THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No . JR975/21
In the matter between:
C. ASTLE First Applicant
A.C. GREYLING Second Applicant
and
SAFETY AND SECURITY SECTOR BARGAINING COUNCIL (SSSBC) First Respondent
TREVOR WILKES N.O. Second Respondent
SOUTH AFRICAN POLICE SERVICE Third Respondent
Heard: 23 January 2025
Delivered: 12 February 2025
JUDGMENT
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MAKHURA , J
Introduction
[1] In AK v Minister of Police1, the Constitutional Court stated, in the context of an
inefficient investigation of a crime by the members of the South African Police Service
(SAPS), that:
‘Our law does not require perfection. It requires conduct in line with a diligent and
reasonable person. Lack of negligence does n ot connote exactitude… It bears
emphasis that the duty imposed on the SAPS is not one of result, that is, a
successful search or investigation, but one of means. The applicant herself has
emphasised that her complaint is not about the lack of an arrest and successful prosecution, but about what she sees as a woefully inadequate search and investigation.’
2
[2] The current application was launched by two employees who were members of
the SAPS until their dismissal on 21 February 2020. At the center of this dispute is the
two employees’ conduct in their investigation of a crime. The employees were
dismissed for failing to carry out their duties – to investigate an assault case and/or
ensure that the case is investigated and their collective decision to close the docket without investigating the case and without informing the complainant .
[3] Subsequent to their dismissal, the employees referred an unfair dismissal dispute
to the Safety and Security Sectoral Bargaining Council (SSSBC), the first respondent in
these proceedings. The second respondent, the commissioner appointed by the SSSBC
to arbitrate the dispute, declared in his arbitration award dated 22 April 2021 that their dismissal was procedurally and substantively fair, and dismissed their claim.
1 [2022] ZACC 14; 2023 (2) SA 321 (CC).
2 Ibid at para 7 8.
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[4] Aggrieved by the commissioner’s decision, they are now before this Court in
terms of section 145 of the Labour Relations Act3 (LRA) to review and set aside the
award. The SAPS opposes the application.
Material facts
[5] The first applicant is Cecilia Astle (Astle) and the second applicant is Abraham
Carel Greyling (Greyling). The employees were each charged with eleven allegations of
misconduct for allegedly contravening the South African Police Service Discipline
Regulations, 2016 (Regulations) . Astle was an investigating officer tasked to investigate
an assault case by SAPS members against the complainant, Ntsie Esael Sefuthi
(Sefuthi) . The case docket was opened at Westonaria SAPS under CAS number
122/02/2017 and then transferred to Fochville SAPS, where Astle and Greyling we re
based. Greyling was employed as a c aptain and branch c ommander .
[6] On 20 April 2017, Sefuthi, through his attorneys of record, addressed a letter to
the Minister of Safety and Security and the National Commissioner of the SAPS. In this
letter, Sefuthi recorded that on 11 February 2017, at Engen Garage, Losberg Avenue in
Fochville, he was brutally assaulted, viciously dragged out o f the garage store, placed in
a SAPS vehicle, driven to wards the police station and unlawfully detained by members
of the SAPS who were wearing plain or civilian clothes. This incident, so the letter
records, was captured on the CCTV footage.
[7] On their way to the police station, members of the SAPS stopped the vehicle and
started questioning Sefuthi . It was during this questioning that they realised that Sefuthi
was not the person they were looking for. They then drove back to the garage to drop
Sefuthi . For his unlawful arrest and detention, assault, pain and suffering, S efuthi
demanded payment of R350 000.00.
3 Act 66 of 1995, as amended.
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[8] After the incident, Sefuthi opened a case of assault on 12 February 2017 at
Westonaria SAPS. This case was then transferred to Fochville SAPS on 13 February
2017. In his affidavit to the SAPS deposed to when he opened the case, Sefuthi set out
the details of how the incident happened, as captured above. He also stated that he
would be able to identify about four of the members of the SAPS who assaulted him.
[9] More than a year later on 22 March 2018, Sefuthi , who had received no feedback
nor any report from the investigating officer (Astle) , deposed to another affidavit before
the SAPS. Sefuthi explained in this affidavit that he opened his case at Westonaria
Police Station and was informed that the case would be transferred to Fochville SAPS .
He wrote that:
‘I never received any feedback until I went to Fochville SAPS to enquire about
my case but I was referred to Detectives block. I went there an d I was assisted
by a white lady who checked through my case number and she told me that it was closed already because there was no evidence. I told her that I will bring evidence because I have footage. Few days later I too k footage and I was
referred to the I/O which was a white lady again, I forgot her name. I played
footage for her and she told me that she will cal l me for feedback.
A month later I went there again and I find out that the case was still closed. I went for the fourth time to check and it was still closed. I was referred to Captain Masuku who checked and find out that it was still closed. She told me that the advice is to consult with my attorney to request the case to be re- opened. ’
[10] Prior to Sefuthi’s affidavit above, Nontsokolo Masuku (Masuku) had deposed to
an affidavit on 12 March 2018. In it, Masuku stated that Sefuthi, even though she had
forgotten his name, enquired about his case . She stated that Sefuthi complained about
Astle who was handling his case and alleged that his case was closed without any
explanation or any feedback from Astle and that he was still in possession of the
evidence. Masuku further stated that she informed Sefuthi that she would retrieve the docket and would contact him the following day. Indeed, Masuku said she telephoned
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Sefuthi the following day and advised him to speak to the branch commander to raise
his dissat isfaction.
[11] It is common cause that on 29 March 2017, the investigating officer, Astle,
deposed to an affidavit motivating for the case to be closed. This is called an investigating officer statement , which is a practice at Fochville SAPS for investigating
officer s to depose to this before a case or docket is closed. Astle declared in this
affidavit that she was the investigating officer, that the suspects were unknown to the
complainant and therefore the docket or case should be closed. The full affidavit reads
as follows:
‘I am I/O in this case. The suspects are unknow n to the complainant and witness.
Docket for closure.’
[12] The affidavit was deposed to before Greyling, acting as a branch commander.
The case was , with the approval of Greyling, therefore closed as undetected.
[13] On or about 7 February 2018, the employees received a notice of alleged
misconduct informing them of a pending investigation against them . The alleged
misconduct was stated as a failure to investigate the matter properly and closing the docket as undetected.
[14] On 14 February 2018, Captain Victress Mkwebula (Mkwebula) was appointed to
conduct an internal investigation against the two employees. Mkwebula was a Lieutenant Colonel attached to the Westrand Cluster Office as a detective.
[15] Mkwebula signed the outcome of the investigation, allegedly on 14 March 2018.
She specified the alleged misconduct as contravention of Regulation 5(3)(b)(i) – (iii),
5(3)(u) and 5(4)(h) and referred to the statements of Sefuthi, Masuku and Boitumelo
Mthorwana (Mthorwana) as exhibits . Mthorwane worked as a cashier at Engen Garage
and explained that after the assault, Sefuthi brought a memory stick to download the video footage capturing the incident. The outcome indicates that Mkwebula investigated
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the matter , found a prima facie case of mi sconduct and recommended that the matter
be referred to the department al hearing.
[16] Mkwebula stated in one of her statements made in late 2018 that the
investigation took too long because she was “ forgetful ”, she experienced “ dizziness ”
and was always “ sleepy ”. She stated that she informed the employees at some stage
that the investigation was complete and that she believed that Greyling misunderstood her to mean that the matter was finalized when in fact she meant that the matter would be referred to the Provincial level to proceed with the disciplinary enquiry. The
statement by Mkwebula was written to motivate for the promotion of Greyling. In another
statement, Mkwebula stated that she finalized the investigation but “ forgot to forward it
[investigation report] " as she was very sick.
[17] The employees were charged in December 2018 and called to attend a
disciplinary hearing on 12 March 2019. Between 12 December 2018 and early January 2019, Mkwebula and Greyling exchanged numerous WhatsApp messages. Greyling
wrote that he was in “ big trouble” or in “hot water ” because he was informed that the
department investigation against him was not finalised, that he had not declared this
when he applied for a promotional post and that he thought that the investigation was finalised after their last conversation. Mkwebula said that she had forgotten about the investigation and that she would think about it and call Greyling. Greyling was concerned about the adverse impact the investigation was going to h ave on his
promotion. Greyling asked Mkwebula to provide the Pr ovincial office with feedback on
the investigation that it was finalised because the Provincial office did not have any
record of the investigation against him having been finalised.
[18] On 2 January 2019, Mkwebula signed a ‘second’ outcome or report of the
investigation. This report did not set out the nature of the misconduct . Mkwebula
confirms in this report that she investigated the matter and that there wa s a prima facie
case of misconduct which , contrary to th e 14 March 2018 report, warrant s a sanction of
a written warning.
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[19] However, the written warnings issued against the employees by Mkwebula were ,
inexplicably, dated 25 February 2018, more than two weeks before the first investigation
report and eleven months before the investigation report. These written warnings did not
contain the nature of the misconduct which the employees were disciplined for .
[20] As stated above, t he disciplinary hearing against the employees w as scheduled
for 12 March 2019. A rmed with the manufactured written warnings, the employees ’
representative, at the commencement of the hearing, raised the defence of double
jeopardy, arguing that the applicants were already disciplined and sanctioned for the
same misconduct. Despite the fact that the nature of the misconduct was not recorded
on the written warnings, t he chairperson withdrew the matter . The chairperson’s
disciplinary outcome report stated:
‘The matter was withdrawn on the principle of double jeopardy wherein new
evidence emerged during the hearing. The employee representative produced
copies of annexure “B” signed on 2018- 02-25, making submission to the fact that
the employee had signed the written warning of which the employer
representative was not aware of or made aware of.’
[21] On 23 May 2019, the Deputy Provincial Commissioner (DPC) addressed a letter
to the District Commi ssioner , West Rand regarding the disciplinary hearing against the
employees . The DPC recorded inter alia that:
21.1 After Mkwebula was appointed to investigate the matter, the department
docket was completed on 14 March 2018 which indicated that there was a prima
facie case against the employees and recommended the matter for a
departmental trial (disciplinary hearing) .
21.2 The functionaries, the chairperson and the initiator were appointed and
their appointment letters we re emailed on 11 December 2018.
21.3 However, the office of the Provincial C ommissioner was notified on 12
December 2018 that Greyling was promoted to Lieutenant C olonel.
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21.4 Further enquiries revealed that the investigation was in fact finalised on 25
February 2018 where the employees were issued written warnings. Mkwebula
completed a new annexure on 2 January 2019.
21.5 These dates suggest that progressive discipline in the form of written
warnings was applied before the completion of the first investigation which recommended a hearing and the second investigation which recommended written warnings.
21.6 T he disciplinary hearing against the employees on 12 March 2019 was
withdrawn after the employees’ representative produced the written warnings.
21.7 T he DPC made the following observations:
‘Considering the facts mentioned above, this office cannot accept this situation
where the written warnings were issued to the employees before the outcome of
the first investigation. If this is the case, the Annexure “B” date would have been
the same as the Annexure “G” date or after and the Annexure “G” would have indicated that the matter was dealt in a progressive manner.
It seems as if Lt Col Mkwebula, after learning that Captain Greyling’s name was
on the promotion list, completed the second Annexure “G” dated 2019- 01-02 and
backdated the written warning to 2018- 02-25 to facilitate the promotion of
Captain Greyling.’ [Emphasis added]
[22] The DPC requested an investigation into the matter. The SAPS subsequently
decided to reinstitute the disciplinary hearing and proceeded to appoint the chairperson
and initiator.
[23] On 11 November 2019, the employees received notices to attend a disciplinary
hearing. They faced multiple allegations of misconduct emanating from their failure to investigate the case and the closure of the docket as undetected on 29 March 2017.
Astle was found guilty of charges 1, 3, 7 and 10. These charges are paraphrased below :
23.1 Charge 1: Prejudicing the administration, discipline or efficiency of the
department by failing to investigate the case against the police officers who
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assaulted Sefuthi, who were well known as they were using a white police
vehicle with clear registration number.
23.2 Charge 3: Conduct ing herself in an improper, disgraceful and
unacceptable manner by failing to give Sefuthi feedback about his case.
23.3 C harge 7: Giving a false statement or evidence in the execution of her
duties by stating that the suspects were unknown to Sefuthi knowing this to
be untrue and that Sefuthi had stated in his statement that he would be able to identify at least four members of the SAPS who assaulted him.
23.4 C
harge 10: Negligence in the performance of her duties for her failure to
thoroughly investigate Sefuthi’s case.
[24] Greyling was found guilty and dismissed on charges 2, 4, 9 and 11. The charges
were:
24.1 Charge 2: Prejudicing the administration, discipline or efficiency of the
department by failing to ensure that the investigation is conducted int o the
case of Sefuthi against members of the SAPS.
24.2 C har ge 4 : Conduct ing himself in an improper, disgraceful and
unacceptable manner by failing to ensure that the investigating officer
informed Sefuthi about the progress of the investigation and instead allowed
the investigating officer to close the docket even though there was overwhelming evidence that coul d assist in tracing the suspects.
24.3 C har
ge 9: Negligence in the performance of his duties in that he failed to
thoroughly inspect a criminal case ultimately closing it off as undetected when the suspects were known to Sefuthi and failure to ascertain the correctness of the information supplied by the investigating officer before closing and filing the case as undetected.
24.4 C
harge 11: Failure to report an act of misconduct committed in his
presence in that he failed to report that his fellow employee, the investigating officer, gave a false statement that the suspects were unknown and case should be closed undetected when Sefuthi mentioned in his statement that he could identify at least four members of the SAPS who assaulted him.
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[25] The employees were dismissed with effect from 21 February 2020. On 12 March
2020, the applicants referred an unfair dismissal dispute to the first respondent (SSSBC).
The arbitration proceedings
[26] The material evidence led at arbitration proceedings is very similar to what is
already set out above. There is no material dispute of facts insofar as the allegations of
miscon duct are concerned.
[27] At the arbitration proceedings , the employees invoked the double jeopardy
principle and also argued that the chairperson acted ultra vires . They also complained
about the inordinate delay to charge them and the splitting of charges. On the merits ,
they challenged the rule breached, that is, they denied that they were guilty and argued
that even if they are found guilty the sanction of dismissal is not fair or appropriate and
that the SAPS applied discipline inconsistently.
[28] The commissioner upheld in part the argument that there was splitting of
charges. As a result, charge 10 against Astle was found to be a duplication of charge 1
and that charge 9 against Greyling was a duplication of charge 11. The commissioner in
essence dealt with and determined the dispute based on charges 1, 3 and 7 against Astle and 2, 4 and 11 against Greyling.
[29] The commissioner dismissed the defences of double jeopardy and/or ultra vires
and delay and which were characterized as procedural issues.
[30] On double jeopardy and ultra vires , the commissioner noted that the written
warnings, tendered in support of the withdrawal of the charges were subject to serious circumspection and that an interrogation was necessary. He noted that the employees
were asked by Mkwebula to sign the backdated written warnings, which they did. The
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commissioner further noted the discrepancies in the outcomes of the investigation
signed by Mkwebula, the written warnings which were allegedly issued before the
finalisation of the investigation report and the second outcome of the investigation which
was purportedly concluded on 2 January 2019.
[31] On the delay, the commissioner acknowledged the inordinate delay in finalising
the matter but balanced it with the reasons therefor , the nature of the offence which he
found to be serious and assessed the prejudice on both parties. Having considered
these factors, he found that the delay did not have an impact on the fairness of the dismissal.
[32] The commissioner dealt with the merits of the dispute and found the employees
guilty of the charges, except charge 11 against Greyling. He considered the appropriateness or fairness of the sanction, dismissed the inconsistency argument and found that the dismissal was fair.
Analysis
[33] The employees have approached this Court to review and set aside the award.
They take issues with the findings made in respect of the double jeopardy and/or ultra
vires defence and delay, which they contend the commissioner should have found in
their favour and declared their dismissal procedural ly unfair.
[34] They also take issue with the findings on the merits of the charges and dispute
that they are guilty, that even if they are guilty the sanction of dismissal is not fair and
further that the sanction could not be fair because the SAPS applied discipline
inconsistently . The inconsistency argument is that Masuku, who had the authority to re-
open the case, failed to do so and was n ot disciplined.
Double jeo pardy and/or ultra vires
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[35] The employees’ contention is that they were previously disciplined for the same
allegations and therefore the second disciplinary hearing offended the principle of
double jeopardy and/or that the chairperson acted ultra vires by proceeding with the
disciplinary hearing. The commissioner found that the facts that led to the withdrawal of
the charges are questionable. These facts are that which gave rise to the written warnings which ultimately led to the withdrawal of the charges on 12 March 2019.
[36] The so-called written warnings were allegedly issued on 25 February 2018,
before the com pletion of the first investigation on 14 March 2018. They were issued
blank , in other words, the allegations for which the employees were found guilty of were
not outlined. There was no evidence whatsoever to suggest that the employees were charged and/or disciplined for any allegation relating to their role in the failure to
investigate Sefuthi’s case and their decision to close the docket as undetected.
[37] The written warnings dated 25 February 2018 were designed to advance
Greyling’s prospects of promotion and to hide the fact that there was a pending
investigation against him. Therefore, the written warnings are not just questionable, they
were deliberately designed by Mkwebula , Greyling and Astle. As a result of their
conduct , the chairperson of the first disciplinary hearing withdrew the matter . The
upshot of the chairperson’s ruling is that the charges were wit hdraw n on the basis that
the employees had already been disciplined for the same charges and issued with
written warnings. This finding was factually wrong because the warnings did not contain
the nature of the charge to enable the chairperson to determine whether the employees
were previously disciplined for the 11 charges that served before him . Had the
chairperson applied his mind to the contrived written warnings, he would have not
withdrawn the charges.
[38] Embedded in the double jeopardy argument is the decision of the SAPS to
reinstitute the disciplinary hearing. The employees’ argument was that the written
warnings stand until set aside by the high court or this Court. Based on my finding that
the written warnings do not indicate the allegations that the employees were allegedly
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sanctioned for and my finding above that there was no double jeopardy, the
commissioner’s decision to reject the argument is not only reasonable but is correct.
The chairperson did not dismiss the charges on 12 March 2019. He simply withdrew
them. The argument that the SAPS had no authority to reinstitute the charges until the
decision of the chairperson to withdraw (not dismiss) the charges is unsound and has
no legal basis.
[39] Accordingly, the ground for review of the decision on the double jeopardy
princi ple or ultra vires is rejected.
Delay
[40] It is not in dispute that there was an inordinate delay in bringing the employees to
the disciplinary hearing. The chronology of the events from February 2017 have been
set out in detail above.
[41] The commissioner noted that the charges related to the conduct of the
employees that occurred between February and March 2017. He noted that in February
2018, the SAPS commissioned an investigation into the conduct of the employees,
which was , according to the record, concluded on 14 March 2018. In December 2018,
the employees were called to attend a disciplinary hearing o n 12 March 2019, when the
charges were withdrawn. It is common cause that in May 2019, the DPC intervened and requested an investigation. In November 2019, the charges were reinstituted and the employees were called to attend a disciplinary hearing, which led to their dismissal on
21 February 2020.
[42] The commissioner found that there has been a partial explanation of the
substantial delay, that the allegations are serious and that the employees failed to provide any evidence of prejudice. In these proceedings, t he employees argued that the
SAPS did not call a witness to explain the delay, save for the delay caused during the second disciplinary hearing, which was explained by the chairperson of that hearing.
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[43] I have considered the judgments referred to by Mr Groenewald, counsel for the
employees, in his heads of argument and during oral arguments.4 These judgments
emphasise the principle of fairness and ultimately state that whether or not the delay
constitutes unfairness is a question of fact. To constitute unfairness, t he delay must be
inordinate and the explanation unreasonable. Further, the delay must have caused
material prejudice to the other party, in this case, the employees, and the nature of the
misconduct must be considered.
[44] The delay in this matter should be considered from the time when Mkwebula was
appointed to investigate the issue against the employees. It cannot be considered from
the time the mi sconduct occurred, that is, February and March 2017 because only the
employees knew about the decision. Mkwebula, in my view, acted rogue in her
investigation of the matter . Although she claimed that she was not well, it is clear from
her WhatsApp messages with Greyling that Mkwebula was rooting for his promotion
despite the allegations and was prepared to assist Greyling in getting his promotion no
matter the circumstances , as evinced by her role in t he design of the fictitious written
warnings . She was the root cause for the delay and her reprehensible conduct should
not be used against the SAPS and allow employees who committed this type of
misconduct to walk free .
[45] Whilst the delay in this matter from February 2018 is inordinate, the reasons are
readily ascertainable from the documentary and oral evidence. The employees did not
lead evidence to show any prejudice, as the commissioner correctly found. There was
no evidence to show how the delays, which I must say the employees contributed to by
being party to the manufactured written warnings, hampered the presentation of their
defence to the charges.
4 Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and others (2019)
40 ILJ 773 (CC) ; [2019] 6 BLLR 524 (CC); Mapyane v SA Police Service and others [2023] ZALCJHB
344; (2024) 45 ILJ 564 (LC) .
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[46] The commissioner’s decision, which was taken after consideration of all the
relevant factors, is unassailable. The review ground must therefore fail.
The merits of the charges
[47] The commissioner found Astle guilty of prejudicing the administration, discipline
or efficiency of the department by failing to investigate the assault case of Sefuthi and for negligence or conducting herself in an improper, disgraceful and unacceptable manner by failing to give feedback to Sefuthi . Astle was also found guilty of giving a
false statement or evidence.
[48] Astle was allocated the assault case laid by Sefuthi against SAPS members to
investigate. The assault incident took place at the garage. Sefuthi, the complainant, who
deposed to an affidavit and outlined his ordeal in the hands of the SAPS members on 11 February 2017, expected the SAPS to investigate the case and waited for feedback.
It is common cause that on 27 March 2017, the docket was closed as undetected
allegedly bec ause the suspects were unknown.
[49] Astle did not, after she was allocated the matter to investigate, set her foot out of
the office to investigate the matter. She did not lift a finger to make a telephone call to
contact Sefuthi. She did not investigate the crime. The commissioner found that Astle
failed to rebut the SAPS’ case and that she did not carry out the investigation. The
commissioner found:
‘Her defence that she would close docket if there were no easy way to
investigate the matter because of the caseload is simply not responsible policing
because it has the effect that the public are required to drive their own
investigation.
… regardless of what was in the docket at the time, she has not rebutted that she made absolutely no effort to do any investigation at all …’
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[50] The commissioner also found that the SAPS discharged its onus in proving
charge 7, which was that she gave a false statement or evidence that the suspects were
unknow n. The commissioner found that with little effort Astle could have established the
identity of the suspects.
[51] Greyling was the branch commander and Astle’s superior. The commissioner
found him guilty of prejudicing the administration, discipline or efficiency of the
department by failing to ensure that the investigation into Sefuthi’s case was conducted
and for negligence or conducting himself in an improper, disgraceful and unacceptable
manner by failing to ensure that Astle investigates Sefuthi’s case.
[52] The commissioner found Greyling’s evidence that he did not do the investigation
nor call the complainants every time a docket wa s presented to him for closure to be
plausible. However, he found that:
‘he did not rebut the respondent’s evidence that there is no evidence, not even
from the first applicant that he had ensured that the applicant [Astle] followed up on any of the diary entries in the docket and more particularly his own
instructions. He agreed that there was a lot of information available, but he deferred most of the question[s] to the first applicant. Instead, he persisted with
his defense that he relied on the investigation officer and did not know whether
she had completed the investigati on. In cross examination he admitted he had
only looked at the investigator’s statement.’
[53] Greyling, so the commissioner found, did not apply his mind to the docket before
approving its closure. The commissioner noted that closing the docket was Greyling’s
ultimate responsibility. He rejected Greyling’s attempt to relegate the crime to a less
serious contact crime. Greyling’s own evidence was that he never read the docket. The
commissioner concluded that it was the responsibility of Greyling to ensure that
members of the public are accorded a sufficient degree of courtesy.
[54] Astle’s complaint against the finding of guilt on charge 7 has merit. I have
considered the charge sheet, the evidence, the commissioner’s reason and decision
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and the attack by Astle against this finding. I am persuaded that the finding is not one
that a reasonable decision maker could reach. The suspects were unknown, yet they could have easily been identified had Astle carried out her duties to investigate the crime. However, the latter part did not form part of the charge. Astle’s statement that the
suspects were unknown was not misleading.
[55] The employees’ attempts to upset the award on the basis that the commissioner
failed to evaluate and assess the respective parties’ burden of proof and failed to apply his mind thereto is preposterous. It is also a piecemeal attack on the award, which is
unacceptable. SAPS’ case against both employees on charges 1 and 3 or 10 against
Astle and charges 2 and 4 or 9 against Greyling was overwhelming. The employees had
nothing to defend themselves, yet they proceeded with the case that they were not
guilty.
[56] The above findings and decisions are unassailable. Astle did not carry out the
investigation. She decided, without any form of investigation, to depose to an affidavit
declaring that the suspects were unknown and that the case should be closed as
undetected . The suspects could not have been known because she did not investigate.
Greyling, on the other hand, failed to ensure that his subordinate carried out her duties
of investigating the crime. He, without applying his mind to the docket, simply
proceeded t o approve the closure of the docket. Considering a very brief statement by
Astle with no mention whatsoever of what she had done in investigating the case,
Greyling could have interrogated the statement by asking whether Astle met the complainant and whether she had obtained the CCTV footage from the garage. Had he
done his job, he would have perused the docket , noted that no investigation whatsoever
was done by Astle and rejected Astle’s reason for closing the docket .
[57] Accordingly, the review grounds on the merits of the charges fall to be rejected.
Inconsistency
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[58] The employees’ inconsistency ground is meritless . This is probably the reason
why this ground was not pursued in the employees’ heads of argument and during the
hearing. However, the ground has not been expressly abandoned. The employees do
not state what their issue is with the findings. They highlight th at the commissioner
limited his assessment of evidence on this issue to the conduct of Masuku. They make reference to the commissioner ’s finding and conclude that:
‘Notwithstanding the above the commissioner however confirmed that Masuku’s failure to reopen the docket immediately and or to discipline the first applicant could very well have avoided much of what has occurred and that the respondent
should consider her action in light of the possible disciplinary action.’
[59] Whatever the complaint is , there is no evidence that Masuku committed a similar
misconduct of faili ng to investigate a case and closing the docket or approv ing the
closure of the docket as undetected without conducting the investigation or ensuring that the investigation was conducted. The complaint falls to be dismissed.
Sanction
[60] The commissioner noted that the employees have clean disciplinary records.
Astle had about 22 years’ service and Greyling 35 years. The commissioner further
noted that the misconduct may seem less serious if considered against “the background of corrupt activities which according to the media, the [SAPS] is saturated with” .
However, the commissioner found that the impression created by the employees was that:
‘they had become lulled into bureaucratic complacency revolving around
routines, meetings, and statistics which in this instance had resulted in a
complete loss of the real purpose for which they had been appointed.’
[61] The commissioner further observed that a perpetual of unresolved criminal cases
would only augment the criminals and increase the crime rate. Referring to the
Parliamentary Monitoring Group of the Portfolio Committee on Police that met under the
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theme “Undetected docket analysis and structure: SAPS briefing: PCEM project follow
up with SAPS & DPCI on their 2014/15 Annual Report” , the commissioner noted that
unnecessary closing of dockets as undetected and failure to liaise effectively with the
community are key risk factors in policing.
[62] The employees contend that the Parliamentary Monitoring Group report was
never presented as part of the evidence and therefore the commissioner exceeded his powers. The employees then contend that the commissioner failed to consider relevant factors and took into consideration irrelevant factors. The employees placed a lot of
focus on Greyling. They contend that the findings of the commissioner as it concerns
Greyling are unreasonable because his dismissal was found to be fair based on
reasons that did not form part of his dismissal.
[63] The challenge against the report of the Parliamentary Monitoring Group is not
that it is not factual. There is no suggestion that the report is distorted. There is nothing
unreasonable with the commissioner taking ‘judicial notice’ of the report because it is a
public document that reported on the issue that was relevant before him. Regardless, this is not the only factor that the commissioner considered when deciding the fairness
of the dismissal.
[64] The commissioner found that Astle failed to do what she was required to do as a
police officer and that she had opted to take the easy route out in order to cope with the
workload instead of asking for assistance. He noted Astle’s complete failure to do an investigation into the matter and concluded that:
‘I find that the defence offered by her that she had a large caseload and therefore
prioritized the dockets accordingly by choosing to investigate only those dockets
relying heavily on the standby investigation and the public completely loses sight of her role in society as a police officer and although she has a clean record the fact that she did not make a proper endeavour to get hold of the complainant and
properly discuss his case with him before closing it is completely unacceptable.’
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[65] There does not appear to be any serious challenge against the findings made
against Astle. Astle’s conduct was sufficiently serious to warrant dismissal and any
suggestion to the contrary is rejected.
[66] With regard to Greyling, the commissioner found that:
‘The second applicant as her superior by not adequately ensuring that this was done, which he attempted also explain based on his workload also makes it apparent that he had lost touch with what his primary role was as a commander of investigating officers.
He was above everything else required to ensure that proper policing takes place and in this particular instance it is more serious because the police are required
at the very least to police themselves and where members of the police force
have been involved in a criminal offence it is critical to ensure that proper investigation is carried out.
The second applicant stated that he intended no harm to the complainant this m
ay be so, but his deference to Masuku and at one point in his statement during
the initial investigation to the first applicant is yet another indication that he did
not accept the implications of his own responsibility .’ [Own emphasis]
[67] The commissioner then recorded that because of Greyling’s long clean record,
he explored the possibility of progressive discipline with him . The commissioner then
found that having carefully evaluated Greyling’s responses to his questions , Greyling
had not demonstrated the likelihood of responsiveness to progressive discipline.
[68] Mr Groen ewald submitted that the commissioner upheld or found the dismissal
fair based on the reasons that did not form part of the SAPS’ reason for Greyling’s
dismissal. He submitted that the commissioner had in fact found that Greyling’s charges
did not warrant dismissal but then used the written warnings as a ground to justify t he
fairness of his dismissal. The commissioner’s finding was :
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‘Because the impunity o f [Greyling] was relative to [Astle] but it was of a lesser
degree. Had the enquiry ended simply at the proof of the first two charges, the
decision to dismiss without progressive discipline would not be reasonable5.
However, because it has also been established that the second applicant was part of an attempt to cover up the misconduct by contriving a written warning with the cooperation of Mkwebula, simply to be promoted, the facts presented do not
indicate a strong likelihood of responsiveness to progressive discipline. ’
[69] That the fairness of the dismissal must be considered based on the reason given
by the employer at the time of the dismissal is a well -established principle of our law.
6
However, having considered the award, I am not persuaded that Mr Groenewald ’s
submission has substance. His submission in my view will hold if o ne selectively reads
the award.
[70] Firstly, the commissioner has expressly made a finding that the nature of the
misconduct is more serious as it involved members of the SAPS, that Greyling did not
appreciate the extent and impact of his conduct and did n ot take responsibility for his
conduct as he deferred to Astle and Masuku. Based on the above, the commissioner
found t hat progressive discipline would not be appropriate. He found that Greyling’s
response to the question of how he would deal with the situation differently if he were to
go back to work was defiant. These findings are not challenged.
[71] It is therefore clear that the above factors ultimately influenced the
commissioner’s decision that the dismissal was fair. The commissioner then continued to say that had the enquiry ended after the proof of the charge, the decision to dismiss
without progressive discipline would have been unreasonable. At this stage, the
commissioner had already dealt with the reason why Greyling was not a suitable
5 The reference to reasonableness should obviously be fairness because reasonableness is a test
applicable in review proceedings and commissioners are concerned with the fairness of the dismissal.
6 Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others
(2008) 29 ILJ 964 (LAC) ; [2008] 3 BLLR 197 (LAC) at para 32; Samancor Chrome Ltd (Eastern Chrome
Mines) v Commission for Conciliation, Mediation and Arbitration and others (2020 ) 41 ILJ 2129 (LAC) ;
[2020] 9 BLLR 908 (LAC) at para 10; Pioneer Foods (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and others (2023) 44 ILJ 2281 (LC) at para 56.
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candidate for progressive discipline. This much is also clear when in the next
paragraph, where the commissioner states that “because it has also been established
that [Greyling] was part of an attempt to cover up the misconduct by contriving a written warning… ” progressive discipline would not be appropriate. This second reason given
by the commissioner, whilst not part of the charge sheet, was part of the evidence led by the SAPS . The evidence established that the employees signed the contrived written
warnings.
[72] Secondly, the commissioner dealt with the alleged breakdown of the trust
relationship. He referred to the SAPS’ evidence that they consider the charges to be
serious. The commissioner rejected the employees’ argument that because they continued with their duties after the misconduct, the SAPS could not claim that the trust relationship had broken down. He found that the matter should be considered based on
what the SAPS knew at the time and found that the SAPS’ operational response to the
misconduct was justified. This finding by the commissioner remains unchallenged. [73] The conduct of the employees sends a chilling message to members of the
public. It is utter disrespect and disregard to the rights and dignity of the complainants
and victims of crimes. The message is essentially that the SAPS will investigate cases they consider important and serious, and only those cases where the suspects have
been identified. Greyling was a branch commander . Based on the nature of the charge,
the employees’ failure to show remorse and the reasons already articulated in the
award, there are no reasons for this Court to interfere with the award. The sanction ground is rejected.
Conclusion
[74] The test for review is trite - it is outcome- based and the question is whether the
decision reached by the commissioner is one that a reasonable decision maker could
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not reach.7 The test has been explicated in many subsequent judgments and it is trite
now that mere failings, errors or irregularities on the part of the commissioner are not
sufficient to review and set aside the award. Awards will be reviewed only if these failings, errors or irregularities resulted in the commissioner’s decision ultimately being unreasonable.
8 The award is well reasoned and substantiated and therefore meets the
requirement for reasonableness.9
[75] In conclusion, the decision that the dismissal of both employees was fair is
supported by rational reasons, which demonstrates that the commissioner understood the enquiry before him and applied his mind to the issues and the evidence. [76] The employees have failed to make out a case on review and their application
must fail. The parties did not pursue the issue of costs. I do not believe that this is a
matter that warrants a costs order being granted.
[77] In the premises, the following order is made:
Order
1. The application is dismissed
2. There is no order as to costs.
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr. DJ Groenewald
Instructed by : Serfontein Viljoen & Swart Inc
7 Sidumo and Another v Rus tenburg Platinum Mines Ltd and O thers [2007] ZACC 22; ( 2007) 28 ILJ 2405
(CC) at para 110.
8 Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) [2013] ZASCA 97; (2013) 34
ILJ 2795 (SCA) at para 25; Head of Department of Education v Mofokeng and others [2014] ZALAC 50;
(2015) 36 ILJ 2802 (LAC) at paras 31 – 33.
9 Duncanmec (Pty) Ltd v Gaylard NO and others (2018) 39 ILJ 2633 (CC); [2018] 12 BLLR 1137 (CC) at
paras 42 - 43.
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For the Third Respondent: Ms. H Maponya of The State Attorney, Johannesburg