Du Toit v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Streicher JA, Mthiyane JA, Cloete JA, Boruchowitz AJA and Mhlantla AJA
• Judgment Date: 30 September 2008
• Citation: 2009 (1) SA 176 (SCA)
• Docket Number: 467/07
• Hearing Date: 12 September 2008
• Counsel: JG Cilliers SC (with MD du Preez) for the appellant. TJ Bruinders SC (with BL Makola) for the respondents.
• Court: Supreme Court of Appeal

Streicher JA:

[1] The Pretoria High Court dismissed an application by the appellant to G be reinstated as a member of the South African Police Services (the SAPS) but granted him leave to appeal to this court.

[2] The appellant used to be the National Commanding Officer: Technical Support Services with the rank of director in the SAPS. On 14 June 1996 he was convicted on four charges of murder and on 27 June H 1996 he was sentenced to 15 years' imprisonment. As a result and in terms of s 36(1) of the South African Police Service Act 68 of 1995 (the SAPS Act), he was deemed to have been discharged from the SAPS with effect from the date following the date of the sentence. The section reads as follows: I

36(1) A member who is convicted of an offence and is sentenced to a term of imprisonment without the option of a fine, shall be deemed to have been discharged from the Service with effect from the date following the date of such sentence: Provided that, if such term of imprisonment is wholly suspended, the member concerned shall not be deemed to have been so discharged. J

Streicher JA

A [3] The appellant appealed against his conviction but his appeal was postponed pending the finalisation of his application for amnesty, in respect of the offences of which he had been convicted, in terms of the Promotion of National Unity and Reconciliation Act 34 of 1995 (the Amnesty Act). Section 20 of the Amnesty Act provided for the granting B of amnesty in respect of offences associated with a political objective and committed in the course of the conflicts of the past. Pending the determination of his application for amnesty the appellant, on 22 December 1999, wrote to the National Commissioner of the SAPS in the following terms:

4.

C Ingevolge artikel 20(10) van die Wet op die Bevordering van Nasionale Eenheid en Versoening sal, indien die hersieningsaansoek [1] suksesvol is, ek geag word nooit skuldig bevind te gewees het aan die betrokke misdryf nie. Ek is geadviseer dat ingevolge hierdie bepalings ek onmiddellik regtens terugwerkend in my pos as Nasionale Bevelvoerder Tegniese Ondersteuningseenheid ge-ag te D word.

5.

Ek is voorts ge-adviseer, dat aangesien voormelde pos 'n sogenaamde skema-pos en die eenheid 'n spesialis-eenheid is, ek nie in diens by enige ander vertakking geplaas kan word nie.

6.

Ek het ook kennis geneem dat Direkteur TLA Steyn nie meer soos aanvanklik in 'n waarnemende hoedanigheid hierdie pos beklee E nie.

7.

Vanselfsprekend hou u besluit in hierdie verband vir myself en my gesin 'n wesenlike finansiële implikasie in.

8.

Ten einde my en my gesin se toekomsplanne te bepaal, word u dringende uitsluitsel om my posisie in die SA Polisiediens, indien my hersieningsaansoek suksesvol sal wees, verlang.

F [4] In terms of s 20(10) of the Amnesty Act a conviction in respect of which amnesty had been granted 'shall be deemed to be expunged from all official documents or records and the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place'. [2] Section 36(2) of the SAPS Act G provides that a person who is deemed to have been discharged in terms of s 36(1) because he was convicted and sentenced to a term of imprisonment without the option of a fine, and whose conviction is set

Streicher JA

aside 'following an appeal or review' and not replaced with a conviction A for another offence, 'may, within a period of 30 days after his or her conviction has been set aside . . . . apply to the National Commissioner to be reinstated as a member'. [3]

[5] On 29 December 1999 the National Commissioner replied to the appellant's letter of 22 December as follows: B

Die Regsafdeling van die Suid-Afrikaanse Polisiediens is ook van mening dat indien u suksesvol met u hersieningsaansoek is, u geag sal word nooit skuldig bevind te gewees het nie, en u gevolglik nie ontslaan kon gewees het uit die SAPD nie, en u posisie sal terugwerkend herstel word. C

In so 'n geval sal u uiteraard in u vorige pos, of 'n soortgelyke pos waarmee u akkoord gaan, in die SAPD geakkommodeer word.

[6] The appellant's application for amnesty was ultimately successful and on the day that the proclamation granting amnesty to him was published, namely 23 December 2005, he wrote to the National D Commissioner:

I

would urgently need to negotiate my re-instatement in the SAPS in terms of section 36 of the Police Act (68/1995) and section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995. In this regard I would like to draw attention to the fact that due to my technical E specific qualifications my employment in the SAPS was post specific. In order to protect the interest of the SAPS and myself my employment history should subsequently be taken into consideration. In the event that re-instatement has been approved but continuation of service poses a practical obstacle, it is requested that an adequate, mutually agreeable, severance package be negotiated. F

[7] The Chief of Staff of the SAPS replied as follows:

(Y)our situation is not one contemplated in section 36 of the South African Police Service Act . . . nor does section 20 of the Promotion of National Unity and Reconciliation Act . . . provide for re-instatement of employees discharged in terms of...