Brief Summary

Labour Law — Review of administrative action — Challenge to the convening of fitness boards under the Police Act — Applicants sought to review decisions by the National Commissioner of Police to convene fitness boards for members with criminal records, arguing the process was unlawful and violated their rights to procedural fairness — Court found that the decisions to convene fitness boards were not lawful for matters that should be addressed through disciplinary proceedings, and thus reviewed and set aside the decisions as unconstitutional.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a review application brought in the Labour Court in terms of section 158(1)(h) of the Labour Relations Act 66 of 1995 (LRA), seeking to set aside decisions taken by the National Commissioner of Police in relation to the handling of SAPS members who have criminal convictions. The review was framed as a challenge to the lawfulness (and, in parts, the fairness) of the process adopted by the SAPS to address the continued employment of members with criminal records.

The applicants were the Police and Civil Rights Union (POPCRU) and three of its members (the second to fourth applicants). The respondents were the Minister of Police (N.O.) and the National Commissioner of Police. The matter concerned the State acting in its capacity as employer, and the applicants invoked the Labour Court’s power to review employer decisions taken by the State on legally permissible grounds.

The immediate procedural history included an earlier interim order granted by Lallie J on 14 March 2014, which stayed the implementation of the National Commissioner’s decisions pending the finalisation of the review. The review itself was heard on 12 May 2014 and judgment was delivered on 10 June 2014.

The dispute arose from a SAPS and Civilian Secretariat audit identifying approximately 1500 SAPS members with criminal records. The National Commissioner responded by convening boards of fitness under section 34(1)(l) of the South African Police Service Act 65 of 1995 (as referred to in the judgment), aimed at determining whether members remained “fit to serve” despite criminal convictions. The applicants contended that the use of fitness boards in this context unlawfully bypassed the SAPS disciplinary system, thereby undermining legally binding disciplinary procedures and associated protections.

2. Material Facts

It was common cause that a two-year audit conducted by SAPS together with the Civilian Secretariat for Police revealed that approximately 1500 members had criminal records while still serving in SAPS. It was also not materially disputed that, following public and parliamentary pressure, the Minister announced in July 2013 that the audit had been completed and instructed the National Commissioner to act within a set timeframe, with the stated intention of following a “legal process” in which affected members would have an opportunity to state their side.

The National Commissioner proceeded to implement a strategy that included convening fitness boards and requiring investigations into members with convictions, including those within the ambit of section 36 (deemed discharge in specified circumstances) and those with criminal records prior to 1 September 2013. Notices convening boards of fitness were issued expressly in terms of section 34(1)(l), and framed the issue as “unfitness to perform duties” due to criminal conviction.

The applicants’ case was that SAPS was entitled to dismiss members who commit crimes, but the process adopted was allegedly unlawful and unfair because it used fitness boards (purportedly non-disciplinary) to address what was in substance misconduct, thereby avoiding the disciplinary regulations and their procedural safeguards.

The individual applicants’ circumstances were treated as relevant to the review because boards had been convened in respect of them. The judgment recorded (as part of the applicants’ case) that each had been convicted of offences described as minor or technical, with no prison sentences. It was also asserted that SAPS was aware of their criminal records, and that in at least one case a disciplinary inquiry had already occurred with a not-guilty outcome, while in another the station commander had declined to institute charges despite knowledge of the conviction. These aspects formed part of the applicants’ contention that disciplinary processes (including issues such as delay, double jeopardy, inconsistency, and sanction) were being avoided.

There were also disputed aspects material to framing the legal questions. The respondents characterised the fitness boards as a policy-driven mechanism to determine “fitness” and “root out criminals,” contending that the process was not disciplinary in nature and that boards did not themselves dismiss members. The applicants, by contrast, apprehended that the boards would lead to termination and argued that the process deprived members of disciplinary protections. The respondents did not provide clarity on what “due process” would follow if boards recommended that members were unfit, beyond asserting that boards did not dismiss members.

To the extent that the applicants alleged that some boards (including a board sitting in Zwelitsha) were dispensing with oral hearings and confining members to written representations, the court treated the evidentiary basis for broader findings about procedural non-compliance as insufficient on the papers, except insofar as the lawfulness of convening boards for certain categories of members could be determined as a matter of principle.

3. Legal Issues

The court was required to determine, first, whether it had jurisdiction under section 158(1)(h) of the LRA to entertain a review directed at the National Commissioner’s decisions to convene fitness boards and related steps. This raised the question whether the dispute was, in substance, one that should be pursued through ordinary labour dispute mechanisms (such as bargaining council processes), as opposed to a legality-based review of State action as employer.

Secondly, the court had to determine whether the National Commissioner’s decision to convene boards of fitness under section 34(1)(l) of the Police Act in relation to members with criminal convictions was authorised by law, particularly where the relevant conduct also fell within the definition of misconduct under the SAPS disciplinary framework. This was primarily a question of law (statutory and regulatory power), and of the application of legal provisions to categories of factual situations.

Thirdly, the court had to consider (within the jurisdictional framework it accepted) whether the applicants’ complaints about the alleged procedural unfairness of fitness boards (as compared to disciplinary proceedings) were properly justiciable in review proceedings, or whether they more appropriately constituted claims akin to unfair labour practices or unfair dismissal to be pursued in statutory dispute-resolution forums.

Finally, the court had to decide the appropriate scope of relief, given that the applicants challenged the fitness-board strategy broadly, and the court’s analysis distinguished between different categories of members with criminal convictions.

4. Court’s Reasoning

Jurisdiction and the proper forum for the dispute

The court addressed preliminary objections, including an argument that the application was defective because the applicants did not call for the record and reasons under Labour Court Rule 7A(2)(b). Drawing on commentary indicating that the equivalent provision in High Court review practice exists primarily for the benefit of an applicant and may be waived, the court held that the omission was not a material flaw in the circumstances. The decisions attacked were those set out in the notice of motion, and the review did not seek to impugn the Minister’s general political decision to “root out” criminals, but rather the National Commissioner’s implementation decisions.

On the core jurisdictional challenge, the respondents argued that the matter concerned policy and administrative decisions not reviewable in the Labour Court, and that the applicants should pursue remedies through bargaining council channels. The court engaged with authority emphasising that where the essence of a complaint is indistinguishable from an unfair labour practice or unfair dismissal, litigants should not circumvent the LRA’s dispute-resolution architecture. The court referred to the line drawn in Gcaba v Minister for Safety & Security & Others (2009) 30 ILJ 2623 (CC), and acknowledged that some of the applicants’ fairness-based complaints risked collapsing into ordinary labour claims.

However, the court distinguished that from a legality challenge alleging that the employer (a State organ) was legally bound by its disciplinary regulations and was using fitness boards to bypass those binding instruments. To the extent the challenge was directed at lawfulness and compliance with binding disciplinary prescriptions (rather than merely fairness), the court held that it could entertain the matter under section 158(1)(h) and, where relevant, under the principle of legality (supported by the cited passage from Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC)).

The court thus accepted jurisdiction in respect of at least some of the review grounds, while indicating that the court could not properly entertain the review insofar as it was framed as a complaint that fitness boards did not comply with the procedural requirements of a fair disciplinary process in the abstract.

The statutory framework and the purpose of section 34 inquiries

The court analysed section 34(1) of the Police Act, which enumerates specific inquiry types (such as ill-health, ability, security risk, misrepresentation relating to appointment), and also includes a residual category in section 34(1)(l) for “any other matter” considered in the interest of the Service. It also considered section 36, which provides for deemed discharge where a member is sentenced to imprisonment without the option of a fine (subject to qualifications, including that wholly suspended imprisonment does not trigger deemed discharge), and section 40, which recognises the institution of disciplinary proceedings “in the prescribed manner.”

The court considered the existence of SAPS disciplinary regulations (linked to a collective agreement) that expressly define the commission of any common law or statutory offence as misconduct. This regulatory scheme, on the court’s reasoning, established that certain types of criminal convictions are not merely “policy” concerns but are, in the SAPS labour framework, designated as disciplinary matters with defined procedures and protections.

Categorisation of affected members and the limits of section 34(1)(l)

A key aspect of the reasoning was that SAPS members with criminal convictions prior to 1 September 2013 did not constitute a uniform group, and the lawfulness of convening fitness boards could not be assessed without distinguishing between categories. The court identified multiple categories of members, including those whose convictions occurred before joining SAPS (with or without disclosure), those convicted while in service with sentences triggering section 36 deemed discharge, and those convicted while in service without such a sentence.

For members convicted before engagement, the court reasoned that it might be difficult to conceptualise disciplinary action for a pre-employment conviction (particularly where SAPS was aware at appointment). In such cases, a fitness inquiry could plausibly relate to capacity or suitability rather than to workplace misconduct committed during employment, and therefore could fall within the type of fitness assessment contemplated by section 34.

For members whose convictions and sentences triggered section 36(1) deemed discharge, the court considered that an inquiry into fitness or suitability for reinstatement under section 34 would not naturally be characterised as a disciplinary inquiry, because discharge occurred by operation of law following sentence. In that category, the court did not find that convening a fitness inquiry would necessarily be unlawful on the basis advanced.

The decisive category for the outcome was members (including the individual applicants) convicted of offences while in service, where the sentence did not result in deemed discharge under section 36(1). For this category, the court held that the disciplinary code explicitly treated the commission of statutory or common law offences as misconduct, and therefore disciplinary procedures were applicable and binding.

In that context, the court reasoned that convening a fitness board to determine whether a member remained fit to serve “due to” criminal conviction, in circumstances where the conviction occurred during service and constituted defined misconduct, was difficult to interpret as anything other than an attempt to side-step disciplinary proceedings. The court emphasised that such a manoeuvre would deny employees procedural advantages embedded in disciplinary processes, including the structured opportunity to present mitigation, the right of appeal in disciplinary structures, and the ability to challenge fairness through de novo arbitration rather than being confined to judicial review of a fitness-board outcome.

The court further reasoned that if section 34(1)(l) were interpreted as empowering fitness boards to be used whenever misconduct could be reframed as “unfitness,” it would allow the Commissioner, in principle, to convene fitness boards for any misconduct-defined act, undermining the disciplinary framework. The court considered the structure of section 34(1)(a)–(d) as indicating that fitness inquiries were intended for circumstances where disciplinary proceedings would generally be inappropriate, making it improbable that the legislature intended section 34(1)(l) to function as an alternative disciplinary track where formal disciplinary mechanisms were specifically designed to address the conduct.

On that basis, the court concluded that the National Commissioner lacked power under section 34(1)(l) to convene fitness boards for members convicted of offences while serving where section 36 deemed discharge did not apply. The fitness boards convened for the individual applicants, who fell within this category, were therefore unlawful and without legal effect.

Procedural irregularities in fitness boards generally

To the extent the applicants sought broader relief based on alleged non-compliance with fitness-board procedures (including claims that hearings were being dispensed with in some instances), the court held that there was too little evidence before it to make findings that other fitness boards (that might otherwise lawfully proceed) were being unlawfully conducted.

Costs

The court exercised a discretionary judgment on costs. It accepted that the applicants were successful in relation to an important portion of the relief (concerning the category most obviously suited to disciplinary handling), and therefore a costs award was just and equitable. However, the court limited the award because the applicants pursued relief that was described as unnecessarily broad, having attacked the entire fitness-board initiative without sufficiently accounting for distinct categories where fitness boards might be appropriate.

5. Outcome and Relief

The Labour Court reviewed and set aside the National Commissioner’s decision in part. It held that the decision to convene fitness boards in terms of section 34(1)(l) in respect of members who had criminal records as a result of being convicted of statutory or common law offences while serving as members (prior to 1 September 2013) was unlawful, void, and without legal force and effect. Fitness boards convened pursuant to that decision for such members were held to have been unlawfully convened and to have no legal force or effect.

The court did not grant the broader relief that would have invalidated all fitness boards irrespective of category, and it did not make determinations on the lawfulness of how other boards were being conducted beyond the category it identified.

On costs, the respondents were ordered to pay half of the applicants’ costs, including the costs of two counsel where applicable.

Cases Cited

Public Servants Association of South Africa obo De Bruyn v Minister of Safety and Security and Another [2012] 9 BLLR 888 (LAC).

Kgotso v Free State Provincial Government & Another [2006] 7 BLLR 664 (LC).

Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services & Others [2008] 12 BLLR 1179 (LAC).

Gcaba v Minister for Safety & Security & Others (2009) 30 ILJ 2623 (CC).

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC).

Legislation Cited

Labour Relations Act 66 of 1995, section 158(1)(h).

South African Police Service Act 65 of 1995 (as referred to in the judgment), sections 24(1), 34(1) and 34(3), 36, and 40.

Rules of Court Cited

Labour Court Rules, Rule 7A(2)(b).

Uniform Rules of Court, Rule 53(1)(b) (referred to by analogy).

Held

The Labour Court held that, although the State as employer may in appropriate circumstances convene fitness inquiries under the Police Act, section 34(1)(l) does not empower the National Commissioner to convene boards of fitness in circumstances where the relevant conduct constitutes misconduct expressly regulated by binding SAPS disciplinary instruments and where disciplinary proceedings are the appropriate mechanism.

In particular, for SAPS members who were convicted of common law or statutory offences while in service and whose sentences did not trigger section 36(1) deemed discharge, the convening of fitness boards under section 34(1)(l) was held to be an unlawful attempt to bypass the disciplinary framework. The impugned decision was reviewed and set aside to that extent, and the fitness boards convened for the individual applicants in that category were declared to have no legal force or effect.

LEGAL PRINCIPLES

A decision or act by the State in its capacity as employer may be reviewed by the Labour Court under section 158(1)(h) of the LRA where the challenge is directed at grounds permissible in law, including legality-based challenges asserting that the employer acted outside its powers or contrary to binding legal instruments.

Where the substance of a challenge is essentially indistinguishable from a complaint about unfairness properly addressed through the LRA’s dispute-resolution mechanisms, litigants should not use review proceedings to circumvent the statutory labour framework; however, this does not preclude review where the complaint is that the State employer acted unlawfully by bypassing binding rules or regulations.

The residual inquiry power in section 34(1)(l) of the Police Act must be interpreted in light of the broader structure of section 34 and the existence of prescribed disciplinary mechanisms. It does not permit the convening of “fitness” proceedings to determine continued employment suitability where the underlying issue is misconduct specifically regulated by binding disciplinary rules, particularly where such use would function as a substitute for disciplinary proceedings and deprive employees of protections intrinsic to the disciplinary and labour dispute system.

Police and Civil Rights Union and Others v Minister of Police NO and Another (P40/14) [2014] ZALCPE 15; [2014] 8 BLLR 796 (LC) (10 June 2014)