Murray v Minister of Defence (383/2006) [2008] ZASCA 44; [2008] 3 All SA 66 (SCA); [2008] 6 BLLR 513 (SCA) ; 2009 (3) SA 130 (SCA); 2008 (11) BCLR 1175 (SCA); (2008) 29 ILJ 1369 (SCA) (31 March 2008)

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[2008] ZASCA 44
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Murray v Minister of Defence (383/2006) [2008] ZASCA 44; [2008] 3 All SA 66 (SCA); [2008] 6 BLLR 513 (SCA) ; 2009 (3) SA 130 (SCA); 2008 (11) BCLR 1175 (SCA); (2008) 29 ILJ 1369 (SCA) (31 March 2008)

Links to summary

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case : 383/2006
REPORTABLE
In the appeal between:
MURRAY, GLENVILLE FREDERICK
...
Appellant
and
THE MINISTER OF DEFENCE
...
Respondent
Before: Mpati DP, Cameron JA, Mlambo JA, Combrinck JA and Cachalia JA
Heard: Monday 18 February 2008
Judgment: Monday 31 March 2008
Employment law – dismissal – constructive dismissal – member
of South African National Defence Force – constitutional right
to
fair labour practices applicable – common law contract of
employment developed to include protection against constructive
dismissal
– intolerable conditions, created by employer, not enough
– employer must be to blame for conditions – duty of fair dealing
with employee –
breach of – employer refusing to return employee to former post
–must inform employee fully of alternative
Neutral citation: Murray v Minister of Defence (383/2006)
[2008]
ZASCA 44
(31 March 2008)
JUDGMENT
_______________________________________________________
CAMERON JA:
This is an appeal against a judgment of Yekiso J in the Cape High
Court dismissing an action in which the appellant (the plaintiff)
claimed damages from the respondent (the defendant) arising from his
alleged constructive dismissal from the South African navy
(I shall
refer to the navy, the South African Defence Force (SADF) (later the
South African National Defence Force (SANDF)), of
which it formed
part, and to the responsible Minister, cited in the litigation,
equally as the defendant). There was a separation
of issues in the
trial court, and the only matter before us is whether the plaintiff
is entitled to damages for constructive dismissal:
the quantum, if
any, stood over for later determination.
After nine years in the South African Police, the plaintiff in 1984
joined the navy as a military policeman. He rose from his

appointment as a petty officer to the rank of commander. When the
events in controversy began, he was the officer in charge of the
Simonstown military police station – the most senior policeman,
and the only commissioned military police officer, in the navy.
Year
after year, his superiors in Simonstown lodged appraisals that
lauded his commitment, dedication and managerial ability, with
attendant performance bonuses.
Then, disastrously, it all turned sour. From 1992, the plaintiff
came into bitter conflict with members of his unit whose accusations
against him led to a series of investigations and courts-martial.
There was a political tinge: for at least one of his antagonists
(who, unlike the plaintiff. was black) invoked parliamentary
influence against him. Despite this, none of the allegations
culminated
in any serious adverse finding. The navy nevertheless
removed him from his post at Simonstown and declined to reinstate
him. After
more than two years in a supernumerary position at naval
staff college in Muizenberg, and despite the navy offering him a
senior
staff officer’s position in Pretoria, he resigned. At the
time, he summarised his grievances thus:
‘
Since September 1992 I have been
subjected to a board of inquiry, a procrastinated investigation
carried out arbitrarily and with
ignorance of my rights, as well as
two courts-martial. After all these events, I have a clean
disciplinary record as an employee
of the SANDF. However, I have been
removed from my post and placed in a position where, since March 1995
to date, I have been literally
without a desk and have not received a
single responsibility, task or function commensurate with my rank,
experience, skills and
expertise. I have been deprived of any
prospect of aspiring to higher goals, of achieving any promotion or
of furthering my career
in the SA navy … For this I have not
received any reasonable explanation.’
His resignation took effect on 31 December 1997. Six months later,
he issued summons claiming R2.97 million in lost income as a
result
of constructive dismissal. The matter came to trial more than six
years later. Evidence and argument were heard over twenty
five court
days in October and November 2004. After a further delay of sixteen
months, Yekiso J delivered judgment in March 2006.
He found that the
employment relationship had not broken down irretrievably. Weighing
each individual complaint the plaintiff advanced,
he held that none
of them rendered the plaintiff’s position intolerable, or caused
him to resign. He therefore dismissed the
action with costs,
including the costs of two counsel. This appeal is with his leave
(which he granted subject to conditions; though
these contained no
effective restriction on the issues or evidence before us).
The applicable legal framework
In arguing the appeal, the parties agreed on the legal framework.
There is no directly applicable statute. The Labour Relations
Act 66
of 1995 (the LRA) expressly excludes members of the South African
National Defence Force from its operation.
1
Its expansive protections therefore did not cover the plaintiff in
his employment with the defendant. However, section 23 (1) of
the
Bill of Rights (of which the LRA is the principal legislative
off-shoot) provides that ‘Everyone has the right to fair labour
practices’. This includes members of the defence force.
2
The parties agreed in argument that the plaintiff was entitled to
rely directly on this right, as also on the right to dignity,
3
which is a close associate of the right to fair labour practices.
4
However, it is in my view best to understand the impact of these
rights on this case through the constitutional development of
the
common law contract of employment. This contract has always imposed
mutual obligations of confidence and trust between employer
and
employee. Developed as it must be to promote the spirit, purport and
objects of the Bill of Rights,
5
the common law of employment must be held to impose on all employers
a duty of fair dealing at all times with their employees –
even
those the LRA does not cover.
This case involves the particular application of that duty where the
employee terminates the contract of service. For formally
the
plaintiff was not dismissed: he resigned. He did so, he said in his
resignation letter of 11 June 1997, because the navy’s
‘continual
unfair and ill-treatment’ of him over the preceding two and a half
years left him ‘with no alternative’. The
form in which the
termination of service was clad cannot deprive him of his cause of
action. That is the position under the LRA,
and for the reasons that
follow the position under the common law as constitutionally
developed can be no different.
The LRA, which confers ‘the right not to be unfairly dismissed’
(s 185), defines ‘dismissal’ to include the situation where
‘an
employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable
for the
employee’ (s 186).
6
This provision made statutorily explicit what the jurisprudence of
the industrial court and the labour appeal court had already
achieved under the unfair labour practice dispensation, which
Parliament introduced in 1979:
7
that unjustified conduct on the part of an employer that drives an
employee to leave should be treated as a dismissal, even where,
in
form, it is the employee who resigns.
8
The term used in English law, ‘constructive dismissal’ (where
‘constructive’
9
signifies something the law deems to exist for reasons of fairness
and justice, such as notice, knowledge, trust, desertion), has
become well-established in our law. In employment law, constructive
dismissal represents a victory for substance over form. Its
essence
is that although the employee resigns, the causal responsibility for
the termination of service is recognised as the employer’s
unacceptable conduct, and the latter therefore remains responsible
for the consequences. When the labour courts imported the concept
into South African law from English law in the 1980s, they adopted
the English approach, which implied into the contract of employment
a general term that the employer would not without reasonable and
proper cause conduct itself in a manner calculated and likely
to
destroy or seriously damage the relationship of confidence and trust
with the employee: breach of the term would amount to a
contractual
repudiation justifying the employee in resigning and claiming
compensation for dismissal.
10
In 1995 the LRA expressly codified unfair employer-instigated
resignation as a dismissal. Even though that does not apply here,
the constitutional guarantee of fair labour practices continues to
cover a non-LRA employee who resigns because of intolerable
conduct
by the employer, and to offer protection through the
constitutionally developed common law. If it is thus found that
unfair
conduct by the navy forced the plaintiff to resign, he would
be entitled to damages for dismissal. This follows from the fact
that
all contracts are subject to constitutional scrutiny:
11
this includes employment contracts outside the LRA. Whether an
employer dismisses such an employee in violation of the right to
fair labour practices, or unfairly precipitates a resignation, is a
matter of form, not constitutional substance.
And it is no longer necessary under either the constitutionally
developed common law or under the LRA to continue to invoke concepts
such as repudiation (as was previously necessary)
12
to unmask the true substance of the parties’ dealings.
13
That substance, as was pointed out before the 1995 LRA, is that the
law and the Constitution impose ‘a continuing obligation
of
fairness towards the employee on … the employer when he makes
decisions affecting the employee in his work’.
14
The obligation has both a formal
-
procedural
and substantive dimension; it is now encapsulated in the
constitutional right to fair treatment in the workplace.
15
In detailing this right, the parties freely invoked the
carefully-considered jurisprudence the labour courts have evolved in
dealing
with unfair employer-instigated resignations under the
labour relations legislation of the past three decades. These cases
have
established that the onus rests on the employee to prove that
the resignation constituted a constructive dismissal: in other
words,
the employee must prove that the resignation was not
voluntary, and that it was not intended to terminate the employment
relationship.
16
Once this is established, the inquiry is whether the employer
(irrespective of any intention to repudiate the contract of
employment)
had without reasonable and proper cause conducted itself
in a manner calculated or likely to destroy or seriously damage the
relationship
of confidence and trust with the employee. Looking at
the employer’s conduct as a whole and in its cumulative impact,
the courts
have asked in such cases whether its effect, judged
reasonably and sensibly, was such that the employee could not be
expected to
put up with it.
17
It deserves emphasis that the mere fact that an employee resigns
because work has become intolerable does not by itself make for
constructive dismissal. For one thing, the employer may not have
control over what makes conditions intolerable. So the critical
circumstances ‘must have been of the employer’s making’.
18
But even if the employer is responsible, it may not be to blame.
There are many things an employer may fairly and reasonably do
that
may make an employee’s position intolerable.
19
More is needed: the employer must be culpably responsible in some
way for the intolerable conditions: the conduct must (in the
formulation the courts have adopted) have lacked ‘reasonable and
proper cause’.
20
Culpability does not mean that the employer must have wanted or
intended to get rid of the employee, though in many instances of
constructive dismissal that is the case.
As will emerge (and here I differ respectfully from the trial
court’s findings), there can in my view be little doubt that at
the time he resigned the plaintiff’s position at work was
intolerable,. There was equally little doubt that this was because
of the navy’s conduct. But behind this lies a more difficult
question – did the navy have reasonable and proper cause for what
it did in making the plaintiff’s position intolerable? Viewed
through the constitutional standard, did the navy, even though
it
made the plaintiff’s position intolerable, act fairly in doing so?
On the answer to that question this case turns.
The plaintiff’s case
The plaintiff was appointed commander of the military police station
at Simonstown naval base in September 1989. His grief started
three
years later, when a petty officer under his command, Boois, alleged
irregularities in the management of the station. The
officer
commanding (OC) the naval base, commodore De Vos, convened a
two-officer board of inquiry to investigate. The board’s
findings
vindicated the plaintiff, and castigated Boois, who, it found,
‘committed misdemeanours in the witness box’: ‘None
of the
allegations made by petty officer Boois could be substantiated’,
the board found, other than ‘some minor incidents’.
The board
recommended a formal verbal reprimand to the plaintiff for swearing
and other transgressions, but said that Boois should
not only be
transferred, but served with a formal written reprimand for the
‘offence of unproven allegations’.
Events intensified some months later, when the plaintiff charged
another junior ranking under his command, Alben, with theft. The
charge resulted in Alben’s conviction in a civilian court and his
discharge from the navy. But he returned to haunt the plaintiff
when
in September 1993 he ‘confessed’ to having been part of an
alleged scheme, instigated by the plaintiff, to plant dagga
in
Boois’s car the previous November, supposedly to avenge Boois’s
abortive complaints. Both Boois and Alben made their claims
under
oath. Their affidavits in hand, the navy within days convened a
preliminary investigation. The plaintiff and two alleged
co-planters
were arrested and, while the investigation was under way, briefly
barred from the naval work environment and ordered
not to contact
named witnesses.
The investigation was held almost immediately. Its report cleared
the three: their accusers, it found, had a motive to falsely
incriminate them; there were contradictions in their evidence; and
the accused’s questions to them revealed a reasonably possibly
true defence. Given these considerations, the legal advisor at naval
headquarters (HQ), commander Dunn, advised that charges be
dropped
because there was no prima facie case. Before the month’s end, the
chief of the navy, vice-admiral Simpson-Anderson,
accepted this
advice – and the plaintiff’s commanding officer, De Vos, was
formally told there would be no prosecution.
But the descent into recrimination had already begun. Before even
the preliminary investigation cleared him, the plaintiff had
complained to lieutenant commander Curry, the senior staff officer
for military policing in Pretoria (who was to become his friend
and
staunchest defender), that he was ‘upset, humiliated and hurt’
by the instruction to refrain from contacting witnesses.
These
complaints he repeated and elaborated in a memorandum to his OC De
Vos, expressing the prescient fear that ‘In spite of
being cleared
by both the board of inquiry and the preliminary investigation, …
damage has been done to my credibility and to
my reputation as a
police officer and in my private life … [and] that there will
always be doubt about me in the minds of my
superiors in Pretoria,
which is sure to affect my future career and promotion in the SA
navy’. He warned that he intended to
seek legal advice (though at
that stage he did not).
But that was by no means the end of the dagga-planting claims: Boois
retained attorneys, who challenged the decision to drop the
investigation. They demanded to see the preliminary investigation
record. Boois also invoked the support of an African National
Congress-aligned member of Parliament, Mr Jan Van Eck. Almost
certainly in response to this pressure, and notwithstanding
Simpson-Anderson’s
already-announced decision not to prosecute,
the navy sent a copy of the preliminary investigation to the
adjutant-general (the
defence force’s most senior legal officer,
who was the legal advisor to the chief of the defence force and the
officer overseeing
the legal sections in the various arms of the
service). Contrary to the decision already taken, his office advised
in December
1993 that there was indeed a prima facie case against
the plaintiff and his fellow accused, and that they should be
prosecuted.
The three were again arrested. Navy HQ informed Boois’s
attorneys that while the navy refused to supply the preliminary
investigation
record, the plaintiff would after all be prosecuted.
The court-martial took place in a blaze of media attention at the
end of January 1994. Boois and Alben and two other witnesses
testified. At the end of their evidence, Curry, representing the
accused, applied for their discharge. When this was refused, they
closed their cases without tendering evidence. This decision was
vindicated when the presiding officer acquitted them all. So poorly
did Alben fare in testimony that he was refused indemnity from
prosecution.
Despite being acquitted, the plaintiff felt deeply aggrieved. He
recorded later that he experienced the media coverage as ‘very
psychologically damaging’, because it ‘portrayed me as a
criminal’. The navy’s written instruction to refrain from
contacting
witnesses treated him, he said, ‘as a dangerous and
criminal suspect’. Most crucially, however, in the light of later
events,
the plaintiff recorded that he felt aggrieved that navy HQ
had failed to support him. As he explained in evidence, ‘I felt
that
some sort of action should be taken in order to help restore my
credibility’.
Despite this controversy, the plaintiff in mid-1994 received a
glowing performance appraisal from De Vos, and was awarded a merit
bonus: he was ‘an exceptionally trustworthy officer who is
performing outstanding work’.
21
The appraisal reported that he had decided not to take civil action
against his accusers ‘because of the further adverse publicity
this will generate for the navy’.
But trouble continued brewing amongst the staff under his command.
The ink on the appraisal was barely dry when more controversy
flared. It involved a sponsored golf day the plaintiff organised;
the disposal by staff under the plaintiff of a set of lead diving
weights that had been an exhibit in a theft case; and a weekend
get-away that Curry booked at a resort to which he invited the
plaintiff. Certain of the plaintiff’s staff claimed that serious
irregularities tainted all three events – and they expressed
their
misgivings and resentments to warrant officer McGrath. The plaintiff
had had what he described as ‘a particularly heavy
clash’ with
McGrath, who was a military police warrant officer working under
Curry at naval HQ, at about the time McGrath inspected
the
Simonstown station in November 1994 (which he gave a poor rating).
McGrath returned to Simonstown in late November 1994, and collected
affidavits containing complaints and allegations from disaffected
members of the plaintiff’s staff. In mid-December, navy HQ
informed the plaintiff that a board of inquiry would be convened

into the allegations against him. The officer appointed to
investigate, colonel Van Den Raad, was a retired military policeman

from the army, and the navy chose him (Simpson-Anderson testified)
precisely to ensure a measure of outside objectivity.
Shortly before Van Den Raad started his investigation, the plaintiff
was informed that he was to be promoted from lieutenant commander
to
full commander with effect from 1 January 1995. Although this was
publicly announced, the navy moved to suspend the promotion
pending
Van Den Raad’s investigation; but under pressure from the
plaintiff’s lawyers (and on counsel’s advice) it relented
in
February 1995. Even though the plaintiff’s OC, De Vos, who
testified on his behalf, conceded that this step was normal and
involved neither irregularity nor victimisation, the incident added
significantly to the plaintiff’s sense of grievance.
The Van Den Raad investigation itself proved acrimonious and
combative. It started with a confrontation in which the plaintiff
claimed Van Den Raad expressed a determination to remove him from
his post (De Vos testified that Van Den Raad said the same to
him);
the plaintiff himself walked out of their second meeting. In the
last days of 1994, Van Den Raad filed an interim report
that
contained a damning assessment of procedures at the Simonstown
military police station, and the plaintiff’s lack of leadership
and proper management, with (Van Den Raad claimed) no crime
prevention plan, no training, no standing orders and disregard of

elementary procedures in relation to exhibits and the occurrence
register. The plaintiff regarded Van Den Raad as not only
ill-equipped
to make these judgments, but biased against him.
De Vos objected to navy HQ in January 1995 that as the plaintiff’s
OC he was not being kept informed of the investigation, and
expressed concern that Van Den Raad was ‘over-stepping his
mandate’. Soon after, seven members of the plaintiff’s unit made
statements complaining about Van Den Raad’s methods. The plaintiff
himself handed to Van Den Raad a complaint he directed to
navy HQ
about Van Den Raad’s manner of investigation, asserting that ‘my
rights as an officer and according to the Constitution
have been
violated’ because Van Den Raad refused to give him a full
description and itemisation of the proposed charges, offering
instead only the provisions of the military discipline code (MDC)
against which he said the plaintiff had offended. De Vos followed
up
these complaints in a letter to the chief of staff of navy
personnel, commodore Du Toit, in March 1995, expressing his concern
‘about the manner in which col Van Den Raad has conducted his
investigation’, and detailing the statements of complaint from
the
plaintiff’s staff members.
Du Toit had in the meantime decided that the plaintiff should be
temporarily relieved of his command and placed on compulsory

vacation leave pending the outcome of the investigation. (Of this
step, too, the plaintiff later complained, ‘I was yet again
being
portrayed as a dangerous criminal suspect who would interfere with
the investigation’.)
Stripped of his command, the plaintiff was appointed temporarily to
a super-numerary position at the naval staff college at Muizenberg.
Here, in a kind of living purgatory, he was to spend his time until
he left the navy in December 1997. He was first appointed an
assistant staff officer for research and development under commander
Smith, but explained in evidence that the job lacked discernible
content. (Du Toit countered that this was partly to assist the
plaintiff to prepare for his second court-martial.) In March 1996,
midway through the court-martial, the post was changed to
logistician, with more defined and elaborated responsibilities
(control
over stores, budget and repairs, and responsibility for
maintenance and new works by outside contractors). But the defendant
conceded
in written argument that the entire staff college posting
was in various respects ‘unsatisfactory’.
22
And undoubtedly the whole period at staff college was dismal for the
plaintiff, who was assigned no office (having to squat perforce
in
that of a secretary), was assigned no duties, tasks or challenges he
felt he could undertake, and felt snubbed and slighted
by his fellow
officers. In May 1995, the college’s OC, captain Kok, registered
his concern that the plaintiff was then already
‘becoming more and
more demoralised while no meaningful tasks can be given to him to
carry out’. The plaintiff testified that
in April 1996 he was
medically diagnosed with depression and put on anti-depressant
treatment. This condition eventually led to
a period in hospital in
July 1997.
Van Den Raad’s probe led to a second preliminary investigation
against the plaintiff, which commander Scheepers conducted in
June
1995. Over his protests, the plaintiff was refused legal
representation, as well as access to witness statements, whereupon
he refused to cross-examine (although, when Van Den Raad testified,
setting out a damning catalogue of maladministration and
misjudgments,
the plaintiff ventured to ask him whether he was sure
that he was a military policeman, and whether he was acquainted with
the
rules of policing).
23
The plaintiff’s complaints about the conduct of the preliminary
investigation elicited support from both Smith (who voiced concern
about ‘the apparent disregard of commander Murray’s rights’)
and Kok (who suggested that ‘correct procedures’ were not
being
followed).
The record of Scheepers’s preliminary investigation was sent to
Simpson-Anderson in June 1995, but the plaintiff’s objections
to
the process triggered an offer by the navy to re-open the
proceedings, which the plaintiff through his attorneys refused.
Simpson-Anderson
decided in August 1995 that the evidence was
sufficient to justify the plaintiff being arraigned before a court
of law; but, fearing
that the navy would be blamed for acting ‘as
a judge in a matter where its own interests were at stake’, he
referred the matter
to the attorney-general of the Cape to consider
a civilian prosecution. This proved abortive when the
attorney-general replied
that it would ‘not be desirable’ for
the plaintiff to be prosecuted in a civilian court.
The navy now convened a court-martial – the plaintiff’s second
in two years – but refused Curry permission to defend the
plaintiff, on the ground that he might be implicated in certain of
the charges (including the away weekend) and might be called
as a
witness. This became another enduring source of grievance to the
plaintiff, even though he was ably defended by two other
legally
qualified officers. The plaintiff also complained that the navy’s
decision to appoint non-navy officers to preside at
his trial was
‘unusual and irregular’, even though the navy explained that it
used them precisely to ensure fairness and impartiality
in the trial
of a senior officer within its ranks.
At the court-martial, which took place in January and May 1996, the
plaintiff faced eight charges. He was convicted on two (fraud
arising from a statement he made justifying the use of false
civilian number plates on a military vehicle; and failure to issue
written delegations to his staff). He was fined R1 000. But he
immediately appealed, and in August 1996 two independent review
officers, Venter and Meyer, recommended he be acquitted (absence of
proof of misrepresentation in regard to the use of the false
number
plates; and no lawful order, but only a ‘guideline’, that
written delegations were required).
One of the reviewers, Venter (an air force military justice
officer), added a scathing assessment of what he clearly considered
a fundamentally misdirected prosecution: it grasped, he said, at
straws and revealed no criminal conduct – the criminal law should
target criminals: it should not be used as a means to address
administrative mismanagement, or to ensure that force members do
their work properly.
On 15 August 1996, Simpson-Anderson accepted the recommendation that
the convictions and sentence be set aside. Now, apart from
the
verbal reprimand of 1992, the plaintiff had been cleared of all
charges. Even though the review officers had stated that he
should
as far as possible now be put in the position ‘as though he had
never stood trial on any charges’ (and even though Kok
started
pressing for re-appointment instructions as soon as the
court-martial concluded, and later urged that he be returned to
his
posting as officer commanding the Simonstown military police), the
navy was chary of this. This was intimated to the plaintiff
in a
post-acquittal meeting with Du Toit on 13 September 1996. Riven with
suspicion of the navy’s intentions, the plaintiff (who
had asked
for a meeting with Simpson-Anderson, and appeared to feel slighted
that he had to meet with Du Toit instead) secretly
recorded the
conversation. Even though the hostile statements by subordinates had
not secured any conviction against the plaintiff,
Du Toit told him
that to return him to the military police would be ‘very awkward’:
‘how can you have credibility and people’s
loyalty’, he asked,
‘if those are the statements made about you?’ The awkwardness
arose, Du Toit emphasised, ‘not because
of what the court is
saying, but [from] what your subordinates perceive to have
transpired and what they have put in statements’.
In a later
confidential memorandum, Du Toit explained to the head of defence
force personnel that although the plaintiff was ultimately
acquitted, the preliminary investigation had showed a prima facie
case: in the result, the plaintiff ‘was no longer suitable
to act
as head of naval police, since his credibility and competence to act
as a police officer had been impaired, despite his
acquittal’.
24
The plaintiff was guarded when Du Toit probed him about his
availability for alternative postings, saying only ‘I leave it up
to you in the sense that I’m not prepared to commit myself at the
moment’. In evidence, the plaintiff explained that he ‘refused
to make any input because of the way that the conversation went.’
In the meanwhile, as De Vos conceded in evidence, the defence force
underwent a major restructuring between 1994 and 1996, with
the loss
of large numbers of posts (Du Toit testified that naval personnel
were cut from 10 000 in 1992 to 8 500 when he left in
April 1999),
while at the same time the former liberation movements’ soldiers
had to be integrated. The defence force budget
was also being cut
severely – by 14% in 1997 alone, Simpson-Anderson testified. In
the period of the plaintiff’s conviction,
the military police were
also subjected to a restructuring review (by Van Den Raad). The new
structure took effect on 15 July 1996,
while the plaintiff was still
at staff college, and shortly before his acquittal. The result was
that the Simonstown post the plaintiff
had held was down-graded to a
lieutenant commander’s post (or more accurately returned to its
former rightful grading, since
the navy’s evidence showed that the
plaintiff’s promotion to the rank of full commander while in that
post had been an error).
This was done without consultation with the
plaintiff.
Ignorant of the fate of his post, the plaintiff persisted in his
request for a meeting with the chief of the navy, but Du Toit
was
again assigned to meet with him on 1 October 1996. Dunn and Curry
also attended this meeting. The plaintiff was informed that
in the
eyes of his superiors he had no further career as a military
policeman in the navy. Instead, he was offered a senior staff
officer’s (SSO) position in Pretoria as head of ‘protection
services’. The alternative would be for him to accept a voluntary
severance package. The SSO position in charge of military police was
out of the question (it later went to Van Den Raad). Without
inquiring further as to what the SSO protection services offer would
entail, the plaintiff abruptly left the meeting. The offer
was
confirmed in writing just over a week later, but rejected in a
letter from the plaintiff’s attorneys on 1 November 1996.
In evidence, the plaintiff explained that he consulted Smith, to
whom he reported at staff college, but made no other inquiries
about
the job. Smith advised him that the navy was setting him up for
failure and that accepting the post would ‘be a career
suicide
move’. Cross-examination established that the plaintiff took no
steps to follow up, investigate, explore or consider
the details of
the post offered: but the evidence also showed that neither Du Toit
nor any other naval management officer made
any effort to explain
the post to the plaintiff, or to allay any apprehension on his part
and thereby persuade him to take it.
The scene was now set for the plaintiff’s departure from the navy,
for neither side – senior management on the one, and the
plaintiff
on the other – took further steps in relation to an alternative
posting. The plaintiff remained at naval staff college.
On 28
October 1996, the plaintiff’s attorneys wrote at length to the
defendant, setting out the plaintiff’s complaints and
claiming
that the navy had ‘virtually destroyed his naval career and left
him with no meaningful future in the navy’. The letter
stated that
the circumstances ‘would justify a finding that there has been a
constructive dismissal’ of the plaintiff, and
demanded
‘compensation’ for what it called ‘a great injustice’.
In May 1997, Kok recorded that it was becoming ‘increasingly more
difficult to utilise’ him: a decision on his re-appointment
or
future utilisation was ‘urgently needed’. On 11 June 1997, the
plaintiff tendered his resignation from the navy. After some
final
disputation, it took effect at the end of that year, leading to this
litigation.
Assessment of the plaintiff’s case
The plaintiff plainly endured hardship during the investigations
into his conduct and the two court-martials he faced. His last
years
in the navy were truly miserable. Despite all the steps taken
against him, he emerged with a record formally clear of any
stain,
save for the 1992 verbal reprimand. From his testimony (including a
taxing cross-examination) he emerged as an honourable
man who became
deeply burdened by his sense of grievance against the navy. Yet it
seems to me that the navy established in most
respects that its
management of the plaintiff’s employment was substantially fair.
In one crucial respect, to which I shall return,
it did not.
The plaintiff complained that the navy’s decision to prosecute him
on the dagga-planting charges was politically tainted, and
that he
was not given a chance to make representations before it reversed
its initial decision. Given its timing, the reversal
was almost
certainly prompted by political considerations. That does not mean
that it was ‘tainted’. The navy and the defence
force of which
it is part are significant national institutions, which rightly face
scrutiny in how they deal with discipline and
complaints. The navy
in my view had ample justification not to ignore Boois’s and
Alben’s allegations, or to dismiss them summarily
because of
doubts about credibility and motive. The decision to air the charges
in a public trial was taken in the interests of
showing the public –
and, more specifically, Boois – that the navy would deal fairly
and fully with allegations made under
oath against a senior insider.
The plaintiff’s own words were not far from the mark: the
prosecution, he protested, was ‘a political move to show them that
all is fair and well in the navy’. Precisely so: but with
justification. All organs of state – not least the defence force,
which had been the mailed fist of apartheid – were under intense
scrutiny in the transitional era of 1994, and the navy can in
my
view not be faulted for being responsive to that pressure in its
management decisions.
Nor did the proceedings rest on thin air. A prosecution must have at
least ‘a minimum of evidence upon which [the accused] might
be
convicted’.
25
That minimum has for long been understood in our law to be ‘such
information as would lead a reasonable man to conclude that
the
[accused] had probably been guilty of the offence charged’.
26
Prosecution may be justified if there is a prima facie case,
consisting in allegations, supported by statements and real and
documentary
evidence available to the prosecution, of such a nature
that if proved in a court of law through admissible evidence, should
result
in a conviction.
27
That the defendant had. Two affidavits implicated the plaintiff in
the dagga-planting incident; one from a witness who claimed
that the
plaintiff had suborned him to falsify evidence and pervert the
administration of justice. Despite the questions surrounding
Boois’s
credibility, and Alben’s motive, the existence of the affidavits
was a powerful pointer to the necessity for a public
airing. The
bizarre nature of the conflicts and allegations emanating from the
plaintiff’s unit from 1992 meant that it was neither
unfair nor
unreasonable to ignore their claims. Simpson-Anderson testified
without challenge that this was ‘the worst allegation
that I had
heard of regarding an officer in the navy’. As he put it to Dr
Eileen Murray, in a sympathetic response to an angry
letter of
complaint (the first of three) she directed to him, as the
plaintiff’s spouse, ‘the cold facts had to be aired to
ensure
that truth and justice prevailed’. The decision to proceed,
however distressful to the plaintiff, was in my view not unfair
or
unreasonable.
The navy’s failure to consult the plaintiff before reversing its
decision also does not seem to me to have been unfair. The

preliminary investigation gave him a full opportunity to rebut the
charges – indeed, his effective use of that opportunity was
what
led the navy to conclude, initially, that there should be no
prosecution. The decision as to whether there should thereafter
be a
prosecution was one for his employer, the navy, to make within the
overall operational situation that confronted it. This
included
responding to the political pressure Boois applied. Given the
affidavit evidence at its disposal, it was not obliged to
consult
the plaintiff before reversing its decision. It had a duty to deal
fairly with the plaintiff. In the politically charged
situation it
faced, it did not breach that duty, despite doubt about the
complainants’ veracity and motives, by deciding after
all that the
allegations against him had to be aired in public.
The plaintiff’s complaints about Van Den Raad’s investigation
also seem to me to lack foundation. Van Den Raad was brought
in from
outside because the navy was determined to grant the plaintiff
fairness and objectivity. Though the plaintiff clearly felt
persecuted, there is no evidence even remotely suggesting any
conspiracy or malevolent intent against him – and during the trial
his legal team rightly abandoned any suggestion that ‘any member
of naval HQ’ conspired ‘to damage’ him. Van Den Raad came
down
hard on the plaintiff, who disputed his means and his conclusions;
but that was an incident of a fairly initiated process
for which the
plaintiff’s employer cannot be blamed. And the plaintiff for his
part did what an employee aggrieved in such a
situation is entitled
to do: he complained (indeed he did so volubly and repeatedly).
That Van Den Raad’s resultant report contained a veritable
catalogue of dubious practices, mismanagement and procedural
oversights
that required some sort of managerial response was not
disputed at the trial. The report confronted naval top brass with a
further
operational dilemma involving the plaintiff: how to deal
fairly and effectively with a senior employee accused of
mismanagement
and criminal misconduct. The navy’s lawyers
recommended a prosecution, and though that decision was later
questioned by other
defence force lawyers, I do not think it was
unfairly taken. At the least, the affidavits and circumstantial
evidence available
to naval management warranted a prosecution in
the use of false civilian number plates on cars under the
plaintiff’s control
– even though that charge, like the others,
did not ultimately stick.
It is beyond question that the plaintiff’s ensuing years at naval
staff college were wretched. He had nothing to do, and did
it in an
atmosphere of marginalisation (he testified that he felt ‘shunned’
and ‘sidelined’). For that his employer was
responsible but not
to blame. The decision to relieve him of his command pending the
second court-martial was – as the plaintiff’s
own witnesses
perforce conceded – neither irregular nor unusual. Suspension on
full pay would have been worse, from the point
of inactivity and
marginalisation, yet the navy would have been justified, in my view,
in taking that step. It cannot be faulted
for taking the lesser step
of assigning him alternative employment while the charges pended,
even though it proved dispiriting.
The plaintiff also attacked the navy’s decision not to restore him
to his post as commanding officer of the naval military police
unit
at Simonstown. It true that his complaint fails to appreciate the
extent of the operational dilemma the disputes affecting
him created
for the navy. While the plaintiff was acquitted, a significant
number of personnel reporting to him were willing to
testify under
oath that he had engaged in improprieties of various kinds, some
serious, in carrying out his command. The plaintiff
and his
witnesses pointed out in evidence that naval top brass failed to
inquire at the base whether he would be welcomed back.
But this was
not for decision by ballot or opinion poll. Whatever the majority
view might have been, the navy judged that the plaintiff’s
operating capacity as a military policeman (whether in Simonstown or
in a senior staff posting in Pretoria) had been injured by
the
controversies surrounding him. That conclusion was in my view fairly
justifiable.
More dubious, however, was the navy’s decision to down-grade (or
re-grade) the post for the commanding officer at Simonstown
from
commander to lieutenant commander without consulting the plaintiff.
The navy’s evidence established that the plaintiff had
been
promoted on the erroneous supposition that the post carried the
higher rank of commander. However, the fact was that the navy
promoted him while he was the incumbent of the post. Without any
consultation with the plaintiff (who was languishing at staff
college), the restructuring of mid-1996 confirmed the lower rank.
The navy therefore argued that it was operationally inappropriate
for the navy to re-assign the plaintiff to Simonstown. That may
ultimately have shown to be the case, but the navy reached the
conclusion unprocedurally: fairness required that it consult the
plaintiff before re-grading the post he occupied. Instead he was
presented with a unilaterally (and therefore unfairly) effected fait
accompli.
That brings the focus to the nub of the matter, which in my view
concerns the navy’s response to the resulting operational
conundrum.
The navy offered the plaintiff a job at HQ in Pretoria as
SSO protection services. As previously stated, the plaintiff made no

serious effort to investigate the ambit and responsibilities of the
job, but declined it on advice from his reporting superior at
the
staff college, Smith. Thus advised, the plaintiff, suspecting that
he was being set up, and convinced that what he thought
the job
entailed would lie quite outside his capabilities, rejected the
offer.
That was an error. But in my view the facts show that the navy
committed a bigger error. It made no effort whatever to explain
the
job to the plaintiff, to illuminate its parameters and challenges,
and to engage him in a process that would enable him to
consider it
properly. The navy’s decision not to return the plaintiff to his
post presented it with a
classic reorganisation
or rationalisation problem. Given the outcome of both
court-martials, the decision not to return him to his
post involved
no fault on the plaintif’s part. In these circumstances the law
clearly places a duty on the employer to consult
fully with the
employee affected and to share information to enable him to make
informed decisions. The navy did not fulfil this
responsibility
until after the plaintiff resigned.
This observation warrants elaboration. Explaining the job offer was
anything but superfluous. The job the navy proposed for the
plaintiff was an entirely new position, carved out from a previous
post that embraced both ‘protection services’ and ‘amphibious
warfare’. Navy staff referred colloquially to the old post simply
as ‘SSO protection services’. The plaintiff thought his
new
duties would embrace amphibious warfare, for which he had neither
suitable qualification nor inclination. He was wrong. But
his
misperception was both understandable and reasonable. And the navy
never put him right. Nor did it make any effort to ensure
that he
knew what he was being offered, or what it would require of him.
What is more, the navy was prepared to offer the plaintiff the
benefit of what Du Toit called ‘a bit of cross-training’
28
as well as the benefit of head office support (it was willing as Du
Toit expressed it to ‘hold his hand’ for a while).
29
None of this the plaintiff knew, and no effort was made to
communicate it to him. It is true that he walked out of the meeting
with Du Toit on 1 October 1996 without taking matters further. But
in the circumstances that prevailed, the navy was in fairness
not
entitled to sit back and let matters stall there. Given the
background of management decisions (albeit operationally justified)
that had brought the employment relationship to that impasse, it had
a duty in fairness to do more.
Instead, it seems the navy expected the plaintiff to resign. That is
why Du Toit’s follow-up letter formally offering the SSO
post also
stated that ‘if your decision is to leave the SA Navy it can be
done in one of the following manners’, setting out
three severance
and retirement options (none of which proved applicable to the
plaintiff). This was neither malicious nor unrealistic,
since the
relationship had long become acrimonious, and the plaintiff’s
sense of grievance and anger must have been palpable
to all who
dealt with him, particularly Du Toit.
Despite this, the navy owed the plaintiff more. While management was
not to blame for the eighteen months of unhappy ennui he endured
at
staff college, while the charges were pending, what he suffered
because of its (justified) operational decisions was a material
factor that should have directed its decisions in managing his
prospects once he had been acquitted. The officer commanding staff
college had warned the chief of the navy as early as May 1995 that
the plaintiff was ‘demoralised’ and under ‘severe strain’.
Fifteen months later that condition was certain to have been
compounded. The plaintiff’s subjective condition of suspicion,

demoralisation and depression, which was evident to those dealing
with him, was materially relevant to how fairness required the
navy
to deal with him. His condition meant that an unexplained offer of a
new post was likely to be rejected. The lack of explanation,
follow-up and elucidation did not constitute fair dealing.
Significant here is the reinstatement principle. Absent reasons
justifying a different outcome, fairness required the plaintiff
to
be returned to his military police command. This court has held that
an unfairly dismissed employee suffers a wrong that requires
‘the
fullest redress obtainable’, which in the absence of
countervailing reasons is the restoration of the previous position.
30
This principle applies also when an employee is removed from his
post for operational reasons. When the operational reasons no
longer
exist, fairness by default requires reinstatement. The default
position was thus that fairness required that the plaintiff
be
returned to his post.
The navy in fact had justification for not returning the plaintiff;
but what it did to convey that to the plaintiff, and to enable
him
to accept the alternative it offered, were woefully inadequate. In
short, Du Toit’s unexplained and unelaborated offer of
the SSO
post did not constitute the bona fide consultation the law required
of the navy.
Du Toit testified that he could see no reason why the plaintiff
should not still have been in the navy: he blamed the breakdown
entirely on the plaintiff’s failure to investigate and accept the
offer. On this evidence we must accept that, had the plaintiff
investigated the offer properly, he would still have been employed
by the navy. But to require the plaintiff to investigate and
research a post that was not explained to him puts the
responsibility where it does not belong. Since the navy was
unwilling to
return him to his previous position, fairness required
that it explain the basic ambit and responsibilities of what it
offered
instead, together with the support it envisaged in assisting
him to adjust.
In my view (which Du Toit’s evidence supports), had the navy
adequately and fairly explained the post to the plaintiff, and the
back-up it offered, his position would not have been intolerable.
(He certainly was consistent in expressing his wish and
determination
to stay in the navy, though on just terms.) Its
failure to do so means the operating cause of the plaintiff’s
resignation was
the navy’s conduct.
I am all too aware that this conclusion is based on hindsight. Fair
dealing as required by the constitutional right to fair labour
practices is hard to pinpoint, and involves retrospective judgments
made on documentation and evidence that stretch far back –
in this
case over more than a decade. But one must counter the sense that
the navy has been found wanting against an intangible
and
unpredictable standard by positing that it is hard to avoid the
impression, at the end of all the evidence and memoranda and
letters
and pleadings, that the plaintiff was hard done by. It is not hard
to perceive, with more than a decade’s distance, why
and how
things went so painfully sour in this employment relationship. To
any slight or injury, the plaintiff reacted with not
muted, but
insistent, loud and even strident complaint. He blamed the navy for
each and every one of his ills, without seeking
to shoulder any
responsibility for the breakdown of trust and confidence between him
and, on the one hand, many of those under
his command at the
military police base, and, on the other, naval top brass. And it is
not hard to see why Du Toit, in particular,
might have thought in
good faith that the navy would be better rid of him.
But after more than two years of purgatory at staff college, the
navy was not entitled to leave the plaintiff under a material
misapprehension as to what it offered him instead. In overall
assessment, the preponderant conclusion seems to me inevitable that
the navy did not deal fairly with the plaintiff.
The trial court’s judgment omitted to reach this conclusion
because in my respectful view it fragmented each of the plaintiff’s
complaints, considering them one by one in isolation, concluding in
relation to each that they neither were pivotal to his resignation
nor rendered his position intolerable. When one considers the case
as a whole, however, the conclusion is hard to avoid that the
navy
breached its duty of fair dealing in the denouement of his acquittal
in the second court-martial.
The defendant argued, and the trial court found, that the plaintiff
did not resign because his position had become intolerable,
but
because he wished to claim compensation for the injury he felt he
had suffered at the hands of the navy, and because he was
advised
that to do so he would have to resign. If correct, this would mean
that the causal impetus for the resignation was not
that the
plaintiff’s position had become intolerable, but that he desired
to claim compensation even though it had not. I cannot
endorse this
argument. There is some basis for concluding that the plaintiff
heeded legal advice that resignation was a necessary
precursor to a
claim for compensation. But that does not mean that his position was
tolerable, or that the desire for compensation
was the main
operating factor in his decision. He testified that he wanted to
remain in the navy, but on terms that gave him justice
and fairness.
The correspondence makes it clear, as does the plaintiff’s lengthy
‘redress of wrongs’ affidavit, which he
penned after his
resignation, that he considered himself simultaneously entitled to
compensation for injury and in an intolerable
position in his
employment, both because of the navy’s conduct. The navy’s
refusal to compensate him resulted in a stalemate.
He did not
forfeit his claim because he was intent on being compensated, and
decided that therefore he had no alternative but to
resign.
In the result there is an order as follows:
The appeal is upheld with costs, including the costs of two counsel.
The order of the trial court is set aside.
In its place there is substituted the following order:
The plaintiff is entitled to such compensation as he may prove for
constructive dismissal by the defendant.
The defendant is to pay the costs, including the costs of two
counsel.
E CAMERON
JUDGE OF APPEAL
CONCUR:
MPATI DP
MLAMBO JA
COMBRINCK JA
CACHALIA JA
1
Labour
Relations Act 66 of 1995
s 2
,
Exclusion from application of this
Act
: ‘This Act does not apply to – (a) members of the
National Defence Force; (b) the National Intelligence Agency; (c)
the South
African Secret Service.’ The
Basic Conditions of
Employment Act 75 of 1997
s 3(1)(a)
is to the same effect.
2
So
applied in
South African National Defence Union v Minister of
Defence
[1999] ZACC 7
;
1999 (4) SA 469
(CC) and
South African National
Defence Union v Minister of Defence
2007 (5) SA 400
(CC).
3
Bill
of Rights
s 10
,
Human Dignity
, ‘Everyone has inherent
dignity and the right to have their dignity respected and
protected.’
4
See
Minister of Home Affairs v Watchenuka
2004 (4) SA 326
(SCA)
para 27 per Nugent JA (‘The freedom to engage in productive work –
even where that is not required in order to survive
– is indeed an
important component of human dignity … for mankind is
pre-eminently a social species with an instinct for meaningful
association. Self-esteem and the sense of self-worth – the
fulfilment of what it is to be human – is most often bound up with
being accepted as socially useful’);
Affordable Medicines Trust
v Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC) para 59 per Ngcobo J
(‘One’s work is part of one’s identity and is constitutive of
one’s dignity’, and ‘there
is a relationship between work and
the human personality as a whole’).
5
Bill
of Rights
s 39(2):
‘When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must
promote the spirit, purport and objects of the Bill of
Rights.’
6
Labour
Relations Act 66 of 1995
s 186
,
Meaning of dismissal
,
‘”Dismissal” means that – (a) an employer has terminated a
contract of employment with or without notice; … (e) an employee
terminated a contract of employment with or without notice because
the employer made continued employment intolerable for the

employee’.
7
For
the history, see Brassey and others
The New Labour Law
(1986)
pages 10-14.
8
See
the statement to this effect in E Cameron, H Cheadle and C Thompson
The New
Labour Relations Act
(1988
) p 144, endorsed in
Howell
v International Bank of Johannesburg
(1990)
11 ILJ 790 (IC) 795C-D,
McMillan v
ARP&P Noordhoek Development Trust
(1991)
2 (3)
SALLR
1,
Amalgamated Beverage Industries (Pty)
Ltd v Jonker
(1993) 14
ILJ
1249 (LAC)1248H-I, and
Jooste
v Transnet Ltd
(1995) 16
ILJ
629 (LAC) 639A-B. In
Jooste
, Myburgh J pointed out in reviewing the history of the
concept that constructive dismissal is not found in the common law,
the
Labour Relations Act 28 of 1956, or (at that time) in any other
South African statute; but that the industrial court had wide
jurisdiction
to determine unfair labour practice disputes concerning
an ‘employee’; and that the employee’s resignation must
therefore
not have been intended to terminate the employment
relationship.
9
Oxford
Dictionary of Law
(4 ed, 1997) under ‘constructive’:
‘Describing anything that is deemed by law to exist or to have
happened, even though that
is not in fact the case’.
10
Lord
Steyn recounts the history of the implied term in English law in
Malik v Bank of Credit and Commerce International SA
[1998]
AC 20
(HL) paras 58-61.
11
Napier
NO v Barkhuizen
2006 (4) SA 1
(SCA);
Barkhuizen v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC).
12
See
for instance
Groenewald v Cradock
Munisipaliteit
1980 (4) SA 217
(E) 220E-G, summarising
and applying nearly a century of authority (if employer unilaterally
changes essential nature of employment
agreement by down-grading
status of employee’s post, this amounts to a repudiation of the
contract, entitling the employee to
damages or compensation).
13
As
Trengove AJ put it in
Mafomane v
Rustenburg Platinum Mines Ltd
[2003] 10 BLLR 999
(LC) para 47
that ‘The codification under the LRA has amongst other things
severed the link between constructive dismissal and
wrongful
repudiation of a contract at common law. It is now a statutory
concept in its own right which does not need to retain
its link to
the common law doctrine of wrongful repudiation for its
justification.’
14
WL
Ochse Webb & Pretorius (Pty) Ltd v Vermeulen
(199&) 18
ILJ
361 (LAC) 366A (Froneman J).
15
See
Sidumo v Rustenburg Platinum Mines Ltd
[2007] ZACC 22
(CC).
16
Concordantly
with this, the LRA now provides in section 192,
Onus
in dismissal disputes
, that in any
proceedings concerning any dismissal, the employee must establish
‘the existence of the dismissal’, but once this
is done, ‘the
employer must prove that the dismissal is fair’.
17
Some
of the principal cases are
Amalgamated
Beverage Industries (Pty) Ltd v Jonker
(1993)
14
ILJ
1249
(LAC) (Stafford J);
Jooste v Transnet
Ltd
(1995) 16
ILJ
629 (LAC) (Myburgh J)
(representing the culmination of the pre-1995 LRA
jurisprudence
of the labour courts);
WL Ochse Webb & Pretorius (Pty)
Ltd v Vermeulen
(1997) 18
ILJ
361 (LAC) (Froneman J);
Pretoria Society for the Care of the Retarded v Loots
(1997)
18
ILJ
981 (LAC) (Nicholson JA);
Van Der Riet v Leisurenet
Ltd
[1998] 5 BLLR 471
(LAC) (Kroon JA);
Smithkline Beecham
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
(2000) 21
ILJ
988 (Revelas J);
Mafomane v Rustenburg
Platinum Mines Ltd
[2003] 10 BLLR 999
(LC) (Trengove AJ).
18
Mafomane
v Rustenburg Platinum Mines Ltd
[2003] 10 BLLR 999
(LC) para 50.
19
As
in
WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen
(199&)
18
ILJ
361 (LAC) (employer proposing to change employee’s
conditions of service and basis of remuneration for well-justified
operational
reasons).
20
Jooste
v Transnet Ltd
(1995) 16
ILJ
629 (LAC) 638I;
Pretoria Society for the Care of the Retarded v Loots
(1997)
18
ILJ
981 (LAC) 985A.
21
‘’
n
Uiters betroubare offisier wat uitstekende werk lewer’.
22
‘
Dit
was ‘n tydelike en in verskeie opsigte onbevredigende pos.’
23
‘
Is
u 100% seker u is ‘n militere polisieman en ken u die reels van
polisiering?’
24
‘
Die
uitwerking hiervan egter is dat die lid nie meer geskik is om weer
as hoof van die vlootpolisie te ageer nie, aangesien sy

geloofwaardigheid en bevoegdheid om as polisiebeampte op te tree,
ondanks die onskuldigbevinding, geknou is.’
25
S
v Lubaxa
2001 (2) SACR 703
(SCA) para
19 (Nugent AJA for the court).
26
Beckenstrater
v Rottcher and Theunissen
1955 (1) SA 129
(A) 136A-B per
Schreiner JA.
27
Du
Toit et al
Commentary on the Criminal
Procedure Act
Revision Service 38,
2007, I-4M to I-4O.
28
‘’
n
Bietjie kruis-opleiding’.
29
‘
Om
die term te gebruik, sy hand vas te hou vir ‘n rukkie om hom
leiding te gee’.
30
National
Union of Metalworkers of SA v
Henred
Fruehauf Trailers (Pty) Ltd
[1994] ZASCA 153
;
1995 (4)
SA 456
(A) 462I-J, per Nicholas AJA for the majority.