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[2007] ZAFSHC 67
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Swanepoel and Another v Mashigo N.O and Others (4031/2007) [2007] ZAFSHC 67 (27 September 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION
Case No. 4031/2007
In
the matter between:
MILLY
MARIA SWANEPOEL
First
Applicant
DANIëL
JOHANNES VAN DER BERG
Second
Applicant
and
T
A MASHIGO NO
First
Respondent
J
S SELEBI NO
Second
Respondent
C
NQAKULA NO
Third
Respondent
_______________________________________________________
JUDGMENT
BY:
VAN DER
MERWE, J
_______________________________________________________
HEARD
ON:
13
SEPTEMBER 2007
_______________________________________________________
DELIVERED
ON:
27
SEPTEMBER 2007
[1]
This is an application to review and set aside the decision of the
first
respondent,
taken on 16 August 2007, to suspend the applicants from their
employment
with the South African Police Service (“SAPS”) without
any
remuneration,
pending disciplinary procedures against them.
2
[2]
The first applicant is a superintendent in the SAPS. She has 26 years
service
in the SAPS and from 23 July 2003 to 13 July 2007 she was the
station
commissioner of the Navalsig police station. The second applicant is
a
captain
in the SAPS, with 20 years service. From November 1997 to 13 July
2007
he was the commander: crime prevention of the Navalsig police
station.
The
first respondent is the provincial commissioner of the SAPS in the
Free
State
in his official capacity, the second respondent is the national
commissioner
of the SAPS in his capacity as such and the third respondent is
the
Minister responsible for the SAPS.
[3]
When a crime or alleged crime is reported to the SAPS, the
particulars in
respect
thereof are entered into a computer system referred to as the Crime
Administration
System (“CAS”) and a CAS number is allocated to the case.
The
CAS number consists of the following, in that sequence, namely the
name
of the police station, the letters CAS, a serial number, the month
and
the year. When a case docket is opened for purposes of investigation
of
the
case, the case docket bears the same CAS number. The essential
allegation
against the applicants is that they manipulated crime statistics at
the
Navalsig police station by intentionally and without justification
changing
crimes
or alleged crimes in the CAS system and on case dockets to less
serious
crimes. This was allegedly done to present a brighter picture in
respect
of crime in the area served by the Navalsig police station.
[4]
The whole saga in respect hereof commenced when the newspaper
Volksblad
on 5 July 2007 published an anonymous letter containing
allegations
of this nature. It later transpired that the letter was written by
one
Johan
Luwes, who previously served as a police officer at the Navalsig
police
station.
This led to several articles published in Volksblad, including an
editorial
of 13 July 2007, wherein
inter
alia
the
integrity of the
crime
statistics published by the second respondent, was
questioned.
[5]
Also on 13 July 2007, both applicants were instructed in writing to
assume
duties
at Park Road police station on Monday 16 July 2007. Both applicants
duly
complied. It appears from the answering affidavit of the first
respondent
that
temporary transfers pending disciplinary action, were intended. On 17
July
2007 both the applicants were arrested and taken to the magistrate’s
court,
where the case against them was postponed to 27 October 2007. On
24
July 2007 the attorney for the applicants wrote to both the SAPS and
the
Director
of Public Prosecutions. In each letter it was stated that the
applicants
are
willing to co-operate and therefore intend to furnish (socalled
warning)
statements,
but that they are unable to do so without knowledge of charges
against
them and/or without copies of the statements in the docket. The
attempt
to obtain such copies proved to be fruitless. The case docket in
respect
of the case against the applicants was delivered to the Director of
Public
Prosecutions on 27 July 2007. The stated purpose hereof was to
formulate
the charges against the applicants. [6] In terms of
section 24(1)
of
the
South African Police Service Act, No. 68 of 1995
, the third
respondent
made
The South African Police Service Discipline Regulations, 2006 (“the
regulations”).
The regulations were promulgated under Government Notice
No.
R643 in Government Gazette No. 28985 of 3 July 2006. On 1 August
2007
the first respondent issued to each of the applicants a notice of
intended
suspension
in terms of regulation 13(2) of the regulations. In terms of these
notices
the applicants were informed that their suspension without any
remuneration
under regulation 13(2) of the regulations will be considered on
the
ground that the applicants allegedly committed serious misconduct
“
during
the period 2006/08/01 to 2007/07/11 (by) contravening Regulation
20(Z) of the
Discipline
Regulations, 2006, in that you allegedly committed a common law
offence, to
wit,
defeating or obstructing the course of justice and fraud”.
The
applicants were also
informed
that they are entitled to submit written representations in this
regard.
Such
written representations dated 3 August 2007 were indeed forwarded to
the
first respondent on behalf of each of the applicants by their
attorneys. In
the
representations on behalf of each of the applicants it was
inter
alia
stated
that
the charges against the applicants have not yet been formulated and
that
it
is uncertain whether there are any grounds for such charges. It was
also
intimated
that the case docket had been delivered to the Director of Public
Prosecutions
on 27 July 2007 for purposes of formulation of the charges and
that
the Director of Public Prosecutions intimated that it might take
quite some
time
to evaluate the alleged charges. On behalf of each applicant it was
reiterated
that they have professed full co-operation to answer to the alleged
charges
as soon as they are made available and copies of the aforesaid
letters
of 24 July 2007 were attached. None of this is disputed.
[7]
On 20 August 2007 the first respondent informed each of the
applicants
that
he had decided on 16 August 2007 to suspend them in terms of
regulation
13(2) of the regulations with immediate effect without any
remuneration
on the ground that they allegedly:
“during the
period 2006/08/01 to
2007/07/11
contravening (sic) Regulation 20(Z) of the Discipline Regulations,
2006, in that you allegedly committed a common law
offence, to wit,
defeating or obstructing the course
of
justice and fraud”.
[8]
The said regulation 13 provides as follows:
“
13.
Precautionary suspension
(1)
The
employer
may suspend with full remuneration or
temporarily transfer an employee on
conditions,
if any, determined by the National Commissioner. (2) The National or
the
Provincial
or Divisional Commissioner (the Commissioner) may suspend the
employee
without
remuneration, if the Commissioner on reasonable grounds, is satisfied
that the
misconduct
which the employee is alleged to have committed, is misconduct as
described
in
Annexure A and that the case against the employee is so strong that
it is likely that the
employee
will be convicted of a crime and be dismissed: Provided that –
(a) before
suspending
an employee without remuneration, the employee is afforded a
reasonable
opportunity
to make written representations; (b) the Commissioner considers the
representations
and inform the employee of the outcome of the representations;
(c)
the
disciplinary
process must be initiated within fourteen (14)
calendar
days
of the date of the
decision
to suspend the employee without remuneration; and (d) if the
disciplinary process
is
not completed within sixty (60)
calendar
days
from the commencement of the
suspension,
the question of continued suspension without remuneration must be
considered
by the Commissioner and the employee may again make written
representations
which the Commissioner must consider. The Commissioner must take any
decision
on continued suspension within seven (7)
calendar
days
of receiving written
representations
on continued suspension and inform the employee of the outcome of the
representations.
A decision that the suspension continues, may only be for a further
period
of
thirty (30)
calendar
days
. (3) A suspension is a
precautionary measure. (4) If an
employee
is suspended with full remuneration or transferred as a precautionary
measure,
the
employer
must hold a disciplinary hearing
within sixty (60)
calendar
days
from the
commencement
of the suspension or transfer. Upon the expiry of the sixty (60)
days, the chairperson of the hearing must take a decision
on whether
the suspension or temporary
transfer
should continue or be terminated.”
Annexure A to the
regulations includes
the
crimes of fraud and defeating the course of justice.
[9]
As the suspension of an employee without any remuneration before a
disciplinary
hearing is a very extreme measure, it must clearly be exercised
only
in exceptional circumstances. In this regard one can perceive of a
case
where
it is so inevitable that a police officer will be convicted of a
serious
crime
and dismissed as a result thereof that it is not in the public
interest
that
the person remain on as a paid police officer. The papers before me
contain
extracts from an official document entitled Guidelines: South African
Police
Service Discipline Regulations, 2006 (“the guidelines”)
issued by or on
behalf
of the second respondent. The guidelines therefore also expressly
state
that the procedure provided for in regulation 13(2) may only be used
in
exceptional
circumstances when the case against the employee is so strong
that
it is likely that the employee will be convicted of a crime and be
dismissed
during a disciplinary hearing.
[10]
As appears from the above, regulation 13(2) specifically provides
that the
employee
must be given a reasonable opportunity to make written
representations.
This is in accordance with
section 3(2)(a)(ii)
of the
Promotion
of
Administrative Justice Act, No. 3 of 2000
. Such opportunity relates
to all
relevant
factors that may be taken into account by the decisionmaker. What
will
constitute a reasonable opportunity will naturally depend on the
circumstances
of each case. The seriousness of the allegations and of the
possible
consequences of the disciplinary action are important matters in
this
regard. Compare J R de Ville,
Judicial
Review of Administrative
Action
in South Africa
, Revised First Edition, p. 252 – 254
and especially
DU
PREEZ AND ANOTHER v TRUTH AND RECONCILIATION
COMMISSION
[1997] ZASCA 2
;
1997 (3) SA 204
(A) at 234 H – I.
[11]
In the present case I do not think that the applicants were afforded
adequate
opportunity to make meaningful representations. It is not disputed
that
the applicants dealt with approximately 150 case dockets per month
and
that
therefore during the period 1 August 2006 to 11 July 2007 they dealt
with
in
excess of 1 500 cases and case dockets. Apparently some 70 of these
case
dockets form part of the docket of the case against the applicants.
During
argument counsel for the respondents argued in this regard that the
applicants
had obtained the requisite or sufficient knowledge as a result of a
conversation
that took place on 12 July 2007 between the applicants and an
officer
or officers appointed by the first respondent to investigate the
case. It
appears,
however, that on the evidence for the respondents, only one docket
was
discussed on that occasion. In my judgment a reasonable opportunity
to
make
representations in the specific circumstances of this case at least
required
that the applicants be referred to the specific CAS numbers and the
crimes
or alleged crimes before or after the alleged variation thereof,
much
in the same way as the first respondent did in his answering
affidavit in
respect
of only four dockets. After 16 July 2007 there was no acceptable
reason
to act in haste and in my opinion this requirement would not ask too
much
from the first respondent. In my judgment the point is very well
illustrated
by the answers provided by the applicants in the replying affidavit
in
respect of the four dockets referred to by the first respondent.
Prima facie
these
answers are quite convincing. They include that changes were made in
good
faith on account of further information, investigation or evaluation
by
collective
decision of approximately twelve members of the Navalsig police
station
at daily meetings held in terms of standard procedure. They include
that
these changes were reflected in official minutes of these meetings,
copies
of which were attached to the replying affidavit. They include that
one
of
these four cases, namely CAS 116/08/2007, was reported during August
2007,
that is after transfer of the applicants to Park Road police station.
In
fact,
it appears from the serial number of this case that it may even have
been
reported for the first time after the decision to suspend the
applicants,
taken
on 16 August 2007. It is clear to me, therefore, that had the first
respondent
referred the applicants in the notice of intended suspension the
case
numbers and alleged changed crimes as he did in the answering
affidavit,
the applicants would have been enabled to furnish representations
that
could have materially influenced the decision. I conclude, therefore,
in
the
first place that the decision of the first respondent to suspend the
applicants
in terms of
regulation 13(2)
, must be set aside because the
applicants
were not afforded a reasonable opportunity in the circumstances to
make
representations as required by
regulation 13(2).
[12]
The first respondent’s answering affidavit consists of 45
pages. I do not
think
that it is unfair to state that the answering affidavit is extremely
vague
and
replete with platitudes such as that the decision in question was
taken on
all
the relevant facts and in line with the law or legislation. It is not
at all clear
what
information was available to the first respondent or considered by
him
when
the decision in question was taken. Of particular importance in this
case
is
that nowhere in the answering affidavit is it stated by the first
respondent
that
he reached the conclusion that the case against the applicants is so
strong
that it is likely that the applicants will both be convicted of the
alleged
crimes
and be dismissed, nor, of course, does the first respondent state any
grounds
for such conclusion. In my view, the inference is inescapable that
the
first
respondent failed to apply the test specifically provided for in
regulation
13(2).
Therefore the decision is fatally flawed as a result of material
error of
law
[13]
Furthermore it is clear from provisions of
regulation 13
that the
purpose
of any suspension in terms thereof is to serve as a precautionary
measure.
In this regard the following is stated in the guidelines:
“The
suspension
of an employee may only be considered if – the continuation of
the employee’s
employment
is likely to result in him or her continuing with or committing
further
misconduct;
- the continuation of the employee’s employment may negatively
impact on
the
investigation; - the employee will be in a position to hide, destroy
or embezzle the
evidence
if his or her employment is continued; - interference with or
intimidation of
witnesses
might occur if the employee’s employment is continued; or - the
continuation of
the
employee’s employment may negatively impact on service delivery
by the Service.”
The
first respondent does not say that in the absence of a suspension
there
was
a likelihood of any of the applicants continuing with or committing
further
misconduct.
Nor does he say that the continuation of the employment of the
applicants
may negatively impact on service delivery by the SAPS. The first
respondent
does seem to say that he entertained a reasonable fear of
interference
by the applicants with the investigation of the case against them
if
they were not suspended, but does not state any reasons for such
conclusion.
In my opinion, a reasonable person could on the available
information
not conclude that suspension of the applicants was required as a
precautionary
measure. As pointed put already, the applicants were
transferred
from the Navalsig police station with effect from 16 July 2007 and
on
27 July 2007 the case docket in respect of the case against the
applicants
was
already in the possession of the Director of Public Prosecutions. I
fail to
understand
how the applicants could in these circumstances have interfered
with
the investigation of the case against them. For the same reasons the
suspensions
are not rationally connected to the purpose of the empowering
provision.
On this ground too, the application must succeed.
[14]
In the light of these conclusions it is not necessary to consider the
other
grounds
for review relied upon on behalf of the applicants.
[15]
In conclusion there is one aspect of the case that I feel constrained
to
mention.
It will be remembered that the applicants were arrested and taken to
court
on 17 July 2007. On that date the case was postponed to 27 October
2007
and the applicants were released on caution. Only on 27 July 2007 the
case
docket was referred to the Director of Public Prosecutions in order
to
formulate
the charges against the applicants and, no doubt, to assess the
case
against the applicants. This is in accordance with what I consider to
be
an
unhealthy practice that, in my experience, is employed all too often.
Justice
and the administration of the law as well as logic require that in a
case
such
as this where there is no real risk of flight or interference with
the
investigation
or witnesses, the investigation should be completed and the
charges
formulated before the accused person is required to appear in court.
To
do otherwise (or the other way around) is to cause injustice to the
accused
person
and to place an unnecessary burden on the courts. It may also result
in
questioning of the motives for bringing the accused person before
court in
this
fashion or of the motivation to complete the investigation
expeditiously.
[16]
In the result the following orders are made:
The
decision of the first respondent of 16 August 2007 to suspend the
applicants
without any remuneration, is reviewed and set aside.
The
first respondent is ordered to allow the first applicant and the
second
applicant to serve at the Park Road police station in terms of
notice
dated 13 July 2007, pending the finalisation of disciplinary steps
against
the applicants.
The
respondents are ordered to pay the costs of the application.
______________________
C.H.G.
VAN DER MERWE, J
On
behalf of applicants: Adv. J.P. Daffue
Instructed
by:
Bezuidenhouts
Ing.
BLOEMFONTEIN
On
behalf of respondents: Adv. T.F. Mathibedi
Instructed
by:
The
State Attorney
BLOEMFONTEIN
/sp