that he has been subjected to unacceptable treatment in the form particularly of being deprived of a motor vehicle and a laptop computer, the respondents contend that there is a motor vehicle that has been allocated to Roos, which will be made available on 17 November 2014, and that a laptop has been allocated to Roos which will be given to him once the necessary software has been loaded. Roos's averments regarding office space are denied. In the circumstances, the respondents aver that there is no willful or mala fide failure to comply with the court order.

[13] It is common cause that Roos has not been placed in a position in the Internal Audit section of Crime Intelligence. The primary factual issues that the court is required to decide, it seems to me, in relation to the first leg of the court's order dated April 2014, are whether there was a direct order from the National Commissioner that Roos was to be placed in a position outside Crime Intelligence and whether there is in fact a post available in the Internal Audit section within the Crime Intelligence division of the SAPS and specifically, whether by failing to appoint Roos to a post in that section, the respondents relied on a structure that is outdated or otherwise not applicable.

In relation to the second leg of the order, the primary factual issue is whether the post to which Roos has been deployed is one that is truly comparable both in content and substance to that in which he performed prior to his transfer to Inspection and Evaluation, and whether Roos has been provided with all the necessary means to engage in that work . This is not an exhaustive list of all of the factual disputes that are disclosed on the papers, but they seem to me to be the primary issues that require determination.

[14] While the procedure contemplated in the Practice Manual is one that contemplates that the respondent may explain its conduct by way of affidavit on the date of hearing or before that date (although this will not excuse the respondent from being present in court) and to provide a satisfactory explanation for any alleged contempt, the court has observed on a number of occasions that motion proceedings are not always the most suitable means for determining a dispute of fact. In the present instance, the factual disputes disclosed by the affidavits are material and in my view, they would be best determined by a referral to oral evidence. Once all of the relevant facts have been determined, the court will be in a position to apply the test set out in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) to determine whether the second and third respondents are in contempt of the order granted on 22 April 2014.

I make the following order:

The Registrar is directed to allocate a date, in consultation with the party's representatives, for the hearing of oral evidence in relation to the matters referred to in paragraph 13 of this ruling, and in so doing, to accord the matter preference.

The costs of the present proceedings, including the costs of the proceedings on 28 November 2014, are reserved.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Adv MSM Brassey SC, with him Adv MJ Engelbrecht, instructed by Serfontein, Viljoen and Swart

For the Respondents: Adv W Mokhare SC, with him Adv S Tilly, instructed by the State Attorney .

ENDS

Statement issued by Johan Kruger, Deputy Head: Solidarity, March 16 2015

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