About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2021
>>
[2021] ZALAC 9
|
|
National Commissioner of SA Police Services and Others v Phopho (PA 19/2019) [2021] ZALAC 9; [2021] 8 BLLR 749 (LAC); (2021) 42 ILJ 1666 (LAC) (25 May 2021)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, IN GQEBERHA (PORT ELIZABETH)
Reportable
Case no: PA 19/2019
In the matter between:
NATIONAL COMMISSIONER
OF SA POLICE SERVICES First
Appellant
PROVINCIAL
COMMISSIONER OF SA POLICE SERVICES
Second Appellant
MINISTER OF
POLICE
Third Appellant
DIVISIONAL
COMMISSIONER OF SA POLICE SERVICES
Fourth Appellant
and
MESHACK
PHOPHO
Respondent
Heard: (via TEAMS) on
11 March 2021
Delivered:
25 May 2021
Coram:
Davis JA, Coppin JA
et
Molefe AJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against the whole judgment of the Labour Court
(Tlhotlhalemaje J)
in terms of which it reviewed and set aside the
decision of the first appellant dated 16 October 2015 not to
reinstate the respondent
and remitting the respondent’s
application to the the appellants for reconsideration in terms of
section 36(2)
(c)
of
the South African Police Service Act
[1]
(“SAPS Act”). Leave to appeal to this Court was granted
by the Labour Court.
The issues
[2]
In brief, in terms of section 36(1) of SAPS Act, a member of the
South African Police Service
(SAPS) convicted,
inter alia
, of
a specified offence is deemed to have been discharged from SAPS from
the date following the date of the sentence in respect
of that
offence. In terms of section 36(2)
(a),
if the conviction is
set aside on appeal or review, or the sentence of imprisonment is
replaced with the alternative of a fine,
the person may, within a
period of 30 days after such setting aside or replacement, apply to
the National Commissioner to be re-instated
as a member of SAPS.
[3]
There is no express provision in the SAPS that allows for the
condonation of an application
made beyond the 30 days as contemplated
in subsection (1). The main issue in this matter hence, ultimately,
turns on the purpose
of section 36(2), and what the effect of a late
application is, notwithstanding that its ‘lateness’ had
been explained.
The power of the Labour Court (and this Court) to
deal with the matter as envisaged in section158(1)
(h)
,
read with section 157(1)(2) of the Labour Relations Act
[2]
(the “LRA”) was not contested.
[4]
Section 36 of the SAPS Act reads as follows:
36.
Discharge on account of sentence
imposed
.-(1) a member who is convicted
of an offence and is sentenced to a term of imprisonment without the
option of a fine, shall be
deemed to have been discharged from the
service with effect from the date following the date of such
sentence: Provided that, if
such term of imprisonment is wholly
suspended, the member concerned shall not be deemed to have been so
discharged.
(2) a
person referred to in subsection (1), whose –
(a)
conviction is set aside following an appeal or review and is not
replaced by a conviction
for another offence;
(b)
conviction is set aside on appeal or review, but is replaced by a
conviction for another
offence, whether by the court of appeal or
review or the court of first instance, and a sentence to a term of
imprisonment without
the option of a fine is not imposed upon him or
her following on the conviction for such other offence; or
(c)
sentence to a term of imprisonment without the option of a fine is
set aside following an
appeal or review and is replaced with a
sentence other than a sentence to a term of imprisonment without the
option of a fine,
may, within a period of 30 days after his or her
conviction has been set aside or his or her sentence has been
replaced by a sentence
other than a sentence to a term of
imprisonment without the option of a fine, apply to the National
Commissioner to be re-instated
as a member.
(3)
In the event of an application by a person whose conviction has been
set aside as
contemplated in subsection (2)(a), the National
Commissioner shall re-instate such person as a member with effect
from the date
upon which he or she is deemed to have been so
discharged.
(4)
In the event of an application by a person whose conviction has been
set aside or
whose sentence has been replaced as contemplated in
subsection (2)(b) and (c), the National Commissioner may –
(a)
re-instate such person as a member with effect from the date upon
which he or she is deemed to
have been so discharged; or
(b)
cause an inquiry to be instituted in accordance with section 34 into
the suitability of
re-instating such person as a member.
(5) For the purposes of
this section, a sentence to imprisonment until the rising of the
court shall not be deemed to be a sentence
to imprisonment without
the option of a fine.
(6) This section shall
not be construed as precluding any administrative action,
investigation or inquiry in terms of any other
provision of this Act
with respect to the member concerned, and any lawful decision or
action taken in consequence thereof.”
Overview of the
arguments
[5]
The respondent, whose application had been turned down by the
National Commissioner
because it was made beyond the 30 day period,
contended that the provision should be read as implying that the 30
days commenced
only after an applicant acquires knowledge of the
order setting aside the conviction, and in the alternative, that if
such an interpretation
was not legally possible, the provision was
unconstitutional, in that it unjustifiably and disproportionately
limited an applicant’s
constitutional rights,
inter
alia
,
to fair labour practices’;
[3]
to access to justice and the courts,
[4]
and to just administrative action.
[5]
[6]
The appellants had contended that such an interpretation is not
constitutionally permissible,
and that a failure to make the
application within the stipulated time was not condonable, although
that did not render the provision
unconstitutional, because it was a
justifiable and proportionate time-barring provision.
[7]
The Labour Court, effectively, rejected both those contentions and
found that non-compliance
was condonable; that the application,
including the reasons given by the respondent for bringing it after
the 30 days, ‘was
substantially compliant for the purposes of
attaining the objectives of section 36(2)’ of the SAPS Act; to
the extent that
the refusal to reinstate the respondent, because of
its lateness, was predicated on a strict interpretation of the
impugned
section, it was unreasonable, irrational and procedurally
unfair; the reasons given for the refusal were arbitrary rendering
‘the
entire decision reviewable’; and that in light of
the facts, an enquiry into the constitutionality of the section was
‘superfluous’.
The Labour Court thus,
inter alia
,
ordered the respondent’s application to be remitted to the
Appellants for reconsideration.
[8]
While agreeing with the finding by the Labour Court that an
enquiry into the
constitutional validity of section 36(2) was not
called for, the appellants on appeal contend, essentially, that the
Labour Court
had erred in respect of its other conclusions and ought
instead to have dismissed the application of the respondent for lack
of
merit.
[9]
Even though the Labour Court, effectively, gave a decision in his
favour, the respondent
is not satisfied with it, and has
cross-appealled against its order. The respondent contends on appeal,
basically, that the Labour
Court erred in not upholding the
interpretation proffered by him, or, alternatively, by not finding
and declaring section 36(2)
to be unconstitutional, and by failing to
order his re-instatement. The respondent was also critical of the
invocation by the Labour
Court of the principle of substantial
compliance, arguing, in essence, that the Labour Court’s
reliance on the principle
was not permissible because he never
proposed it.
Additional submissions
[10]
In the heads of argument submitted on their behalf, both sides
essentially persisted with the arguments
which they, respectively,
proffered in the Labour Court. As pointed out earlier, the appellants
further contend that the Labour
Court ought to have upheld their
argument and should have dismissed the respondent’s application
for declaratory and other
relief, including for his reinstatement. On
the other hand, the respondent disavows any benefit from the Labour
Court’s reliance
on the principle of substantial compliance and
contends that the Labour Court ought to have ordered his
reinstatement on the basis
of either, the interpretation of section
36(2) he advanced, or because the section was constitutionally
invalid.
[11]
Before the appeal hearing, the parties were
referred to and invited to make additional submissions in light
of
the recent decision of the Constitutional Court in
Maswanganyi,
[6]
which
was on appeal from the Supreme Court of Appeal, where section
59(1)
(d)
of
the Defence Act
[7]
was under
scrutiny. That section provides, essentially, that the service of a
member of the regular Defence Force is terminated
if he (or she) is
convicted of a specified offence. The question that arose there was
whether the termination was effective immediately,
or only after the
appeal process in respect of the conviction had been exhausted.
[12]
The main contention of the appellants regarding
Maswanganyi
was that the provisions that were considered there are materially
different from those in the SAPS Act. According to them, unlike
section 59(1)(
d)
of the Defence Act, section 36(2) of the SAPS
Act was a time-bar that was “operationally necessary because
reinstatement is
not automatic”; further, that the time-bar and
the requirement for reinstatement in section 36 of the SAPS Act were
necessary
and unjustifiable, principally, for two reasons.
[13]
The first reason advanced is the following: given the nature of its
organisation, SAPS “self–evidently
requires certainty and
finality in respect of whether a person, whose services have been
terminated by operation of law, is going
to seek re-instatement after
the handing down of judgment” or is not going to do so because
he or she “has found some
other path in life” – and
in order for SAPS “to arrange its affairs accordingly.”
[14]
The second reason is to save money. The latter reason is articulated
as follows in the supplementary
heads of the appellants: “if
there was no time-bar then this would result in unnecessary financial
expenditure at state expense
because an erstwhile employee would be
entitled to apply for reinstatement at any stage and SAPS would have
to foot the bill for
the delay”, in other words “the
time-bar prevents fruitless and wasteful expenditure which was a
grave concern of the
appellants.”
[15]
In turn, the respondent’s legal representative submitted that
were this Court, in interpreting
section 36, to adopt the same
approach as in
Maswanganyi;
“in its present format”
section 36 “is draconian in its very nature and in direct
conflict with constitutional
values”, and that the
interpretation contended for by the appellants “will clearly
lead to impractical,
unbusiness-like or oppressive consequences”.
These submissions, however, did not take into account the rather
narrow basis
on which the respondent had approached the Labour Court.
The Factual matrix
[16]
The respondent, as a member of SAPS with the rank of captain, was
based at the Maclear Police Station
in the Eastern Cape when he was
alleged to have indecently assaulted a lady that assisted at the
police station. In that regard,
he was not only charged by SAPS with
misconduct and subjected to a disciplinary hearing, but also
prosecuted criminally.
[17]
The disciplinary hearing found that he had not committed the alleged
acts and was not guilty of misconduct.
However, on 12 November 2010,
the Regional Court at Elliot convicted him of the said charges and
sentenced him on 25 March 2011
to 8 year’s imprisonment, of
which 3 years were suspended for a specified period. He appealed to
the Eastern Cape High Court
(Grahamstown) against the said conviction
and sentence.
[18]
Notwithstanding an awareness that the respondent was appealing, in a
letter dated 5 April 2011, the
Provincial Commander: Employee
Relations and Life Cycle Management of SAPS, Colonel Ebeya, informed
various officials at Head Office,
including, at the Directorate of
Salary Maintenance, Dicipline Management, and Service Terminations,
as well as the Sub-Section
Head of Service Terminations in the
Eastern Cape and the Station Commander at Elliot, a Lt Col. Billson,
of the termination of
the respondent’s service on 26 March
2011, because of his conviction, as contemplated in section 36 of the
SAPS Act.
[19]
The letter,
inter alia
, instructed that the respondent’s
“salary must be stopped immediately” and that he “must
not be allowed
to perform any further duties”. It reiterated
the provisions of section 36(2), pertaining to reinstatement, and
directed
that the respondent “be informed of his dismissal by
serving him with this letter”. The letter required proof of its
service to be forwarded to the office of the Provincial Commissioner:
Personnel Services, Eastern Cape.
[20]
In a letter dated 14 July 2011 from the Station Commander at Elliot,
Lt Col Billson, to Mrs L M Phopho,
he confirms that the respondent
was “discharged” from SAPS on 26 March 2011. To this
letter he had attached ‘supplementary
documents’, which
included the letter from Col Ebeya of 4 April 2011. A petition by an
advocate, dated 8 September 2011,
addressed to the Provincial
Commissioner’s office, for the re-instatement of the respondent
pending the outcome of his appeal
to the High Court, was dismissed
for being “premature”.
[21]
On 20 November 2014, the High Court set aside the respondent’s
conviction and sentence by the
magistrate’s court.
[22]
On 13 February 2015, approximately 55 days after the High Court’s
decision was handed down ,
the respondent applied by letter, bearing
the letterhead of SAPS, to the office of the Provincial Commissioner
of SAPS in Zwelitsha,
for re-instatement, as he had ‘been
cleared’ by the High Court in the appeal and by SAPS at the
disciplinary hearing.
[23]
In this letter’, he explains why he only applied some 55 days
after judgement in his favour .
He mentions that his advocate at the
appeal hearing, Adv. JC McConnachie, had ‘received’ the
outcome of the appeal
only on 6 February 2015.
[24]
On 24 April 2015, when the respondent enquired about the outcome of
his application for reinstatement,
he was advised that he had to
submit affidavits confirming the date of receipt of the judgment of
the High Court. Affidavits deposed
to by him and the advocate were
duly submitted by 28 April 2015. Upon further enquiry by the
respondent on 5 May 2015 he
was informed that the affidavits had been
received and that the Finance Department was still in the process of
calculating his
back pay.
[25]
In the affidavit, which the respondent deposed to on 24 April 2015,
he states: ‘On Friday 2015-02-06
at 13.32 I received a copy of
the judgment from my legal counsel adv, J C MaComachie(sic) at
Grahamstown. I made my re-application
on Friday 2015-02-13.’
[26]
In the affidavit, deposed to on 28 April 2015, the advocate states,
inter alia
, the following:
‘
2.
I was instructed by the Legal Aid Board to argue the appeal of
Meshack Phopho versus the State (case No. CA&R 23/2011) on
3
September 2014.
3. I duly did so and
judgment was reserved by her Ladyship Justice Beshe and his Lordship
Jusice Lowe on the same date.
4. On several subsequent
occasions I inquired from the office of the Registrar of the High
Court, Grahamstown, regarding the outcome
of the appeal but I was
advised that judgment had as yet not been handed down and that the
court file was still with the judges.
5. I made further
inquiries in that connection from the office of the Registrar on or
about 6 February 2015 when I was advised that
judgment had in fact
been delivered and that the outcome of the appeal was that it was
successful and that both the appellant’s
conviction and
sentence were set aside.
6. I uplifted a copy of
the judgment on the same day and it transpired from a perusal of the
judgment that it was delivered on 20
November 2015 [sic]
7. I then made immediate
arrangements to inform the appellant of the outcome of the appeal and
to furnish him with a copy of the
judgment which I did on or about 6
February 2015.
8.
The delay in advising the appellant of the outcome of the appeal was
therefore due to the misinformation from the office of the
registrar
of the High Court, Grahamstown, and cannot be attributed to myself or
the appellant as I was never advised that the judgment
was due to be
handed down on 20 November 2015 [sic] or of the outcome of the appeal
until I made further inquiries in that regard
on/about 6 February
2015.’
[27]
When the respondent enquired on 9 June 2015 at the Head Office of
SAPS in Pretoria concerning progress
with his application for
re-instatement, he was informed that the signature of the then
National Commissioner, General Phiyega,
was still required.
Further enquiries by his erstwhile attorneys, which were also
addressed to the Minister (the third appellant),
produced no
response.
[28]
By letter dated 1 February 2016, the respondent again requested the
Minister (the third appellant)
to intervene, and in response was
informed that the matter was receiving attention and had been
referred to the office of the first
appellant (the National
Commissioner) “for further attention” and that he would
be informed of further progress.
[29]
In response to yet another letter addressed by Ms Van Staden of Legal
Aid on behalf of the respondent
to SAPS and dated 12 July 2016, the
Divisional Commissioner: Personnel Management, Lt Gen. L Ntshiea, by
letter dated 8 August
2016 intimated that the respondent’s
application for re-instatement “was duly considered and
presented to the
National Commissioner after which a decision was
taken that the reinstatement is not approved due to the late
submission of the
application (non-compliance with 30 day clause as
prescribed in
section 36(2)
of the
South African Police Service Act,
1995
).” The letter further stated: “Please note that the
status quo as per above mentioned minute is maintained.”
[30]
This letter prompted the respondent, represented by Legal Aid, to
institute the application proceedings
in the court
a quo
to,
inter alia
, review and set aside the decision not to reinstate
him, because he had applied for his re-instatement beyond the
prescribed 30
day period.
[31]
Presumably the record pertaining to the impugned decision was
received by Legal Aid on 13 July 2017,
and the respondent
subsequently filed an affidavit supplementing his founding affidavit
in light of the record that had been filed.
[32]
The supplementary affidavit was accompanied by,
inter alia
, a
further affidavit by Adv McConnachie and an affidavit by Ms N Mtini
who, at the time of the respondent’s appeal to the
High Court,
was employed as High Court Manager, Legal Aid (SA), Grahamstown
Justice Centre.
[33]
Ms Mtini explains in her affidavit,
inter alia
, that the brief
that was given to Advocate McConnachie, to represent the
respondent at the appeal, was a “judicare
brief”, which
meant that ‘for all intents and purposes’ the advocate
was responsible “for all issues”
pertaining to the matter
and that the practice in the High Court in Grahamstown was for the
judge’s clerk to phone the judicare
representative when a
reserved judgment was to be handed down. The advocate was then
required to appear at court to note the judgment,
or to make
alternative arrangments in that regard.
[34]
The advocate and Ms Mtini confirmed, in their respective affidavits,
that none of them had been advised
that the judgment would be handed
down on 20 November 2014, contradicting the contentions made in a
letter by the clerk of Beshe
J that he was “sure” that he
had notified both parties of the date.
[35]
The appellants, who opposed the application, caused an answering
affidavit to be filed, to which the
respondent replied.
The record of the
impugned decision
[36]
It is common cause that the record of the decision shows the
following: the Provincial Commissioner
expressed the view that the
application for reinstatement was received late and that the matter
was referred to Head Office for
reconsideration and condonation; a
legal opinion was obtained from the executive legal officer at Head
Office and the reinstatement
of the respondent was recommended in
light of that opinion; a cost calculation was requested from the
Financial and Administration
Services Division to determine the
amount due to the respondent.
[37]
It appears further from the record that the respondent’s
reinstatement was also recommended by
the Divisional Commissioner:
Human Resources Management, Lieut. Gen. Ntshiea, on 12 August 2015;
and by the Deputy National Commissioner:
Corporate Service
Management, Lieut.Gen. CN Mbekele, on 13 August 2015; but that the
National Commissioner (at the time Gen. Phiyega)
did not approve the
respondent’s reinstatement.
[38]
It is common cause that the National Commissioner recorded the
following reasons for refusing the application:
“The
reinstatement is not approved. I support the original recommendation
by the Province. The late submission is a matter
of negligence by the
lawyers of the dismissed member. It is therefore not an issue for
SAPS. The lateness cannot be proved in any
manner. The burden of
proof is for the member and can be argued in court. SAPS must comply
with the prescriptions and be consistent.”
Evaluation
Conclusions in
Maswanganyi
[39]
It is indeed so that the wording of the Defence Act considered by the
Constitutional Court in
Maswanganyi,
is different to that of
section 36 of the SAPS Act, in that section 59(1)(d) of the Defence
Act merely stipulates that the service
of a member of the regular
Defence Force is terminated if he, or she, is sentenced to a term of
imprisonment by a competent civilian
court without the option of a
fine, or if a sentence involving discharge or dismissal is imposed
upon him, or her, the under the
Code.
[40]
Unlike section 36 (particularly section 36(2)) of SAPS Act, the
provision in the Defence Act does not
(at least) expressly require a
member to apply to be reinstated in the Defence Force if her or his
conviction (or sentence) is
set aside or altered on appeal as
contemplated in section 36.
[41]
Of importance, in
Maswanganyi
the Constitutional Court held,
inter
alia
,
that the words “conviction” and “sentence” in
section 59(1)
(d)
of the Defence Act, must be interpreted as referring to “valid
and final” convictions and sentences where there is
an appeal;
that once the conviction or sentence of the trial court was set aside
(on appeal or by review) there was no longer any
lawful conviction,
or sentence, and the jurisdictional factors set out in section
59(1)(d) fall away, or are, as a result, absent;
that the member of
the Defence Force no longer has a criminal record and no purpose
would be served by continuing to subject such
a member to the penal
provisions of the section; further, that if a conviction and sentence
have been set aside on appeal (or on
review), the fact of the
conviction and sentence are “wiped-out”- i.e. “[t]hey
are treated as never having occurred.”
[8]
[42]
The Constitutional Court also held that once a conviction and
sentence is “wiped –out”
there is no longer a
connection between the purpose for which section 59(1)
(d)
was
enacted in the application of the provision to the Defence Force
member; that when the jurisdictional factors of section 59(1)
(d)
fell away, the termination of employment of the Defence Force member
“was reversed by operation of law”; and that that
was so,
because, properly understood, in the absence of a valid conviction
and sentence, in the form of a final order confirming
the order of
the trial court, there was no valid termination of the member’s
employment since the jurisdictional factors
for the operation of
section 59(1)
(d)
are absent.
[9]
[43]
Significantly, the Constitutional Court confirmed the following
principle, which is one common to appeals
in all criminal matters:
“Once the charges on which the applicant was initially
convicted were set aside on appeal, the applicant
should have been
treated as never having been convicted, nor sentenced.”
[10]
[44]
Of further relevance, the Constitutional Court held further
that an interpretation that
had been proferred by the Minister
of Defence in that matter, which had the effect of terminating the
service of the member as
soon as the trial court imposed sentence,
irrespective of the election of the member to appeal the order of the
trial court, “was
problematic” – in that it did not
factor in the hierarchical functioning structure of other courts, and
that if the
Constitutional Court were to adopt it “it would be
tantamount to saying that any appeal processes and any subsequent
decisions
by the Superior Courts are of no moment.”
[11]
[45]
More importantly, the Constitutional Court in
Maswanganyi
found that such an interpretation would also be at variance with the
provisions of section 35(3)(
o)
of
the Constitution which provides, effectively, that every accused
person has a right to a fair trial, which includes the right
of
appeal to, or review by, a higher court.
[12]
[46]
Critically, the Constitutional Court held in
Maswanganyi
that
to allow the Defence Force “to stick to its initial stance,
which was based on an erroneous decision of the trial court”,
irrespective of the outcome of the appeal, “would have the
effect of excusing the SANDF from the obligation to comply with
the
binding orders of appellate Courts.”
[47]
In respect of the facts in that matter, the Constitutional Court held
that M’s employment as
a member of the Defence Force was never
validly terminated because his conviction and sentence by the trial
court had been set
aside on appeal and that he, accordingly, did not
require a reinstatement order.
[13]
It found fortification for that view in what it held in
Steenkamp,
[14]
where it clarified the distinction between unlawful, unfair and
invalid dismissals. It held there,
inter
alia
,
that an order of reinstatement was only required if a dismissal was
unfair, and that no order of reinstatement was required if
the
dismissal was invalid; that if an employee, whose dismissal was
declared to be invalid, was prevented by the employer from
entering
the workplace to perform his or her duties, a court may, in an
appropriate case, interdict the employer from doing so
and order it
to allow the employee to perform his, or her, duties.
The impact of those
conclusions
[48]
Arguably the principles reiterated by the Constitutional Court in
Maswanganyi
concerning the right of an accused person to
appeal in respect of his or her conviction and/ or sentence to a
higher court, and
the implications, including the effect, of a
successful appeal against a conviction (or sentence) by the trial
court, cannot, and
does not, only hold true for members of the
Defence Force, but are equally valid for all accused and convicted
persons. Conceivably,
there is no basis for excluding persons from
the latter category, merely because they happen to members of SAPS.
[49]
At least, in respect of all those members who opted to appeal, and
particularly those who are completely
exonerated of all guilt on
appeal (i.e. those contemplated in subsection (2)(a)) and those whose
sentence had been altered on appeal
(or review) to provide for the
option of a fine, section 36,
prima facie
, appears to
transgress all of the hallowed general principles which formed the
basis of the Constitutional Court’s decision
in
Maswanganyi
and which are highlighted above.
[50]
At least on the face of it, in terms of section 36, a member appears
to be deemed to be discharged from SAPS
on the strength of a trial
court’s conviction or sentence, irrespective of whether the
member has elected to appeal against
such conviction (and/or
sentence) to a higher court, and irrespective of the successful
outcome of the appeal. A member who was
successful on appeal is
required, within a tight time-frame of 30 days (which, at least
expressly does not seem to accommodate
his knowledge of the outcome
of the appeal) to apply to the National Commissioner to be
reinstated in SAPS, notwithstanding
that his conviction (and
sentence) by the trial court have been totally “wiped-out”
on appeal and there is (retrospectively)
no final order confirming
his conviction, and the jurisdictional facts that are required to
trigger the deeming provision in section
36(1) have been “wiped-out”
on appeal and are to be considered as never having been there in the
first place –
thus rendering his discharge invalid.
[51]
On the face of it, the section does not only seem to undermine the
hierarchy of the courts and ignore
the efficacy and importance of
decisions of courts superior to the trial court, but appears to
trample upon an accused member’s
constitutional right to a fair
trial, which includes his right of appeal to, or review by, a higher
court. Viewed together, sub-sections
36(1) and (2) (and possibly
sections 36(3) and (4)) of the SAPS Act, are open to a meaning which
is inimical to and not in conformity
with the Constitution.
[52]
Even though section 36(2) ( and subsections (3) and (4)) literally
seem to flow from subsection (1),
they apparently also serve to give
a more restrictive meaning to that section. Subsection (2), in
particular, and for example,
requires a member whose conviction and
sentence by the trial court has been wholly set aside on appeal to
apply for reinstatement.
[53]
In that regard, it prima facie and arguably, implies and
axiomatically reinforces the notion that the discharge
contemplated
in subsection (1) is final and is triggered by and predicated upon
the trial court’s conviction - in total disregard
of the
member’s constitutional right to appeal to a Higher court
against that conviction, and irrespective of the outcome
of that
appeal. But possibly more worryingly, the true effect of the higher
court’s decision, which, according to the Constitutional
Court
in
Maswanganyi
automatically “wipes-out” that conviction, is then
ignored and undermined and has no retrospective annulling
effect.
[54]
The fact that in terms of section 36(3) the National Commissioner is
not given a discretion, but to
reinstate a member who has been wholly
exonerated on appeal, does not seem to make-up for those apparent
shortcomings. The discharge
is final unless and until the member
applies for re-instatement and the National Commissioner re-instates
that member.
[55]
Consequently, unless subsection (2) (and possibly subsections (3) and
(4)) are reasonably capable of being
read in conformity with the
Constitution, or justified, they would be unconstitutional and
invalid and liable to be struck down.
In the latter instance, if
those subsections are incapable of being cleanly severed from the
rest of section 36, leaving the purpose
of that section intact, the
rest might share the same fate.
Inapposite case for
applying
Maswanganyi
[56]
Having said that, it is apparent that the application of the
principles reiterated in
Maswanganyi
raises issues that were
clearly not foreseen and appreciated by the parties. The case made
out by the respondent and which the
appellants were required to meet,
strictly speaking, did not require a justification of the regime of
discharge and reinstatement
postulated by section 36. It would be
grossly unfair to determine the constitutionality of that regime in
those circumstances and
that would have to wait for another occasion
where those issues have been properly raised and ventilated by the
parties at the
outset.
[57]
For now, the issues raised in this matter possibly requires us,
metaphorically speaking, to apply palliative
therapy to a limb that
may be gangerous and (in the right case ) possibly might
require amputation, possibly along with other
limbs that are equally
affected by the same malady.
[58]
In this matter we are required to assume that the regime advanced in
section 36 of the SAPS Act is
constitutionally valid.
[59]
Section 39(2) of the Constitution requires courts, when interpreting
any legislation, “to promote
the spirit, purport and objects of
the Bill of Rights.” In
Hyundai
[15]
the Constitutional Court held that the section required the
legislative provisions that were being interpreted to be read, as far
as is possible, in conformity with the Constitution.
Section 36(2)
[60]
In
Cool
Ideas
[16]
,
amongst other cases, the Constitutional Court summarised the correct
approach to statutory interpretation as encompassing the
following:
(a) the words in the legislation being interpreted must be given
their ordinary grammatical meaning, unless it would
result in an
absurdity; (b) the provision being interpreted must be interpreted
purposively; (c) in its proper context; and (d)
as far as reasonably
possible, the provision must be interpreted consistently with the
Constitution to retain its constitutional
validity.
[61]
Turning to the actual wording of subsection (2) – it requires a
member whose conviction has been
wholly set aside, or whose sentence
has been replaced by a sentence other than a sentence of imprisonment
without the option of
a fine, to apply “within 30 days”
after such setting aside, or replacement, to the National
Commissioner to be “re-instated”
as a member of SAPS.
[62]
There is nothing in the subsection, the section itself or even in the
SAPS Act that informs, let alone in
clear and certain terms, what the
fate of an application that is not brought within the stipulated time
period, with the result
that the applicants contemplated in
subsection (2), who are expected to comply with the provision, would
not be able to appreciate,
even with reasonable certainty, the
consequences of not complying with time period and whether such
failure is condonable, and
if so, what needs to be done to ensure
that the non-compliance is condoned.
[63]
Even the National Commissioner is left in the dark, thus creating a
veritable opportunity for arbitrariness
and irrationality, not
countenanced by the Constitution, in particular the principle of
legality, that is ensconced therein,
[17]
and which,
inter
alia
,
requires reasonable clarity and certainty in such matters.
[64]
The argument put up by the appellants that the 30 day limit is an
uncondonable time-bar, and the purpose
or justification proffered for
it, namely, (in brief) that it is necessary for and ensures finality,
and serves to put a cap on
the amount SAPS would have to pay the
member in back-pay, does not stand up to scrutiny.
[65]
It appears unreasonable and constitutionally unpalatable to impose a
time limit that neither allows
for condonation, nor allows for the
possibility that a member may (conceivably) reasonably not be able to
comply with the time
limit, for example in circumstances where the
member was not and could not reasonably have been aware of the date
of the judgment
of the High Court and only became aware of it later
when compliance with the strict time limit was no longer possible.
The Prescription
Act,
[18]
which is certainly the pre-eminent vehicle of,
inter
alia
,
extinctive time-barring in our law, has ample provisions that take
into account the creditor’s knowledge or lack thereof,
including concerning the nature of the debt, the identity of the
debtor, etc., and provisions that allow for the interruption of
prescription in specified circumstances, to counterbalance its
uncondonable, extinctive time-barring provisions.
[66]
The time limit, as is contended for by the appellants, is palpably
not fair and does not give expression
to the values which underpin
the Constitution. To uphold their argument would not promote the
spirit, purport and objects of the
Bill of Rights.
[67]
The other purpose advanced by the appellants, namely, that it is
intended to save SAPS money, in that
it limits the backpay that would
be payable to a member who is to be retrospectively reinstated, is
not really sound. It fails
principally because section 36, or the
SAPS Act, as a whole for that matter, does not mention or seek to
regulate the time that
it should take for the appeal (or review)
process to be completed – notwithstanding that such a process
may take a significant
time to complete, sometimes years – and
would indeed be the period that has a marked impact on the amount of
the backpay
that has to be paid to a member upon re-instatement.
[68]
The third alleged purpose or justification advanced by the appellants
for the time-bar, namely, that
it is intended to discourage members
from deliberately delaying to be reinstated in order to benefit
financially or otherwise,
is also not convincing. Such deliberate
delays or recalcitrance can effectively be dealt with by means of
investigation and discipline
in terms of,
inter alia
, section
34 of the SAPS Act, which the National Commissioner has the power to
invoke.
[69]
On the other hand, the interpretation of section 36(2) suggested by
the respondent is also not constitutionally
feasible. He contends
that it is capable of being read in conformity with the Constitution
if the following words are “inserted
after the words ’30
days’ in section 36(2)”, namely “or such longer
period as may on good cause be allowed”.
That would be
tantamount to a “reading – in” as opposed to a
“reading – down”. The former is
not a form of
interpretation, but is a remedy that has to be distinguished from the
latter, which may be a mode of interpreting
a legislative provision
in conformity with the Constitution
[19]
.
“
Re-instatement”
[70]
Turning to the words “re-instated as a member” in section
36(2) - The ordinary meaning
of “to reinstate”, as
applied to an employee who has been unfairly dismissed, is to
re-place that person in the same
position from which he or she had
been dismissed and so “to restore the status quo ante the
dismissal.”
[20]
[71]
In
Equity
Aviation Services
[21]
the Constitutional Court explained the meaning of the term “to
reinstate” as used in the LRA as follows:
“
The
ordinary meaning of the word “reinstate” is to put the
employee back into the same job or position he or she occupied
before
the dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in an unfair dismissal disputes.
It is aimed
at placing an employee in the position he or she would have been
[in], but for the dismissal. It safeguards workers
employment by
restoring the employment contract. Differently put, if employees are
reinstated they resume employment on the same
terms and conditions
that prevailed at the time of their dismissal.” (Footnotes
omitted)
[72]
If the word “re-instate” in section 36 (2) is given that
very meaning, it spawns further
(theoretical) difficulties, in
particular, since that definition of the term implies that there was
an unfair dismissal. Read with
section 36(3), which obliges the
National Commissioner to “re-instate”,
inter
alia
,
the member who has been wholly exonerated on appeal, there would
appear to be an acknowledgment, firstly, that there has been
a
dismissal of that member, which was unfair
[22]
and, secondly, that section 36(1) permitted an unfair dismissal of
that member, which is to be “rectified” by the
reinstatement of that member as contemplated in subsections (3) and
(4) when that member applies for reinstatement as contemplated
in
subsection (2).
[73]
Such an interpretation,
per se
, would be in breach of the
particular member’s right, in terms of section 23(1) of the
Constitution, to fair labour practices,
and the member’s right
of appeal (or to apply for review) to a Higher Court as contemplated
in section 35(3)(o) of the Constitution.
The fact that the dismissal
is automatic in terms of section 36 (1) and by operation of law, does
not alter that fact, and does
not justify those breaches.
[74]
However, it is possible to avoid such deleterious consequences by
giving the word “re-instate”
its ordinary dictionary
meaning, namely, “to restore to a former position or state
“.
[23]
In context, this
would mean to restore the applicant to the state of membership in
SAPS that he or she formerly held. Read with
subsection (3), in the
case of a member whose conviction and sentence has been set aside
wholly on appeal, it means that he or
she is to be reinstated
retrospectively and with effect from the date upon which he or she
was deemed to have been discharged.
This would mean that any
membership in SAPS, salary, wage, allowances, privileges, or other
benefits to which he or she was entitled
to as a member, and which he
or she had forfeited as from that date, has to be restored to him or
her as from that date.
[24]
Substantial Compliance
[75]
In essence, the Labour Court seems to have found that section 36(2)
was capable of substantial compliance,
but also found that the
failure to comply with the 30 day time limit prescribed in the
section, was condonable at the instance
of the National Commissioner,
hence its order remitting the respondent’s application for
re-instatement back to the appellants
for reconsideration.
[76]
The respondent has contended, in effect, that the finding of
substantial compliance by the Labour Court
was wrong because he never
relied on it. But the submission is not sound since it is open to a
court charged with the interpretation
of a legislative provision to
conclude, as an incident of the interpretation, that it is capable of
substantial compliance without
a party having invoked that principle.
[77]
However, in order to determine substantial compliance the court must
first establish the purpose of
the provision and then determine
whether what was done by the applicant to comply with the provision,
satisfied that purpose. If
so, the court may find that the action was
in substantial compliance of the provision, although it did not
comply with the letter
thereof.
[25]
[78]
In this instance, the Labour Court seems to have applied the concept
of substantial compliance differently.
If what the respondent did was
in substantial compliance (properly determined) of subsection (2)
that would be the end of the matter
– the National Commissioner
would be obliged in those circumstances to reinstate the respondent,
whose conviction and sentence
had been wholly set aside by the appeal
court, in the sense contemplated in subsection (3). The Labour Court
should merely have
made an order to that effect.
[79]
Properly construed the purpose of subsection (2) is to get the
(discharged) member who has successfully
appealed against his or her
conviction as is contemplated in that subsection, to apply to the
National Commissioner for reinstatement
as soon as possible after
such an appeal outcome. It does not serve the purposes advanced by
the appellants as traversed above.
Instead, it appears to be
directory and not peremptory.
[26]
Further, it does not stipulate, at least in clear and unequivocal
terms, what the consequence of noncompliance is, further reinforcing
its advisory or directory nature.
[80]
Nevertheless the time period is not to be regarded as being of no
effect; it cannot just be ignored.
A failure to comply with it
impliedly and naturally requires an explanation, since it is a
measure aimed at discouraging
laxity and encouraging prompt action.
If the National Commissioner is of the view that an applicant has
deliberately (or unreasonably)
delayed to apply for reinstatement the
National Commissioner, despite re-instating that person, is empowered
to cause that matter
to be investigated as envisaged in section 34 of
the SAPS Act, which could result in disciplinary action being taken
against that
person (section 36(6)).
[81]
Subsection (2) is indeed capable of substantial compliance, and in
this instance the respondent’s
application substantially
complied with that section, although not with its letter. The law
also does not expect anyone to do that
which is objectively not
possible.The respondent applied as soon as he could reasonably have
done so, after becoming aware of the
outcome of the appeal.
[82]
There was no basis or justification for finding that the respondent’s
attorney was negligent
in establishing the date for the handing down
of the appeal judgment, or was negligent in informing the respondent
of it, or more
pertinently, that such negligence (none of which was
established) could be held against the respondent personally. The
reason(s)
furnished by the respondent for not complying with the 30
day period is objectively reasonable. In any event, nothing precluded
the first appellant, i.e. the National Commissioner, from further
investigating the reason furnished if he or she was not satisfied
with it.
[83]
The first appellant did not appreciate and act in accordance with the
nature of the discretion accorded the
National Commissioner
concerning the reinstatement of a member whose conviction and
sentence had been set aside on appeal and as
contemplated in section
36 - and, acted arbitrarily and irrationally in considering the
respondent’s application for reinstatement
in contravention of
the principle of legality in the Constitution.
[84]
In the circumstances the appeal must fail and the cross-appeal must
succeed to the extent that the
Labour Court ought to have ordered the
National Commissioner to reinstate the respondent as a member of the
SAPS as contemplated
in section 36(3).
[85]
Neither party has asked for a costs order against the other, and in
the circumstances no costs order
will be made.
[86]
In the result:
86.1. The
appeal is dismissed;
86.2. The
cross-appeal is upheld;
86.3. The
order of the court
a quo
is set aside and is replaced with the
following order:
“
1.
The decision of the First Respondent, effectively, to not re-instate
the applicant as a as a member of the SAPS is reviewed and
set aside;
2. The First Respondent
is to forthwith reinstate the applicant in the SAPS retrospectively
to the date of his deemed discharge,
with no loss of rank, salary,
allowances, privileges or benefits to which he would be entitled as a
member of the SAPS.
3. There is no costs
order.”
86.4. There
is no costs order in respect of the appeal and cross-appeal.
__________________
P Coppin
Judge of the Labour
Appeal Court
Davis JA and Molefe AJA
concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANTS:
P N Kroon SC
With A Rawjee and A Desi
Instructed by the State
Attorney
FOR THE
RESPONDENT:
Mrs E van Staden
Of
Legal Aid (SA)
[1]
Act 68 of 1995.
[2]
Act 66 of 1995.
[3]
Section 23(1) of the Constitution of the Republic of South Africa,
1996 (‘the Constitution’).
[4]
Sections 9 and 34, respectively, of the Constitution.
[5]
Section 33 of the Constitution.
[6]
Maswanganyi
v Minister of Defence and Military Veterans & Others
[2020] ZACC 4:
(2020) 41 ILJ 1287 (CC);
[2020] 9 BLLR 851
(CC)
(‘
Maswanganyi
’).
[7]
Act 42 of 2002.
[8]
Maswanganyi
at paras 41 and 42.
[9]
Id at para 45.
[10]
Id at para 46.
[11]
Id at para 40.
[12]
Id.
[13]
Id. at para 46.
[14]
Steenkamp
v Edcon Ltd.
[2016] ZACC1;
2016 (3) SA 251
(CC) para 118 (“
Steenkamp
”).
[15]
Investigating
Directorate Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors (Pty)
Ltd v Smit N.O.
[2000] ZACC 12
;
2001 (1) SA 545
(CC) para 22.
[16]
Cool
Ideas 1186 CC v Hubbard
[2014] ZACC 16
;
2014 (4) SA 474
(CC) para 28.
[17]
See,
inter alia,
P
harmaceutical
Manufacturer’s Association of South Africa: in re Ex parte
President of the Republic of South Africa
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 17.
[18]
Act 68 of 1969.
[19]
See, inter alia,
Ex
parte Minister of Safety and Security: in re S v Walters
[2002] ZACC 6
;
2002 (4) SA 613
(CC) fn 30.
[20]
See, inter alia,
Nel
v Oudtshoorn Municipality
[2013]
ZASCA 31
; (2013) 34 ILJ 1737 (SCA) para 8 (and the cases cited
there).
[21]
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration
[2008] ZACC 16
;
2009 (1) SA 390
(CC) para 36.
[22]
Cf
Maswanganyi
para
46 and
Steenberg
para118.
[23]
Oxford English Dictionary.
[24]
Cf section 43 of the the SAPS Act (Act 68 of 1995) which deals with
the suspension of members.
[25]
Maharaj
and others v Rampersad
1964 (4) SA 638
(A) at 646C:
African
Democratic Party v Electoral Commission and others
[2006] ZACC 1
;
2006 (3) SA 305
(CC) para 24;
Liebenberg
No and others v Bergrivier Municipality
2013 (5) SA 246
(CC) paras 22-26 (and the cases cited there); and
Allpay
Consolidated Investmenyt Holdings (Pty) Ltd v CEO South African
Social Security Agency
2014 (1) SA 604
(CC) (“
Allpay
”)
para 30.
[26]
However,
this distinction is not useful for determining whether there has
been substantial compliance with the provision- see
Allpay
(above)
para 30.