Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JR2395/14) [2017] ZALCJHB 414 (6 April 2017)

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[2017] ZALCJHB 414
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Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JR2395/14) [2017] ZALCJHB 414 (6 April 2017)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: JR 2395 / 14
In
the matter between:
THE SOUTH AFRICAN POLICE
SERVICES
First
Applicant
THE NATIONAL COMMISSIONER OF
POLICE
Second
Applicant
and
MAJOR GENERAL SESWIKE
N.O.
First
Respondent
BRIGADIER V
NDEBELE
Second
Respondent
Heard
:
15
September 2016
Delivered
:
6
April 2017
Summary:
Disciplinary
proceedings by State as employer – review of decision of
disciplinary hearing chairperson – Section 158(1)(h)
of LRA
considered – principles applicable to such reviews considered
Review
of disciplinary proceedings – findings of chairperson
considered – finding irrational and contrary to principle
of
legality – finding set aside and replaced with finding of
guilty on charge
s
Review
of disciplinary proceedings – once employee guilty sanction
must be considered –
impossible
to decide sanction on available material –
matter
remitted back to disciplinary hearing for determination of sanction
Misconduct – inappropriate,
unprofessional and dishonest conduct – principles considered –
evaluation of evidence
– conduct of employee tantamount such
misconduct – misconduct committed
Suspension – whether
suspension lawful – principles considered – suspension
lawful
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The
current application is an application by the applicants in terms of
Section 158(1)(h) of the Labour Relations Act
[1]
(‘the LRA’) to review and set aside a finding by first
respondent in his capacity as chairperson of the disciplinary

proceedings instituted against the second respondent. The second
applicant is the responsible functionary for the South African
Police
Services, being the public service department in which the second
respondent is employed.  For purposes of convenience,
when I
refer to ‘the applicant’ in this judgment it must be
regarded that I am referring to the South African Police
Services,
the employer of the second respondent.
[2]
The
problem I have with these kind of applications is that it in essence
turns the Labour Court into some kind of appeals body where
it comes
to disciplinary proceedings conducted against officers of the
applicant.  This places an undue burden on the already
stretched
resources of the Labour Court, and state departments such as the
applicant should rather ensure that officials tasked
to preside over
disciplinary hearings possess the necessary competence to discharge
their duties properly, instead of using this
Court as some kind of a
back up plan.
[3]
The
above being said, this matter arose from alleged misconduct committed
by the second respondent relating to and in the course
of an
interview process convened by the applicant, with the view of
appointing entry level constables from reservists of the applicant.

The first respondent was the presiding officer of the disciplinary
hearing convened to decide the misconduct charges brought against
the
second respondent. The first respondent, in a written finding handed
down on 29 October 2014, acquitted the second respondent
of all the
misconduct charges against her. The applicant, being dissatisfied
with this finding, then brought the current review
application on 19
November 2014.  Applying the 6(six) weeks’ time limit in
terms of Section 145
[2]
of the LRA, this review application has been timeously brought, and
is properly before this Court.
[4]
The
second respondent was suspended 25 November 2014, pending the
finalization of the review application brought by the applicant.
The
second respondent challenged such suspension, contending it was
unlawful, in a separate application brought under case number
J 1553
/ 15 on 3 August 2015.    This application by the
second respondent came before
Van
Niekerk
J
on 10 June 2015, who made an
order
to the effect that
this application must be considered along with the review application
in these proceedings, on 15 September 2016.
I will therefore
also decide this application, in this judgment.
[5]
Where
it comes to both the applications, the factual circumstances do
overlap.  I will accordingly set out a single set of
background
facts, applicable to both the review application by the applicant,
and the suspension challenge by the second respondent.
The
relevant background
[6]
The
second respondent is a senior and high ranking officer in the employ
of the applicant.  In this particular instance, she
had been
specifically tasked and appointed to chair the interview panel which
was required to interview, evaluate and then ultimately
appoint entry
level constables in the applicant, from the ranks of reservists.
[7]
Where
it comes to the appointment of employees in the applicant, this is
subject to specific regulations, found in National Instruction
6 /
2005 (‘the Instruction’).  A conspectus of the
Instruction shows that the interview panel is critical and
pivotal
the appointment process.
[8]
As
appointed chairperson, the second respondent is the most important
member of the panel and must guide its activities.  It
is also
the direct duty of the chairperson, in terms of clause 7(3) of the
Instruction, to ensure that proper records are kept
of all the
proceedings, including the interviews and any other discussions the
panel may have had. The Instruction allows for a
secretary to be
appointed to assist with this function (clause 6(6)).  In terms
of clause 8(4) of the Instruction, all these
records kept of the
proceedings must be retained by the relevant division of the
applicant for at least three years.
[9]
The
interview panel is responsible to interview all candidates on a
shortlist, which interviews are done in line with the guidelines
as
set out in clause 10 of the Instruction.  Following the
completion of interviews and evaluation of all the candidates
interviewed, the panel makes a recommendation as to their choice for
appointment to the past (clause 12(1)).  All these
recommendations
must then be recorded in writing and signed off by
the chairperson (clause 12(4)).  It is also the chairperson that
must submit
the recommendations to the relevant commissioner in the
applicant for formal appointment (clause 13(1)).
[10]
The
applicant’s unhappiness with the second respondent stemmed from
her conduct in the course of being the appointed chairperson
of the
interview panel and process referred to above.
[11]
A
total of 43 candidates had to be interviewed, in the current
process.  The list of candidates to be interviewed was
circulated
on 12 February 2013 to all the parties involved on the
panel, which included an independent observer.  The interviews
were
to be conducted at the SAPS in Actonville.
[12]
Colonel
F J Jonck (‘Jonck’) was the station commander at SAPS
Actonville and one of the panel members of the interview
panel
chaired by the second respondent. Jonck was the one who made the
actual arrangements for the conducting of the interviews
and the
attendance of the candidates at the interviews. Jonck specifically
arranged with the second respondent to attend at the
boardroom, SAPS
Actonville, on 14 February 2013 at 08h00, to commence conducting the
interviews.  The same date and time was
arranged with the other
panel members.
[13]
On 14
February 2013 and by 08h00, all the panel members and most of the
candidates were present, but the second respondent did not
arrive.
Jonck telephoned the second respondent and informed her that the
interviews were ready to start and asked where she
was. The second
respondent informed Jonck that she was still ‘busy’ at
the provincial office and would be ‘coming
soon’. The
interviews could not take place without the attendance of the second
respondent as chairperson of the panel.
When the second
respondent had not arrived by 10h30, Jonck called her again, and she
once again said she was coming but was still
busy at the provincial
office.  When the second respondent had still not arrived by
16h30, Jonck called her to ask if he could
excuse the panel members
and the candidates until the next day, 15 February 2013, which was
the last day for the interviews to
be completed.  The second
respondent agreed to this, and the candidates and panel members were
excused.  Jonck also informed
the panel members and candidates
to return the following day, 15 February 2013, at 08h00.  The
second respondent confirmed
to Jonck that she would be there on 15
February 2013.
[14]
Then
on the following day, 15 February 2013, all the panel members and the
candidates were again in attendance and the interview
process was
ready to proceed at about 08h30.  The second respondent again
was not present.  Jonck telephoned her again,
and once again she
informed him that she would be coming. The second respondent only
arrived at about 15h30, and interviews started
at about 16h00.
Because of the late arrival of the second respondent, the interviews
continued into 16 February 2013, concluding
only at about 02h00 that
early morning.
[15]
Added
to the above, the provincial commissioner, Major General T M Maloka,
had instructed on 6 February 2013 that the whole interview
process
had to be completed by 15 February 2013, and this deadline was
clearly not met.
[16]
In
the course of the interview process, and in line with the
instruction, all the interviewed candidates were scored by each
member
of the panel.  Following the completion of the interview
process, the panel then had to make the recommendations for
appointment
in terms of the instruction. A total of 11 candidates had
to be recommended for 11 posts. It was agreed by the panel that the
11
candidates with the highest consolidated scores would be
recommended. The appointed secretary, Shireen Alwar (‘Alwar’),

would prepare the recommendation list, and that list would then be
submitted to the second respondent for signature in terms of
the
instruction.
[17]
This
list was prepared by Alwar on 18 February 2013, and handed to another
panel member, Captain J Mokheseng (‘Mokheseng’)
for
presentation to the second respondent for signature.  Mokheseng
went to the second respondent on the same day to procure
her
signature on the list, but she refused to sign the list because she
said there was a ‘mistake’ on the list. The
second
respondent said that this mistake was that one of the interviewed
candidates, B C Bocibo (‘Bocibo’), who had
‘done
well’, was not on the list. Mokhaseng then went away, and
amended the list himself. He removed the name of a
recommended
candidate, C M T Mnyandu, from the list and replacing that name with
that of Bocibo. It may be added that Bocibo was
from Benoni, where
the second respondent was stationed, whilst Mnyandu was not. The
second respondent was presented with this amended
list by Mokheseng
on 19 February 2013, and then signed this amended list.
[18]
It
appears from the evidence that a number of investigations were
conducted into the above events, after it came to light, and reports

and recommendations were filed. Ultimately, and on 23 July 2014,
Major General C Hendricks, the head of legal services for Gauteng,

recommended that disciplinary proceedings be instituted against the
second respondent.
[19]
On 31
July 2014, the second respondent was then served with a notice of
intention to suspend her in terms of Regulation 13(2) of
the SAPS
Regulations, as a precautionary measure pending the contemplated
disciplinary proceedings. The second respondent was informed
of the
allegations against her. The second respondent was called on to make
submissions as to why she should not be so suspended.
On 4
August 2014, and through her trade union POPCRU, the second
respondent then indeed made written submissions as to why she
should
not be suspended. In these submissions, the second respondent
addressed the merits of the allegations against her.
[20]
After
due consideration of the second respondent’s submissions, the
Gauteng provincial commissioner, Lieutenant General J
L Mothiba,
decided to nonetheless suspend the second respondent without
remuneration in terms of Regulation 13(2). The second respondent
was
informed in writing of this suspension on 6 August 2014, as well as
the reasons for the suspension.
[21]
Following
on her suspension as set out above, the applicant then literally
threw the book at the second respondent. A total of 10(ten)
charges
were brought against her by way of a notice to attend a disciplinary
hearing served on her on 12 August 2014.  Much
of the charges
are simply repetitions of one another, just with some changes in
wording and description. Cut down to its bare essentials,
all the
individual charges against the second respondent can be consolidated
into three principal charges. The first of these principal
charges
was unprofessional and disrespectful conduct on the part of the
second respondent with regard to her failing to attend
to the
interview process scheduled to take place on 14 February, and then 15
February 2013, which caused embarrassment to the applicant
and
culminated in a waste of time and resources. The second principal
charge is in essence one of dishonesty, unacceptable behaviour
and
breach of her duties under the Instruction, relating to the
alterations which took place to the final candidate list on 18
and 19
February 2013, and the presenting of what was in effect an irregular
list to the commissioner for approval.  Finally,
the third
principal charge was one of insubordination in failing to conclude
the interviews by 15 February 2013 as instructed.
[22]
The
second respondent sought to explain the charge with regard to her
failure to attend the interview process on 14 and 15 February
2013,
by saying that she did not attend the interviews because she was
looking for the list of names of reservists that qualified
to be
interviewed from the relevant cluster, and only after she received
the list, she started with the interviews on 15 February
2013.
As to the other charge relating to the altered list of recommended
candidates, the second respondent disputed that
she ever gave Captain
Mokheseng an instruction to change the list. She stated that only one
list was presented to her, which she
signed, and she trusted that the
person who presented it to her, would present her with a correct
list. On the insubordination
charge, the second respondent contended
that she did complete the process in time in line with the
instruction that had been given.
[23]
The
disciplinary hearing against the second respondent, on the above
charges, then convened on 15 August 2014 before the first respondent

as appointed chairperson, and on that date preliminary issues were
dealt with.  The disciplinary hearing continued on the
merits of
the matter from 8 to 12 September 2014, and finally concluded on 23
October 2014.  Four witnesses testified for
the applicant, being
Colonel Jonck, Captain Mokheseng, Mr S Naidoo and Alwar, with the
second respondent testifying on her own
behalf.  The
disciplinary proceedings were recorded. As stated above, the first
respondent acquitted the second respondent
on 29 October 2014 of all
charges against her, in a written finding.
[24]
Having
been acquitted, the second respondent reported back at her normal
station on 30 October 2014.  This invoked the ire
of the acting
provincial commissioner, Major General T C Mosikili, who believed the
second respondent should have reported to his
office.  Major
General Mosikili viewed this as a breach of discipline by the second
respondent, as her return to work could
only be authorized by his
office.  In a notice to the second respondent on 31 October
2014, Major General Mosikili informed
the second respondent
accordingly, and also informed her that the judgment of the second
respondent had been sent for legal opinion.
The second
respondent was also specifically informed that the office of Major
General Mosikili would inform her when she could
resume her duties.
[25]
The
second respondent took the matter up with Major General P E Gela, the
deputy police commissioner operational services for Gauteng.
Major
General Gela informed the office of the provincial commissioner that
that it could not be seen that the second respondent
acted in an
undisciplined fashion. Major General Gela held the view that the
second respondent’s suspension ended with her
acquittal, and
she was entitled to resume her duties.
[26]
Major
General Mosikili did not take kindly to the intervention by Major
General Gela.  In essence, Major General Mosikili stated
that he
was higher up in the food chain, and his instructions prevailed.
Major General Mosikili stated that only he could issue
instructions
to the second respondent concerning her official duties. The second
respondent was then instructed in writing on 3
November 2014 to
vacate her offices in Benoni.  The second respondent complied
and vacated her office.
[27]
The
applicant’s review application then swiftly followed, as
referred to above.  Pending the conclusion of this review

application, the applicant then again sought to suspend the second
respondent. On 17 November 2014, the provincial commissioner,

Lieutenant General Mothiba, gave the second respondent written notice
that since the review application had now been brought, she
had to
provide written submissions as to why she should not be further
suspended under the ‘common law’ pending the
conclusion
of the review application.  This suspension would however be on
‘full benefits’.  The reasons
given for this
proposed course of action was the seriousness of the allegations
against the second respondent, the seniority of
her position, and
that her presence at work would not be conducive to sound labour
relations.  The second respondent duly
made written
representations on 19 November 2014.  After considering these
representations, and on 25 November 2014, Lieutenant
General Mothiba
decided to persist with suspending the second respondent, and advised
her in writing accordingly.  She has
been suspended since, but
this time on full remuneration.
[28]
Only
on 3 August 2015, the second respondent then brought the application
to declare her suspension to be unlawful, and sought an
order that it
be uplifted and that she be allowed to resume her normal duties.
[29]
I am
of the view that the most practicable manner in which to decide both
the matters before me is to start with the applicant’s
review
application. The reason for this is that if the applicant’s
review application is not successful, there would simply
be no basis
for the second respondent’s suspension to persist, and this in
itself would lead to her being granted the relief
she seeks in her
application to have her suspension uplifted.  I will commence
with deciding the applicant’s review
application by setting out
the applicable review principles.
Review
principles
[30]
What
makes these kind of cases unique is that the State as an employer is
in essence seeking to challenge its own conduct, as perpetrated
by
its own functionaries.  The reason why this kind of challenge is
a possibility is founded upon a Constitutional imperative.

Section 195(1) of the Constitution provides:
‘
Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following

principles:
(a)
A
high standard of professional ethics must be promoted and maintained.
…
(d)
Services
must be provided impartially, fairly, equitably and without bias. …
(g)
Public
administration must be accountable. …’
In
terms of Section 195(2), the above principles apply to all organs of
state and in the administration of every sphere of government.
[31]
The
Constitutional Court in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[3]
considered the application of Section 195 of the Constitution where
it came to the employment relationship between the state as
an
employer and its employees, but in particular where it came to the
conduct of public service functionaries where it came to
dealing with
inter
alia
misconduct of such employees.  The Court held as follows:
[4]
‘
Section
195 provides for a number of important values to guide decision
makers in the context of public sector employment. When,
as in this
case, a responsible functionary is enlightened of a potential
irregularity, s 195 lays a compelling basis for the founding
of a
duty on the functionary to investigate and, if need be, to correct
any unlawfulness through the appropriate avenues. This
duty is
founded, inter alia, in the emphasis on accountability and
transparency in s 195(1)
(f)
and
(g)
and the requirement of a high standard of professional ethics in s
195(1 )
(a)
.
Read in the light of the founding value of the rule of law in s 1
(c)
of the Constitution, these provisions found not only standing in a
public functionary who seeks to review through a court process
a
decision of its own department, but indeed they found an obligation
to act to correct the unlawfulness, within the boundaries
of the law
and the interests of justice.
’
Therefore,
and should it come to the attention of a responsible functionary in
the applicant that an irregularity exists in the
manner a police
officer was dealt with, or not dealt with as should have been the
case, in the course of disciplinary proceedings
against that police
officer, that responsible functionary has a duty to act to remedy the
situation. The point is that that which
is irregular must be
corrected.
[32]
In
terms of Section 158(1)(h) of the LRA, the Labour Court may:
‘…
review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible in law.
'
This provision, as read with Section 195 of the Constitution, would
then appear to be the proper avenue for a responsible
functionary at
the applicant to seek to correct an irregularity in the context of
internal disciplinary proceedings where its officers
are involved.
[33]
The
Courts have been critical of the application of Section 158(1)(h) as
a basis to challenge the findings of internal disciplinary

proceedings in the State directly to the Labour Court, by way of a
review application. But this criticism was given in a specific

context, namely where employees seek to launch such a challenge. The
settled position now is that where employees seek to challenge
the
findings of disciplinary hearing functionaries in the State, they are
compelled to use the dispute resolution mechanisms in
terms of
Chapter VIII of the LRA and cannot rely on Section 158(1)(h).
In
Chirwa
v Transnet Ltd and Others
[5]
the Court said:
‘
It
is my view that the existence of a purpose-built employment framework
in the form of the LRA and associated legislation infers
that labour
processes and forums should take precedence over non-purpose-built
processes and forums in situations involving employment
related
matters. At the least, litigation in terms of the LRA should be seen
as the more appropriate route to pursue. Where an
alternative cause
of action can be sustained in matters arising out of an employment
relationship, in which the employee alleges
unfair dismissal or an
unfair labour practice by the employer, it is in the first instance
through the mechanisms established by
the LRA that the employee
should pursue her or his claims.
’
The
Labour Appeal Court in
Public
Servants Association of SA on behalf of de Bruyn v Minister of Safety
and Security and Another
[6]
applied the above
dictum
in
Chirwa
as follows:
‘
The
supposition that public servants had an extra string to their bow in
the form of judicial review of administrative action, ie
acts and
omissions by the state vis-à-vis public servants, evaporated
when the Constitutional Court in Chirwa v Transnet
Ltd & others,
held that the dismissal of a public servant was not 'an
administrative act' as defined in PAJA and therefore
not capable of
judicial review in terms of that Act. Any uncertainty regarding the
interpretation of the Chirwa judgment was removed
in the subsequent
decision in Gcaba v Minister for Safety & Security & others.
The result is that a public servant is confined
to the other remedies
available to him or her.’
[34]
However where it comes
to a challenge by the State as an employer, the same position of
being confined to the prescribed dispute
resolution mechanisms under
the LRA cannot apply. The reason for this is simply that the State
cannot utilize these mechanisms,
where it comes to challenges by the
State itself against conduct or actions of its own functionaries, and
therefore the State has
no recourse to the normal dispute resolution
processes under the LRA. For example, there is no provision in
Chapter VIII of the
LRA that would allow an arbitrator to entertain a
dispute in which the State as an employer seeks a finding that the
employee be
found guilty of misconduct or be dismissed, in
circumstances where the employee was acquitted or not dismissed by
the functionary
assigned to preside over the disciplinary proceedings
of such an employee. In short, the applicable dispute resolution
mechanisms
under the Chapter VIII of the LRA were specifically
designed for challenges by employees, and not employers. It would
seem that
review proceedings under Section 158(1)(h) would be the
only provision upon which the State can rely on to seek the kind of
correction
and redress referred to above.
[35]
In
Hendricks
v Overstrand Municipality and Another
[7]
the Labour Appeal Court dealt with the applicability of the dispute
resolution system under the LRA to these kind of challenges
by the
State as an employer, and said:
‘
The
underlying guiding rationale of the ratio decidendi in
Gcaba
and
Chirwa
is that once a set of carefully crafted rules and structures has been
created for the effective and speedy resolution of disputes
and
protection of rights in a particular area of law, it is preferable to
use that particular system. In other words, and in practical
terms,
remedies for unfair dismissal and unfair labour practices contained
in the LRA should be used by aggrieved employees rather
than seeking
review under PAJA. The ratio cannot justifiably be extended to deny
an employer a remedy against an unreasonable,
irrational or
procedurally unfair determination by a presiding officer exercising
delegated authority over discipline. The remedies
available to an
aggrieved employee under the unfair dismissal and labour practice
jurisdiction of the LRA are not available to
employers. …
’
[36]
As
stated above, there is a clear duty on a responsible functionary to
correct an irregularity. It is thus untenable to accept that
the
responsible functionary must then just live with what happened in
internal disciplinary proceedings, and be left without a
remedy, if
such an irregularity indeed exists. A consideration of the provisions
of the LRA leads to a conclusion that the only
feasible remedy that
can be utilized by the State is an application in terms of Section
158(1)(h) of the LRA, brought by the responsible
functionary, to
remedy that which had gone wrong.  In
Hendricks
[8]
the Court held:
‘…
The
only remedy available to the employer aggrieved by the disciplinary
sanction imposed by an independent presiding officer is
the right to
seek administrative law review; and s 158(1)
(h)
of the LRA empowers the Labour Court to hear and determine the
review. To hold otherwise is to deny the employer any remedy at
all
against an abuse of authority by the presiding officer. …
’
[37]
The
process of utilization of Section 158(1)(h) contemplates a review
application.  This being the case, it must then be established

on what review grounds such a review application must be brought.
In
Hendricks
[9]
,
the Court held:
‘
In
sum therefore, the Labour Court has the power under s 158(1)
(h)
to review the decision taken by a presiding officer of a disciplinary
hearing on (i) the grounds listed in PAJA, provided the decision

constitutes administrative action; (ii) in terms of the common law in
relation to domestic or contractual disciplinary proceedings;
or
(iii) in accordance with the requirements of the constitutional
principle of legality, such being grounds 'permissible in law'
.
[38]
More
recently, the Court in
Merafong
City Local Municipality v SA Municipal Workers Union and Another
[10]
similarly pronounced:
‘
The
Labour Court is not precluded by the LRA from reviewing the decisions
and acts contemplated in s 158(1)(h)
.
It has the power (and jurisdiction) to review them on any grounds
'permissible in law'.  Permissible grounds in law would
include
the constitutional grounds of legality and rationality and, if they
constitute 'administrative action', on the grounds
that are
stipulated in PAJA …
’
[39]
In
its founding affidavit, the applicant relies on the review grounds
founded on the principle of legality. The applicant has not
relied on
PAJA.  Dealing with ‘legality’ the Court in
Hendricks
[11]
said:
‘…
.
Legality includes a requirement of rationality. It is a requirement
of the rule of law that the exercise of public power by the
executive
and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power
was given,
otherwise they are in effect arbitrary and inconsistent with the rule
of law.
’
[40]
The
Court in
Khumalo
[12]
also specifically dealt with the meaning of ‘legality’,
in the context of a review application under Section 158(1)(h),
and
held:
‘…
The
principle of legality is applicable to all exercises of public power
and not only to 'administrative action' as defined in PAJA.
It
requires that all exercises of public power are, at a minimum, lawful
and rational. …
’
[41]
In
MEC
for the Department of Health, Western Cape v Weder;
MEC for the
Department of Health, Western Cape v Democratic Nursing Association
of SA on behalf of Mangena
[13]
the Court held that the principle of legality had developed over the
past decade, to the extent that a parallel system of review
for
actions which falls outside of the strict definition of
administrative action, has developed.  Having so held, the Court

then proceeded to set out this development as follows:
[14]
‘…
Public
functionaries are required to act within the powers granted to them
by law. See
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council & others
[1998] ZACC 17
;
1999
(1) SA 374
(CC)
at
para 58, furthermore, see the seminal judgment in
Pharmaceutical
Manufacturers Association of SA & another
:
In
re Ex parte President of the Republic of SA & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC)
at
para 85, where the court laid down the core element of legality as
follows:
'It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this
requirement.
'
The
Court in
Weder
[15]
then proceeded to consider this component of rationality as part of
the legality enquiry, and held:
‘
In
later judgments the court has developed this concept of rationality
requiring the executive or public functionaries to exercise
their
power for the specific purposes for which they were granted so that
they cannot act arbitrarily, for no other purpose or
an ulterior
motive. See
Gauteng
Gambling Board & another v MEC for Economic Development,
Gauteng
2013
(5) SA 24 (SCA)
at
para 47. Furthermore, in
Democratic
Alliance v President of the Republic of SA & others
2013
(1) SA 248
(CC)
at
para 39 Yacoob ADCJ held:
'If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means to achieve the purpose for which the power was conferred. And
if the failure had an impact on the rationality of the
entire
process, then the final decision may be rendered irrational and
invalid by the irrationality of the process as a whole.'
’
[42]
Of
further guidance when considering review grounds based on legality is
the following
dictum
in
Ntshangase
v MEC for Finance: KwaZulu-Natal and Another
[16]
,
where it was held:
‘…
All
actions and/or decisions taken pursuant to the employment
relationship between the second respondent and its employees must
be
fair and must account for all the relevant facts put before the
presiding officer. Where such an act or decision fails to take

account of all the relevant facts and is manifestly unfair to the
employer, he/she is entitled to take such decision on review.

Moreover, the second respondent has a duty to ensure an accountable
public administration in accordance with ss 195 and 197 of
the
Constitution. …
’
[43]
In
summary, where the applicant, being an employer in the public
services sector, seeks to challenge a decision by a chairperson

appointed to preside over disciplinary proceedings against a police
officer, this can competently be done in terms of Section 158(1)(h)

of the LRA based on the constitutional principle of legality, which
requires that:
43.1 The decision
of the chairperson must be rationally connected to the purpose for
which the power was given to him or her, and
if not, the decision
could be considered to be arbitrary;
43.2 The decision
of the chairperson must account for all the relevant facts placed
before him or her.  Where the chairperson
fails to consider
material facts or principles, the decision made can be said to be
irrational;
43.3 The process
giving rise to the decision must be lawful and fair;
43.4 The decision
itself must be lawful, meaning that it is not a decision that falls
outside the scope of the power afforded to
the chairperson.
Should
any one of the above requirements not be satisfied when the decision
of the chairperson is considered, that decision would
be irregular as
contemplated by Section 158(1)(h) and would fall to be reviewed and
set aside.
[44]
Against
the above principles, I will now proceed to consider the applicant’s
application to review and set aside the decision
of the first
respondent where it came to the alleged misconduct committed by the
second respondent, by acquitting her of the same.
Analysis:
review application
[45]
In
its founding affidavit, the applicant principally relies on the
grounds of review that the determination of the chairperson (first

respondent) is not rationally connected to the power afforded to him,
as well as the fact that the decision of the first respondent
does
not account for all of the facts and principles placed before him.
The applicant complains that these failures have resulted
in the
first respondent arriving at an unreasonable and irrational result,
and acted unfairly towards the applicant.
[46]
According
to the applicant’s founding affidavit, there were substantial
objective facts and evidence placed before the first
respondent that
demonstrated that the second respondent completely failed in the
execution of her duties of appointment as chairperson
of the
interview panel under the Instruction, but the first respondent had
no regard to this at all.  The applicant has also
raised an
issue that the facts and evidence showed that the second respondent
was dishonest in the carrying out of her duties,
which was similarly
entirely disregarded by the first respondent. The applicant also took
issue with the rejection by the first
respondent of the evidence of
Captain Mokheseng.
[47]
Before
dealing with the actual facts and evidence in this matter, it must be
pointed out that discipline in the applicant is conducted
in terms of
disciplinary regulations published under Section 24(1) of the South
African Police Services Act
[17]
(‘the
Regulations’).
Regulation
3
[18]
inter alia
provides that the purpose of the Regulations are to support
constructive labour relations in the SAPS, to ensure that supervisors

and employees share a common understanding of misconduct and
discipline, in order to promote acceptable conduct in terms of the

provisions of the Regulations, to provide a user friendly framework
in the application of discipline and to prevent possible arbitrary

actions by supervisors toward employees in the event of misconduct.
[48]
Regulation
4
[19]
sets out the principles on which the Regulations are based, and these
include that
discipline
must be applied in a prompt, fair, consistent and progressive manner,
and that employees are ensured fair treatment in
that employees must
enjoy a fair hearing, be timeously informed of allegations of
misconduct made against them, and receive written
reasons explaining
the rationale for any decision.
[49]
The
above provisions in the Regulations to a large extent mirror Schedule
8 of the LRA where it comes to discipline for misconduct.
[20]
In
Provincial
Commissioner, Gauteng: SA Police Service and Another v Mnguni
[21]
the Court specifically considered Regulations and said:
‘
I
agree with counsel for the appellants that what we are dealing with
here is quintessentially a labour issue. … The regulations
are
a product of an agreement reached between the National Commissioner
of SAPS, as employer, and all the unions admitted to the
Safety &
Security Sectoral Bargaining Council (regulation 2). Their purpose is
set out in regulation 3, and is, inter alia,
to support constructive
labour relations in the police service, to ensure that supervisors
and employees share a common understanding
of misconduct and
discipline, to provide a user-friendly framework in the application
of discipline, and to prevent possible arbitrary
actions by
supervisors towards employees in the event of misconduct. Clearly,
therefore, the disciplinary and appeal procedures
that culminated in
the respondent's dismissal, including the dismissal itself, involve
employment relations, which are expressly
regulated by s 23 of the
Constitution and s 185 of the LRA.
’
[50]
The
applicant’s review application, and in particular the grounds
of review raised, must be considered with due regard to
the
objectives enshrined by the Regulations.  The first aspect to
consider is what is tantamount to splitting or duplication
of charges
in this case. As touched on above, the 10 individual charges brought
against the second respondent can in essence be
consolidated into
three charges, each relating to a specific component of overall the
same incident.  What the applicant did
is similar to the
following
dictum
in
National
Union of Metalworkers of SA and Others v Atlantis Forge (Pty) Ltd
[22]
where the Court said:
‘
The
multiplicity of charges levelled at Willemse involves a measure of
splitting and duplication and, frankly, are a bit of an overkill.
…
’
It
must thus first be determined exactly what the gravamen was of the
charges the second respondent actually competently faced.
[51]
In my
view, the alleged misconduct of the second respondent must be decided
on the basis of deciding whether the evidence and facts
showed that
the second respondent was guilty of the following three misconduct
charges:
51.1 Unprofessional
conduct and not complying with legal obligations / duties, in failing
to attend at the interview panel meeting
on 14 February 2013 at all,
and attending materially late on 15 February 2013, without proper
cause or reason, resulting in a waste
of time and resources, and
tarnishing the image of the employer.
51.2 Dishonesty,
unacceptable behaviour and breach of duty of good faith, relating to
the refusal to sign off on the list of candidates
approved by the
panel, and/or the alterations which then took place to the final
candidate list on 18 and 19 February 2013, followed
by the
presentation of what was in effect an irregular list to the
commissioner for approval.
51.3
Insubordination in failing to conclude the interviews by 15 February
2013 deadline as instructed by the commissioner.
A
consideration of the written outcome by the first respondent showed
that he in effect appreciated this kind of charge consolidation,
and
he also focussed only on these principal issues. This is evident from
the manner in which he dealt with each individual charge,
where he in
essence repeated the same basic reasoning when dealing with each
individual charge.  I shall similarly, in considering
the review
grounds of the applicant, focus only on the three principal charges I
have identified above. I add that even though
this is discipline in
the SAPS, the misconduct must still only be proven on the basis of a
balance of probabilities, and not beyond
reasonable doubt.
[23]
[52]
Before
dealing with the evidence, I am compelled to point out that vast
tracts of the second respondent’s evidence in the
disciplinary
proceedings was never put to the applicant’s four witnesses
under cross examination.  This in itself must
materially detract
from the credibility of her case, an issue the first respondent never
appreciated.  In
ABSA
Brokers (Pty) Ltd v Moshoana NO and Others,
[24]
it
was held as follows:
‘
It
is an essential part of the administration of justice that a
cross-examiner must put as much of his case to a witness as concerns

that witness (see van Tonder v Killian NO en Ander
1992 (1) SA 67
(T)
at 72I). He has not a right to cross-examination but, indeed, also a
responsibility to cross examine a witness if it is intended
to argue
later that he evidence of the witness should be rejected. The
witness’ attention must first be drawn to a particular
point on
the basis of which it is alleged that he is not speaking the truth
and thereafter be afforded an opportunity of providing
an explanation
(see Zwart and Mansell v Snobberie (Cape) (Pty) Ltd 1984 (1) PH
F19(A)). A failure to cross-examine may, in general,
imply an
acceptance of the witness’ testimony…
And in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[25]
the Court said the
following:
‘…
The
effect of the failure to put such an important issue to the
third respondent under cross-examination must mean that this
evidence
must be disregarded….’
[53]
Turning
to the findings of the first respondent, and dealing firstly with the
charge relating to the second respondent’s attendance
(or lack
thereof) at the interviews on 14 and 15 February 2013, the first
respondent acquitted her of this charge on the basis
that he accepted
her testimony that she was waiting for a list of the candidates to be
interviewed, from her cluster. As to the
second part of this charge,
the first respondent found that no direct evidence was presented with
regard to the waste of time and
resources resulting from the second
respondent not arriving at the interviews.
[54]
I
have to confess that I have difficulties with the reasoning of the
first respondent on this charge, and it is in my view apparent
that
the first respondent completely ignored important evidence and
pertinent probabilities.  It was clear that the commissioner

wanted the interview process concluded by 15 February 2013, and there
were a substantial number of interviews needed to be done.
It
must have been patently apparent to the second respondent, as
chairperson of the interview panel, that it would be wholly
inappropriate
to only start these interviews late in the afternoon on
15 February 2013, when it was undisputed that the interviews were
actually
scheduled to start on the morning of 14 February 2013.
[55]
It
would appear from the reasoning of the first respondent that he
completely ignored the clear and, in essence, uncontradicted
evidence
of Colonel Jonck.  He testified that he specifically informed
the second respondent, as panel head, of the interviews
that would
start on 14 February 2013 at 08h00 and arranged this with her.
Also, the entire panel and all the candidates were
arranged to be
present on 14 February 2013 for the interviews, and were in
attendance. Colonel Jonck also testified that he telephoned
the
second respondent several times on 14 February 2013 to ask where she
was and she said she was ‘busy’ at the provincial
head
office.  Jonck testified that the panel and the candidates
waited all day on 14 February 2013 for the second respondent
to
arrive, when he eventually called the second respondent to obtain
permission to release them all, with instructions to return
the
following day.
[56]
When
the second respondent again did not arrive the morning of 15 February
2013, Jonck called her again, and she answered she was
‘on her
way’, only to finally arrive virtually at the end of the day.
It is surely obvious that during this entire
time, the entire
panel and candidates simply waiting for the second respondent to
arrive, is an utter waste of time and resources,
clearly an
embarrassment, and smacks of unprofessional behaviour on her part.
[57]
I
also have difficulty in understanding the first respondent’s
acceptance of what is the second respondent’s mere
ipse
dixit
that she was waiting for a list of candidates from the cluster.
How can this explanation have any substance if all the other
panel
members, as well as all the candidates on the list to be interviewed,
were ready and present to proceed with the process
on 14 February
2013? Jonck, as station commander at SAPS Actonville had attended to
all the logistics. Also, Jonck specifically
arranged with her on 14
February 2014 to come on both 14 and 15 February 2013.  There
was nothing for the second respondent
to do but to arrive and chair
the interview panel.  Had the first respondent properly,
rationally and reasonably considered
this evidence, he would not have
accepted the explanation by the second respondent that she was
waiting for some or other list
from the cluster.
[58]
I
have little hesitation in concluding that the first respondent, in
acquitting the second respondent of the charge relating to
her
attendance at the interviews on 14 and 15 February 2013, ignored
crucial evidence and pertinent probabilities, tainting his

determination with irrationality and rendering it unreasonable. The
conclusion arrived at is at odds with the principle of legality,
as
contemplated by the review test referred to above.  I am
satisfied that the second respondent, without any proper cause
of
reason, simply neglected to attend at a process she was actually
instructed to preside over, which is entirely unacceptable
behaviour.
It follows that the second respondent must be guilty of this charge.
[59]
The
next finding of the first respondent to be considered is his finding
where it comes to the list of approved candidates, and
the subsequent
alteration of the same. As referred to above, the first respondent
acquitted the second respondent of any wrongdoing
on this charge as
well.  The first respondent’s reasoning in this regard, in
summary, was that the testimony of Captain
Mokhoseng gave relating to
the list had to be rejected, because he contradicted his earlier
statement and did not report his allegation
that the second
respondent did not want to sign the list because Bocibo was not
included, to Alwar (the secretary) when she asked
him on 18 February
2013 if the second respondent had signed the list.  The first
respondent also accepted the second respondent’s
explanation
that she trusted that the list ultimately presented to her was
correct and she just signed it on that basis, which
he regarded as a
proper defence.
[60]
In
considering the aforesaid reasoning of the first respondent, one has
to first deal with the undisputed evidence.  What was
undisputed
is that it was agreed by the panel that the 11 candidates with the
highest scores would be listed by the panel secretary,
and this list
would then be presented to the second respondent as head of the panel
to sign off.  It is equally undisputed
that the secretary,
Alwar, prepared the proper list of candidates with the highest
scores, dated 18 February 2013, and this list
did not include Bocibo.
It is finally undisputed that the list was altered by Captain
Mokhoseng on 19 February 2013 to include
Bocibo, and this list was
then presented to the second respondent and she simply signed it off.
[61]
What
is hotly contested is the manner of the second respondent’s
involvement in the alteration of this list.  Captain
Mokhoseng
testified that he did take the list to the second respondent on 18
February 2013 to sign, and she refused because there
was a ‘mistake’
in that Bocibo’s name did not appear on this list. Mokhoseng
testified that he took it on himself
to alter the list to include
Bocibo, which he then presented to the second respondent the
following day, and she then signed it.
According to the second
respondent, Mokhaseng never came to her on 18 February 2013, and only
brought her a list on 19 February
2013 which she signed.  The
first respondent, as touched on above, in essence concluded that all
that happened where it came
to the list and the alteration thereof
was due to Mokhoseng’s own irregular conduct, and the second
respondent had no reason
not to trust him.
[62]
In
the context of the undisputed facts, there is yet again another
pertinent issue the first respondent simply did not consider.
This is
the fact that the second respondent actually signed an irregular list
on 19 February 2013, when she should never have done
this in the
first place.  As panel chairperson, she had the direct duty to
ensure all was in order when she signed the list,
and when this list
was submitted to the provincial commissioner to make the
appointments. That is the very reason why she is, in
terms of the
Instruction, directly responsible for all record keeping and making
the actual recommendation for appointments.
[63]
For
her to, on her own version, just take a list and sign it without any
form of checking if it is correct is an indictment in itself.

Considering her clear duties as panel chairperson, she must have had
all the records available, and then it would have been a simple

exercise of comparing the names on the list to the marks awarded as
reflected in the interview records.  The fiduciary duty
that
rested squarely on the shoulders of the second respondent
necessitated that she had to do this, before she signed the list.

To defer to a subordinate and seek to shift all blame away from her
on the basis of having some form of misplaced ‘trust’
in
him is simply untenable.
[64]
This
kind of excuse of misplaced trust creates a fertile breeding ground
in which corruption and maladministration can flourish.
To ascribe to
such an approach would make it easy for a responsible functionary in
the public service to walk away from such situations,
scot free so to
speak, by just saying he or she trusted everyone else. In my view, an
uncompromising approach must be adopted in
the public service in
holding all responsible functionaries fully accountable for any
corruption or maladministration perpetrated
under their watch, even
if they are not directly involved.  That is the only way this
scourge can be eradicated, by starting
in essence at the top.
In
Member
of the Executive Council for Health, Eastern Cape and Another v
Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute
[26]
it was held:
‘
Corruption
and
maladministration do not only pose a serious threat to our democratic
order, but are also inconsistent with the Constitution.
As observed
by this Court in
Shaik
,
corruption is “antithetical to the founding values of our
constitutional order.” In
Heath
,
this Court held:
“
Corruption
and maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution. They undermine
the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms. They
are
the antithesis of the open, accountable, democratic government
required by the Constitution. If allowed to go unchecked and

unpunished they will pose a serious threat to our democratic state.”
’
[65]
As
touched on above, and under the Instruction, the second respondent as
properly appointed panel chairperson owed a fiduciary duty
to the
applicant to ensure that the process was properly and lawfully
conducted, completed, and a proper and lawful list of approved

candidates be submitted to the applicant for appointment. The real
charge against the second respondent, as contained in the plethora
of
individual formulated charges, was squarely aimed at a contravention
of this duty.  In
Sappi
Novoboard (Pty) Ltd v Bolleurs
[27]
it was held as
follows:
‘
It
is an implied term of the contract of employment that the employee
will act with good faith towards his employer and that he
will serve
his employer honestly and faithfully … The relationship
between employer and employee has been described as a
confidential
one … The duty which an employee owes his employer is a
fiduciary one 'which involves an obligation not to
work against his
master's interests' …’
[66]
In
Ganes
and Another v Telecom Namibia Ltd
[28]
the Court said:
‘
As
an employee of the respondent and in the absence of an agreement to
the contrary the first appellant owed the respondent a duty
of good
faith. This duty entailed that he was obliged not to work against the
respondent's interests; not to place himself in a
position where his
interests conflicted with those of the respondent …
’
The
Labour Appeal Court in
Bonfiglioli
SA (Pty) Ltd v Panaino
[29]
applied the above ratio in
Ganes
as follows:
‘…
at
common law, the employee owes the employer a duty of good faith. In
Ganes
& another v Telecom Namibia Ltd
,
it was said that the duty of good faith entails that an employee is
obliged not to work against the interests of his/her employer
and not
to place himself/herself in a position where his/her interests
conflict with those of the employer. In
Council
for Scientific & Industrial Research v Fijen
,
it was stated that:
'It
is well established that the relationship between employer and
employee is in essence one of trust and confidence and that,
at
common law, conduct clearly inconsistent therewith entitled the
"innocent party" to cancel the agreement.
'
[67]
As
referred to above, the first respondent in effect placed all the
blame for what happened on Captain Mokhoseng. I accept that
Captain
Mokheseng was an active and direct participant in the irregularity
relating to the list, and he should be blamed. But this
does not mean
that the second respondent is excused. She simply cannot be permitted
to shirk her fiduciary duty towards the applicant,
considering the
seniority of her position and the specific responsibility bestowed
upon her, by pointing a finger at Captain Mokhoseng.
[68]
What
is hard to accept is that if it was all Captain Mokheseng’s
doing to irregularly alter the list, why would he simply
not prepare
his own list in the first place and take it to the second respondent
to approve. Why would the secretary, Alwar, prepare
a proper list in
the first place which remained on record, and why would Captain
Mokhoseng tell her on 18 February 2013 when she
asked whether the
second respondent had signed the list that she had not. All Captain
Mokheseng needed to do, if what happened
was all his own doing, was
to prepare a list himself from the outset, have the second respondent
sign it, and tell Alwar it had
been signed.
[69]
Considering
the evidence, it is my view that Captain Mokhoseng indeed went to the
second respondent on 18 February 2013 to have
her sign the list.
I do accept that the second respondent never actually instructed
Captain Mokhoseng to change the list,
and that all she did was to
refuse to sign it because she said there was a ‘mistake’
on it because Bocibo’s name
was not there. This lack of a
specific instruction to change the list emanating from the second
respondent was conceded by Captain
Mokhoseng in evidence.
Where Captain Mokhoseng then went wrong is that he acceded to the
view adopted by the second
respondent and then took it upon himself
to amend the list and change records to have Bocibo’s name
appear thereon, and there
being a substantiated basis for this being
the case. But these wrongdoings of Captain Mokhoseng cannot mean the
second respondent
escapes liability.  Again, what she should
have simply done is to take the list given to her on 18 February
2013, compare
it with the scores on record, and then either approve
it if it matched the highest scores or reject it if it did not, with
instructions
how to rectify it. The conduct of the second respondent
relating to the list gives rise to a natural and logical inference
that
she wanted it to reflect the name of a particular person, which
would of course be irregular. In simple terms, she ‘implied’

to Captain Mokhoseng what she wanted, and he obliged.
[70]
It
thus follows that the first respondent, in acquitting the second
respondent of the charge relating to the irregular amendment
of the
recommended candidate list on 18 and 19 February 2013, misconstrued
the evidence and failed to have regard to crucial probabilities.
Yet
again, this infringes on the principle of legality as contemplated by
the review test set out above, and is an irregular and
unreasonable
outcome. In short, I am satisfied that the second respondent failed
to discharge her duties, and breached the fiduciary
duty that rested
on her, in not ensuring that a proper and lawful candidate list was
approved by her for presentation to the commissioner.
I also accept
that she was indeed involved (albeit indirectly) in the irregular
amendment of the candidate list.  I conclude
that the second
respondent should have been found guilty of this charge as well.
[71]
Turning
then to the third charge of the second respondent failing to adhere
to the instruction to complete the interview process
by 15 February
2013, the evidence speaks for itself.  It was undisputed that
the interview process, by virtue of an instruction
from the
commissioner, needed to have been completed on 15 February 2013.
Clearly, this contemplated close of normal business
on that day.
The reality is that because of the second respondent’s failure
to timeously attend the interviews, this
deadline was not met.
As I have said above, the second respondent had no legitimate
explanation for not attending at the
interviews as she was required
to do.
[72]
The
manner in which the first respondent chose to deal with this charge
is most peculiar.  He in effect reasons that the 15
February
2013 deadline ended just before midnight on that day, and because the
interviews concluded at 02h00 into the following
day, there was no
one to ‘receive’ the outcome as it was outside business
hours, which meant the deadline had been
met.  This reasoning is
contrived and unsustainable.  As I have said above, a deadline
of 15 February 2013 contemplated
close of normal business on that
day, and not just before midnight. In order to comply with the
deadline, the ‘outcome’
of the interviews must be
susceptible to being ‘received’ whilst there was still
someone to receive it. Added to this,
the point remains that the
second respondent could have concluded the process by the stipulated
deadline on 15 February 2013, but
due to her own failure she did
not.  And in the end, completion of the process at 02h00 on 16
February 2013 is simply not
completion by 15 February 2013, no matter
how one looks at it.
[73]
Therefore,
the manner in which the first respondent dealt with this third charge
of insubordination leaves much to be desired, and
clearly infringes
on the principle of legality.  The first respondent’s
finding negates pertinent and even undisputed
evidence, and his
reasoning is irrational and irregular. By acquitting the second
respondent on this charge, the first respondent
acted unreasonably
and irrationally. The evidence fully supported an outcome that the
second respondent was guilty of this charge,
and I so determine.
[74]
In
the end, the Court in
Hendricks
[30]
held:
‘
One
of the principal objects of local government is to provide for
democratic and accountable government to local communities. The
first
respondent has a public duty to eradicate corruption and malfeasance
from within its ranks and structures. …
’
Even
though the Court in
Hendricks
was dealing with a local authority, the exact same reasoning would
certainly equally apply to a national public service entity,
such as
the applicant.  The applicant has a duty to eradicate the kind
of behaviour referred to above. If the current situation
resulting
from the decision of the first respondent is not set aside, it would
be a serious setback in the fight against maladministration
and
corruption, and would send the wrong kind of message to other
employees in the applicant where it comes to the conducting of

discipline.
[75]
In
summary, I conclude that the applicant’s review application has
substance.   The decision of the first respondent
as
chairperson acquitting the second respondent of all the charges
against her infringes of the principles of legality and rationality.

The first respondent failed to account for all the relevant facts
placed before him, and did not consider several material facts
and
principles.  The finding of the first respondent acquitting the
second respondent of all the charges against her therefore
falls to
be reviewed and set aside.
[76]
Because
the applicant’s review application succeeded, it is therefore
still necessary to decide the merits of the second respondent’s

application to declare her current suspension unlawful, and to uplift
the same, which I will turn to next.
The
suspension
of
the second respondent
[77]
The
second respondent does not take issue with her initial suspension
effected on 6 August 2014, pending the conclusion of the disciplinary

proceedings. The case of the second respondent is that this
suspension ended with her acquittal by the first respondent on 29
October 2014, and it was the later suspension that must be held to be
unlawful.
[78]
On
the undisputed factual matrix, it is clear that immediately following
her acquittal, the second respondent sought to resume her
normal
duties, but was prevented from doing so by the applicant.  After
some to and fro on the issue, the applicant then sought
to
‘formalize’ the process, for the want of a better
description, by implementing what it called a ‘common law’

suspension on 25 November 2014, after asking the second respondent to
make representations as to why this should not happen. This
‘common
law’ suspension, as the applicant called it, was implemented
pending the finalization of the review application
it had already
brought at that time, and it would be on full pay.
[79]
According
to the second respondent, this ‘common law’ suspension of
25 November 2014 was unlawful. At the heart of the
second
respondent’s case in this regard is a contention that such a
‘common law’ suspension simply cannot be
applied in the
applicant, because all suspensions are determined by the Regulations,
which only makes provision for suspension
until the conclusion of
internal disciplinary proceedings, which had already happened. The
second respondent contended that there
is no provision applicable in
the applicant that would allow for a suspension pending the
conclusion of a review application.
[80]
The
suspension of employees in the applicant is indeed regulated by
Regulation 13 of the Regulations.  Considering the issues
raised
by the second respondent, it is important to quote this regulation in
full, which reads:
‘
(1)
The employer may suspend with full remuneration or temporarily
transfer an employee on conditions, if any, determined by the

National Commissioner.
(
2)
The National or the Provincial or Divisional Commissioner (the
Commissioner) may suspend the employee without remuneration, if
the
Commissioner on reasonable grounds, is satisfied that the misconduct
which the employee is alleged to have committed, is misconduct
as
described in annexure A and that the case against the employee is so
strong that it is likely that the employee will be convicted
of a
crime and be dismissed: provided that —
(a)
before
suspending an employee without remuneration, the employee is afforded
a reasonable opportunity to make written representations;
(b)
the
Commissioner considers the representations and informs the employee
of the outcome of the representations;
(c)
the
disciplinary process must be initiated within 14 calendar days of the
date of the decision to suspend the employee without remuneration;

and
(d)
the disciplinary process is not completed within 60 calendar days
from the commencement of the suspension, the question of continued

suspension without remuneration must be considered by the
Commissioner and the employee may again make written representations

which the Commissioner must consider. The Commissioner must take any
decision on continued suspension within 7 calendar days of
receiving
written representations on continued suspension and inform the
employee of the outcome of the representations. A decision
that the
suspension continues, may only be for a further period of 30 calendar
days.
(3)
A suspension is a precautionary measure.
'
[81]
It is
clear that Regulation 13 contemplates two kinds of suspensions, one
being with pay, and the other being without pay. However,
and in both
instances, the suspension must be a precautionary measure.
[31]
Where it comes to suspensions without pay, a number of conditions
have to be met where it comes to the lawfulness of such a suspension,

which include that the alleged misconduct must be serious with a
prima
facie
assessment that the case against the employee is strong, the
opportunity to make representations prior to suspension, prompt
initiation
of disciplinary proceedings, a maximum permitted time
limit for such suspension.  None of these conditions apply to a
suspension
with pay.
[32]
[82]
In
Ntuli
v SA Police Service and Others
[33]
the Court said the following about the application of Regulation 13:
‘
It
is immediately clear from the regulation that an employee does not
have the right not to be suspended, provided that it is done
in terms
of the regulation.
The
fact that the applicant has not been found guilty of misconduct, is
entirely irrelevant to the suspension. The regulation makes
it clear
that it is a precautionary measure taken before any misconduct has
been proven …
’
[83]
Because
any suspension under Regulation 13 must be a ‘precautionary
measure’, it has to be considered what ‘precautionary’

in this context means.  In
Police
and Prisons Civil Rights Union on behalf of Sephanda and Another v
Provincial Commissioner, SA Police Service, Gauteng Province
and
Another
[34]
held:
‘
A
precaution is 'a measure taken beforehand to avoid a danger or ensure
a good result' (
Shorter
Oxford English Dictionary
6 ed 2007 vol 2). …
’
[84]
Applying
the above, I conclude that there is nothing in Regulation 13 which
creates a right in favour of the second respondent not
to be
suspended.  The applicant still remains entitled to suspend the
second respondent, provided it just complies with the
provisions of
Regulation 13.  And where it comes to a suspension with full
remuneration, all that the applicant would need
to show for the
suspension to be lawful under the Regulations is that it was a
precautionary measure, which in this case is to
ensure a ‘good
result’.
[85]
On
the facts
in
casu
,
the suspension of the second respondent on 25 November 2014 was a
suspension with full remuneration. Despite not even being obliged
to
do so, the applicant nonetheless also afforded the second respondent
an opportunity to make written submissions prior to suspension.

All that remains to be considered is whether this suspension is
indeed a precautionary measure.  In
Koka
v Director General: Provincial Administration North West
Government
[35]
,
Landman
J (as he then was) referred with approval to the following remarks
made by Denning MR in
Lewis
v Heffer and others
[1978] 3 All ER 354
(CA) at 364
c-e
:
‘
Very
often irregularities are disclosed in a government department or in a
business house; and a man may be suspended on full pay
pending
enquiries. Suspicion may rest on him; and he is suspended until he is
cleared of it. … The suspension in such a
case is merely done
by way of good administration. A situation has arisen in which
something must be done at once. The work of
the department or office
is being affected by rumours and suspicions. The others will not
trust the man. In order to get back to
proper work, the man is
suspended...
'’
[86]
The
applicant,
in
casu
,
indeed relied on the concept of what can be said to be ‘good
administration’. The applicant described it that the
second
respondent’s presence at work would not be conducive to sound
labour relations, until the review application had first
been finally
determined. I am satisfied that this would indeed be a proper basis
for what can be considered to be a ‘precautionary
measure’.
Also, the applicant in suspending the second respondent referred to
the seriousness of the allegations against
her, as well as the
seniority of her position. Similarly, this would be proper cause for
invoking suspension as a precautionary
measure, considering what the
Court said in
Mojaki
v Ngaka Modiri Molema District Municipality and Others
[36]
‘…
The
allegation that the applicant refused to obey instructions from the
administrator is in my view very serious taking into account
in
particular the level of his responsibility and seniority. It is for
this reason that I am of the view that the facts and the

circumstances justified the action taken by the administrator to
suspend him. In other words, there exists an objectively justifiable

basis for the administrator to deny the applicant access to the
workplace …
’
[87]
Therefore,
I am satisfied that the suspension of the second respondent on full
remuneration on 25 November 2014 was indeed a proper
precautionary
measure pending the finalization of the review application, which had
already been brought at that time, and was
in line with what is
provided for in Regulation 13(1) as read with subclause (3). It does
not really matter what the applicant
called it, namely a ‘common
law’ suspension.  Whatever the label may be that is
attached to the suspension, it
is nonetheless permitted by the
Regulations for the reasons I have set out above.
[88]
In
any event, and under the common law of contract, an employer would be
justified in excluding an employee from the workplace if
the employer
deemed it prudent or appropriate to do so, provided this exclusion
does not remove or prejudice the right of the employee
to be
paid.
[37]
This is certainly the case
in
casu
,
based on the facts already mentioned.
[89]
It
must be remembered that is not an issue about whether the suspension
is fair or unfair. It is of course true that the second
respondent
would have always been entitled to challenge her suspension, even if
it was just a precautionary measure and on full
pay, as an unfair
labour practice
[38]
to the appropriate bargaining council.
[39]
The right to fair dealing in the case of suspension cannot be implied
into the contract of employment, where the LRA specifically
provides
for it under the auspices of the unfair labour practice
jurisdiction.   In
SA
Maritime Safety Authority v McKenzie
[40]
the Court said:
‘…
.
insofar
as employees who are subject to and protected by the LRA are
concerned, their contracts are not subject to an implied term
that
they will not be unfairly dismissed or subjected to unfair labour
practices. Those are statutory rights for which statutory
remedies
have been provided together with statutory mechanisms for resolving
disputes in regard to those rights. The present is
yet another case
in which there is an attempt to circumvent those rights and to
obtain, by reference to, but not in reliance upon,
the provisions of
the LRA an advantage that it does not confer.
’
[90]
The second respondent has not
pursued an unfair labour practice dispute.  Instead, she chose
to approach this Court directly
to challenge her suspension as being
unlawful. Having failed to establish unlawfulness, the second
respondent cannot fall back
on fairness, and her application must
fail.
[41]
The second respondent respondent’s application to declare her
suspension of 17 November 2014 to be unlawful must thus
be dismissed.
Conclusion
[91]
Therefore,
and based on all the reasons set out above, I conclude that the first
respondent’s decision where it came to acquitting
the second
respondent of the misconduct with which she had been charged is
irrational and fails to satisfy the principle of legality.
It must be
reviewed and set aside, and be substituted with a determination that
the second respondent is guilty of the three charges
summarized
above, being her failure to timeously attend at the interviews on 14
and 15 February 2013, the irregular amendment of
the candidate lists
on 18 and 19 February 2013, and finally the failure to comply with
the 15 February 2013 deadline to complete
the interview process.
[92]
Once an
employee is found guilty of a charge, the next consideration in any
disciplinary proceedings would be that of an appropriate
sanction.
As said in
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others
[42]
:
‘…
a
typical
arbitration comprises essentially two phases. The first is the
receipt and evaluation of evidence in order to make factual
findings.
That phase is governed by the ordinary rules of evidence and
procedure and no value judgment is involved. If the employee's
guilt
is established, the second phase arises, being the identification and
weighing of the factors relevant to the determination
of sanction.
Various components must be placed in the scales: an objective
analysis of the particular facts of the case; adequate
regard to the
applicable statutory and policy framework; and adequate regard to the
pertinent jurisprudence as developed by the
courts. Only then can a
value judgment, properly so called as a comparative balancing of
competing factors, be made by the commissioner,
producing as an end
result an impartial answer to the central question whether or not the
dismissal was fair. …
’
I
see no reason why the same considerations should not apply to
deciding a review application relating to a finding of an internal

chairperson in the public service sector, as would the case
in
casu
.
[93]
The
applicant, in its notice of motion, has sought relief in the form a
determination that the second respondent be dismissed. But
it is
impossible to competently make such a determination in these
proceedings, considering what must be done in the ‘second

phase’ of the enquiry as articulated in
Theewaterskloof
to properly make such a decision.
In
deciding whether the decision to dismiss is fair, the ‘totality
of circumstances’ must be considered.
[43]
This ‘totality
of circumstances’ include
the
reason the employer imposed the sanction of dismissal, the basis of
the employee's challenge to the dismissal, the harm caused
by the
employee's conduct, whether progressive discipline would be
appropriate, the effect of dismissal on the employee, the employee’s

service record,
the
issue of the nature of the misconduct, any breakdown of the trust
relationship, the existence of dishonesty, the existence of
genuine
remorse, the job function and the employer’s disciplinary code
and procedure.
[44]
[94]
The
difficulty in this case is that because the first respondent had
acquitted the second respondent, none of these considerations,
where
it comes to the issue of an appropriate and fair sanction, have been
dealt with in evidence before the first respondent.
Even in the
context of the Regulations, the Court in
Potgieter
v National Commissioner of the South African Police Service and
Another
[45]
said:
‘
Under
the heading "APPROPRIATE SANCTION" the disciplinary
regulations provide that the aims of a disciplinary sanction
are
"rehabilitation, deterrence and retribution." The
disciplinary regulations further provide that in assessing whether

the relationship between the respondent and the affected employee has
broken down because of misconduct the chairperson of the
disciplinary
hearing should apply the objectives as enunciated in the Labour
Appeal Court decisions. The guidelines also recognise
that in
imposing a sanction a chairperson of a disciplinary hearing would
exercise a value judgement taking into account the circumstances
of a
given case.
’
The
simple fact is that as yet in this matter, no assessment as
contemplated by the aforesaid
dictum
has even happened, and there exists no proper factual matrix upon
which it would even be possible for me to make such an assessment.
[95]
The issue of
an appropriate sanction to be imposed on the second respondent
therefore cannot be decided by me in these proceedings.
This
issue must be remitted back to the disciplinary proceedings presided
over by the first respondent for proper determination.
The
disciplinary proceedings must be reconvened, and the applicant and
the second respondent must then, considering that the second

respondent is guilty of the misconduct, lead all the evidence and
deal with all the considerations prescribed by law so as to enable

the first respondent as chairperson to arrive at a fair determination
on the issue of an appropriate sanction. I shall therefore
remit the
determination of an appropriate and fair sanction to be imposed on
the second respondent back to the first respondent
for determination.
In the event that the first respondent is no longer available or
incapable of presiding over the disciplinary
proceedings, the
applicant may appoint an alternative chairperson of equal rank and
status to decide this issue, so as to bring
this matter to finality.
[96]
Also in the interest of
bringing this matter to close once and for all, I do not intend to
leave the time period within which the
disciplinary proceedings must
be concluded open ended.  I intend to impose a specific time
limit within which the disciplinary
proceedings must be finally
concluded, and a final determination handed down by the chairperson
as to the appropriate sanction
to be imposed on the second
respondent. Considering the time periods as reflected in the
Regulations, in general, I consider a
period of 60 (sixty) days to be
appropriate within which to conclude the disciplinary proceedings
against the second respondent.
[97]
As stated above, the second
respondent’s application to declare her suspension to be
unlawful must be dismissed.
[98]
This then
only leaves the issue of costs. In terms of the provisions of section
162(1) and (2) of the LRA, I have a wide discretion
where it comes to
the issue of costs. I am mindful of the fact that as matters still
currently exist, there is a continuing employment
relationship
between the applicant and the second respondent.  A further
consideration is that it was the failure of the applicant’s
own
appointed functionary that made these proceedings necessary.  In
all these circumstances, the appropriate order where
it comes to
costs, is to make no order as to costs.
Order
[99]
In the
premises, I make the following order:
1.
The
decision of the first respondent handed down on 29 October 2014
acquitting the second respondent of all charges against her,
is
reviewed and set aside.
2.
The
decision of the first respondent is substituted with a decision that
the second respondent is guilty of the three charges relating
to her
failure to timeously attend at the interviews on 14 and 15 February
2013, the irregular amendment of the candidate list
on 18 and 19
February 2013, and the failure to comply with the 15 February 2013
deadline to complete the interview process.
3.
The
disciplinary hearing shall be reconvened before the first respondent
as chairperson, or failing him a chairperson of equal rank
and
status, for the purposes of determining an appropriate sanction for
the misconduct the second respondent has been found guilty
of in
terms of this order.
4.
The
disciplinary proceedings as contemplated by paragraph 3 of this order
shall be concluded within 60 (sixty) days of date of this
order.
5.
The
second respondent’s application under case number J 1553 / 15
is dismissed.
6.
There
is no order as to costs.
_____________________
S.Snyman
Acting Judge of the Labour Court
Appearances:
For the Applicant: Adv L Pillay
Instructed by: The State Attorney
For the Second Respondent: Adv G
Benson
Instructed by: Ndebele Attorneys
[1]
Act 66 of 1995.
[2]
Section 145(1)(b).
[3]
(2014) 35 ILJ 613
(CC).
[4]
Id at para 35.
[5]
(2008) 29 ILJ 73
(CC) at para 41.  See also
Gcaba
v Minister for Safety and Security and Others
(2010)
31 ILJ 296 (CC) at para 56.
[6]
(2012) 33 ILJ 1822
(LAC) at para 26.
[7]
(2015) 36 ILJ 163
(LAC) at para 27.
[8]
Id at para 27.
[9]
Id at para 29.
[10]
(2016) 37 ILJ 1857
(LAC) at para 38.
[11]
Id at para 28.
[12]
(
supra
)
at para 28.
[13]
(2014) 35 ILJ 2131
(LAC) at para 33.
[14]
Id at para 34.
[15]
Id at para 35.
[16]
(2009) 30 ILJ 2653
(SCA) at para 18.
[17]
Act 68 of 1995.
The applicable version of the disciplinary regulations themselves
were published by way of
GN
R643
in
Government Gazette No 28985 of 3 July 2006.
[18]
Regulation 3(a) and (c).
[19]
See in particular Regulation 4(b) and
(d).
[20]
See Schedule 8 Clause 4(1) –
(3) and Clause 7.
[21]
(2013) 34 ILJ 1107
(SCA) at para 20.
[22]
(2005) 26 ILJ 1984
(LC) at para 155.  See also
Ntshangane
v Speciality Metals CC
(1998) 19 ILJ 584 (LC) at paras 17 – 18;
Wozney
v Myhill and Others
[2008] JOL 21309
(LC) at para 13;
Specialised
Belting and Hose (Pty) Ltd v Sello NO and Others
[2009] 7 BLLR 704
(LC)
at
para 19.
[23]
See
Clarence
v National Commissioner of the SA Police Service
(2011) 32 ILJ 2927
(LAC) at para 39.
[24]
(2005) 26
ILJ
1652
(LAC) at para 39; See also
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010) 31
ILJ
452 (LC) footnote 13 where it was said: ‘To rely on evidence
in the absence of its having been put to the opposing party's

witnesses under cross-examination constitutes a reviewable defect.’
[25]
(2013) 34
ILJ
2662 (LC) at para 41.
[26]
2014 (5) BCLR 547
(CC) at para 47.  See also
Helen
Suzman Foundation v President of the Republic of South Africa and
Others; Glenister v President of the Republic of South
Africa and
Others
2015
(1) BCLR 1
(CC)
at
para 1.
[27]
(1998) 19
ILJ
784 (LAC) at para.7.
[28]
(
2004)
25 ILJ 995 (SCA) at para 25.  See also
Volvo
(Southern Africa) (Pty) Ltd v Yssel
(2009) 30 ILJ 2333 (SCA) at paras 16 – 17.
[29]
(2015) 36 ILJ 947
(LAC) at para 26
[30]
(
supra
)
at para 20.
[31]
Police and
Prisons Civil Rights Union on behalf of Sephanda and Another v
Provincial Commissioner, SA Police Service, Gauteng
Province and
Another
(2012)
33 ILJ 2110 (LC) at para 11.
[32]
See
Ntuli
v SA Police Service and Others
(2013)
34 ILJ 1239 (LC) at para 15.
[33]
(2013) 34 ILJ 1239
(LC)
at paras 16 –
17.
[34]
(2012) 33 ILJ 2110
(LC) at para 12.
[35]
(1997)
18 ILJ 1018
(LC)
at 1028E-I.
[36]
(2015) 36 ILJ 1331
(LC) at para 34.
[37]
See Koka (
supra
)
at 1027F-J;
HOSPERSA
and Another v MEC for Health, Gauteng Provincial Government
(2008)
29 ILJ 2769 (LC) at para 17;
Singh
v SA Rail Commuter Corporation Ltd t/a Metrorail
(2007)
28 ILJ 2067 (LC) at paras 8 and 12.
[38]
Section 186(2)(b) reads: ‘
‘
any
unfair act or omission that arises between an employer and an
employee involving- .... the unfair suspension of an employee
or any
other unfair disciplinary action short of dismissal in respect of an
employee.’
[39]
See
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
(2012)
33 ILJ 2033 (LAC) at paras 43 and 46;
Golding
v HCI Managerial Services (Pty) Ltd and Others
(2015) 36 ILJ 1098 (LC) at para 43;
Mere
v Tswaing Local Municipality and Another
(2015)
36 ILJ 3094 (LC) at para 56;
Ntuli
(
supra
)
at paras 21 – 22.
[40]
(2010) 31 ILJ 529
(SCA) at para 56.  See also
Maqubela
v SA Graduates Development Association and Others
(2014) 35 ILJ 2479 (LC) at para 22;
Lebu
v Maquassi Hills Local Municipality (1)
(2012)
33 ILJ 642
(LC)
at para 12.
[41]
See
Mere
(
supra
)
at paras 53 and 55.
[42]
(2010) 31 ILJ 2475
(LC) at para 19.  See also
Bidair
Services (Pty) Ltd v Mbhele NO and Others
(2016) 37 ILJ 1894 (LC) at para 69.
[43]
See the
dictum
of Navsa AJ in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405
(CC)
at para 78.
See also
National
Commissioner of the SA Police Service v Myers and Others
(2012) 33 ILJ 1417
(LAC) at
para 82;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC)
at
para 94
.
[44]
See
Sidumo
(
supra
)
at paras 116 – 117;
Eskom
Holdings Ltd v Fipaza and Others
(2013)
34 ILJ 549 (LAC) at para 54;
Harmony
Gold Mining Co Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2013)
34 ILJ 912 (LC) at para 22;
Trident
SA (Pty) Ltd v Metal and Engineering Industries Bargaining Council
and Others
(2012)
33 ILJ 494 (LC) at para 16;
Taxi-Trucks
Parcel Express (Pty) Ltd v National Bargaining Council for the Road
Freight Industry and Others
(2012) 33 ILJ 2985 (LC) at para 18;
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 34;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2011)
32 ILJ 1189 (LC) at paras 26 – 27;
City
of Cape Town v SA Local Government Bargaining Council and Others (2)
(2011)
32 ILJ 1333 (LC) at paras 27 – 28;
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31 ILJ 901 (LAC) at paras 37 – 38.
[45]
[2008] JOL 22672
(LC) at para 8