Sibiya v South African Police Service

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Phatshoane ADJP and P Coppin JA and Phatudi AJA
• Judgment Date: 12 May 2022
• Court: Labour Appeal Court
• Hearing Date: 29 March 2022
• Docket Number: JA15/21

Coppin JA:

[1]

On 22 July 2020, the Labour Court (Malhebula AJ) ("the court a quo") granted an order, inter alia: (a) declaring the appellant's dismissal by the respondent ("SAPS") on 31 August 2015, to have been procedurally and substantively unfair; (b) directing the SAPS to pay the appellant the equivalent of 12 months' salary (at the (then) current rate applicable to Major Generals) as compensation within 15 days of the date of the order; and (c) to pay the appellant's costs on an attorney and client scale.

2022 JDR 1994 p2

Coppin JA

[2]

On petition by the appellant to this court, which was not opposed by the respondent, the appellant was granted leave to appeal against the court a quo's order only to the extent that it declined to award the appellant the remedy of reinstatement, and having, instead, awarded him compensation. This is the appeal. The SAPS has also not opposed it.

[3]

The appeal thus only turns on the question of the remedy, and in particular, on whether it was correct for the court a quo to award the appellant compensation instead of ordering his reinstatement. The appellant wants to be reinstated and contends that it is the appropriate remedy, both, in terms of the law and fairness.

[4]

The appellant was a career policeman. He joined the SAPS as a junior recruit in 1989 and progressed through the ranks. At the time of his dismissal on 31 August 2015, he held the rank of Major General and the position of the Gauteng Provincial Head of the Haws (or Directorate of Priority Crimes Investigation ("the DPCI")).

[5]

The decision to dismiss the appellant from the SAPS was essentially taken by Major-General Ntlemeza ("Ntlemeza"), at the time the (purported) acting national head of the Hawks and the appellant's direct superior. This followed upon attempts by Ntlemeza to suspend the appellant and a disciplinary enquiry, in which the appellant had been charged with the alleged illegal rendition in 2010 of Zimbabwean criminal suspects to the Zimbabwean authorities.

[6]

At his disciplinary enquiry, the appellant testified, inter-alia, that he had been the victim of a conspiracy to remove him from office, because of his attempts to prosecute the head of crime intelligence at the SAPS at the time, one Lt. Gen. Richard Mdluli ("Mdluli"), for fraud, corruption, money laundering, murder, kidnapping, and other offences. The appellant's charging of Mdluli also generated public controversy and litigation. The National Prosecuting Authority (NPA) controversially withdrew those charges but the High Court set aside that decision and ordered the NPA to reinstate them. Mdluli was eventually found guilty on some of those charges in September 2019.

2022 JDR 1994 p3

Coppin JA

[7]

Ntlemeza's suspension of the appellant was set aside by the Gauteng High Court, which found, inter-alia, that the decision of Ntlemeza's was taken in bad faith and that he was biased and dishonest in that regard. The Supreme Court of Appeal dismissed Ntlemeza's petition for leave to appeal the High Court's decision.

[8]

Subsequently, Ntlemeza's appointment as acting national head of the Hawks was also set aside by the Gauteng High Court and his efforts to appeal that decision were also unsuccessful.

[9]

Turning specifically to the appellant's disciplinary enquiry that led to his dismissal - It is not necessary to relate any more detail concerning those charges for the purposes of this appeal. It is a matter of record. In addition to what is stated above concerning the charges of misconduct brought against the appellant relating to the alleged illegal rendition, the following would suffice concerning the disciplinary enquiry. No evidence of the alleged rendition was actually produced and the witnesses called by the SAPS gave contradictory evidence. SAPS also gave no explanation for the five-year delay between the alleged unlawful rendition and the charging of the appellant.

[10]

Despite the glaring deficiencies in the case of SAPS against the appellant at the disciplinary enquiry which Ntlemeza (effectively) subjected the appellant to, and despite the appellant's protestations of innocence, he was found guilty of the alleged illegal rendition and his dismissal was recommended. Ntlemeza himself decided to dismiss the appellant. The appellant's internal appeal against his dismissal to the, then, National Commissioner of the SAPS, General Phiyega, was also unsuccessful, not because it lacked merit, but because it lacked merit, but because it was contended that the appellant had no such right to appeal.

[11]

Following his dismissal, the appellant referred an unfair dismissal dispute to the Safety and Security Bargaining Council. At the arbitration, and acting on the proposal of the arbitrator, the parties agreed that the arbitration should not proceed in the bargaining council but that an application be lodged with the Director of the Commission for Conciliation, Mediation and Arbitration ("the CCMA") to refer the dispute directly to the Labour Court for resolution, as

2022 JDR 1994 p4

Coppin JA

contemplated in section 191(6) of the Labour Relations Act ("LRA"). This was done successfully and a ruling to the effect that the matter was to be resolved in the Labour Court was made by the arbitrator on 19 December 2016.

[12]

Before the hearing in the court a quo, the parties agreed at the pre-trial conference, inter-alia, that subject to the approval of the court, the evidence given in the disciplinary enquiry should be admitted and accepted as evidence for the purposes of the trial in the Labour Court, subject to each party's right to call further oral evidence if he/it so wished. This agreement was approved by the court a quo which ordered that the transcribed record of the evidence at the disciplinary enquiry should be deemed to be evidence before the court a quo. That turned out to be the only (oral) evidence before the court a quo as neither of the parties elected to present further oral evidence.

[13]

Consequently, the hearing in the court a quo was based on the transcript of the oral evidence given at the disciplinary enquiry, and documents that the parties had relied on in the enquiry and in the proceedings before the bargaining council. Only certain, relevant documents of those produced there have been included in the appeal record before this court.

[14]

The court a quo found that the delay in charging the appellant had been unreasonable and unexplained; that Ntlemeza had acted in bad faith in relation to the appellant and that the rejection of the appellant's appeal by the National Commissioner of the SAPS was wrong and procedurally unfair.

[15]

In addition, the court a quo held that the appellant's dismissal had been substantively unfair; that there had never been a case against him and that the charges against him were trumped up. The court a quo, inter alia, held concerning the appellant and his dismissal: "A career policeman who rose through the ranks to Deputy National Commissioner has left the Police Service in this case. Dismissed without valid and fair reason(s) by the acting head whose character has been found wanting by the courts. There can be no worse humiliation."

[16]

Despite finding the appellant's dismissal to have been both procedurally and substantively unfair, the court a quo did not require the appellant's

2022 JDR 1994 p5

Coppin JA

reinstatement and, instead, ordered the SAPS to compensate him as aforesaid. The court a quo appears to have come to that resolution for two reasons, namely, firstly, because in his statement of claim the appellant only sought compensation as...