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[2019] ZALCPE 15
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Phopo v National Commissioner of the South African Police Services and Others (P275/16) [2019] ZALCPE 15 (20 August 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Of Interest to Other
Judges
Case No: P 275/16
In the matter between:
MESHACK
PHOPO

Applicant
And
NATIONAL COMMISSIONER
OF THE SOUTH
AFRICAN POLICE
SERVICES

First

Respondent
PROVINCIAL
COMMISSIONER OF THE SOUTH
AFRICAN POLICE
SERVICES

Second
Respondent
MINISTER OF
POLICE

Third
Respondent
DIVISIONAL
COMMISSIONER OF THE SOUTH
AFRICAN POLICE
SERVICES                                                   Fourth

Respondent
Heard:
5 December 2018
Delivered:
20 August 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]         The
applicant, a former employee of the South African Police Services,
brought this application before the Court in terms of the provisions
of sections 158 (1)(h) and 157(1)(2) of the Labour Relations
Act
(LRA), to seek a variety of orders including;
i.
Condoning the late filing of the review
application.
ii.
Reviewing
and setting aside the decision of the first respondent and that of
the other respondents dated 16 October 2015
not to
reinstate him, as his application for reinstatement was refused on
account of it being brought more than 30 days contemplated
in section
36 of the South African Police Service Act
[1]
(The SAPS Act) after the criminal appeal judgment.
iii.
Substituting the above decision with
an order directing that the
respondents reinstate him with retrospective effect from the date of
his discharge being 26 March 2011.
iv.
Alternatively, remitting the issue
of reinstatement to the
respondents and directing them to take such administrative steps
necessary to consider the application
for reinstatement.
v.
In the event of a finding that the 30
days contemplated in section 36
(2) of the SAPS Act are to be calculated from the date of the appeal
judgment, and not from the
date when the applicant knew of the
judgment, then the reference to the time period of 30 days in section
36(2) without a provision
of extending the period on good cause is
unconstitutional, and therefore unlawful, insofar as the words ‘
or
such longer period as may on good cause be allowed’
are not
inserted in that provision.
vi.
In the event of the Court making such
a declaration of unlawfulness,
it must then order suspension of the time period in section 36 (2)
insofar as the applicant is concerned,
and to refer the declaration
of unlawfulness to the Constitutional Court for confirmation.
[2]
In regards to whether the review application was launched timeously,
the
respondents conceded that there was no need for an application
for condonation, and I agree.
[3]
The background to this application is not in dispute and may be
summarised
as follows;
3.1
The applicant held the rank of Captain in the employ of SAPS, and was
based
at the Maclear Police Station in the Eastern Cape Province.
3.2
Allegations of indecent assault against him surfaced in 2007. An
internal
disciplinary enquiry held to establish the veracity of
these allegations exonerated him in the same year.
3.3
On 12 November 2010, and subsequent to criminal charges
being pursued,
the applicant was convicted of indecent assault. The
Elliot Regional Magistrate Court on 25 March 2011 sentenced
him
to 8 years imprisonment, of which 3 years were suspended for 4
years.
3.4
On 26 March 2011, the applicant was discharged from service
by way
of operation of the law in terms of section 36(1) of the SAPS
Act.
3.5
The applicant had appealed against both his conviction and sentence.
The Grahamstown
High Court (Per Beshe J) on 20 November 2014
upheld his appeal, resulting in his conviction and sentence being set
aside.
3.6
Section 36(2)(c) of the SAPS Act provides that an employee in the
position of
the applicant whose conviction and sentence were set
aside on appeal may apply to the National Commissioner for
reinstatement into
the employ of the SAPS within 30 days of the
handing down of judgment.
3.7
The applicant made such an application to the Provincial Commissioner
on 13 February 2015, some 55 days after
the judgment on appeal was handed down. Following various
correspondence and demands
for a response, including an appeal to the
Minister of Police, in written responses dated 16 October 2015
and 8 August 2016
respectively, the applicant was advised
that his application for reinstatement was declined on account of
inter alia
it having been launched outside of the 30-day period contemplated in
section 36(2) (c) of the SAPS Act.
[4]
The matter initially came before this Court on 7 August 2018,

and following an agreement between the parties which was made an
order of Court, the applicant was granted leave to file a
supplementary
affidavits in which he raised the principle of
Lex
Non Cogit Ad Impossibilia,
which he contended applied to his
application for reinstatement in terms of section 36 of the SAPS Act.
[5]
In the supplementary affidavit, which was supported by confirmatory
affidavits
deposed to by Ms Van Staden of Legal Aid South Africa, PE
Justice Centre, the applicant’s main contention was that since
he had no knowledge of the High Court judgment until 6 February 2015,
he was unable to lodge the application as provided
for in section 36
of the SAPS Act. He further contended that unless the respondents
could prove that the judgment came to his attention
at any earlier
stage or in any other manner as per his submissions, it followed that
the interpretation required in respect of
the calculation of the
30-day period should run from the date of knowledge and receipt of
the written judgment. To this end, he
contended that no condonation
was required if the Court were to accept that he had applied for
reinstatement within 30 days from
the date of knowledge and receipt
of the judgment
.
[6]
The respondents had filed an answering affidavit deposed to by Mr
Simphiwe
Kapa, Justice Beshe’s Clerk in the Eastern Division of
the High Court, in which he had given a detailed explanation
pertaining
to how the parties in the application for appeal were
notified of the date of the delivery and the noting of judgment. The
nub
of his contentions is that both parties (including the
Grahamstown Justice Centre which had acted on behalf of the applicant
in
the appeal) were telephonically notified on the afternoon of the
day prior to the handing down of judgment the following morning.
[7]
The applicant had filed a replying affidavit, which was also
supported
by a supplementary affidavit deposed to by his Counsel in
the appeal proceedings, Advocate McChonnanie. Counsel had confirmed
having
made several enquiries with the office of the Registrar of the
High Court in Grahamstown regarding when the judgment would be
delivered,
and was not aware at all times until 6 February 2015.
The
issues for determination
:
[8]       The
main issues for determination of this dispute are;
a)
whether the 30-day period under the provisions of section 36(2)
of
the SAPS Act is condonable;
b)
If the question is answered in the affirmative, a further
consideration
is whether the decision of the National Commissioner to
refuse condonation is reviewable;
c)
If however it is found that the 30-day period is not condonable,
and
that the application for reinstatement was made outside of the 30-day
period, the final issue that arises is whether the provisions
of
section 36(2) (c) of the SAPS Act are unconstitutional.
[9]
Section
36 of the SAPS Act
provides
that;
‘
36.
Discharge on account of sentence imposed
(1)    A
member who is convicted of an offence and is sentenced to a term of
imprisonment without the option of a
fine, shall be deemed to have
been discharged from the Service with effect from the date following
the date of such sentence: Provided
that, if such term of
imprisonment is wholly suspended, the member concerned shall not be
deemed to have been so discharged.
(2)    A
person referred to in subsection (1), whose-
(a)
conviction is set aside following an appeal or review and is not
replaced
by a conviction for another offence;
(b)
conviction is set aside on appeal or review, but is replaced by a
conviction
for another offence, whether by the court of appeal or
review or the court of first instance, and a sentence to a term of
imprisonment
without the option of a fine is not imposed upon him or
her following on the conviction for such other offence; or
(c)
sentence to a term of imprisonment without the option of a fine is
set
aside following an appeal or review and is replaced with a
sentence other than a sentence to a term of imprisonment without the

option of a fine, may, within a period of 30 days after his or her
conviction has been set aside or his or her sentence has been

replaced by a sentence other than a sentence to a term of
imprisonment without the option of a fine, apply to the National
Commissioner
to be reinstated as a member.
(3)
In the event of an application by a person whose conviction has been
set
aside as contemplated in subsection (2)(a), the National
Commissioner shall reinstate such person as a member with effect from
the date upon which he or she is deemed to have been so discharged.
(4)
In the event of any application by a person whose conviction has been
set aside or whose sentence has been replaced as contemplated in
subsection (2)(b) and (c), the National Commissioner may-
(a)
reinstate such person as a member with effect from the date upon
which
he or she is deemed to have been so discharged; or
(b)
cause an inquiry to be instituted in accordance with section 34 into
the
suitability of reinstating such person as a member.
(5)
For the purposes of this section, a sentence to imprisonment until
the
rising of the court shall not be deemed to be a sentence to
imprisonment without the option of a fine.
(6)
This section shall not be construed as precluding - any
administrative
action, investigation or inquiry in terms of any other
provision of this Act with respect to the member concerned, and any
lawful
decision or action taken in consequence thereof.’
The
submissions:
[10]     The
applicant’s contentions were that;
10.1
He had submitted his application for reinstatement together with
relevant documents and affidavits
confirming the date upon which the
judgment of the High Court came to his attention.
10.2
He had explained the failure to make the application within the 30
days, and averred that even
though the judgment was delivered on
20 November 2014, a copy in that regard was only received
by his Counsel Advocate
McChonnanie on 6 February 2015,
which was the date upon which he became aware of it. A confirmatory
affidavit deposed
to by Counsel was also submitted in support of his
application, explaining the circumstances under which the judgment
only became
known on 6 February 2015.
10.3
To the extent that his application for reinstatement was not
considered or was declined on the
basis that it was made outside of
the 30-day period, the provisions of section 36 of the SAPS Act must
be interpreted purposively,
and that it could neither be reasonable
nor rational that the 30-day period commenced from the date on which
judgment was delivered
in court, if the person whom it concerned or
his representatives were not notified by the Registrar of the High
Court that such
judgment was to be handed down.
10.4
The 30-day period has to commence upon the date of the judgment
coming to the attention of the
employee concerned and/or his chosen
representative, and that a written judgment would be required in
order to substantiate any
claim of reinstatement.
10.5
Following his application for reinstatement, and before the final
decision of the National Commissioner,
the matter had received the
attention of various senior individuals within SAPS, including the
Acting Head-HR Practices and Administration;
the Divisional
Commissioner Management; Deputy National Commissioner: Corporate
Service Management.
10.6
A legal opinion dated 16 July 2015 by the Executive Legal
Officer that was addressed
to the Divisional Commissioner had
recommended his reinstatement. He submitted that notwithstanding all
legal opinion and recommendations
that supported his reinstatement,
the National Commissioner had merely relied on the Provincial
office’s original recommendation,
which in any event was
unknown or unspecified in declining the reinstatement. In the end,
the National Commissioner failed to apply
her mind in a rational,
reasonable manner to the recommendations, opinions and issues before
her.
10.7
From the recommendations, it appears that condonation was indeed
applicable and reinstatement
was recommended. The original
recommendations relied upon by the National Commissioner in arriving
at her decision did not support
the respondents’ defence and
view that the 30-day period was peremptory, and that the late filing
of the application on its
own did not render it invalid or irrelevant
for consideration.
10.8
He was always committed to have his name cleared and be granted
appropriate relief hence his
initial application for reinstatement on
8 September 2011 which the SAPS considered to be premature.
10.9
Any decision taken in respect of an application for reinstatement
lodged in terms of section
36(2) of the SAPS Act must be
lawful/valid, reasonable, rational and not taken arbitrarily, and the
National Commissioner had failed
in these duties.
The
respondents’ submissions:
[11]
In the answering affidavit, the SAPS’ Section Head: Resources
of Legal Services,
De Villiers Odendaal averred the following;
11.1
The 30-day period is not condonable because no provision is made in
the SAPS Act allowing for
condonation.
11.2
To the extent that the application for reinstatement was made outside
of the 30-day period, there
was no application at all and the
National Commissioner had no jurisdiction to consider it at all.
11.3
The National Commissioner did not have discretion to condone
non-compliance with the stipulated
30-day period, and would thus be
acting
ultra vires
if she sought to condone any application
made outside that period.
11.4
The recommendations which were made to the National Commissioner for
reinstatement were anomalous
as they motivated for reinstatement
notwithstanding the fact that the application was made out of time.
11.5
The National Commissioner agreed with the approach taken by the
Provincial office (Major General
Billet) who had recorded that in his
view, the explanation furnished for the delay was not adequate and
that the fault for the
delay lay at the foot of the applicant’s
legal representatives.
11.6
The decision to decline the application for reinstatement was taken
by the National Commissioner
on 13 August 2015. Subsequent
to that decision, the then National Commissioner, Riah Phiyega, was
placed on suspension.
Following her suspension and subsequent
investigations into her fitness to hold office, an acrimonious
relationship had developed
between her and SAPS, and she had not
cooperated with SAPS in relation to litigation generally, and thus an
affidavit could not
be obtained from her in respect of this matter.
11.7
What could however be extrapolated from the decision of the National
Commissioner were her concerns
about the delay in making the
application, and the need for consistency in the application of the
relevant prescripts.
11.8
To the extent that the National Commissioner had in her decision made
reference to the 30-day
period (‘prescripts’), and found
the  applicant’s explanation for the delay to be
unacceptable, that was
merely
obiter.
11.9
Any reference to ‘consistency’ in the decision of the
National Commissioner was in
reference to the fact that SAPS had
consistently declined to approve applications made outside of the
30-day period irrespective
of the explanation for the delay. The
reasoning for this consistency was that the provisions of section
36(2) of the SAPS Act were
peremptory, but did not take into account
any budgetary considerations. Thus the strain on the budget of SAPS
would be crippling
if the provisions were not read and applied in a
strict sense.
The
legal framework:
[12]
It is trite
that legislation is to be interpreted textually, contextually and
purposively.
[2]
To the extent
that there is a dispute in respect of the interpretation of section
36(2)(c) of the SAPS Act, the legal position
in regards to
interpretation of statutes is that by virtue of the provisions of
section 39(2) of the Constitution of the Republic,
[3]
any such interpretation must promote the spirit, purport and objects
of the Bill of Rights. The Courts are accordingly obliged
to prefer
interpretations of legislation that falls within constitutional
bounds over those that do not, provided that such an
interpretation
can be reasonably ascribed to the section.
[4]
Thus, if more than one meaning is reasonably plausible, the one
resulting in constitutional compliance must be chosen.
[5]
[13]
In a
further restatement of these general principles, it was held in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[6]
that;
‘
The present state
of the law can be expressed as follows: Interpretation is the process
of attributing meaning to words used in
a document, be it
legislation, some other statutory instrument, or contract, having
regard to the context provided by reading the
particular provision or
provisions in the light of the document as a whole and the
circumstances attendant upon its coming into
existence. Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary rules
of grammar and syntax; the
context in which the provision appears; the apparent purpose to which
it is directed and the material
known to those responsible for its
production.’
And,
‘
An interpretation
will not be given that leads to impractical, unbusinesslike or
oppressive consequences or that will stultify the
broader operation
of the legislation or contract under consideration.’
[7]
[14]
The
respondents relied on various authorities in contending that as a
general principle, administrative authorities have no inherent
power
to condone a failure to comply with peremptory requirements, as any
such provision must be found in the provisions of the
statute.
[8]
Accordingly, it was submitted that an authority had the power to
condone non-compliance only if it has been afforded the discretion
to
do so.
[9]
[15]      The
Courts have over the years drawn a distinction between requirements
in statutes that
are peremptory (or mandatory) and those that are
directory. The traditional view was that requirements which are
classified as
mandatory ought to be strictly complied with, failing
which the purported act will be a nullity. This is clearly the
approach favoured
by the respondents in this case.
[16]
There
has recently been a shift in the traditional approach of
interpretation.
In
regards to requirements which are directory, Courts have held the
view that “substantial compliance” with the prescripts

would be sufficient,
[10]
and
it is now recognised that in appropriate cases, there might be
sufficient compliance with a mandatory requirement even in cases

where there has not been exact compliance. In terms of this approach,
mandatory requirements will not be held to require exact
compliance
where substantial compliance will achieve all the relevant
objects.
[11]
This modern
approach was confirmed in
Allpay
Consolidated Investment Holdings (Pty) Ltd v CEO South African Social
Security Agency
[12]
,
where it was held that;
“
Assessing
the materiality of compliance with legal requirements in our
administrative law is, fortunately, an exercise unencumbered
by
excessive formality. It was not always so. Formal distinctions were
drawn between “mandatory” or “peremptory”

provisions on the one hand and “directory” ones on the
other, the former needing strict compliance on pain of non-validity,

and the latter only substantial compliance or even non-compliance.
That strict mechanical approach has been discarded. Although
a number
of factors need to be considered in this kind of enquiry, the central
element is to link the question of compliance to
the purpose of the
provision. In this Court O’Regan J succinctly put the question
in
ACDP v Electoral Commission
as being “whether what
the applicant did constituted compliance with the statutory
provisions viewed in the light of their
purpose”. This is not
the same as asking whether compliance with the provisions will lead
to a different result.”
[17]
Insofar as
the issue of whether the decision not to reinstate is reviewable or
not, it is accepted that a discharge of a police
officer as
contemplated in section 36(1) of the SAPS Act arises by operation of
law, and is not dependant on an administrative
decision which may be
challenged in review proceedings.
[13]
It can also be accepted that the objectives of the provisions of
section 36(2) of the SAPS Act are to reinstate an ex-member
previously
discharged by operation of the law on account of a
criminal conviction, and upon an appeal Court having exonerated
him/her as contemplated
under the provisions of section 36(2)(a) of
the SAPS Act. In effect, the upholding of an appeal exonerates the
member from any
criminal wrongdoing, thus degrading the basis upon
which the discharge by operation of the law took place.
[18]
In
circumstances where such an ex-member has no other alternative
remedies in the event that his or her application for reinstatement

was rejected on account of non-compliance with the relevant
prescripts or for whatever reason under the provisions of the SAPS

Act, and further to the extent that such an employee relies on the
provisions of section 158(1)(h) of the LRA, it is my view that

guidance is obtained from
Member
of the Executive Council for the Department of Education Western Cape
Government v Jethro N.O and Another
[14]
,
where it was recently stated that;
“
[38]
Section 1 of PAJA defines administrative action
as,
inter alia
,
a decision of an administrative nature taken by an organ of state
when exercising a public power or performing a public function
in
terms of any legislation, which adversely affects the rights of any
person and which has a direct, external legal effect. In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
, the
Constitutional Court held that the determination of whether a
decision constitutes administrative action has to be done on
a case
by case basis. What matters is not so much the functionary as the
function. Various considerations may be relevant, such
as: the source
of the power, the nature of the power, its subject-matter, whether it
involves the exercise of a public duty and
how closely it is related
on the one hand to policy matters, which are not administrative, and
on the other to the implementation
of legislation, which is.
[39]
In
Grey’s Marine Hout Bay (Pty)
Ltd and Others v Minister of Public Works and Others
,
the Supreme Court of Appeal held that at the core of the definition
of administrative action is the idea of action (a decision)
of an
administrative nature taken by a public body or functionary. The
qualification that administrative action must, as a fact,
adversely
affect the rights of any person, and must have a direct external
legal effect, was intended to convey that administrative
action is
action that has the capacity to affect legal rights, i.e. it impacts
directly and immediately on individuals.
[40]
While labour rights and administrative justice rights should be
compartmentalised and are derived from different constitutional
and
legislative sources, rigid categorisation should be avoided.
Decisions and actions taken by the state as an employer may in

certain circumstances constitute reviewable administrative action,
especially where no remedy of review or appeal against such
decision
exists under the unfair dismissal or unfair labour jurisdiction in
the LRA. As the Constitutional Court stated in
Gcaba v
Minister for Safety and Security and Others
,
human
rights are intrinsically interdependent, indivisible and inseparable
and the constitutional and legal order is one coherent
system for the
protection of rights and the resolution of disputes. Accordingly,
legislation must not be interpreted to exclude
or unduly limit
remedies for the enforcement of constitutional rights, including the
right in section 23(1) of the Constitution
to fair labour practices.
[41]
A letter informing an employee of his or her deemed discharge by
operation of law under section 14(1) of the EEA involves no
decision
or exercise of a public power, and thus cannot constitute
administrative action; but a decision taken under section
14(2)
of the EEA constitutes an exercise of a statutory power and the
performance of a public function by the Department. It is
a decision
of an administrative nature (as opposed to an executive, legislative
or judicial nature), which is informed by policy
considerations
regarding efficiency, and may adversely affect the rights of persons
outside the Department, such as the respondent.
The decision cannot
be challenged under Chapter VIII of the LRA because it does not
constitute a dismissal as defined in section
186(1) of the LRA - the
dismissal having been deemed and the decision in terms of section
14(2) of the EEA being concerned solely
with a request for
reinstatement on good cause. The decision likewise cannot constitute
an unfair labour practice under section
186(2) of the LRA because it
does not relate to the rights and interests protected by that remedy.
In the premises, a decision
by the Head of Department, charged with
the exercise of a statutory discretion to reinstate on good cause
shown by an employee
deemed to have been discharged, constitutes
administrative action reviewable in terms of PAJA. The Labour Court
accordingly did
not err in its finding in that regard.”
(Citations omitted)
Evaluation
and application of the legal principles to the facts
:
[19]
The issue that arises from the above legal principles is whether the
interpretation of
section 36(2) of the SAPS Act as favoured by the
respondents would lead to the
promotion of the
spirit, purport and objects of the Bill of Rights. Aligned to that
enquiry is that it being not seriously disputed
that the provisions
in question are peremptory, and further in view of the fact that the
traditional approach in interpreting such
provisions has since been
discarded, the question that follows is whether there are facts
placed before the Court, that demonstrates
that the applicant’s
application for reinstatement can be said to be substantially
compliant with the provisions of section
36(2) of the SAPS Act, and
to that end, whether the decision of the National Commissioner to
simply deny a reinstatement on account
of the application in that
regard having been made outside the 30-day period is reviewable.
[20]
In line with the principles and authorities elucidated above, the
following conclusions
in regards to the facts of this case ought to
be made;
20.1
It is correct as pointed out on behalf of the respondents that the
30-day period is reasonable.
The approach however favoured by the
respondents, that non-compliance with the provisions of section 36(2)
of the SAPS Act is not
condonable is clearly unsustainable, as it is
not supported by the respondents’ own conduct in dealing with
the matter, nor
is it in concert with the promotion of the spirit,
purport and objects of the Bill of Rights, and in particular, the
applicant’s
right to fair administrative action as shall
further be illustrated below.
20.2
The respondents’ contention that a failure to comply with the
time periods in making applications
for reinstatements causes a
strain on the SAPS’ budget can hardly serve as a legitimate
excuse to trump over the rights of
employees to fair administrative
action. In a nutshell,
administrative convenience
cannot lightly be allowed to override the exercise of a
Constitutional right.
In any event, the legislators could not
have anticipated the duration between a conviction of a SAPS member
and his/her successful
appeal. Furthermore, I am certain that
budgetary constraints when drafting the provisions of section 36(2)
(c) of the SAPS Act
where the least of the legislators’
concerns.
20.3
Equally without merit is the contention made on
behalf of the applicant that it should be read into these provisions
that the 30-day
period runs from the date when the ex-member became
aware of the judgment on appeal. This approach would clearly lead to
absurdity
and uncertainty.
20.4
In
line with what was stated in
Member
of the Executive Council for the Department of Education Western Cape
Government v Jethro N.O and Another
[15]
,
a
decision
taken under section 36(3) of the SAPS Act
ordinarily
constitutes
an exercise of a statutory power and the performance of a public
function by the National Commissioner. It is a decision
of an
administrative nature which adversely affect the rights of ex-members
of SAPS such as the applicant, who had their criminal
convictions set
aside on appeal.
20.5
The setting aside of a criminal conviction
invariably negates the basis upon which such ex-members were
discharged from service.
To the extent that ultimately it is
the National Commissioner who is enjoined by the provisions of
section 36(3) of the SAPS Act
to reinstate such ex-members upon an
application for reinstatement having been made, it was thus expected
of her to make any such
decision that would meet the standard of
lawfulness, reasonableness and procedural fairness within the meaning
of section 33(1)
of the Constitution.
20.6
The mere fact that the provisions of section 36(2) of the SAPS Act
are peremptory cannot be the
end of the enquiry. On the authority of
Allpay,
the issue remains whether the applicant’s
application for reinstatement,
albeit
outside the 30-day
period, constituted substantial compliance with the statutory
provisions, viewed specifically in the light of
the purpose they are
meant to serve.
20.7
The provisions of section 36(2) of the SAPS Act textually,
contextually and purposively interpreted,
can only be meant to
reinstate an ex-member whose criminal conviction (which led to
his/her discharge), was set aside on appeal.
In this regard, it
cannot be doubted that the applicant always had an intention to be
vindicated and to be reinstated after he
was exonerated by the
internal enquiry and after he was criminally charged. He had lodged
his application,
albeit
belatedly. His initial application was
not accompanied by an application for condonation. On his version, an
affidavit explaining
the lateness of the application was submitted
after he was advised
by SAPS functionaries that he needed to
do so. Both he and his Counsel had submitted affidavits explaining
the circumstances under
which the 30 day period was not complied
with.
20.8
Prima facie
, there is nothing to suggest from the reason of
the decision of the National Commissioner that despite the
respondents’ arguments
that the provisions in question ought to
be restrictively interpreted, she had not considered the explanation
why the application
for reinstatement was launched outside of the
30-day period. Self-evidently, the National Commissioner had indeed
considered whether
the lateness ought to be condoned. Once she had
done so, any decision that she took as to whether the lateness should
be condoned
ought to have fallen within the bounds of rationality,
lawfulness and reasonableness.
20.9
In the light of the above, once the SAPS functionaries had advised
the applicant to seek condonation
for the late submission of the
application for reinstatement, and once the National Commissioner had
considered the reasons for
lateness and based her decision on those
reasons, it follows that the respondents cannot argue that reference
to the reasons for
lateness was merely made
obiter
.
20.10   Had the
Commissioner’s decision in this case been solely based on a
strict interpretation of the provisions
as suggested, this in my view
would have been the end of the matter, which would invariably have
necessitated a consideration of
the constitutionality of those
provisions as sought by the applicant. In the end however, the
process followed by the respondents,
and the reasons for the decision
by the National Commissioner not to reinstate in this case,
ultimately erodes the need for a constitutional
enquiry.
20.11
There is
however a further difficulty confronted by the respondents which
ought to be highlighted. Their approach that any attempts
to
interpret the provisions as favoured by the applicant would led to a
nullity is countered by a contrary view that these provisions,
do not
in any event say what the consequences of non-compliance with the
30-day period are. It cannot therefore be merely read
into these
provisions that a consideration of why there was non-compliance would
ordinarily lead to a nullity.
[16]
20.12   To the
extent that the provisions are significantly silent in the event of
non-compliance with the 30-day period,
the invariable interpretation
of section 36(2) of the SAPS Act that accords with constitutional
compliance is that nothing prevented
the National Commissioner (As
she had done), from considering the reasons why the application was
late, and to make a reasonable
decision in that regard. This approach
takes into account the purpose of condonation, which is to forgive
non-compliance or faulty
compliance, provided that the requirements
for reinstatement under the provisions of section 36(2)(a) of the
SAPS Act were met,
which was not an issue in this case. This is even
more so, as the National Commissioner was obliged to reinstate under
the provisions
of section 36(3) of that Act.
20.13   The
respondents took issue with attempts by the applicant to supplement
his explanation for the delay in submitting
the application for
reinstatement in the supplementary affidavits, which were belatedly
filed in pursuance of the defence of
Lex Non Cogit Ad
Impossibilia.
The National Commissioner, to the extent that she
had considered the explanation for the delay, could only have dealt
with the
material and explanation that was before her at the time.
Thus, any attempts at an elaboration of the reasons for the delay via

the belated supplementary affidavit are clearly
excipiable
. My
conclusions in regards to the further supplementary affidavit in my
view ought to dispose of the arguments surrounding a defence
of
Lex
Non Cogit Ad Impossibilia.
[21]
The issue of whether the decision not to reinstate the applicant is
reviewable ought to
be considered within the context of what was said
in
Executive Council for the Department of Education Western Cape
Government v Jethro N.O and Another.
The
decision
taken by the National Commissioner under section 36(3) of the SAPS
Act not to reinstate the applicant constitutes an exercise
of a
statutory power and the performance of a public function by her. It
is a decision of an administrative nature which is informed
by
inter
alia
, whether the requirements under
section 36(2)(a) of that Act were met.
[22]
In the ordinary course, the decision of the
National Commissioner
,
cannot be
challenged under Chapter VIII of the LRA because it does not
constitute a dismissal as defined in section 186(1) of the
LRA, as
the discharge from service was by operation of the law. The decision
to refuse to reinstate similarly cannot constitute
an unfair labour
practice under section 186(2) of the LRA, because it does not relate
to the rights and interests protected by
that remedy.
[23]
It follows
that in terms of section 158(1)(h) of the LRA, this Court is
empowered to review any decision taken by the State in its
capacity
as employer, on such grounds as are permissible in law. It is
appreciated that this Court will not entertain an application
to
review ‘any act performed by the State in its capacity as
employer’ in terms of s 158(1)(h) of the LRA as a matter
of
course.
[17]
Effectively, this
Court will not assume jurisdiction to review a decision taken by the
State as an employer under those provisions,
if the employee affected
by the decision has other remedies provided for under the provisions
of the LRA.
[24]
It has
already been stated that given the circumstances under which the
applicant was discharged from service, there can be no doubt
that he
has no other remedies, except those envisaged under section 158(1)(h)
of the LRA. This is so in that as it was held in
De
Villiers v Head of Department: Education, Western Cape Province
[18]
“
Even
if the decision not to reinstate the applicant did not constitute
administrative action, this court retains review jurisdiction
on the
grounds of legality (at least), which incorporates most, if not all,
of the grounds of review relied upon by applicant in
his founding
affidavit. These would certainly require that functionaries exercise
public power in a manner that is not irrational
or arbitrary, and
that they be accountable for the manner in which that power is
exercised”
[19]
[25]
It is worth repeating that in bringing this application under the
provisions of section
158(1)(h) of the LRA, the applicant contends
that his review is lodged with emphasis on the residual principle of
legality, and
further contends that the National Commissioner’s
decision was invalid, unlawful, irrational, unreasonable,
contradictory,
procedurally unfair, and arbitrary. I am of the view
that the applicant’s submissions in this regard have merit for
the following
reasons;
25.1
The SAPS
own functionaries,
viz
,
the Acting Provincial Commissioner: Eastern Cape; the Section Head:
Employee Relations, as supported by a legal opinion
[20]
had either recommended a reinstatement or that the matter be referred
to the National Commissioner for consideration whether condonation

for the late application ought to be granted.
25.2
For reasons that are difficult to comprehend, the National
Commissioner was dismissive of these
recommendation, stating in her
decision that;
‘
The
reinstatement is not approved. I support the original recommendation
by the province. The late submission is a matter of negligence
by the
lawyers of the dismissed member. It’s therefore not an issue
for SAPS. The lateness cannot be proved in any manner.
The burden of
proof is for the member and can be argued in Court. SAPS must comply
with prescripts and be consistent’
(Sic).
25.3
Emanating from the above reasons and the recommendations made by
other functionaries, and further
contrary to the respondents’
contentions that the late lodging of an application was not
condonable, it has been concluded
elsewhere in this judgment that the
respondents and indeed the National Commissioner, had in any event
considered the explanation
for the lateness of the application to
reinstate. The latter had however simply rubbished those reasons and
downgraded them to
‘
negligence by lawyers’
or
failure to prove the lateness (whatever that meant), without any
application of her mind to the issues.
25.4
At the time
that the reinstatement was recommended by Major General Jacobs of
Operational Legal Support, he had specifically mentioned
that in
accordance with the provisions of section 36(3), the National
Commissioner did not enjoy any discretion to reinstate, and
that the
applicant would be ‘harshly prejudiced’ if his
application was not processed. He had further stated that the

lateness of the submission of the application was not excessive and
did not prejudice the Department in any manner.
[21]
If this was the view of Operational Legal Support at the time, I fail
to appreciate the reasoning of the National Commissioner
in refusing
to reinstate.
25.5
In the light of the above conclusions, it is apparent that the
National Commissioner had not
applied her mind to the application
before her. To the extent that she had considered the reason for the
late application for reinstatement
in a dismissive manner as she had
done, it cannot in the light of other views expressed on the matter
by other functionaries, be
said that her decision was reasonable or
rational. On the opposite scale, the decision is not only
contradictory, but it is also
arbitrary.
[26]
In summary, the approach favoured by the respondents that
non-compliance with the provisions
of section 36(2)(c) of the SAPS
Act is not condonable is not in concert with the promotion of the
spirit, purport and objects of
the Bill of Rights, and in particular,
the applicant’s right to fair administrative action. The
approach is further not supported
by the very conduct of the
respondents in this case.
[27]
The applicant’s application for reinstatement was clearly out
of time. However, in
line with a purposive interpretation of the
peremptory provisions, it is accepted that the application, despite
being late, was
substantially compliant for the purposes of achieving
the objectives of section 36(2) of the SAPS Act, primarily of which
is to
reinstate an ex-member who was discharged from service on
account of a criminal conviction, which conviction has since been set

aside on appeal.
[28]
The respondents, despite holding a firm view that the provisions are
not condonable had
in any event, required the applicant to seek
condonation, and in this regard, the applicant had complied. To the
extent  that
the refusal to reinstate the applicant was
predicated on the reasons that he had proffered for the lateness of
his application
for reinstatement other than purely on a strict
interpretation of the provisions of section 36(2),  the decision
does not
accord with the standards of reasonableness, rationality and
procedural fairness. On the opposite scale, the reasons are
arbitrary,
making the entire decision reviewable. The facts of this
case further makes an enquiry into the constitutionality of the
provisions
of section 36 (2)(c) of the SAPS Act superfluous.
[29]
In the light of the above conclusions, the only appropriate order to
make given the history
and the circumstances of this case, is to
review and set aside the decision of the National Commissioner, and
for the matter (the
application to reinstate) to be remitted  to
the respondents for reconsideration. There is further no basis upon a
consideration
of the requirements of law and fairness, for a costs
order to be made.
[30]
Accordingly, the following order is made;
Order:
1.  The
decision of the First Respondent dated 16 October 2015 not
to reinstate the Applicant in terms of the
provisions of section 36
of the South African Police Service Act is reviewed and set aside.
2.   The
Applicant’s application for reinstatement in terms of the
provisions of section 36(2)(c) of the South
African Police Act is
remitted to the First to Fourth Respondents for reconsideration.
3.   There is
no order as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:                                        Ms.

E Van Staden, of Legal Aid South Africa
For
the First – Fourth Respondents:           Adv
P N Kroon SC with
Adv A Rawjee, and Adv Desi, instructed by the
Office of the State Attorney
[1]
Act
68 of 1995
[2]
Assign
Services (Pty) Limited v National Union of Metalworkers of South
Africa and Others
[2018] ZACC 22
;
[2018] 9 BLLR 837
(CC); (2018) 39 ILJ 1911 (CC);
2018 (5) SA 323
(CC);
2018 (11) BCLR 1309
(CC) at para 41
[3]
The Constitution of the Republic of South Africa, 1996 (Act 108 of
1996), as amended
[4]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
2001(1)
SA 545 (CC) at para 23
[5]
National
Credit Regulator v Opperman and Others
2013
(2) SA 1
(CC) at para 42;  See also
Makate
v Vodacom Ltd
[2016]
ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at
n
17 at para 88,
where
it was held that;
“
It
is apparent from
Fraser
that section 39(2) introduced to our
law a new rule in terms of which statutes must be construed. It also
appears from the same
statement that this new aid of interpretation
is mandatory. This means that courts must at all times bear in mind
the provisions
of section 39(2) when interpreting legislation. If
the provision under construction implicates or affects rights in the
Bill
of Rights, then the obligation in section 39(2) is activated.
The court is duty-bound to promote the purport, spirit and objects

of the Bill of Rights in the process of interpreting the provision
in question.”
[6]
[2012]
2 All SA 262
(SCA) at para 18a-c
[7]
at
para 26f-g
[8]
See
Amandla
GCF Construction CC and Another v Municipality Manager of Saldanha
Bay Municipality and Others
[2018]
ZAWCHC 77
;
2018 (6) SA 63
(WCC) at para 44, where it was held that;
“
As
in
Pepper Bay
&
Smith
supra,
it may seem unfair as the parties were, for all intents and
purposes, possessed of compelling arguments as to why the late

filing of the applications should be condoned.  However, as
Brand JA put it, as a general principle an administrative authority

has no inherent power to condone failure to comply with a peremptory
requirement.  Such a discretion must be found in the
provisions
of the statute.”
Minister
of Environmental Affairs and Tourism v Pepper Bay Fishing (Pty) Ltd;
Minister of Environmental Affairs and Tourism v
Smith
2004
(1) SA 308
(SCA) at para 31
.
[9]
South
African Co-operative Citrus Exchange Ltd v Director- General: Trade
and Industry
[1997] ZASCA 6
;
1997
(3) SA 236
(SCA) at 241
[10]
Roux
v Griggs-Spall
1946
AD 244
at 250
[11]
See
Nkisimane
& others v Santam Insurance Co Ltd
1978 (2) SA 430
(AD) at 433H-434A and at 434C, where Trollip JA
stated that;
‘
Preliminary
I should say that statutory requirements are often categorised as
“peremptory” or “directory”.
They are
well-known, concise, and convenient labels to use for the purpose of
differentiating between the two categories. But
the earlier
clear-cut distinction between them (the former requiring exact
compliance and the latter merely substantial compliance)
now seems
to have become blurred. Care must therefore be exercised not to
infer merely from the use of such labels what degree
of compliance
is necessary and what the consequences are of non- or defective
compliance. These must ultimately depend upon the
proper
construction of the statutory provision in question, or, in other
words, upon the intention of the lawgiver as ascertained
from the
language, scope, and purpose of the enactment as a whole and the
statutory requirement in particular.’
And,
‘
In
between those two kinds of statutory requirements it seems that
there may now be another kind which, while it is regarded as

peremptory, nevertheless only requires substantial compliance in
order to be legally effective (see JEM Motors Ltd v Boutle &

another
1961 (2) SA 320
(N) at 327 in fin 328B and Shalala’s
case supra at 587F-588, and cf Maharaj & others v Rampersad
1964
(4) SA 638
(A) at 646C-E).’
See
also
Makwetlane v RAF
2003 3 SA 439
(W) at 457-458;
Observatory
Girls Primary School v Dept of Education
2003 4 SA 246
(W) at 255D;
Cowan v Hathorn NO and Other
s
(176/2013)
[2013] ZASCA 159
(25 November 2013) at para 10, where it
was held that;
“
However,
‘even where the formalities required by statute are peremptory
it is not every deviation from the literal prescription
that is
fatal. Even in that event, the question remains whether, in spite of
the defects, the object of the statutory provision
had been
achieved’. See
Unlawful Occupiers, School Site v City
of Johannesburg
2005 (4) SA 199
(SCA) at 209 G-I.”
[12]
(CCT 48/13)
[2013] ZACC 42
;
2014 (1) SA 604
(CC);
2014 (1) BCLR 1
(CC) at para 30
[13]
See
Phenithi
v Minister of Education and Others
2008
(1) SA 420
(SCA), which judgment considered the constitutionality of
section 14
(1) of the
Employment of Educators Act 76 of 1998
,
which section is similar, in certain respects, with section 36 (1)
of the SAPS Act
[14]
(CA10/2018)
[2019] ZALAC 38
(13 June 2019)
[15]
Supra
[16]
See
South
African Transport and Allied Workers Union (SATAWU) and Others v
Moloto NO and Another
[2012] ZACC 19
;
2012 (6) SA 249
(CC);
2012 (11) BCLR 1177
(CC);
[2012] 12 BLLR 1193
(CC); (2012) 33 ILJ 2549 (CC) at para 20, where
it was held that;
“
Thus,
the provisions of the Act must be interpreted purposively so as to
give effect to the Constitution, the objects of the Act
itself and
the purpose of the provisions in issue. But, this approach does not
necessarily equate to an expansive construction
of the provisions of
the Act. This is so because the purpose of the Act may well require
a restrictive interpretation of the
particular provisions
so
that the exercise of a protected right is not unduly limited.
Therefore, due regard must be had to the express language used
in
the provisions under consideration. Furthermore, care must be taken
against unduly limiting a fundamental right which has
been conferred
(as in this case) without express limitation by reading implied
restrictions into it.”
[17]
Public
Servants Association of South Africa obo De Bruyn v Minister of
Safety and Security and Another
(JA91/09)
[2012] ZALAC 14
;
[2012] 9 BLLR 888
(LAC); (2012) 33 ILJ
1822 (LAC)
[18]
(2010) 31 ILJ 1377 (LC)
[19]
At
para [30]
[20]
Pages
12; 13; 14; 31 - 32 of the Record
[21]
At
page 62 of the Record