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[2017] ZALCJHB 392
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National Commissioner of Police and Another v Appeals Authority and Others (JR375/12) [2017] ZALCJHB 392 (27 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR375/12
In
the matter between:
THE
NATIONAL COMMISSIONER OF POLICE
First Applicant
THE
PROVINCIAL COMMISSIONER OF POLICE
Second Applicant
and
APPEALS
AUTHORITY
First Respondent
COLONEL
B.D. MBHELE
N.O
Second Respondent
CONSTABLE
T MAGADE
Third Respondent
Heard:
31 August 2016
Delivered:
27 October 2017
JUDGMENT
TLHOTLHALEMAJE,
J.
Introduction:
[1]
The applicants seek an order reviewing, correcting and setting aside
the decision of the second respondent (Colonel Mbhele),
acting in his
capacity as chairperson of the first respondent, (Appeals Authority).
The findings are dated 25 November 2011,
and had followed
upon an appeal lodged by the third respondent (Constable Magade),
against a decision of the internal disciplinary
chairperson who had
dismissed him following upon allegations of misconduct. The Appeals
Authority had set aside that decision and
reinstated Magade.
[2]
The review application is
opposed, and it is common cause that it was launched outside the time
periods stipulated in section 145(1)
[1]
of the Labour Relations Act 66 of 1995 (The LRA). The Applicants
accordingly sought condonation in that regard. The condonation
application is also opposed.
Condonation:
[3]
The decision under review is dated the 25 November 2011.
The applicants (through the founding affidavit of the Section
Head:
Legal Support Services, Adriaan Samuel Basson) in support of the
application for condonation averred that they only became
aware of
the decision on 07 December 2011. The application for
review therefore ought to have been launched on or about
the
20 January 2012.
[4]
The Notice of Motion was filed
and served on 24 April 2012, and the applicants contended
that the delay is about one (1)
month and three (3) weeks outside the
time period prescribed by the LRA
[2]
.
Magade, in the answering affidavit deposed to on his behalf by Ms.
Monica Monyela of POPCRU, does not dispute the period of the
delay.
When the application for review was filed and served however, it was
not accompanied by an application for condonation for
its late
filing. From the papers it appears that the application for
condonation was only filed and served on 16 August 2013,
and the application itself is signed and dated 3 July 2013.
[5]
The principles applicable to
applications for condonation are trite as well articulated in
Melane
v Santam Insurance Co. Ltd
[3]
in the following terms;
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[6]
Flowing
from
Melane
and other authorities, the Constitutional Court in
Brummer
v Gorfil Brothers Investment (Pty) Ltd
[4]
and
Grootboom
v National Prosecuting
Authority
[5]
confirmed
that in considering whether condonation should be granted,
the
test to apply is that of the interest of justice. The interests of
justice must be determined with reference to all relevant
factors
including those identified in
Melane
.
The various factors it was stressed, are not individually decisive
but should all be taken into account to arrive at a conclusion
as to
what is in the interests of justice.
[7]
In
Khosa
v Absa Bank Limited
[6]
,
Dlodlo AJA in confirming the test of interests of justice went
further and stated that to the extent that the factors to be
considered
were individually related, even if it was found that the
explanation put forth did not constitute a reasonable explanation, it
would not necessarily be regarded as an absolute bar to condonation,
as what was needed was indeed an objective conspectus of all
the
facts, as the importance of the issue and strong prospects of success
may compensate for a long delay
[7]
.
[8]
In applying the above principles to the
facts of this case,
as already indicated above, the delay in
launching the review application is one month and three weeks, and it
cannot be said that
such a delay is egregious.
[9]
The applicants explained the delay as being attributable to
the bureaucracy within SAPS in that upon receipt of the decision of
the Appeals Authority, the Provincial Head of Personnel Services had
to request legal opinion on whether a review should be pursued
or
not. The legal opinion was received on 13 December 2011.
The Provincial Head of Personnel Services then on 23 December 2011
wrote to the Provincial Head and Divisional Commander to request
permission to launch review proceedings.
[10]
It is not stated in the founding affidavit as to when such permission
was granted, or when the office of the State Attorney
was approached.
It is also not explained as to when Counsel was briefed or when any
consultations were held with Counsel. Monyela
in her answering
affidavit averred that the explanation proffered by the applicants
was not satisfactory at all.
[11]
It is trite that even if the
period of the delay in launching the application might not be
excessive, an application for condonation
still ought to be launched
as soon as the need to do so becomes apparent
[8]
.
In this case, the application for condonation was launched some 16
months after the review application. The applicants nonetheless
did
not proffer an explanation for this inordinate delay.
[12]
Ordinarily, in the light of these serious lapses on the part of the
applicants, the first inclination would be to dismiss the
application
for condonation, and automatically, this would also dispose of the
review application. This is particularly so in the
light of the
prejudice claimed by Magade as a result of these delays.
[13]
This however is not an ordinary case in the light of merits of the
review application as shall be dealt with below. On the
face of it,
it cannot be said that the applicants’ prospects of success on
the merits are weak as contended on behalf of
Magade. Upon a
consideration of the merits and the circumstances of this case, the
importance of the issues to be dealt with,
the importance of this case to employment relations within the SAPS
and to the public interest,
and the strong
prospects of success, I am of the view that these should compensate
for the time delays. Accordingly, the overall
considerations of the
interests of justice should dictate that the merits of the review
application be ventilated.
The
application for review:
[14]
Magade is employed by the South African Police Service as a Detective
since 2003 and is stationed at the Hanover Police Station,
Northern
Cape. On or about 23 December 2009, allegations related to
extortion were levelled against him and a criminal
case was
accordingly opened, with his docket being investigated by the ICD in
Kimberley.
[15]
Flowing from the criminal
investigations, disciplinary proceedings were also instituted against
Magade in terms of section 40 of
the South African Police Act
[9]
.
The allegations were:
“…
You
are hereby charged with misconduct, in that, you allegedly
contravened:
(1)
Regulation 20(z) commit
any common law or statutory office in that you have committed
extortion by colluding with two females to
have charges or complaints
of sexual assault layed against Richard Wedgewood withdrawn and
unduly influencing and extorting the
complaint to pay an amount of
R60 000 to have the charges withdrawn against him on 2009-12-23
at Hanover. (Sic)
(2)
Regulation 20(z) commit
any common law or statutory offence in that you have committed theft
by stealing R20 000 from Mr Richard
Wedgewood on 2009-12-23 at
Hanover
(3)
Regulation 20(f)
prejudices the administration, discipline or efficiency of a
department by unduly influencing Bianca Parks to lay
false charges
against Richard Wedgewood between June and July 2009 at Hanover”
[16]
An internal disciplinary
hearing was thereafter scheduled for 9 and 10 December 2010
and 14 January 2011
[10]
.
As appears from the record of proceedings
[11]
,
the hearing was postponed at the instance of Magade as he was booked
off sick.
[17]
The hearing was thereafter
rescheduled for 14 January 2011. Magade is accused of
having staged a walk out at that hearing
and was issued with a
Regulation 18 (5)
[12]
.
The hearing was then rescheduled for 09 March 2011. There
was an agreement between the parties that the hearing would
be
postponed to 19, 20 and 21 April 2011. When the matter was
supposed to proceed on 19 April 2011, Mr Eric
Gengwana on
behalf of Magade raised five (5) preliminary points. The Chairperson
of the hearing Lieutenant Colonel Prinsloo, had
considered the
preliminary points and dismissed them.
[18]
Upon the ruling on the preliminary points, Magade submitted a request
to the Chairperson of the hearing that his brother should
be allowed
to sit in the hearing as an observer. The request was opposed by the
representative of the applicants and was accordingly
refused by the
Chairperson. Gengwana then withdrew as Magade’s
representative and left the proceedings.
[19]
Magade was then afforded an opportunity to secure alternative
representation. When the proceedings resumed, he had not found
an
alternative representative and had requested a further postponement.
That application was opposed by the applicants in view
of the matter
having been postponed on several occasions before and the fact that
witnesses had been brought in from Cape Town
to come and
testify.
[20]
The Chairperson refused to grant a further postponement and proceeded
with the hearing. Magade had protested that he was unable
to
meaningfully participate in the proceedings as he was unrepresented.
He had refused to participate in the proceedings and declined
to
cross-examine the three witnesses called upon to testify on behalf of
the applicants, or to call his own witnesses or present
his own
defence. He had only entered a plea of not guilty in respect of all
the charges against him. Magade was nonetheless warned
by the
Chairperson of the consequences of his decision not to participate in
the proceedings.
[21]
The nub of the allegations against Magade based on the evidence of
three witnesses called by the SAPS can be summarised as
follows:
i.
Ms. Priscilla Absolon had an affair with Richard Wedgwood, then 62
years old, and were living
together at the latter’s residence.
Priscilla’s sister, Hazel, came to visit her in September 2009.
The allegation
against Wedgewood is that he had inappropriately
touched Hazel, which conduct constituted a sexual assault. This did
not sit well
with Priscilla, who had in turn discussed the matter
with Magade in confidence. At some point she happened to pass the
Hanover
Police Station where Magade was based, and the latter had
approached her and asked her if Hazel wanted to ‘make some
money’.
When she replied in the positive, Magade had remarked
that ‘they’ were going to have a ‘good Christmas’.
ii.
The next day Magade came to Priscilla’s house and took her and
Hazel to the police
station where they found Wedgewood waiting.
Magade then informed Wedgewood that Hazel was going to lay a case of
sexual assault
against him, at which stage Wedgewood had started
sobbing and said that he could not go to jail. It is at that stage
that Magade
had suggested to Wedgewood that he should pay the sisters
to avoid going to jail, to which Wedgewood had agreed.
iii.
Magade and Wedgewood then drove to De Aar to a bank for the latter to
withdraw money. Wedgewood’s
testimony was that he withdrew R82
000.00. Upon their return at the police station, an amount of
R20.000.00 was given to Priscilla
and Hazel, which they had counted
in front of Magade.
iv.
After this incident, Priscilla had gone to Cape Town and was at some
stage called by Magade,
who had informed her that she should stay in
Cape Town as the police were looking for her. Wedgewood had also
contacted her and
informed her that indeed the police were looking
for her, but only to make a statement regarding the incident.
v.
Hazel Absolon had repeated the allegation that Wedgewood had
inappropriately touched her.
She also confirmed that Magade had
suggested to them that they could make money out of the alleged
sexual assault claim. She further
confirmed having received an amount
of R20.000.00 after Magade and Wedgewood had returned from the bank
in De Aar. Magade had also
requested R100.00 from each of them.
vi.
Wedgwood, the alleged perpetrator of the sexual assault confirmed
having been called to
the police station on 23 December 2009
by Magade, where he had met Hazel and Priscilla. The two sisters
wanted R50.000.00
from him in order to withdraw the charges of sexual
assault against him. Wedgewood was well acquainted with Magade,
having spent
holidays with him in Port Elizabeth, Johannesburg and
Witbank. According to Wedgewood, Magade had suggested to him that to
get
the ‘problem’ sorted, he (Wedgewood) should pay Hazel
and Priscilla, failing which he could spent time in jail. Petrified
at the thought of spending time in jail over the Christmas period,
Wedgewood had then agreed to pay the two sisters.
vii.
Wedgewood was then accompanied by Magade to a bank in De Aar where he
withdrew an amount
of R82 000.00. Along the way from the bank, Magade
had then said to Wedgewood that if he gave him R20 000.00, he would
negotiate
with the sisters to reduce the amount they had demanded.
Wedgewood had obliged. Upon returning to the police station,
Wedgewood
handed all the money he had withdrawn from the bank to
Magade, who had in turn handed over R20 000.00 to the two sisters;
[22]
At the conclusion of the
hearing, Magade was found not guilty on charges 2 and 3. He was
however found guilty on charge 1, that
is, the charge of extortion,
in contravention of Regulation 20(z). A hearing on mitigation and
aggravation of sanction was thereafter
held on 16 May 2011.
Magade had participated in those proceedings and pleaded for a lesser
sanction
[13]
.
At the conclusion of the proceedings, a sanction of dismissal was
imposed.
[23]
Aggrieved at the findings and
sanction of the internal disciplinary hearing, Magade then through
POPCRU approached the South African
Police Service Appeals Authority
with an appeal
[14]
.
In summary, the grounds of appeal were that; there was no independent
investigation into the allegations against him; his Union
POPCRU, was
not informed or consulted prior to charges being laid against him;
there were delays in finalising the disciplinary
hearing; he was
denied representation; the chairperson of the hearing was biased; and
that his mitigating circumstances were not
considered
[15]
.
[24]
The Appeals Authority considered the matter and issued a ruling on
25 November 2011 in terms of which it was found
that it was
not proven on a balance of probabilities that Magade was guilty of
misconduct as charged. It was found that the dismissal
was both
procedurally and substantively unfair, and Magade was then
reinstated. The reasoning of Mbhele on behalf of the Appeals
Authority was as follows;
i.
To find that a misconduct was committed under Regulation 20(z), a
statutory offence or common
law offence must have been committed, and
the simplest way of proving this was by a mere production of a charge
sheet which will
have a case number. In the absence of a case number
or proof of criminal charges being laid against Magade, the Appeals
Authority
could not test the available evidence in respect of the
charges against him;
ii.
There was a ‘discrepancy’ in the employer’s case in
view of Hazel and
Priscilla having mentioned different amounts they
had received, with one saying R10 000.00 whilst the other said R20
000.00. The
difficulty also arose in respect of the amount of R60
000.00 mentioned in the charge sheet, which amount was not proven by
the
employer or its witnesses;
iii.
The fact that Magade was not represented
iv.
The charges against Magade were poorly crafted, making it impossible
to make a finding of
misconduct on a balance of probabilities.
The
Grounds for Review:
[25]
The Applicants contended that the Appeals Authority failed to apply
its mind when it made the conclusions outlined above, and
contended
that the decision could not stand in circumstances where three
witnesses’ testimony went unchallenged; where a
Captain Mostert
of SAPS had testified that there was a breach of honesty and trust
between Magade and the employer as a result
of the misconduct in
question, and further where Magade’s representative chose to
leave the proceedings.
[26]
It was further submitted that Magade still worked within the
community where he had committed the offence of which he was found
guilty of, that he had to interact with the same members of the
community who have to trust him enough to allow him to investigate
their complaints. The Applicants further submitted that the charging
of Magade with contravention of Regulation 20 (z) did not
require a
different procedure.
[27]
Magade in opposing the review application denied that he had
committed any misconduct and that as such, the Appeal Authority
properly, rationally and justifiably applied its mind to the facts
and evidence of both parties in making a finding that his dismissal
was procedurally and substantively unfair.
Evaluation:
[28]
The starting point is that
flowing from section 23 of the Constitution of the Republic and as
further entrenched in the provisions
of
section 185
of the
Labour
Relations Act
[16
]
,
every employee has a right not to be unfairly dismissed or be
subjected to unfair labour practices. The purpose of the Regulations
as set out in clause 3 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.
[29]
It follows from the
above that disciplinary proceedings conducted under the provisions of
the Regulations must both be procedurally
and substantively fair. To
be more precise in respect of the matter at hand, the merits of an
appeal should always be considered
by the appeal authority in terms
of the principles of fair and sound labour relations, taking into
account in particular, the Code
of Good Practice: Dismissal, Schedule
8 as found in the
Labour Relations Act. It
follows that functionaries
conducting those proceedings must do so in conformity with the
purpose and objectives of the Regulations
and other prescripts
referred to, failing which any decision made would be susceptible to
a review. Crucially however, t
he
disciplinary action must be lawful, and procedurally fair, and the
final decision must pass the test of rationality and
reasonableness
[17]
[30]
Applying the above principles to the facts of this case, the starting
point is that the evidence of the three witnesses against
Magade went
unchallenged. On the face of it, it can be accepted that Magade
colluded with Hazel and Priscilla Absolon to extort
money out of
Wedgewood by making allegations of sexual assault against him, and by
giving him an impression that he would spent
time in jail, especially
over the Christmas period. Evidence presented at the disciplinary
hearing further demonstrated that Magade
accompanied Wedgewood to a
bank where the latter withdrew money which was distributed between
Magade, Hazel and Priscilla.
[31]
Significant with the Appeals Authority’s decision was that
since Magade was charged with contravening
Regulation 20
(z), the
charges could not be proven in the absence of a criminal case having
been opened and a case number being available. In
the first place,
this was not a ground of appeal raised by Magade, and it is
inexplicable as to how the Appeals Authority could
have
mero motu
raised it. It is further trite that nothing prevents an employer from
charging and dismissing an employee for an offence that is
criminal
in nature without the necessity of criminal charges having been laid.
The fact that criminal charges have not been preferred
against an
employee is not a bar to disciplining that employee in terms of the
employer’s own disciplinary code and procedures.
The conclusion
to be reached in this regard is that the Appeals Authority concocted
a case for Magade, from which favourable conclusions
were made. Such
conduct is grossly irregular.
[32]
The Appeals Authority’s
contention that the charges preferred against Magade were poorly
crafted is further an issue that
was not raised by the latter in his
appeal. The fact of the matter is that Magade had entered a plea of
not guilty after the charges
were read to him in the presence of his
representative Gengwana before the latter excused himself from the
proceedings
[18]
.
The mere fact that Magade had pleaded not guilty to the charges can
only be an indication that he understood what they were all
about.
Again, the Appeals Authority made up a case on behalf of Magade.
[33]
Further to the extent that the Appeals Authority made a finding that
Magade should be exonerated because a discrepancy related
to how much
Hazel and Priscilla had received from Magade, again, this was not a
ground of appeal raised by him, and this ‘discrepancy’
in
any event could not have detracted from the fact that such payments
were indeed made in return for Hazel and Priscilla not pursuing
a
criminal case against Wedgewood. At most, that evidence remained
unchallenged, and the Appeals Authority had no reason to ignore
it
nor poke holes in it for the benefit of Magade when he had not
challenged it.
[34]
In regard to the finding that the dismissal was procedurally unfair,
the Appeals Authority had recorded that Magade had contended
that he
was denied representation after Gengwana could not carry on with the
proceedings after a ‘procedural disagreement’
over the
presence of his brother in the hearing. It was also recorded that
Magade had complained that he could not cross-examine
the witnesses
as he did not know how, and he had blamed the chairperson for the
withdrawal of Gengwana from the proceedings.
[35]
The Appeals Authority further noted that the fact that Magade was not
represented was not his fault, nor that of the employer
or
chairperson. It was however reasoned that the chairperson ought to
have properly guided Magade or ‘got some other police
officer
to assist him’.
[36]
The difficulty with the Appeals Authority’s findings
that the dismissal was procedurally unfair on account of Magade being
unrepresented is that it clearly failed to have regard to the record
of the proceedings and the chairperson’s detailed report
in
regards to the history of the matter. Under Regulation 15.15, the
disciplinary proceedings
must as far as
practically possible, be finalised within sixty (60) calendar days
.
The Chairperson had recorded that
initially the hearing was scheduled to commence on 9 and 10 December
2010. The chairperson of
that enquiry, Lt Col Schreuder for reasons
unknown, recused himself after two sittings. Lt Col Prinsloo took
over as chairperson
on 9 March 2011 and again there were various
postponements. Significant with the chairperson’s comments is
that at some stage,
the proceedings were postponed ‘for the
sake of representation and preparation upon request by the employee’.
[37]
In the light of these various
postponements,
the recusal of the previous chairperson and the
raising of spurious preliminary points, one can appreciate the
Chairperson’s
frustrations at the lack of progress in the
matter. It is appreciated that Magade had a right to representation
in the disciplinary
proceedings, especially in view of the serious
allegations against him. The issue however is what was expected of
the Chairperson
to do where, as recorded by the Appeals Authority,
Gengwana had withdrawn from the proceedings on the basis that the
Chairperson
had refused permission for Magede’s brother to sit
in the proceedings? It is apparent that Gendwana had every intention
to
scupper the proceedings, and the rulings made by the chairperson
could not have been a sole reason for him to withdraw from the
proceedings.
[38]
The only conclusion to be reached in line with the legal principles
referred to elsewhere in this judgment, the merits of the
case as
before the chairperson of the disciplinary enquiry, and the manner in
which the proceedings had unfolded, is that it cannot
by all
accounts, be said that the decision of the Appeals Authority to set
aside the decision of the initial proceedings
passed
the test of rationality and reasonableness
. It therefore
follows that the review application should succeed.
[39]
Further having taken account of the circumstances of this case, and
in view of the alternative prayer sought in the applicants’
Notice of Motion, it is deemed appropriate that the matter should be
remitted to the Appeals Authority for a fresh determination.
I am
further of the view that upon a consideration of the requirements of
law and fairness, a cost order in this case is not warranted.
Order:
[40]
In the premises, the following order is made;
1.
The late filing of the review application is condoned.
2.
The decision of the First and Second Respondents dated
25 November 2011 is reviewed
and set aside.
3.
The matter is remitted to the First Respondent for a re-determination
of the appeal by persons
other than those who comprised the initial
Appeals Authority.
4.
There is no order as to costs.
____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the First and Second Applicants: Adv. M
Lusenga
Instructed
by
:
State Attorney, Kimberley
For
the Third Respondent:
Mr. Malose Latoka of CHSM Inc Attorneys
[1]
Section 145:
Review of
arbitration awards
(1) Any party to a dispute who
alleges a defect in any arbitration proceedings under the auspices
of the Commission may apply
to the Labour Court for an order setting
aside the arbitration award -
(a) within six weeks of the date that
the award was served on the applicant, unless the alleged defect
involves the commission
of an offence referred to in Part 1 to 4, or
section 17, 20 or 21 (in so far as it relates to the aforementioned
offences) of
Chapter 2 of the
Prevention and Combating of Corrupt
Activities Act, 2004
;
[2]
Para 6 of the Answering Affidavit.
[3]
1962
(4) SA 531
(A) at 532B-E
[4]
2000 (2) SA 837 (CC).
[5]
2014
(2) SA 68
(CC)
at
para 50 - 51
[6]
Khosa v Absa Bank Limited (JA55/2013) [2015] ZALCJHB 1 (15 January
2015)
[7]
(
JA55/2013)
[2015] ZALCJHB 1 (15 January 2015)
at
para 10
[8]
CWIU and
Another v Ryan and Others
[2001]
3 BLLR 337 (LC)
[9]
Act 68 of 1998
[10]
Held in
accordance with the provisions of Regulations for the South African
Police Service, issued under section 24 (1) of the
Act in Agreement
1/ 2006.
[11]
Page 17 of the record of internal hearing
[12]
18. Securing the attendance
of an employee at a disciplinary hearing
5 (a)
In the event that the employee fails to appear at the disciplinary
hearing on
any date to which the disciplinary hearing has been
postponed, or a date to which it was postponed in terms of
subregulation
(3) -
(i)
the employee shall, from the date of such failure to appear or
remain
in attendance, be deemed to be suspended without
remuneration; and
(ii)
the chairperson must postpone the disciplinary hearing indefinitely,
and the disciplinary hearing shall only reconvene at the instance of
the employee concerned, after liaising with the employer
representative, as contemplated in subregulation (l)(b): Provided
that in the event that the employee fails to take steps to
reconvene
the hearing within two (2) months of such date, the chairperson must
record such failure on the record of the disciplinary
hearing, and
the employee shall forthwith be deemed to be discharged from the
Service in terms of regulation 15(l)(e).
(b)
In the event of a hearing being reconvened in terms of subregulation
(5)(a)(ii)
the chairperson must summarily inquire into the reasons
for the employee’s failure to appear or remain in attendance
at
the disciplinary hearing and confirm or set aside the suspension
as contemplated in subregulation (5)(a)(i).
(c)
Notwithstanding paragraphs (a) and (b), the chairperson may, on good
cause shown, at any time set aside a suspension contemplated in
subregulation (5)(a)(i).
(d)
Notwithstanding paragraphs (a) and (b), the chairperson may, upon
good
cause shown, decide that the employee must not be suspended and
that the hearing be postponed to a later date.
[13]
Page 67 of
the record
[14]
Clause 17 of the Regulations for the SAPS provide that;
Appeal
“
(1)
An appeals authority is hereby established.
(2)
The appeals authority comprises of a person or person appointed
by
the National Commissioner to consider appeals or a specific appeal
in terms of these Regulations.
(3)
An employee may appeal a finding or sanction in the form determined
by the National Commissioner.
(4)
The employee must, within ten (10) working days of receiving the
notice of the final outcome of the hearing, submit the appeal to the
administrative office of the appeals authority
(5)
The appeals authority may on good cause shown condone the late
lodging of an appeal.
(6)
The appeals authority must consider the appeal and, in the event
that the appeals authority decides that a hearing is required, the
appeals authority must notify the appellant of the date and
place of
the hearing
(7)
The appeals authority may –
(a) uphold
the appeal; or
(b) reduce
the sanction to any lesser sanction allowed in terms of regulation
15 (1); or
(c) confirm
the outcome of the disciplinary hearing.
(8)
The employer must immediately implement the decision of the appeals
authority. Where the appeals authority decides to reduce the
sanction or to confirm the outcome of the disciplinary hearing,
the
sanction will be implemented by the employer from the date of the
decision of the appeals authority.
(9)
The appeals authority must finalise an appeal within (30) working
days from the date of the receipt of the appeal, failing which in
cases where the employee is on precautionary suspension or
temporarily transferred, he or she must resume duties immediately
and await the outcome of the appeal.”
[15]
Pages 106 –
109 of the Record
[16]
Section 185 (a) provides that;
"Every employee has the right
not to be unfairly dismissed and subjected to unfair labour
practice."
[17]
Ntshangase
v MEC for Finance: KwaZulu-Natal (2009) 30 ILJ 2653 (SCA
)
at para 14 at 2660 - 2661
[18]
Page 40 of
the Record