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[2015] ZAKZDHC 86
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Booysen v National Head of the Directorate for Priority Crime Investigation and Another (9799/2015) [2015] ZAKZDHC 86 (18 November 2015)
IN THE HIGH COURT OF
SOUTH AFRICA,
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE NUMBER 9799/2015
DATE: 18 NOVEMBER 2015
MAJOR GENERAL JOHANN WESSEL
BOOYSEN
..........................................................
Applicant
And
NATIONAL HEAD OF THE DIRECTORATE FOR
PRIORITY CRIME
INVESTIGATION
....................................................................
First
Respondent
MINISTER OF
POLICE
.........................................................................................
Second
Respondent
JUDGMENT
VAN ZYL, J:
1. The applicant, a serving officer in
the South African Police Service holding the rank of Major-General,
was appointed as the
Provincial Head of the Directorate for Priority
Crime Prevention for KwaZulu-Natal with effect from 1 March 2010. By
notice issued
by the first respondent and dated 14 September 2015 he
was suspended from duty with immediate effect. A copy of the notice
is annexed
marked “D” to the applicant’s founding
affidavit and will for convenience hereafter be referred to simply as
the suspension notice.
2. In terms of the suspension notice it
was issued by virtue of the provisions of Regulation 13(1) of the
South African Police Discipline
Regulations, 2006 (the Regulations),
as promulgated in terms of section 24(1) of the South African Police
Service Act, 1995 (Act
68 of 1995) and published on 3 July 2006.
Regulation 13 is headed “Precautionary suspension” and
sub-regulation (1)
provides as follows-
“The employer may suspend with
full remuneration or temporarily transfer an employee on conditions,
if any, determined by
the National Commissioner.”
3. In terms of the definitions
contained in Regulation 1 the employer is defined as the National
Commissioner of Police or “any
person delegated by him or her
to perform any function in terms of these Regulations”. During
argument counsel advised that
the parties are ad idem that the first
respondent was duly vested with the necessary authority to issue a
suspension notice in
terms of Regulation 13(1).
4. The applicant initiated proceedings
by way of an urgent application issued on 17 September 2015 and
seeking to set aside the
suspension notice. The first respondent gave
notice of intention to oppose. The second respondent, being the
Minister of Police,
was merely cited as an interested party and
abides the decision of the court. For convenience the first
respondent is herein referred
to as the respondent. The matter came
before Sishi J on 21 September 2015 when it was adjourned by consent
to a date to be allocated
for opposed argument and directions were
given regarding the exchange of affidavits and heads of argument. The
matter then came
before me for argument 27 October 2015.
5. The application was carefully framed
so as to avoid being couched as an administrative review. On the
approach taken by the applicant
the nature of the proceeding is one
attacking the validity of the first respondent’s decision on
the principle of legality.
The applicant contends that the decision
to suspend him was unlawful because it was taken mala fide, for some
ulterior purpose
and was not one the respondent could reasonably have
arrived at if he had actually considered the relevant facts,
including the
representations made by the applicant prior to his
suspension.
6. By contrast it was submitted on
behalf of the respondent in limine that the nature of the application
was one of an administrative
review which could only competently be
brought in terms of the provisions of the Administrative Justice Act
3 of 2000 (PAJA) and
then only where the conduct complained of was a
decision taken by an administrative functionary and was an
administrative act.
7. In developing his argument Mr
Mokhari SC, who appeared for the respondent together with Mr Abraham
and Mr Mokhatla, drew attention
to the decision of the Constitutional
Court in Pharmaceutical Manufacturers Association of South Africa and
Another: In re Ex Parte
President of the Republic of South Africa and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at paragraphs 44 – 45 and submitted
that there was no distinction between judicial review under the
Constitution or
in terms of the common law and that the latter had
been subsumed by the enactment of PAJA, which now provides for the
review of
administrative action.
8. With reference inter alia to the
decision in Chirwa v Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC) counsel
submitted that it was trite law that a decision to suspend or dismiss
a State employee did not amount to administrative
action or conduct,
was therefore not susceptible to review before this Court which
lacked jurisdiction to hear the matter and by
reason thereof the
application stood to be dismissed.
9. Mr Van Niekerk SC, who appeared with
Ms Allen for the applicant, submitted that the applicant placed no
reliance upon PAJA at
all. In this regard counsel emphasized that the
application was premised upon the principle of legality and which
fell beyond the
scope of administrative action as contemplated in
PAJA. In short, counsel submitted that whereas PAJA required the
action to be
impugned to be administrative action as defined in the
Act, the principle of legality extends into a broader constitutional
field
beyond this requirement.
10. In Chirwa (supra) and with
reference to the dismissal by Transnet of the applicant, Ngcobo J
considered that the act of dismissal
amounted to the exercise of a
public power because it was vested in a public functionary, who was
required to exercise such power
in the public interest (at para 138).
11. The courts have recognized their
ability and indeed a duty to scrutinize all aspects of the exercise
of public power which must
comply with the prescripts of the
Constitution. In Minister of Home Affairs and Others v Scalabrini
Centre and Others
2013 (6) SA 421
(SCA), Nugent JA remarked upon this
developing approach at para 60 and at para 61 endorsed the views of
Professor Hoexter in her
work Administrative Law in South Africa 2 ed
at page 254 where the learned author suggested that in time
constitutional review
based upon the principle of legality and
administrative review were likely to converge.
12. In this regard counsel for the
applicant also drew attention to the recognition of a process for
judicial review under the principle
of legality. In Khumalo and Ano v
Member of the Executive Council for Education: KwaZulu-Natal (2014)
35 ILJ 613 (CC) Skweyiya,
J stated at para 28 that;
“The principle of legality is
applicable to all exercises of public power and not only to
‘administrative action’
as defined in PAJA. It requires
that all exercises of public power are, at a minimum, lawful and
rational.”
13. With reference to the decision in
Pharmaceutical Manufacturers Association (supra) as relied upon by
counsel for the respondent,
counsel for the applicant referred to the
remarks at para 17 of that judgment where the Constitutional Court
outlined the different
ways in which the exercise of public power was
regulated by the Constitution, with one of them being constitutional
controls flowing
from the doctrine of legality. In Gauteng Gambling
Board v MEC for Economic Development, Gauteng
2013 (5) SA 24
(SCA),
Navsa JA, relying upon this passage, remarked that “This is the
principle of legality, an incident of the rule of
law.” (at
para 1) and at para 47 said that:
“In present-day jurisprudence
acting with an ulterior motive or purpose is subsumed under the
principle of legality. Section
6(2)(e)(ii) of PAJA makes
administrative action taken for an ulterior purpose or motive subject
to review. The classification of
an action taken by a member of
government is immaterial. As stated at the commencement of this
judgment, the legislature, the executive
and judiciary, in every
sphere, are constrained by the principle that they may exercise no
power and perform no function beyond
that conferred on them by law.”
14. Finally counsel for the applicant
handed up a transcript of the very recent judgment in the matter of
The South African Broadcasting
Corporation Soc Ltd and Others v the
Democratic Alliance and Others (393/2015)
[2015] ZASCA 156
(8 October
2015) and drew attention to para 59 where the court of appeal
summarized the current approach with reference inter alia
to the
decisions in Pharmaceutical Manufacturers Association (supra) and
Scalabrini Centre (supra).
15. In the light of the above I am
persuaded that counsel for the applicant are indeed correct in their
submission that the court
is entitled to consider the present
application as one based upon the principle of legality and the
respondent’s argument
in limine must fail.
16. It is common cause that on 11
August 2015 the respondent served notice upon the applicant (annexure
A to the founding affidavit)
calling upon him to make written
representations as to why the respondent should not place the
applicant on suspension pending
(the outcome of) an investigation
into certain allegations against the applicant.
17. The allegations, according to the
notice, attributed the following misconduct to the applicant, namely
that;
(a) During October 2008 the applicant
had recommended himself and certain members of his then unit for cash
rewards of R15 384-62
each together with a certificates (of
commendation) by the National Commissioner (of Police);
(b) Such recommendation amounted to a
fraudulent misrepresentation by the applicant, in that the case
dockets referred to in support
of the recommendation had no relevance
to the killing of a Superintendent Choncho and by way of example
reference was made to Howick
CAS 106/08/2008.
(d) It was further alleged that as a
result of such misrepresentation the sum of R15 384-62 was paid to
the applicant and to other
officers then under his command in
circumstances where no monetary awards should to have been made.
18. It is likewise common cause that
the applicant, by letter dated and delivered on 17 August 2015
(annexure B) responded to the
notification in considerable detail and
that the respondent thereafter in a written notice dated 14 September
2015 (annexure D)
suspended the applicant from his employment with
immediate effect.
19. The relevant portions of the
suspension notice (annexure D) advised the applicant, as follows:-
“3. Serious allegations exist
against you which warrant an exhaustive investigation and possible
disciplinary charges being
preferred against you. I have considered
your representations and am of the view that there is basis for
placing you on precautionary
suspension pending finalization of the
contemplated investigation.
4. This letter now serves as formal
notice of your precautionary suspension with full remuneration of
your employment by the Directorate
for Priority Crime Investigation
(“DPCI”), effective immediately until completion of the
investigation and/or possible
disciplinary proceedings related to
gross misconduct, dishonesty and misrepresentation with the intention
to defraud the DPCI;
alternatively, the South African Police Services
(“SAPS”).”
20. The approach of the applicant at
the outset is premised upon the alleged unlawfulness of the decision
to suspend him. Counsel
submitted that such a suspension could only
be justified where firstly the employer had reason to believe both
that the employee
had engaged in serious misconduct and in addition
that there was some objectively justifiable reason to deny the
employee access
to the workplace during the intervening period whilst
the investigation was in progress.
21. The applicant contended that in all
the circumstances of the matter the respondent could not have
harbored any bona fide belief
that any misconduct had in fact been
committed and even less so that the applicant himself had committed
any misconduct. In this
regard it was submitted that there could have
been no facts at the disposal of the respondent to give rise to any
such belief.
22. In developing his argument counsel
for the applicant submitted that in giving the initial notice
(annexure A) the respondent
contended that the information at his
disposal revealed that the applicant had made a fraudulent
misrepresentation and in particular
had cited case dockets in support
of his alleged recommendation for the making of monetary rewards,
inter alia, to himself. In
this regard specific reliance was placed
upon Howick docket CAS 106/08/2008.
23. The applicant had, in response
thereto, pointed out that the body of the submission (annexure C to
the applicant’s founding
affidavit) had been prepared by then
Superintendent W. Olivier, but utilizing a standard format document
which reflected the signatory
as the applicant. However, because the
applicant himself was a potential beneficiary, he had transmitted the
draft to his then
superior officer Assistant Commissioner P T Brown,
the Provincial Head of Detectives, who considered the proposals
contained therein
and made the actual recommendation for R10 000-00.
24. When the recommendation document
itself is examined, it is apparent from its heading that enquiries in
regard thereto are to
be directed to Senior Superintendent Aiyer
and/or Superintendent W Olivier. It is marked on its first page for
“ATT: DIR
BOOYSEN”, suggesting that the author(s) of the
draft intended the Applicant as its recipient. It is also clear from
the list
of potential beneficiaries on the first page that the
applicant’s name is at the top of the list, so that if he were
to have
considered the proposals and to have made any recommendation
thereon, he would have found himself in a situation of a conflict of
interests.
25. The typescript of the document
deals with the background and motivation for awards to be made to the
various beneficiaries and
concludes with space for any recommendation
to be entered in longhand under a heading “Comments:”,
followed by a line
where a signature is to be affixed. Here the name
of the applicant appears in print, but had been deleted and a stamp
with the
name of “Asst. Comm. P. T. Brown” affixed in its
place together with his apparent signature. In the space provided for
comments the following appear in longhand, namely;
“Recommended that members receive
a certificate of commendation by the National Commissioner and an
incentive of R10 000-00.”
26. Beneath the place for signature of
the recommendation and in typescript under the heading “Award
Options:” appear
two categories, namely monetary awards and
non-monetary awards. The monetary award options are listed in order
of priority, starting
with the highest award being the S A Police
Service Gold Cross for Bravery coupled with a monetary award of R35
000-00 (plus applicable
tax) and ending with the lowest award to a
police official, being a Certificate of Commendation from the
National Commissioner
coupled with a monetary award of R10 000-00
(plus applicable tax).
27. In context the document suggests
that the draft, without any entry under the heading “Comments”,
was submitted to
Assistant Commissioner Brown who, having considered
its contents, decided firstly upon the making of a recommendation for
a monetary
award and secondly at what level that award should be
recommended. Having made a decision he entered his recommendation in
longhand
under the “Comments” heading and signed the
document before forwarding it for consideration by the relevant
authorities.
28. In his written response to the
notice of intention to suspend him the applicant stressed that he had
no hand in compiling or
making the recommendation concerned, either
in draft or final form. He also attached thereto an affidavit by
Lieutenant Colonel
(previously Superintendent) Olivier, now retired,
wherein the latter confirmed that he had forwarded the draft
recommendation,
which had been prepared in his office, to the
applicant for consideration but that the applicant had declined to do
so because
he considered it inappropriate. At a later stage he again
had sight of the recommendation which by then had been signed by
Assistant
Commissioner P T Brown and who had also “written a
recommendation in his own handwriting.”
29. The affidavit of Olivier, in its
penultimate paragraph, also referred to the issue of the case dockets
to which reference was
made in the letter of recommendation and
explained that both CAS 106/8/2008 and CAS 107/8/2008 represented
typing errors and that
the “8” in each of them should
have been a “9”. He pointed out that these two dockets
were opened after
“the shooting”. With reference to
paragraph 3 of the letter of recommendation it is apparent that these
dockets were
alleged to have been opened following a shooting which
occurred near the Cedara turn-off on the N3 highway in the Howick
area on
16 September 2008 and in which two alleged suspects were
killed. The letter of recommendation, at the end of paragraph 3
states
that “The following cases were opened: Howick
CAS106/8/2008: Attempted Murder and possession of unlicensed firearms
- Howick
CAS107/8/2008: Inquest.” In his affidavit Olivier said
that the charges in Howick CAS106/9/2008 related to charges opened
against the police members involved in the shooting and that Howick
CAS107/9/2008 related to the inquest into the deaths of the
alleged
suspects.
30. In his response the applicant also
pointed out that the monetary reward involved was R10 000-00 and not
R15384-62 as alleged
by the respondent in the suspension notice. That
too is apparent from the scale of possible awards contained at the
conclusion
of the letter of recommendation (annexure C). The
applicant further pointed out that Howick “CAS 106/08/2008”
did not
relate to “a house breaking case” as alleged to
by the respondent in paragraph 5 of the suspension notice, but in
fact
to theft of a motor vehicle. He then drew an analogy between
these errors and the typing errors relevant to the Howick dockets and
observed that errors of this nature did not establish that any
misrepresentation was intended.
31. In his written response the
applicant also dealt with the other dockets referred to in the letter
of recommendation, but which
were not specifically referred to by the
respondent in the suspension notice. The allegation of a general
nature as contained in
the suspension notice was to the effect that
the case dockets referred to therein “have no relevance
whatsoever to the killing
of Supt Choncho.” With regard to
KwaDukuza CAS 150/08/08, as referred to in paragraph 2 of the letter
of recommendation,
it is apparent that this related directly to the
killing of Superintendent Choncho on 27 August 2008. With regard to
the remaining
docket references the applicant explained that these
related to peripheral investigations.
32. In his written response to the
suspension notice the applicant in addition dealt at some length with
the background and previous
steps taken against him. He did so in
order to demonstrate that the suspension notice was tainted by
ulterior motives. In all the
applicant asserted that the docket
references were relevant to the matters dealt with in the letter of
recommendation and he denied
both that any misrepresentation had
occurred and that he had misrepresented any facts. He accordingly
also denied the South African
Police Service had been “financially
and reputationally” prejudiced as alleged by the respondent.
33. Against this background the
respondent admittedly issued the suspension notice and in paragraph 3
thereof asserted that;
“I have considered your
representations and am of the view that there is (a) basis for
placing you on precautionary suspension
pending finalization of the
contemplated investigation.”
The nature of the investigation
appeared from paragraph 4 of the suspension notice, as follows;
“.. related to gross misconduct,
dishonesty and misrepresentation with the intention to defraud the
DPCI; alternatively, the
South African Police Service (‘SAPS’).”
34. In the present application the
applicant broadly repeated the facts foreshadowed in his written
response to the notice of intention
to suspend him. He also attached
confirmatory affidavits by the former Superintendent Olivier and
Assistant Commissioner Brown,
both now retired. With regard to the
latter the applicant alleged that some three weeks prior to his own
approach to Brown, this
witness had been approached for a statement
by the respondent and had made a statement which accords with the
applicant’s
version of events.
35. In his answering affidavit the
respondent denies that he personally had approached Brown for a
statement but confirmed that
Brown had been approached on his behalf
and had given an “unsigned statement”, presumably to
Colonel K M Mabuela, who
was in charge of the investigation, but that
the respondent himself had never had sight of this statement. In his
confirmatory
affidavit on behalf of the respondent Col Mabuela
confirmed the respondent’s averments relating to him.
36. What is noteworthy is that there is
no denial that the draft statement obtained by Col Mabuela from
Brown, in fact accorded
with Brown’s version in support of the
applicant. Since Brown deposed to his confirmatory affidavit on 17
September 2015
and the suspension notice was issued on 14 September
2015, it follows that Col Mabuela was advised by Brown some weeks
earlier
that the applicant was not involved in the reward
recommendation (annexure C) but that this was finalized and signed by
Brown himself.
What remains unexplained is why the respondent had not
consulted Col Mabuela as to Brown’s version of events prior to
making
his decision to suspend the applicant. This is all the more
disturbing since an affidavit from Olivier was attached to the
applicant’s
response to the notice of intention to suspend.
37. Despite the fact that both Olivier
and Brown had deposed to confirmatory affidavits in support of the
applicant’s version
of how the recommendation (annexure C) came
to be prepared, finalized, signed and forwarded for ultimate
approval, the respondent
avoided dealing with their versions and did
not comment in answer upon their affidavits. These therefore remain
unchallenged.
38. There is also no indication that
the respondent, after the applicant had pointed out that the
references to the Howick docket
numbers CAS 106/08/2008 and CAS
107/08/2008 were incorrect and that the correct docket numbers
contained “09”, signifying
September 2008 events, had in
fact followed up or referred to the dockets under their corrected
docket numbers. Instead the respondent
merely repeated, in paragraph
27.9 of his answering affidavit, that the award was based inter alia
upon the incorrect docket numbers
of which CAS 106/08/2008 related to
theft of a motor vehicle and CAS 107/08/2008 to housebreaking.
39. In fact, there is no substantive
indication that the respondent had read and considered, or followed
up upon, any of the material
details contained in the applicant’s
response to the notice of intention to suspend him.
40. With regard to the applicant’s
averments in his founding affidavit, the respondent contented himself
with broad denials
of personal knowledge of the allegations. This is
particularly apparent with reference to paragraph 12 of the founding
affidavit
where the applicant set out in detail the various
unsuccessful disciplinary actions and criminal charges brought
against him by
various functionaries acting under the auspices of the
South African Police Force. These are relevant because the alleged
motivations
date back to the same period and the incidents relevant
to the recommendations contained in annexure C and which allegedly
form
the basis for the applicant’s present suspension.
41. Save to admit that the disciplinary
hearing presided over by Adv Cassim SC had exonerated the applicant
and recommended his
immediate reinstatement, the respondent denied
personal knowledge of the remaining averments contained in paragraph
12 of the founding
affidavit and “put the applicant to the
proof thereof”.
42. In my view the respondent’s
claims of personal ignorance do not raise any real or substantial
conflicts of fact regarding
the history of unsuccessful attempts to
discipline or charge the applicant.
43. In Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), Corbett JA stated at
page 634 H – 635 B;
“It is correct that, where in
proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order,
whether it be an interdict or some other
form of relief, may be granted if those facts averred in the
applicant's affidavits which
have been admitted by the respondent,
together with the facts alleged by the respondent, justify such an
order. The power of the
Court to give such final relief on the
papers before it is, however, not confined to such a situation. In
certain instances the
denial by respondent of a fact alleged by the
applicant may not be such as to raise a real, genuine or bona fide
dispute of fact
(see in this regard Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1163 - 5; Da Mata v
Otto NO
1972 (3) SA 858(A)
at 882D - H). If in such a case the
respondent has not availed himself of his right to apply for the
deponents concerned to be
called for cross-examination under Rule 6
(5) (g) of the Uniform Rules of Court (cf Petersen v Cuthbert &
Co Ltd
1945 AD 420
at 428; Room Hire case supra at 1164) and the
Court is satisfied as to the inherent credibility of the applicant's
factual averment,
it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines
whether the applicant
is entitled to the final relief which he seeks
(see eg Rikhoto v East Rand Administration Board and Another
1983 (4)
SA 278
(W) at 283E - H).”
44. The respondent nevertheless, in
answer to the applicant’s direct allegations of male fides for
ignoring Brown’s
version of events, responded to the applicants
averments in paragraphs 24 and 25 of his founding affidavit by merely
denying that
he ever had sight of Brown’s unsigned statement
and then expressed the unsupported opinion in paragraph 29.2 of his
answering
affidavit that the applicant;
“… was clearly the author
of the memorandum referred to in paragraph 25 of his affidavit
(annexure C) and a careful
scrutiny of this document, reveals this.
It was with respect, an afterthought that the applicant could not
sign the document as
he was one of the recipients of the incentives.
I have no knowledge of the remainder of the allegations herein. I
deny that my
conduct is unlawful and male fide and put the applicant
to the proof thereof.”
45. The respondent also neglected to
explain why, in the absence of personal knowledge, he failed to
enquire into the background
events relevant to the applicant and the
allegations against him before exercising his decision to suspend
him. In his response
to the notice of intention to suspend the
applicant had pertinently in paragraph 12 of annexure B alleged that;
“… I should point out to
you, that after months of investigation by Major General Mabula and a
team of detectives,
and Mr Glen Angus from IPID guided by at least
six prosecutors, I was never charged for fraud in this regard. This
also raises
another question, as to who ‘has recently’
brought the so-called misrepresentation, as stated in your notice, to
your
attention? The only explanation I can conceive of is that it
comes from Major General Mabula or some-one from his team. He, as
well as his team, has had the disputed documents in his possession
since 2012.“
46. In seeking to justify the
suspension the respondent did not deal with any of the detailed
background matters raised by the applicant.
Instead he stated in his
answering affidavit that;
“[23.2] The applicant’s
allegations of ulterior motives and mala fides have no basis. They
are merely conjecture. What
the applicant is simply doing in this
instance is to refuse to submit himself to the discipline of his
employer as applicable to
all members in the ministry of police.
[23.3] All the employer seeks to
achieve is to conduct a thorough investigation into the serious and
prima facie allegations of
misconduct against the employee. …
[23.4] The applicant has appeared in a
disciplinary inquiry before and was exonerated. There is no reason
whatsoever for this unfounded
allegations by the applicant. The
employer is within its right to suspend the employee while it
investigates the allegations of
serious misconduct against an
employee.”
47. These responses are also relevant
against the background of the events to which the applicant referred
in his founding affidavit.
They represent opinion, unsubstantiated by
factual averments in support of the conclusions to which the
respondent claims to have
come.
48. By blandly asserting to be within
his rights to suspend the applicant while he investigates suggests an
unfettered and arbitrary
discretion, to be exercised at will as a
matter of entitlement, irrespective of whether the allegations
objectively have any merit.
49. In my view the discretion to
suspend must have a rational basis before it can lawfully be
exercised. Suspension, even with full
benefits, has a drastically
adverse impact upon the subject of the suspension. Where, as here,
the suspension is effected based
upon allegations of fraud,
dishonesty and misrepresentation the inevitable stigma attaching to
and the assault upon the dignity
of the subject of the suspension is
exacerbated.
50. Section 22 of the Constitution of
the Republic provides that;
“[22] Every citizen has the right
to choose their trade, occupation or profession freely. The practice
of a trade, occupation
or profession may be regulated by law.”
51. With regard thereto Ngcobo J held
in Affordable Medicines Trust and Others v Minister of Health and
Others2006 (3) SA 247 (CC)
at paragraph 59 that;
“[59] What is at stake is more
than one's right to earn a living, important though that is. ….
One's work is part of
one's identity and is constitutive of one's
dignity. Every individual has a right to take up any activity which
he or she believes
himself or herself prepared to undertake as a
profession and to make that activity the very basis of his or her
life. And there
is a relationship between work and the human
personality as a whole. 'It is a relationship that shapes and
completes the individual
over a lifetime of devoted activity; it is
the foundation of a person's existence'”
52. The interconnection between the
right to dignity and the right to work is well recognized (Stratford
and Others v Investec Bank
Ltd and Others
2015 (3) SA 1
(CC), Leeuw
AJ at paragraph 35). An unjustified and arbitrary suspension from
employment is thus constitutionally offensive, despite
the fact that
the suspension is with full benefits.
53. In the circumstances of the present
matter the respondent sought to emphasise that the allegations were
serious and that the
suspension was a precautionary measure pending
investigation thereof. But what remained unanswered were the
applicant’s assertions
that the subject matter of the
allegations were not new, had been the subject of investigation in
the past and against the background
of sustained unsuccessful efforts
to suspend or discipline him, amounted to a sinister attempt again to
remove him from office
on a pretext, for reasons which remain
unclear.
54. There is no indication from the
answering affidavits when the investigations of Colonel Mabuela
commenced, but merely that the
allegations had, according to
paragraph 1 of the notice of intention to suspend dated 9 August
2015, “recently” come
to the attention of the respondent.
There is also no indication of how these allegations came to his
attention, nor what steps,
if any, the respondent took to verify the
facts contained in the applicant’s written response to the
notice of intention
to suspend him.
55. The suspension notice itself merely
records in paragraph 3 thereof that the respondent had considered the
applicant’s
representations, but without comment upon their
validity. It continued that “there is a basis” for
placing the applicant
upon a precautionary suspension, but without
elaboration as to what such basis comprised.
56. In his answering affidavit the
respondent referred to alleged inaccuracies in the written
recommendations (annexure C) but without
dealing with the applicant’s
explanations thereof, or with the impact of such alleged inaccuracies
upon the adjudication
process when the awards were made.
57. In paragraph 19.11 of his founding
affidavit the applicant alleged that before any reward was paid, the
recommendation therefor
was scrutinized and approved by Awards
Committees at provincial and national levels. The respondent in reply
avoided responding
thereto. It thus remains unclear whether the
verification process relating to the recommendation bearing the
signature of Brown,
was in fact misled by any matter contained in the
recommendation. Nor was it demonstrated, with reference to the
“correct”
docket numbers as identified by the applicant
in his response, that the content of the recommendation was
materially incorrect
or misleading. Apart from the incorrect Howick
docket numbers the remaining content of the recommendation has also
not been shown
to be materially inaccurate, nor has the respondent
demonstrated that it did not comply with the criteria for such
recommendations
and awards.
58. With regard to docket reference
numbers it is not in dispute that the second set of numerals reflects
the month of the year
in which the docket is opened. In this instance
the events to which the recommendation (annexure C) refer in
paragraph 3 thereof
commenced with effect from 15 September 2008 and
culminated in the shooting which occurred on 16 September 2008. It
was then alleged
that as a result Howick docket numbers CAS 106/08/08
and 107/08/08 were opened. This is not the kind of error which is
likely to
mislead even a junior police official. The probabilities of
the experienced members of the Awards committees being misled, appear
remote.
59. In the end the nature of the
allegations being levelled against the applicant may be summarized as
follows. In the first instance
the allegation was made that the
applicant had recommended himself for a monetary award of R15 384,62.
It has been conclusively
shown that the award was only R10 000,00 and
that the level of the award was as determined and written in longhand
by Brown at
the conclusion of annexure C. It is thus clear that the
respondent’s information on the amount of the award was
mistaken,
as was his information that it was the applicant who made
the recommendation.
60. Secondly the incorrect Howick
docket numbers have been shown to be typing errors and there is no
suggestion that the correct
docket numbers (CAS 106/09/08 and CAS
107/09/08), as identified by the applicant in his response to the
respondent, did not in
fact relate to the submissions contained in
paragraph 3 of annexure C. Nothing sinister can therefore be inferred
from the inclusion
of the incorrect docket numbers in the
recommendation.
61. Thirdly it was alleged that the
general content of the recommendation was misleading and amounted to
a misrepresentation and,
impliedly, that it did mislead the awards
committees at provincial and national levels into making the awards
to the various members
concerned, including the applicant. As already
discussed, there is an insufficient factual basis for drawing the
conclusion that
the recommendation was misleading. But, even if it
were, then there is not a shred of evidence that the applicant was in
any way
involved in formulating its content and the respondent’s
conclusion to the contrary is, at best, entirely speculative.
62. The claim that as a result of the
conduct of the applicant the South African Police Service has
suffered prejudice is not sustained
by the facts before the court.
The claim that it suffered reputational damage is without merit,
particularly since there is no
suggestion that awards of this nature
are ever published for general information.
63. The applicant has pointed to the
series of actions taken against him as being indicative of the
respondent acting with an ulterior
motive. Whilst denying such a
motive, the respondent has not placed in dispute the previous actions
taken against the applicant,
or that they were unsuccessful. A strong
suggestion arises that there is an ongoing move, possibly even a
campaign to unseat the
applicant. But there is not sufficient
evidence before the court to draw firm conclusions in this regard and
neither party has
sought a referral for the hearing of oral evidence
in order to resolve these factual conflicts.
64. What is however noteworthy is that
the respondent had embarked, for reasons unclear, upon a course of
action as against the
applicant which was unsustainable upon the
information at his disposal. When the applicant responded with
detailed and motivated
submissions to the notice of intention to
suspend him, the respondent effectively ignored these and proceeded
with the suspension
in any event. When the applicant instituted the
present application to set aside the suspension, the respondent
doggedly opposed
the relief sought.
65. One of the grounds of opposition
was that the matter was not urgent. This ground was persisted in
despite the fact that the
matter had been postponed for the exchange
of affidavits before being enrolled for opposed argument. There are,
of course, degrees
of urgency. But counsel for the applicant drew the
analogy between offending against the right not to be unlawfully
suspended from
employment and the right not to be unlawfully
detained. Both are constitutionally offensive. Relying upon the
remarks in Arse v
Minister of Home Affairs
2012 (4) SA 544
(SCA) at
paragraph 10 where Malan JA said that “A 'detained person has
an absolute right not to be deprived of his freedom
for one second
longer than necessary by an official who cannot justify his
detention'”, counsel for the applicant submitted
that an
unlawful suspension likewise should not be tolerated for any longer
than absolutely necessary and that the matter was therefore
one of
sufficient urgency to be heard and determined. I agree.
66. Given the circumstances counsel for
the applicant submitted that the proper order would be one granting
the alternative relief
sought by the applicant and as set out in
paragraph 44 of his replying affidavit. This envisages the setting
aside of the suspension
of the applicant as originally sought, but in
addition that the suspension would remain ineffective for the
duration of any disciplinary
proceedings brought against the
applicant and arising out of the notification issued to the applicant
and advising him of a departmental
investigation regarding “fraud”.
A copy thereof is attached to the notice of intention to suspend
(annexure A) previously
referred to. The fraud allegation is the same
allegation contemplated in the notice of intention to suspend.
67. The respondent’s objection to
the alternative relief thus contended for was based upon the
submission that it was impermissible
for the applicant, in reply, to
seek relief in the alternative which differed from that which was
sought at the outset. The approach
to this issue was authoritatively
restated in Affordable Medicines Trust and Others v Minister of
Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) by Ngcobo, J in paragraph 9,
as follows;
“The practical rule that emerges
from these cases is that amendments will always be allowed unless the
amendment is mala fide
(made in bad faith) or unless the amendment
will cause an injustice to the other side which cannot be cured by an
appropriate order
for costs, or 'unless the parties cannot be put
back for the purposes of justice in the same position as they were
when the pleading
which it is sought to amend was filed' These
principles apply equally to a notice of motion. The question in each
case, therefore,
is, what do the interests of justice demand?”
68. In the present matter the
respondent was aware of the additional relief which the applicant
intended seeking (as foreshadowed
in his replying affidavit) in good
time prior to preparing for the hearing. The “fraud” is
the same issue which formed
the subject matter of the complaint about
the suspension from the outset and dates back to 2008. There is no
serious suggestion
that the documents relevant to such investigation
could be vulnerable to interference by the applicant, whose
undisputed averment
was that these have been in the possession of
various investigators for some years. In any event and despite that,
as already indicated,
there is not even prima facie evidence that
such fraud had been committed, or if it had, that the applicant is
implicated therein.
Against the background of sustained unsuccessful
attempts in the past to remove the applicant from office, it is not
unreasonable
to suppose that further attempts in this regard may be
made, despite the paucity of evidence against the applicant. In my
judgment
relief, in the nature of the alternative relief now sought
by the applicant, is justified in all the circumstances and no
injustice
would result from the granting thereof in the form
contained in the order set out below.
69. With regard to costs it is not in
dispute between the parties that the employment of senior counsel by
each side was justified,
in each instance assisted by a junior
counsel. The applicant, however, seeks a costs order as against the
respondent personally
on the scale as between attorney and client.
70. In Gauteng Gambling Board and
Another v MEC for Economic Development, Gauteng
2013 (5) SA 24
(SCA),
Navsa JA remarked in paragraph 52 that;
“Our present constitutional order
is such that the state should be a model of compliance. It and other
litigants have a duty
not to frustrate the enforcement by courts of
their constitutional rights.”
In the same judgment and in relation to
the issue of costs the learned Judge of appeal in paragraph 54 said
that:-
“The special costs order, namely,
on the attorney and client scale, sought by the board and Mafojane
is justified. However,
it is the taxpayer who ultimately will meet
those costs. It is time for courts to seriously consider holding
officials who behave
in the high-handed manner described above,
personally liable for costs incurred. This might have a sobering
effect on truant public
office bearers.’
71. The respondent in the present
matter may well give serious consideration to the caveat thus
expressed by the supreme court of
appeal. However, upon the totality
of the information before me I am not persuaded that, for present
purposes, an order for costs
de boniis propriis against the
respondent personally would be justified. The conduct of the
respondent nevertheless deserves censure
and as a mark of the court’s
disapproval I consider that costs on the scale as between attorney
and client would be justified.
72. In the result I make the following
order, namely:-
a. The suspension of the applicant from
his employment with the South African Police Service, as communicated
to him by the first
respondent on 14 September 2015 by written notice
of that date, is hereby set aside.
b. Pending the outcome of any
disciplinary proceedings instituted by the South African Police
Service against the applicant and
arising out of the aforesaid notice
of suspension and/or the Notification of Departmental Investigation
dated 11 August 2015, the
applicant shall not be liable to suspension
from his employment with the South African Police Service by reason
thereof.
c. The first respondent is ordered to
pay the costs of this application, including the costs reserved on 21
September 2015 and including
the costs of two counsel, on the scale
as between attorney and client.
VAN ZYL, J.
JUDGMENT RESERVED: 27/10/2015
JUDGMENT HANDED DOWN: 18/11/2015
COUNSEL FOR APPLICANT: G O van
NIEKERK SC
K ALLEN
Instructed by Shepstone & Wylie
Durban
Ref: MGM/KLB/CARL/26298.1
COUNSEL FOR FIRST RESPONDENT: W
MOKHARI SC
F ABRAHAM
T MOKHATLA
Instructed by Hogan Lovells c/o
Chapman Dyer Incorporated, Durban Ref: V Bhoola/B Naidoo