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[2015] ZAGPPHC 135
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Sibiya v Minister of Police and Others (5203/2015) [2015] ZAGPPHC 135 (20 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 5203/2015
DATE: 20 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
MAJOR
GENERAL SHADRACK
SIBIYA
...........................................................
Applicant
And
MINISTER
OF
POLICE
..................................................................................
1
st
Respondent
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN
POLICE
..........................................................................
2
nd
Respondent
OFFICE OF THE
NATIONAL HEAD
DIRECTORATE FOR
PRIORITY CRIMES
INVESTIGATIONS:
ACTING NATIONALS
HEAD-MAJOR
GENERAL
BERNING
NTLEMEZA
..................................................................................
3
rd
Respondent
JUDGMENT
Matojane J
Introduction
[1] This is an
urgent application for an order to declare the notice of indefinite
suspension served upon applicant on 20 January
2015 and the
appointment of Major General Elias Dlamini into the Applicant's
position as the acting Provincial Head of the Directorate
for
Priority Crime Investigation ("the DPCI") unlawful,
unconstitutional an invalid.
[2]
The Directorate for Priority Crime Investigation has been established
as an independent directorate within the South African
Police Service
in terms of
Section 17C
of the
South African Police Service Act, 1995
as amended by the
South African Police Service Amendment Act, 2008
1
.
[3]
The Directorate for Priority Crime Investigation is now responsible
for the combating, investigation and prevention of national
priority
crimes such as serious organized crime, serious commercial crime and
serious corruption in terms of
Section 17B
and
17D
of the
South
African Police Service Act, 1995
as amended. Sadly the DPCI has been
in the news for reasons unrelated to their constitutional mandate.
[4] Third Respondent
opposes the application. The First and Second Respondents have
indicated that they have no interest in this
matter and no relief is
sought against them.
The parties
[5] The Applicant is
employed in the South African Police Service as a Major General and
presently he is the Gauteng Provincial
Head of the Directorate of
Priority Crimes Investigations ("DPCI").
[6] The Third
Respondent is Major General Ntlemeza, the Acting National Head of
DPCI who in his capacity as such issued a notice
to place Applicant
on precautionary suspension forming the subject matter of this
application.
[7]
The appointment of Third Respondent as Acting National Head of DPCI
was recently set aside and declared as unlawful and invalid
by this
court in the matter of
Helen
Suzman Foundation v The Minister of Police and others
2
.
The
court made the following order:
"1. It is
declared that the decision of the first respondent (the Minister of
Police) of 23 December 2014 to suspend Lieutenant
General Anwa
Dramat, the National head of the Directorate for Priority Crime
Investigation ("the DPCI) is unlawful and invalid
and the
decision is set aside.
2. It is declared
that the decision of the Minister to appoint Major- General Berning
Ntlemeza as Acung National Head of the DPCI
is unlawful and the
decision is set aside.”
[8] It follows from
the above order that Lieutenant General Anwa Dramat is no longer
suspended from his position as the National
Head of DPCI and the
decision of the Third Respondent in his capacity as acting head, to
place applicant on precautionary suspension
and his decision to
appoint Major-General Dlamini should as a consequence equally be
unlawful and invalid as he had no legal basis
to make such decisions.
I shall advert to the consequences of the declaration of invalidity
on the decisions taken by Third Respondent
during the period he was
acting as the national head of the DPCI in due course.
[9]
Mr. Mkhari SC for the Third Respondent argued
in
limine
that
this court does not have jurisdiction to hear this application, as
"the
Applicant is not in law entitled to approach this court to declare
unlawful
,
unconstitutional
or invalid his suspension from employment".
He
argued that applicant's suspension is a purely labour law matter that
should be dealt with in accordance with the relevant sections
of the
Labour Relations Act. Counsel referred to the case of
Transnet
Ltd and others v Chirwa
3
where
the majority of the court upheld the jurisdiction of the Labour
Court, and held that the High Court did not have the jurisdiction
to
hear the matter because the claim was actually based on a breach of
the Labour Relations Act.
[10] The majority
judgments of Skweyiya J at para [73] and Ngcobo i at para [150] both
hold that a remedy under section 33 of the
Constitution is not
available to public sector employees who complain of unfair conduct
by their employers. Skweyiya J writing
for the majority explained
that where an alternative cause of action can be sustained in matters
arising out of an employment relationship,
in which the employee
alleges unfair dismissal ... it is in the first instance through the
mechanism established by the Labour
Relations Act that the employee
should persue her or his claims.
[11] The Applicant
in the present matter, is challenging the legality of the decision by
Third Respondent to place him on precautionary
suspension, the relief
sought is of constitutional nature flowing from the rule of law.
Applicant contended that the decision by
Third Respondent to suspend
him was taken in bad faith and for reasons other than those given. He
states that the decision is arbitrary
and not rationally connected to
the purpose for which it was taken and accordingly it is unlawful as
it violates his constitutional
right to administrative action that is
lawful, reasonable and procedurally fair.
[12]
This case it will appear, is not about the fairness or otherwise of
Applicant's suspension but implicates the principle of
legality and
the rule of law. This court has jurisdiction to declare any conduct
unlawful and invalid if it violates the principle
of legality
4
.
It follows, in my view that the point
in
limine
falls
to be dismissed, as the provisions of the Labour Relations Act do not
apply.
Background
[13] On 5 January
2015 Third Respondent served Applicant with a Notice of Intention to
place him on precautionary suspension. The
notice stated:
"1. It has come
to our attention that there are certain allegations of illegal
rendition of Zimbabwean nationals related to
transactions that
implicate you and, other members within the Directorate during period
2010 and 2011."
[14] On 7 January
2015 applicant through his legal representatives requested further
particulars form the Third Respondent with
regards to his exact role
in the alleged transgressions, in particular details about the place
and time and against whom it was
alleged that he transgressed. Third
Respondent was also alerted to the fact that the notice was defective
in that it omitted to
refer to the empowering provision in terms of
which it was issued.
[15] Third
Respondent failed to comply with the request. Applicant instituted an
urgent Labour Court application to restrain Third
Respondent form
placing him on precautionary suspension until he is provided with
further particulars and the statutory provisions
authoring Third
Respondent to do so.
[16] On 13 January
2015, the Third Respondent withdrew the notice to suspend the
Applicant and on 14 January 2015 Applicant removed
his application
form the roll and Third Respondent tendered the costs.
[17] During the
course of the day on the 14 January 2015, the Third Respondent issued
the Applicant with the second notice of intention
to place him on
precautionary suspension. The Applicant was afforded (5) days to
provide reasons why he should not be placed on
precautionary
suspension. The notice still did not state the relevant statutory
provisions upon which Third Respondent purported
to act. The notice
stated that:
"I intend to
place you on precautionary suspension with full pay and benefits as
contemplated in the
South African Police Service Act 68 of 1995
as
amended, read with the Police Discipline Regulations to the extend
that same are applicable to you."
[18] Applicant
forwarded his representations to the Third Respondent on the 19
January 2015. In his representation, Applicant stated
that Third
Respondent was conflicted and thus not legally entitled to make any
decision relating to his precautionary suspension
because:
18.1 On 21 July
2009, Lt General Mdluli, who then held the position of Divisional
Commissioner: Crime Intelligence of the South
African Police Service
had requested Third Respondent, as the Deputy Provincial Commissioner
to investigate irregularities within
crime intelligence precipitated
by a newspaper article which appeared in The Sowetan newspaper
linking Richard Mdluli to the murder
of his love rival, Oupa
Ramogibe.
18.2 On 14 January
2010 Third Respondent compiled a final report concerning the alleged
irregularities and exonerated Lt General
Mdluli from the murder of
Oupa Ramogibe.
18.3 Members of
Applicant's team investigated the matter, questioned Third
Respondent's report with a view to determine whether
Third Respondent
defeated the ends of justice whilest he covered for Lt General Mdluli
in his report.
18.4 Applicant
stated in his representations that Third Respondent was motivated by
a desire to seek revenge against him as he investigated
Lt General
Mdluli and had him charged for the murder of Ramogibe.
[19] On 20 January
2015 Applicant was issued with a Notice of Precautionary suspension
forming the subject matter of this application.
[20] On 21 January
2015 Applicants legal representatives yet again requested Third
Respondent to specify the section in the SAPS
or a particular
regulation supposedly authorising him to issue the notices. Third
Respondent failed to respond to the letter.
Issues
[21] The purpose of
a precautionary suspension is to allow the employer to investigate
allegations against an employee. Suspensions
of senior members of the
crime-fighting units of the country have negative impact in public
confidence and the rule of law and
importantly, have the unintended
consequence that the employee suffers palpable prejudice to his
reputation and advancement. It
follows therefore that employees
should only be suspended pending a disciplinary hearing only if there
are compelling reasons and
suspensions should be a last resort. This,
it seems is not the case in this matter.
[22] Paragraph 3 of
the second notice of intention to place applicant on precautionary
suspension states:
"Witness
statements in my possession, which cannot be disclosed because the
investigation is stili continuing, and also to
protect their
identity, have directly implicated you in the alleged offences, and
that upon unlawfully arresting the above mentioned
Zimbabwean
nationals, under your direction or instruction you caused them to be
illegally deported to Zimbabwe to be unlawfully
handed over to the
Zimbabwean Police, to be unlawfully arrested, assaulted and harassed
by the Zimbabwean Police. It is also alleged
that one of the DPCI
officers who directly participated in the rendition of these
Zimbabweans either with you present, or upon
your direction or
instruction is Colonel M. L. Maiuleke who has since been placed on
suspension arising from the same allegations
of unlawful rendition of
Zimbabwean nationals".
[23] The Third
Respondent is aware that the independent investigation into
applicant's conduct by the Independent Police Investigation
Directorate ("IPID") was conducted in February 2012. The
IPID has finalised its investigations and has submitted its
report to
the National Prosecuting Authority for a decision. The IPID has
advised Applicant in writing that it did not recommend
that he should
be prosecuted or suspended due to lack of evidence implicating him in
the commission of the alleged offences.
[24] The office of
the National Head through its Integrity Unit has conducted an
investigation into the alleged involvement of Applicant
in the
illegal renditions of the Zimbabweans and has cleared the Applicant.
Third Respondent was repeatedly challenged to produce
both the IPID
and Integrity Unit reports and has refused to take the court and the
Applicant into his confidence by making the
reports available because
they vindicate the Applicant.
[25] Lt Colonel
Andre Neethling, a Section Commander for the Organised Crime Tactical
Section who assisted in the arrest of the
Zimbabweans made a
statement in which he explained how they conducted the operation and
how he provided escort for the high-risk
suspects to Musina. His
statement does not in any way implicate the Applicant
[26] Warrant Officer
Makoe is a member of the DPCI Gauteng under the command of the
Applicant. He was a group leader of 'A Group'
and had 8 policemen
under his command. He is a relevant witness to the events surrounding
the police operation, the role of the
different policemen, who
requested the operation and who was present during this operation. He
was interviewed by a Mr. IH Cuba
of the IPID Limpopo who questioned
him about the circumstances around the operation in particular
whether Applicant was present
during the operation. Warrant Officer
Makoe informed Mr Cuba that Applicant was not at the scene and that
Colonel Maluleke was
in charge of the operation.
[27]
At the end of the discussion, Mr Cuba refused to take a statement
from Warrant Officer Makoe because the statement
'would
be bad for his (Cuba's) case.
To
date no statement has been taken form Warrant Officer Makoe.
[28] The Third
Respondent does not explain precisely what Applicant's role was in
the transgressions, and how materially different
the allegations in
the witness statements, allegedly in his possession is from those
already investigated. Third Respondent has
not attached to his
answering affidavit any confirmatory affidavits or documents on which
he relies to ground the suspension despite
invitation by Applicant to
redact the identities of witnesses whose identities he does not want
to reveal. Most importantly, Third
Respondent has failed to identify
in terms of which particular provision he purports to act.
[29] On Third
Respondent's own version the alleged acts of misconduct by Applicant
occurred in or about 5
th
November 2010 and he regards
these allegations as very serious given the seniority of the
Applicant. There is no suggestion that
Applicant hindered or
interfered with several investigations that were conducted concerning
the same allegations and that there
has neither being a report or
complaint that Applicant interfered with witnesses since 2010, on the
contrary, the undisputable
evidence suggests that Applicant was not
involved in the illegal rendition of Zimbabwean nationals as alleged
or at all. There
is therefore no basis for suggesting that
Applicant's continued presence in the workplace will be prejudicial
to the investigations
or intended enquiry.
[30] It is worth
mentioning that in paragraph 4 of the said second Notice of Intention
to place Applicant on precautionary suspension
Third Respondent
states that the investigations for purposes of a disciplinary inquiry
are completed and the only outstanding investigations
relate to the
criminal aspect. Paragraph 4 reads:
"The
Independent Police Investigation Directorate ("IPID")
investigated this allegations against members of the DPCI.
IPID has
submitted its report to the National Director of Public Prosecution
(NDPP) for a decision on the criminal aspect of the
matter. The
investigation relating to the criminal aspect is stili continuing and
for that reason IPID had being unable to make
the report public again
(sic) such report containing the names of the potential witnesses and
the statements made by them, cannot
at this stage be disclosed in
order to protect the witnesses or the potential witnesses."
[31] In my view,
there exists no basis in law or fact for the Third Respondent to take
the drastic measure of placing Applicant
on precautionary suspension.
I agree with the Applicant that the decision by Third Respondent was
taken in bad faith and for reasons
other than those given. It is
arbitrary and not rationally connected to the purpose for which it
was taken and accordingly, it
is unlawful as it violates Applicant's
constitutional right to an administrative action that is lawful,
reasonable and procedurally
fair.
Power to suspend
[32] Having decided
that the Third Respondent had no grounds for suspending Applicant,
the next question to be decided is whether
Third Respondent has the
power to suspend Applicant. Third Respondent contends for the first
time in his answering affidavit that
the Applicant's suspension is in
terms of Regulation 13(4) of the South African Police Service
Discipline Regulations, published
in Government Gazette No.28985
dated 3 July 2006 Act.
[33]
The difficulty with this submission is that when the Regulations were
promulgated in 2006, Chapter 6A of the
South African Police Service
Act had
not yet been enacted. Chapter 6A, which establishes the
Directorate for Priority Crime Investigation was inserted into the
Act
by the
South African Police Service Amendment Act, 2008
5
.
[34]
Section 17AA
of
the Act provides that:
"The provisions
of Chapter 6A in respect of the mandate of the Directorate apply to
the exclusion of any section within this
Act".
[35]
Section 17G
regulates the conditions of service and provides that:
"The
remuneration, allowances and other conditions of service of members
of the Directorate shall be regulated in terms of
section 24
".
[36]
Section 24
deals with the issue of suspensions it provides:
(1) The Minister may
make regulations regarding -
(f)
labour
relations, including matters regarding suspension, dismissal and
grievances;
(g)
(i)
the institution and conduct of disciplinary proceedings or inquiries;
(ii) conduct by members that will constitute misconduct;...
[37] It follows that
the Regulations that Third Respondent purports to rely upon cannot
govern the suspension of the Applicant.
Accordingly, Third Respondent
was not empowered to issue the notice of suspension. His conduct was
accordingly unlawful and invalid
and stands to be set aside.
[38]
Section 172(l)(a) of the Constitution requires the court to declare
the suspension decision unlawful and invalid to the extend
of its
inconsistency with the Constitution. Mr Mkhari relying on
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
6
argued
that the decision of the Third Respondent ought to be regarded as
valid until it is declared invalid.
[39]
The Constitutional Court in
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security
7
emphasized
that the principle of legality has to be enforced. At paragraph [30]
the court said:-
"Logic, general
legal principle, the Constitution and the binding authority of this
court all point to a default position that
requires the consequences
of invalidity to be corrected or reserved where they can no longer be
prevented. It is an approach that
accords with the rule of law and
the principle of legality".
Conclusion
[40]
For the reasons set out above, and because of my finding that Third
Respondent had no grounds for suspending Applicant and
further that
he had no power to suspend Applicant. I am satisfied that Applicant
has made out a case for the relief that he seeks.
The Order
[41] I make the
following order:-
1. It is declared
that the Notice of Suspension served on the Applicant on 20 January
2015 is unlawful, unconstitutional and invalid;
and
2. It is declared
that the appointment of Major-General Elias Dlamini as the acting
Provincial Head of DPCI- Gauteng is unlawful,
unconstitutional and
invalid.
3. The Third
Respondent is ordered to pay the costs of the Applicant, which will
include the costs of a senior and junior counsel.
MATOJANE KE
JUDGE OF THE HIGH
COURT
1
(Act
57 of 2008).
2
Case
No 1054/2015 (23 January 2015).
3
(2008)29
IU 73 (CC)
4
s
172(l)(a) &(b) of the Constitution of South Africa.
5
(Act
57 of 2008).
6
2004
6 SA 222
(SCA).
7
2014(4)
SA 179 (CC).