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Sibiya v South African Police Service (JA15/21) [2022] ZALAC 88; (2022) 43 ILJ 1805 (LAC); [2022] 9 BLLR 822 (LAC) (12 May 2022)

85 Reportability
Labour Law
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Brief Summary

Labour Law — Unfair dismissal — Remedy of reinstatement — Appellant, a Major-General in the SAPS, dismissed on grounds of alleged misconduct related to illegal rendition — Labour Court found dismissal both procedurally and substantively unfair but awarded compensation instead of reinstatement — Appellant appealed against the refusal of reinstatement, arguing that the circumstances had changed and that he had not waived his right to seek reinstatement — Court held that reinstatement should be the primary remedy unless specific exceptions apply, and found that the Labour Court erred in not reinstating the appellant given the circumstances of the case.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an appeal in the Labour Appeal Court confined to the question of remedy following a finding of an unfair dismissal. The appellant, Major-General Shadrack Sibiya, appealed against the remedial portion of the Labour Court’s order, contending that he ought to have been reinstated rather than compensated. The respondent was the South African Police Service (SAPS), which did not oppose the appeal.


The matter originated in the Labour Court (Mathebula AJ), which on 22 July 2020 declared the appellant’s dismissal (effective 31 August 2015) to have been both procedurally and substantively unfair, granted compensation equivalent to 12 months’ salary, and awarded attorney-and-client costs against SAPS. The Labour Court declined to order reinstatement.


Leave to appeal was granted on petition to the Labour Appeal Court, limited to the Labour Court’s refusal to grant reinstatement. The merits of unfairness were therefore not in issue on appeal; the appeal turned solely on whether the statutory scheme required reinstatement and whether any of the statutory exceptions to reinstatement applied.


The general subject-matter concerned the statutory remedies for unfair dismissal under the Labour Relations Act 66 of 1995 (LRA), including the effect of pleadings and pre-trial minute disclosures on the availability of reinstatement, and the meaning of the statutory exception where reinstatement is said to be “not reasonably practicable”.


2. Material Facts


The appellant was a career police officer who joined SAPS in 1989 and rose through the ranks. At the time of his dismissal on 31 August 2015, he held the rank of Major-General and occupied the position of Gauteng Provincial Head of the Hawks (the Directorate for Priority Crime Investigation, “DPCI”).


It was accepted that the decision to dismiss the appellant was essentially taken by Major-General Ntlemeza, then the purported acting national head of the Hawks and the appellant’s superior, following disciplinary proceedings in which the appellant was charged with misconduct relating to an alleged illegal rendition in 2010 of Zimbabwean criminal suspects to Zimbabwean authorities. The court a quo’s findings (which were not the subject of the appeal) included that SAPS had produced no evidence of the alleged rendition at the disciplinary enquiry, that SAPS witnesses gave contradictory evidence, and that SAPS gave no explanation for the five-year delay between the alleged events and the laying of charges.


The Labour Court also found, as part of the factual matrix relevant to unfairness, that Ntlemeza had acted in bad faith in relation to the appellant and that the National Commissioner’s rejection of the appellant’s internal appeal was procedurally unfair. It held that the dismissal was substantively unfair because there had never been a case against the appellant and that the charges were “trumped up”.


After dismissal, the appellant referred an unfair dismissal dispute to the Safety and Security Bargaining Council. At arbitration, on the arbitrator’s proposal, the parties agreed to seek a referral directly to the Labour Court in terms of section 191(6) of the LRA, which occurred by ruling dated 19 December 2016.


For the Labour Court trial, the parties agreed (and the court approved) that the transcribed evidence from the disciplinary enquiry would stand as the evidence in the Labour Court, subject to either party’s right to adduce further oral evidence; neither party led additional oral evidence.


The appeal record also reflected a key procedural fact relevant to remedy. Although the appellant’s original statement of claim prayed for compensation, the parties’ pre-trial minute (dated 31 July 2018) recorded that the appellant sought reinstatement as primary relief (with backpay), alternatively compensation, and that he intended to amend the statement of case accordingly. The appellant’s Labour Court practice note similarly stated that reinstatement would be sought alternatively to compensation. At the Labour Court hearing, an oral amendment was moved to align the pleadings with the relief sought. The Labour Court nonetheless treated reinstatement as an afterthought and refused to grant it, also relying on a submission by SAPS that the post had been filled.


As to post-dismissal employment, the appellant’s last salary from SAPS was paid on 31 August 2015. He was unemployed from then until 8 November 2016, after which he took employment with the City of Johannesburg Metropolitan Municipality on more favourable terms and remained employed there, while still seeking reinstatement in SAPS.


3. Legal Issues


The central legal questions were whether the Labour Court was correct, after finding the dismissal both procedurally and substantively unfair, to grant compensation instead of reinstatement, and whether the refusal of reinstatement could be justified under the exceptions in section 193(2) of the LRA.


A closely connected issue was whether the Labour Court misdirected itself by holding that the appellant was bound to compensation because his statement of claim initially sought compensation and because reinstatement allegedly “did not feature in the papers”, despite the contents of the pre-trial minute, the practice note, and the oral request to amend pleadings.


The dispute primarily concerned the application of statutory legal standards to the established facts, namely whether any of the statutory bars to reinstatement—particularly whether the employee did not wish reinstatement (section 193(2)(a)) or whether reinstatement was not reasonably practicable (section 193(2)(c))—were present on the record. It also involved a discretionary aspect concerning how the court should deal with a late or oral amendment and the extent of retrospective effect and backpay if reinstatement were ordered.


4. Court’s Reasoning


The Labour Appeal Court approached the matter from the statutory starting point that, under section 193(2) of the LRA, reinstatement or re-employment is the default remedy for unfair dismissal: the Labour Court or arbitrator must order reinstatement or re-employment unless one of the enumerated exceptions applies. Because the dismissal had been found both procedurally and substantively unfair, the exception in section 193(2)(d) (procedural unfairness only) could not apply.


On the exception in section 193(2)(b) (intolerability), the Labour Appeal Court held that it could not apply on the record. No evidence had been led to establish that continued employment would be intolerable. Moreover, the court a quo’s findings had vindicated the appellant and attributed bad faith to those who had acted against him; the appeal record also reflected that those individuals had since been removed. In that context, there was no evidentiary basis for treating the employment relationship as intolerable.


On section 193(2)(a) (employee does not wish reinstatement), the Labour Appeal Court held that the Labour Court’s approach—treating the appellant as not seeking reinstatement because he had initially claimed compensation—was unsustainable on the established procedural record. The Labour Appeal Court reasoned that the pre-trial minute expressly recorded reinstatement as the relief sought and recorded the intention to amend the pleadings. The practice note likewise signalled reinstatement as primary relief. Given that the pre-trial minute was concluded well before the hearing (more than a year, and in fact closer to two years), SAPS could not plausibly have been taken by surprise. The Labour Appeal Court viewed the Labour Court’s apparent failure to deal with the sought amendment as particularly problematic, especially because the application for leave to appeal raised the amendment point directly, yet the Labour Court’s reasons did not engage it.


The Labour Appeal Court then addressed the relationship between pleadings, pre-trial minutes, and amendments. It noted there was nothing in the Labour Court rules that precluded an oral amendment or prescribed a rigid manner or timing for such amendments. By reference to the High Court position under Uniform Rule 28(10), it emphasised that amendments may be granted at any stage before judgment, subject to the court’s terms. Although the grant or refusal of an amendment is discretionary, it must be exercised judicially, and the established approach is that amendments are generally allowed unless they are mala fide or would cause irremediable prejudice.


The Labour Appeal Court further drew on its own authority regarding pleadings and pre-trial minutes. It accepted that a pre-trial minute cannot, by itself, change or expand the pleaded case (as stated in SA Breweries (Pty) Ltd v Louw), but also endorsed the principle (as applied in Trellicor (Pty) Ltd t/a Trellidor v National Union of Metalworkers of SA (NUMSA) obo Mondli Ngwalane & others) that pleadings should not be unduly magnified, and that courts may decide issues not specifically pleaded where the parties have effectively widened the issues without prejudice. On the facts, the issue of reinstatement had been sufficiently raised and canvassed, and SAPS had not objected or claimed prejudice.


Turning to section 193(2)(c) (“not reasonably practicable”), the Labour Appeal Court held that the Labour Court had erred in accepting a bare submission from SAPS’s counsel that the appellant’s former post had been filled and that reinstatement would be impossible. The Labour Appeal Court stressed that this contention was not supported by evidence, and a statement from the bar could not substitute for proof, particularly where SAPS had chosen not to adduce evidence despite opportunity.


In applying the correct standard to section 193(2)(c), the Labour Appeal Court relied on its earlier exposition in Xstrata SA (Ltd) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers obo Masha & others and the Constitutional Court’s endorsement in South African Commercial, Catering and Allied Workers’ Union and Others v Woolworths (Pty) Limited. It held that “not reasonably practicable” concerns feasibility and requires more than inconvenience; it requires evidence of a compelling operational burden. The mere fact that a particular post has been filled is not a legal bar to reinstatement. On the record, SAPS was a large organisation with multiple positions at Major-General level, and reinstatement could be achieved by placing the appellant at the same rank and level and then deploying him in a suitable post through proper and fair procedures.


The Labour Appeal Court also reasoned that the lack of opposition to the appeal by SAPS supported the conclusion that no genuine impediment to reinstatement had been established, and that the passage of time since dismissal did not, of itself, bar reinstatement.


Having found reinstatement to be the appropriate remedy, the Labour Appeal Court considered retrospectivity and backpay. It accepted that because the dismissal was substantively and procedurally unfair and the appellant was not at fault, reinstatement should generally be retrospective to the date of dismissal, subject to fairness in relation to earnings after dismissal. Relying on Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration, it reaffirmed that reinstatement ordinarily means placing the employee back into the same job or position on the same terms and conditions. The court crafted an order that reinstated the appellant at the rank of Major-General, allowing SAPS to elect whether to place him in his former post or another post at the same rank and level, thus accommodating SAPS’s deployment discretion.


On the backpay question, the Labour Appeal Court accepted that the appellant had been unemployed for approximately 14 months and 8 days and thereafter employed by the City of Johannesburg on more favourable terms. It held that the appellant’s taking alternative employment did not bar reinstatement, but that fairness justified limiting backpay to the period of unemployment immediately after dismissal. The court therefore limited backpay to the period from 1 September 2015 to 8 November 2016.


Finally, on costs, although the appeal succeeded, the Labour Appeal Court held that no costs order for the appeal was warranted.


5. Outcome and Relief


The Labour Appeal Court upheld the appeal on the question of remedy and set aside the Labour Court’s remedial paragraph that awarded compensation in lieu of reinstatement, replacing it with an order of reinstatement subject to specified conditions.


The substituted relief required SAPS to reinstate the appellant as a Major-General, either in the same post held at dismissal or another post as considered appropriate by the National Commissioner, provided it was at the same rank and level. The reinstatement was made effective from the date of dismissal, but the appellant’s entitlement to backpay was limited to 14 months and 8 days (the period 1 September 2015 to 8 November 2016). The appellant was required to give written notice by 1 July 2022 tendering his services if he wished to be reinstated; backpay would then be payable within two months from the date he recommenced employment with SAPS.


If the appellant did not give notice as required, he would instead remain entitled only to the compensation ordered by the Labour Court, namely the equivalent of 12 months’ salary at the rate applicable to Major-Generals at the time of dismissal.


There was no costs order in respect of the appeal. (The Labour Court’s costs order at first instance was not disturbed except insofar as the remedial paragraph was replaced.)


Cases Cited


Steenkamp v Steenkamp 1962 (3) SA 949 (O); Caxton Ltd & others v Reeva Forman (Pty) Ltd & another [1990] ZASCA 47; 1990 (3) SA 547 (A); Moolman v Estate Moolman & another 1927 CPD 27; SA Breweries (Pty) Ltd v Louw [2017] ZALAC 63; (2018) 39 ILJ 189 (LAC); Trellicor (Pty) Ltd t/a Trellidor v National Union of Metalworkers of SA (NUMSA) obo Mondli Ngwalane & others (DA12/20) [2022] ZALAC 5 (10 February 2022); Shill v Milner 1937 AD 101; Robinson v Randfontein Estates GM Co. Ltd 1921 AD 168; Xstrata SA (Ltd) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers obo Masha & others (2016) 37 ILJ 2313 (LAC); South African Commercial, Catering and Allied Workers’ Union and Others v Woolworths (Pty) Limited [2018] ZACC 44; (2019) 40 ILJ 87 (CC); Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration [2008] ZACC 16; 2009 (1) SA 390 (CC); Mediterranean Textile Mills (Pty) Ltd v SA Clothing & Textile Workers Union & Others (2012) 33 ILJ 160 (LAC); National Union of Metalworkers of South Africa v Edelweiss Glass & Aluminium (2010) 31 ILJ 139 (LC).


Legislation Cited


Labour Relations Act 66 of 1995, section 191(6); section 193(1); section 193(2).


Rules of Court Cited


Uniform Rules of Court, Rule 28(10).


Held


The Labour Appeal Court held that, once the dismissal had been found procedurally and substantively unfair, reinstatement was the primary remedy mandated by section 193(2) of the LRA unless a statutory exception was established. It held that the Labour Court erred in treating reinstatement as unavailable because it was not originally pleaded as the sole relief, despite the pre-trial minute and practice note indicating reinstatement and despite an oral amendment being sought.


The court further held that SAPS had failed to establish, on evidence, that reinstatement was “not reasonably practicable”. A mere assertion that the appellant’s former post had been filled was not sufficient and did not constitute a legal bar to reinstatement in a large organisation where deployment to another post at the same rank and level was feasible.


The Labour Appeal Court accordingly replaced the compensation remedy with an order of reinstatement, retrospective to the date of dismissal, but limited backpay to the period during which the appellant was unemployed. No costs order was made in respect of the appeal.


LEGAL PRINCIPLES


Reinstatement (or re-employment) is the default remedy for unfair dismissal under section 193(2) of the LRA, and the adjudicator must order it unless one of the statutory exceptions is shown to apply on the facts.


The exception that reinstatement is “not reasonably practicable” requires more than inconvenience and requires evidence showing a compelling operational burden; feasibility is central. The fact that an employee’s previous position has been filled does not, without more, establish that reinstatement is not reasonably practicable, particularly where reinstatement at the same rank and level with later lawful deployment is feasible.


Amendments to pleadings may be allowed at any stage before judgment, including orally, subject to judicial discretion exercised with regard to bona fides and prejudice. While pleadings define issues and parties are generally held to them, their importance should not be unduly magnified; where the parties have clearly raised and canvassed an issue (and there is no prejudice), a court may treat the issue as properly before it, including where pre-trial processes demonstrate that the dispute has widened beyond the original formulation.

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[2022] ZALAC 88
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Sibiya v South African Police Service (JA15/21) [2022] ZALAC 88; (2022) 43 ILJ 1805 (LAC); [2022] 9 BLLR 822 (LAC) (12 May 2022)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA15/21
In
the matter between:
MAJOR-GENERAL
SHADRACK SIBIYA
Appellant
and
SOUTH
AFRICAN POLICE
SERVICE

Respondent
Heard:
29 March 2022
Delivered:
12 May 2022
Coram:
Phatshoane ADJP, Coppin JA
et
Phatudi AJA
JUDGMENT
COPPIN
JA
[1]
On 22 July 2020, the Labour Court (Mathebula AJ) (“the court
a
quo
”) granted an order,
inter alia
: (a) declaring
the appellant’s dismissal by the respondent (“SAPS”)
on 31 August 2015, to have been procedurally
and substantively
unfair; (b) directing the SAPS to pay the appellant the equivalent of
12 months’ salary (at the (then)
current rate applicable to
Major Generals) as compensation within 15 days of the date of the
order; and (c) to pay the appellant’s
costs on an attorney and
client scale.
[2]
On petition by the appellant to this court, which was not opposed by
the respondent,
the appellant was granted leave to appeal against the
court
a
quo
’s order only to the extent that it
declined to award the appellant the remedy of reinstatement, and
having, instead, awarded
him compensation. This is the appeal. The
SAPS has also not opposed it.
[3]
The appeal thus only turns on the question of the remedy, and in
particular, on whether
it was correct for the court
a quo
to
award the appellant compensation instead of ordering his
reinstatement. The appellant wants to be reinstated and contends that

it is the appropriate remedy, both, in terms of the law and
fairness.
[4]
The appellant was a career policeman. He joined the SAPS as a junior
recruit in 1989
and progressed through the ranks. At the time of his
dismissal on 31 August 2015, he held the rank of Major General and
the position
of the Gauteng Provincial Head of the Hawks (or the
Directorate of Priority Crimes Investigation (“the DPCI”)).
[5]
The decision to dismiss the appellant from the SAPS was essentially
taken by Major-General
Ntlemeza (“Ntlemeza”), at the time
the (purported) acting national head of the Hawks and the appellant’s
direct
superior. This followed upon attempts by Ntlemeza to suspend
the appellant and a disciplinary enquiry, in which the appellant had

been charged with the alleged illegal rendition in 2010 of Zimbabwean
criminal suspects to the Zimbabwean authorities.
[6]
At his disciplinary enquiry, the appellant testified,
inter-alia
,
that he had been the victim of a conspiracy to remove him from
office, because of his attempts to prosecute the head of crime

intelligence at the SAPS at the time, one Lt. Gen. Richard Mdluli
(“Mdluli”), for fraud, corruption, money laundering,

murder, kidnapping, and other offences. The appellant’s
charging of Mdluli also generated public controversy and litigation.

The National Prosecuting Authority (NPA) controversially withdrew
those charges but the High Court set aside that decision and
ordered
the NPA to reinstate them. Mdluli was eventually found guilty on some
of those charges in September 2019.
[7]
Ntlemeza’s suspension of the appellant was set aside by the
Gauteng High Court,
which found,
inter-alia
, that the decision
of Ntlemeza’s was taken in bad faith and that he was biased and
dishonest in that regard. The Supreme
Court of Appeal dismissed
Ntlemeza’s petition for leave to appeal the High Court’s
decision.
[8]
Subsequently, Ntlemeza’s appointment as acting national head of
the Hawks was
also set aside by the Gauteng High Court and his
efforts to appeal that decision were also unsuccessful.
[9]
Turning specifically to the appellant’s disciplinary enquiry
that led to his dismissal
– It is not necessary to relate any
more detail concerning those charges for the purposes of this appeal.
It is a matter
of record. In addition to what is stated above
concerning the charges of misconduct brought against the appellant
relating to the
alleged illegal rendition, the following would
suffice concerning the disciplinary enquiry: No evidence of the
alleged rendition
was actually produced and the witnesses called by
the SAPS gave contradictory evidence. SAPS also gave no explanation
for the five-year
delay between the alleged unlawful rendition and
the charging of the appellant.
[10]
Despite the glaring deficiencies in the case of SAPS against the
appellant at the disciplinary
enquiry, which Ntlemeza (effectively)
subjected the appellant to, and despite the appellant’s
protestations of innocence,
he was found guilty of the alleged
illegal rendition and his dismissal was recommended. Ntlemeza himself
decided to dismiss the
appellant. The appellant’s internal
appeal against his dismissal to the, then, National Commissioner of
the SAPS, General
Phiyega, was also unsuccessful, not because it
lacked merit, but because it was contended that the appellant had no
such right
to appeal.
[11]
Following his dismissal, the appellant referred an unfair dismissal
dispute to the Safety and
Security Bargaining Council. At the
arbitration, and acting on the proposal of the arbitrator, the
parties agreed that the arbitration
should not proceed in the
bargaining council but that an application be lodged with the
Director of the Commission for Conciliation,
Mediation and
Arbitration (“the CCMA”) to refer the dispute directly to
the Labour Court for resolution, as contemplated
in section 191(6) of
the Labour Relations Act (“LRA”). This was done
successfully and a ruling to the effect that the
matter was to be
resolved in the Labour Court was made by the arbitrator on 19
December 2016.
[12]
Before the hearing in the court
a quo,
the parties agreed at
the pre-trial conference,
inter-alia
, that subject to the
approval of the court, the evidence given in the disciplinary enquiry
should be admitted and accepted as evidence
for the purposes of the
trial in the Labour Court, subject to each party’s right to
call further oral evidence if he/it so
wished. This agreement was
approved by the court
a quo
which ordered that the transcribed
record of the evidence at the disciplinary enquiry should be deemed
to be evidence before the
court
a quo
. That turned out to be
the only (oral) evidence before the court
a quo
as neither of
the parties elected to present further oral evidence.
[13]
Consequently, the hearing in the court
a quo
was based on the
transcript of the oral evidence given at the disciplinary enquiry,
and documents that the parties had relied on
in the enquiry and in
the proceedings before the bargaining council. Only certain,
relevant, documents of those produced there
have been included in the
appeal record before this court.
[14]
The court
a quo
found that the delay in charging the appellant
had been unreasonable and unexplained; that Ntlemeza had acted in bad
faith in relation
to the appellant and that the rejection of the
appellant’s appeal by the National Commissioner of the SAPS was
wrong and
procedurally unfair.
[15]
In addition, the court
a quo
held that the appellant’s
dismissal had been substantively unfair; that there had never been a
case against him and that
the charges against him were trumped up.
The court
a quo
,
inter alia
, held concerning the
appellant and his dismissal: “A career policeman who rose
through the ranks to Deputy National Commissioner
has left the Police
Service in this case. Dismissed without valid and fair reason(s) by
the acting head whose character has been
found wanting by the courts.
There can be no worse humiliation.”
[16]
Despite finding the appellant’s dismissal to have been both
procedurally and substantively
unfair, the court
a quo
did not
require the appellant’s reinstatement and, instead, ordered the
SAPS to compensate him as aforesaid. The court
a quo
appears
to have come to that resolution for two reasons, namely, firstly,
because in his statement of claim the appellant only
sought
compensation as relief and not reinstatement; and, secondly, because
the court
a quo
, seemingly, accepted a submission made by the
counsel for the SAPS that the post that the appellant had occupied at
the time of
his dismissal had since been filled and that it was
consequently impossible to reinstate the appellant to that position.
Argument
on appeal
[17]
The appellant’s counsel submitted that the court
a quo
erred in not reinstating the appellant, in particular in
circumstances where it had completely vindicated the appellant, had
found
that he was innocent and had been victimised by officials who
lacked integrity, had acted in a high-handed manner and in bad faith,

and that those individuals had since been removed, so that nothing
stood in the way of reinstating the appellant. Further, that
there
was no evidence at all that a continued employment relationship
between the appellant and the SAPS would be intolerable.
[18]
Counsel for the appellant further argued that the appellant did not
originally seek reinstatement
in his statement of claim, because at
the time the SAPS was still under the command of those individuals
who were responsible for
his dismissal, but that he never abandoned,
or waived, his right to seek reinstatement. Following the removal of
those individuals
and new appointments to the command of the SAPS,
the appellant did indicate that he was seeking reinstatement. This
was also stated
in the pre-trial minute and the practice note in the
proceedings before the court
a quo
and it was regularised by
an oral application for the amendment of his statement of claim in
the proceedings before the court
a quo
to include a claim for
reinstatement.
[19]
In the minutes of the pre-trial conference held on 31 July 2018 in
the chambers of the appellant’s
previous counsel and attended
by representatives of both the appellant and the SAPS, it is recorded
in paragraph 7 under the heading
“Relief Claimed” that
the applicant (i.e. the appellant) seeks “(a) reinstatement;
(b) payment of his full salary
and benefits backdated to 31 August
2015, being the date of dismissal; (c) alternatively, compensation in
the maximum amount under
the LRA; (d) costs.” It is further
recorded there that the applicant (i.e. the appellant) “intends
to amend [his] statement
of case to provide for reinstatement which
is being sought.” It is also recorded that the respondent seeks
“dismissal
of the claim with costs”. In paragraph 6 of
the said minute, it had also been recorded that one of the issues
that the court
a quo
was to decide, if it found that the
dismissal was unfair, was “what the appropriate remedy should
be.”
[20]
In the “Applicant’s Practice Note” submitted on
behalf of the appellant in
the proceedings in the court
a quo
,
it is clearly stated that the appellant’s “reinstatement,
alternatively, compensation” would be sought as relief.
Discussion
[21]
In terms of section 193 (2) of the LRA, “[t]he Labour Court or
the arbitrator must require
the employer to reinstate or re-employ
the employee unless - (a) the employee does not wish to be reinstated
or re-employed; (b)
the circumstances surrounding the dismissal are
such that a continued employment relationship would be intolerable;
(c) it is not
reasonably practicable for the employer to reinstate or
re-employ the employee; or (d) the dismissal is unfair only because
the
employer did not follow a fair procedure.”
[22]
The reasons for not requiring the appellant’s reinstatement and
only granting him compensation
are also stated in the court
a
quo
’s judgment in respect of the appellant’s
application for leave to appeal in that forum to be the following:
“In
the statement of claim the applicant prayed for
compensation. It is common cause that the position has since been
filled by the
first respondent. Only at a later stage during the
hearing did counsel raise the issue of reinstatement. Clearly, this
was an afterthought
and nowhere did it feature in the papers. In
litigation, parties are bound by the formulation of the case in the
pleadings. The
position was eloquently set out by…”
[23]
The validity of those findings of the court
a quo
shall be
discussed later. At this juncture it is necessary to consider, with
reference to section 193(2) of the LRA, on what bases
the court
a
quo
did not order reinstatement, and whether they are possibly
contemplated in section 193(2)(a) and (c) of the LRA. Subsection
193(1)(d)
was clearly of no application because the court
a quo
found that the appellant’s dismissal was, both, procedurally
and substantively unfair. Subsection 193(1)(b) could also not
have
been applicable at all because there were no circumstances (and no
evidence led) to the effect that the continued employment

relationship between the SAPS and the appellant would be intolerable.
On the contrary, the court
a quo
in its findings completely
vindicated the appellant and found him to have been an innocent
victim of officials, who acted in bad
faith and lacked integrity.
Those individuals had been removed and there were no circumstances
which would have rendered a continued
employment relationship between
the appellant and SAPS intolerable.
[24]
Regarding the applicability of subsection 193(2)(a), the court
a
quo
could not have found that the appellant did not want or wish
to be reinstated. Such a finding would have been patently wrong. The

court
a quo
seemed to be of the view that the appellant was
bound by the prayer for compensation in his statement of claim and
could not change
his mind and seek reinstatement at the hearing. It
appears that the court
a quo
did not give any more attention
to the application to amend the statement of case for that very
reason. This approach was also
patently wrong.
[25]
In coming to that conclusion the court
a quo
either ignored or
overlooked the recording in the parties’ pre-trial minute and
the statement in the practice note that the
appellant was indeed
seeking reinstatement. The pre-trial conference was held on 31 July
2018 and the hearing took place on 23
August 2019 and 20 September
2020, more than a year, or two years later. Adequate notice that the
appellant would be seeking reinstatement,
as stipulated in the minute
of that conference, was most certainly given and SAPS was not taken
by surprise. The filing of the
practice note reinforced that notice,
inter alia
, concerning the relief that would be sought.
[26]
More concerning, is the fact that an amendment that was moved to
regularise the position, is not mentioned
in the main judgment, or in
the judgment in respect of the application for leave to appeal.
[27]
Although one of the grounds on which leave to appeal was sought by
the appellant specifically
raises the issue of the amendment, the
court
a quo
did not deal with that issue at all. In its
judgment in respect of the appellant’s application for leave to
appeal, the court
a quo
merely mentions having rejected the
appellant’s counsel’s referral to reinstatement for being
an afterthought, which
did not feature in the papers. This was hardly
adequate because it is effectively alleged by the appellant, in his
application
for leave to appeal, that even though the appellant’s
counsel applied for an amendment of the pleadings as foreshadowed in

the pre-trial minute, and even though the amendment had not been
objected to and SAPS would not be prejudiced by it, the court
had
failed to deal with the amendment. This surely required a specific
response from the court
a quo
.
[28]
There is nothing in the rules of the Labour Court that precludes an
oral amendment of a pleading,
or that prescribes the manner and the
time within which the application for amendment is to be brought. In
terms of the Uniform
Rules applicable to trial proceedings in the
High Court, amendments may be granted at any stage of the
proceedings, but before
judgment, on such terms as to costs and
otherwise as the court may consider appropriate
[1]
.
Thus, amendments to pleadings may, for example, be granted before and
after close of pleadings, during the hearing of the evidence,
after
the evidence has been given, and even during or after the closing
argument, but not after judgment.
[29]
Even though the grant or refusal of the amendment was a matter within
the discretion of the court
a
quo
,
it was a discretion that had to be exercised judicially in light of
all the facts and circumstances of the matter before it.
[2]
Our courts have frequently allowed amendments, unless they are
mala
fide
,
or cannot be granted without irremediably prejudicing the other
party.
[3]
[30]
This court has held in
SA
Breweries (Pty) Ltd v Louw,
[4]
with reference to the facts in that matter,
inter
alia
,
that the case pleaded cannot be changed or expanded by the terms of a
pre-trial minute, and that the change can only be affected
by the
necessary amendment to the pleading, but it has also accepted
recently in
Trellicor
[5]
,
in line with old and established authority, that ‘the
importance of pleadings should not be unduly magnified’.
[6]
[31]
In substantiation of that principle, this court further accepted in
Trellicor
that while the object of pleadings is to define the issues; and while
parties are to be kept strictly to their pleadings where
any
departure would cause prejudice, or prevent full inquiry, the court
has a wide discretion within those limits, since “pleadings
are
made for the court, not the court for the pleadings”
[7]
.
It also accepted
[8]
that our
courts have decided issues not specifically pleaded where the parties
have widened the issues to include those not pleaded,
and have even
decided such issues where no amendment had been sought to regularise
the position where there was no prejudice (i.e.
which would
ordinarily arise if those unpleaded issues were not fully canvassed
at the trial).
[32]
In this instance, the appellant had notified the SAPS in good time
that he would be seeking reinstatement
as primary relief and that he
would apply at the hearing for the amendment of his statement of case
to regularise the pleadings.
Nowhere is it recorded that the SAPS had
objected or had claimed that it was prejudiced by that approach. The
issue of reinstatement
was sufficiently canvassed at the hearing and
the respondent even contended that- the reinstatement of the
appellant was not possible
because the position he held at the time
of his dismissal had already been filled.
[33]
The court
a quo
was wrong in not finding that the appellant
wanted to be reinstated, as contemplated in section 193(2)(a) of the
LRA, and in not
granting the amendment which was sought, or
alternatively, in not finding that the parties had widened the issues
as pleaded to
include the issue of reinstatement. The court
a quo
was not justified in such circumstances to assume that the appellant
did not wish to be reinstated (or re-employed) in the SAPS.
Before,
at the time of and during the trial, there could have been no doubt
that the appellant wished to be reinstated.
[34]
Turning to the applicability of section 193(2)(c) of the LRA –
the court apparently accepted
the argument by counsel for the SAPS
that the position the appellant held at the time of his dismissal
“has long been filled
and [that] it will be impossible to
reinstate” him to that position. This argument was not backed
up by any evidence. The
mere statement from the bar by counsel was
hardly sufficient, but SAPS clearly deliberately chose to confine
itself to submissions,
even though it had ample opportunity to
produce evidence. In any event, the mere fact that the position had
already been filled
could not serve as a legally acceptable bar to
the appellant’s reinstatement.
[35]
This court has held
[9]
that the
object of section 193 (2)(c) is to exceptionally permit the employer
relief where it is not practically feasible to reinstate.
The phrase
“not reasonably practicable” in the section was held to
be a reference to the concept of feasibility. Something
is not
feasible if it is beyond possibility. In
Woolworths,
[10]
the Constitutional Court quoted with approval what this court had
held in
Xstrata
,
namely, that “[i]t was thus evident that the term ‘not
reasonably practicable’ means more than mere inconvenience
and
requires evidence of a compelling operational burden.”
[36]
Here there was no evidence at all to show that it was “not
reasonably practicable”,
in the sense discussed above, to
reinstate (or re-employ) the appellant in the SAPS. The SAPS is a
vast organisation, with multiple
positions for officers with the rank
of Major–General, which is the rank the appellant held at the
time of his dismissal.
The appellant, in the course of his long
career in the SAPS, had undoubtedly been deployed in various areas of
police operations
and management, further negating any notion that
his reinstatement (or re-employment) would be impossible. The fact
that the position
he occupied at the time of his dismissal, namely
that of Provincial Head of the Hawks, had since been filled, is no
reason for
refusing him reinstatement into the SAPS, as he may be
re-assigned following a proper and fair procedure to a post at the
same
rank and level as that he held at the time of his dismissal.
[37]
The fact that the SAPS has not opposed this appeal, despite being
fully aware of the issues in
this appeal and the appellant’s
wish to be reinstated in the SAPS, further underscores his argument
that there is no legitimate
bar to his reinstatement. The fact that
some time has elapsed from the date of dismissal should also not
constitute a bar to his
reinstatement.
[11]
[38]
In terms of section 193(1) of the LRA, the court or the arbitrator
may – (a) order the
employer to reinstate the employee from any
date not earlier than the date of dismissal; (b) order the employer
to re-employ the
employee, either in the work in which the employee
was employed before the dismissal or in other reasonably suitable
work on any
terms and form any date not earlier than the date of
dismissal; and, in the alternative (c) order the employer to pay
compensation
to the employee.
[39]
The appellant’s dismissal was both procedurally and
substantively unfair, meaning that
there was no fair reason for his
dismissal and that the procedure, culminating in this dismissal, was
unfair. He was not at fault
at all, while the SAPS (his employer),
through the senior officers it employed then (and who were mentioned
earlier), was wholly
at fault in dismissing him. There has been no
suggestion or contention that the appellant had been dilatory in his
pursuit to vindicate
his rights. Accordingly, there is no reason why
his reinstatement should not have been ordered to be retrospective to
the date
of his dismissal. Of course, subject to a limitation on the
amount of backpay payable to him as discussed later in this judgment.
[40]
In
Equity
Aviation,
[12]
the Constitutional Court held that the ordinary meaning of the word
“reinstate” is “to put the employee back
into the
same job or position [that] he or she occupied before the dismissal,
on the same terms and conditions.” This means
that an employee
who is reinstated is to resume his or her employment on the same
terms and conditions which applied at the time
of his or her
dismissal. In this matter, counsel for the appellant has proposed an
order that would not unduly fetter the discretion
of the National
Commissioner to deploy the appellant. The wording is unobjectionable
and there is no reason not to make the order
in the terms largely
proposed by the appellant, with appropriate adjustments regarding
backpay and the actual reinstatement in
light of the appellant’s
employment elsewhere since his dismissal.
[41]
In reply to a query from this court regarding the appellant’s
earnings since his dismissal
by the SAPS on 31 August 2015, the
appellant filed an explanatory affidavit and supplementary
submissions dealing with that aspect.
[42]
In summary, the appellant received his last salary from the SAPS on
31 August 2015. He was unemployed
from then until 8 November 2016 (a
period of about 14 months and 8 days). From 8 November 2016 he was
employed by the City of Johannesburg
Metropolitan Municipality (COJ)
on more favourable terms. He is still employed at COJ, but wishes to
be reinstated at the SAPS.
[43]
It is understandable that the appellant could not remain unemployed
for long after his dismissal
by the SAPS. He had to earn a living.
That fact cannot prevent his reinstatement at the SAPS if it is his
choice and he tenders
his services to the SAPS. In fairness, however,
taking all the relevant factors into account, including the extent of
the retrospectivity
and appellant’s earnings since his
dismissal, the amount of backpay should be limited to the period he
was unemployed immediately
after his dismissal by the SAPS
[13]
.
[44]
While the appeal must succeed, given the facts and circumstances of
this matter, a costs order
in respect of the appeal is not warranted.
[45]
In
the result, the following is ordered:
45.1
The appeal is upheld in respect of the remedy;
45.2
Paragraph 57.2 of the court
a quo
’s order is set aside
and is replaced with the following:
“
57.2.1
The first respondent is to forthwith, but subject to subparagraphs
below, reinstate the applicant as Major General in the
South African
Police Service (“SAPS”), and at its election either (i)
in the same post he occupied at the time of his
dismissal, or (ii) in
such other post as the National Commissioner considers appropriate,
but on the same rank and level as applied
to the post the applicant
occupied at the time of his dismissal.
57.2.2
The said reinstatement, which is subject to paragraph 57.2.3, shall
be effective from the date of the applicant’s dismissal
from
the SAPS, on condition that the applicant shall only be entitled to
backpay of 14 months and 8 days (i.e. for the period 1
September 2015
to 8 November 2016);
57.2.3.
If the applicant wishes to be reinstated in terms of subparagraphs
57.2.1 and 57.2. 3 of this order, he shall give written
notice of
that fact to the respondent no later than 1 July 2022 and in that
notice tender his services. The amount of backpay due
to him shall be
paid to him within 2 months from the date he recommences employment
with the SAPS in terms of this order of reinstatement;
57.2.4
If the applicant does not give notice as contemplated in paragraph
57.2.3
of this order he shall only be entitled to the payment of
compensation as ordered by the Labour Court, namely, the equivalent
of
12 months’ salary (at the rate applicable to Major-Generals
at the time of his dismissal).”
45.3
There is no costs order in respect of the appeal.
P
Coppin
Judge
of the Labour Appeal Court
Phatshoane
ADJP and Phatudi AJA concur in the judgment of Coppin JA
APPEARANCES:
FOR
THE APPELLANT:
Adv WP Bekker
Instructed
by Da Silva Attorneys
FOR
THE RESPONDENT:
No appearance.
[1]
See
Uniform Rule 28(10) and, inter alia,
Steenkamp
v Steenkamp
1962 (3) SA 949
(O)
[2]
See,
inter
alia
,
Caxton
Ltd & others v Reeva Forman (Pty) Ltd & another
[1990] ZASCA 47
;
1990 (3) SA 547
(A) at 565 F-G.
[3]
See,
inter
alia
,
for a classic formulation of the approach:
Moolman
v Estate Moolman & another
1927 CPD 27
at 29.
[4]
[2017]
ZALAC 63
; (2018) 39 ILJ 189 (LAC) para 8.
[5]
Trellicor
(Pty) Ltd t/a Trellidor v National Union of Metalworkers of SA
(NUMSA) obo Mondli Ngwalane & others
(DA12/20)
[2022] ZALAC 5
(10 February 2022) (“
Trellicor
”)
para 38.
[6]
See
also
Shill
v Milner
1937 AD 101
at 105 referring to what was held in
Robinson
v Randfontein Estates GM Co. Ltd
1921 AD 168
at 243.
[7]
See
Trellicor
(above)
para 39.
[8]
Ibid.
[9]
See
Xstrata
SA (Ltd) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
obo Masha & others
(2016)
37 ILJ 2313 (LAC) para 11.
[10]
South
African Commercial, Catering and Allied Workers’ Union and
Others v Woolworths (Pty) Limited
[2018]
ZACC 44
; (2019) 40 ILJ 87 (CC) (“
Woolworths
”)
para 49.
[11]
See,
inter
alia
,
Woolworths
para 47.
[12]
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation. Mediation
& Arbitration
[2008] ZACC 16
;
2009 (1) Sa 390
(CC) para 36. See also
Woolworths
(above)
paras 43-46.
[13]
See
Equity
Aviation Services
(above) para 31; and compare
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing & Textile Workers Union &
Others
(2012)
33 ILJ 160 (LAC); see also,
NUMSA
v Edelweiss Glass & Aluminium
(2010) 31 ILJ 139 (LC).

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