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[2025] ZALCPE 23
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Demingo v Safety and Security Sectoral Bargaining Council (SSSBC) and Others (PR243/22) [2025] ZALCPE 23 (10 October 2025)
THE
LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not
Reportable
Case
No: PR243/22
In the matter between:
CHRISTOPHER
DEMINGO
Applicant
And
SAFETY
& SECURITY SECTORAL
BARGAINING
COUNCIL (SSSBC)
First
Respondent
NEIL
PAULSEN
N.O.
Second
Respondent
MINISTER
OF POLICE
Third Respondent
Heard:
8 October 2025
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email. The date of hand down
is deemed to be 10 October 2025.
JUDGMENT
MAKHURA, J
[1]
The applicant was a member of the South
African Police Service (SAPS) effective 14 September 1992 until his
dismissal on 24 March
or 13 April 2021. At the time of his dismissal,
he had 28 years’ service and held the rank of captain, and his
position was
Visible Policing Head, stationed at Hankey Police
Station. He reported to Xolani Lawrence Dyasopo (Dyasopo), the Hankey
police
station commander.
[2]
After
his dismissal, he referred an unfair dismissal dispute to the first
respondent, claiming that he was not guilty of misconduct
and sought
an award of reinstatement. His claim was dismissed by
the
second respondent (commissioner). He subsequently launched these
proceedings in terms of section 145 of the Labour Relations
Act
[1]
(LRA), to review and set aside the arbitration award. The application
is opposed by the third respondent or the Minister of the
South
African Police Service (SAPS).
[3]
Two preliminary issues must be determined
before the Court proceeds to deal with the merits of the review
application. First, the
applicant’s condonation application for
the late delivery of the review application. If this application
fails, that is the
end of the matter. If, however, the applicant
succeeds, the second issue is the third respondent’s
condonation for the late
delivery of its answering affidavit, which
was objected to by the applicant. Whatever the outcome of the second
issue, the Court
will then proceed to deal with the merits of the
review application.
[4]
The
test for condonation is whether it is in the interest of justice for
the Court to condone the late delivery of the main application.
[2]
The factors relevant to this enquiry include the extent and cause of
the delay, the reasonableness of the explanation for the delay,
the
effect of the delay on the administration of justice and other
litigants, and the prospects of success on the merits if condonation
is granted.
[3]
[5]
The award was issued on 21 September 2021
but served on 4 November 2021. The six-week period within which to
deliver the review
application expired on 16 December 2021, which is
a public holiday. The review application was therefore due on 17
December 2021.
The application was filed on 24 October 2022 and is
over 10 months late. The applicant advances two main reasons why he
could not
bring the application timeously, namely mental health
condition and financial constraints.
[6]
The applicant explained that his suspension
from work in March 2021 and subsequent dismissal on 13 April 2021 had
impacted his state
of mind tremendously, that he suffered a major
depressive episode (MDE) and found himself unable to think clearly.
As a result,
he could not undertake any goal-directed actions and
felt lethargic and overwhelmed by the events. He alleged that he had
concurrent
physiological and psychological conditions such as heart
disease, diabetes, hypertension and post-traumatic stress disorder,
and
that he was previously hospitalised on account of post-traumatic
stress disorder.
[7]
In support of the above allegations, the
applicant attached a medical report from Dr Sean Plaaties together
with his confirmatory
affidavit. The medical report from Dr Plaatjies
is dated 28 September 2022. Dr Plaatjies certified that he knows the
applicant
and provided a list of the applicant’s “
problems”
or conditions as clinical depression and generalised anxiety,
ischaemic heart disease, type 2 diabetes mellitus and severe
hypertension.
The applicant was, according to Dr Plaatjies, on
multiple medications, including anti-depressants and sleeping tablets
combined
with insulin and angina medication. In conclusion, Dr
Plaatjies stated that:
‘
Following
his suspension, Mr Demingo lost his medical aid, and has had numerous
financial restraints which has (sic) exacerbated
his anxiety and
stress and this ultimately culminated in him falling into a MDE in
March/April of last year. He has however shown
remarkable resilience
and flowing from a good family support structure, has been doing
fairly well over the last few months, with
his sister adding him as a
beneficiary on her medical aid, which has since helped in his medical
and mental recovery.’
[8]
The applicant alleges that his condition
improved in February 2022. He consulted his current attorneys, who
also represented him
during arbitration proceedings, and was informed
that a deposit of R70 000.00 should be furnished before a review
application could
be initiated. The applicant was unable to raise the
required deposit. His legal insurance with Legal Wise lapsed, and his
wife
could not assist financially because her salary was only
R3500.00. The deposit was only raised in August 2022 when his “
wife
sold her motor vehicle on 18 August 2022”
.
He paid the deposit on 9 September 2022, consulted counsel on 28
September 2022. Counsel advised that it was necessary for him
to
obtain the medical report from Dr Plaatjies and the proof of sale of
the vehicle.
[9]
As indicated above, Dr Plaatjies’
report is dated 28 September 2022, the same day he consulted counsel.
The vehicle was sold
on 18 August 2022. The applicant furnished this
information on 4 October 2022.
[10]
The explanation, insofar as it relates to
the applicant’s mental health condition, is that this started
in March 2021, following
his suspension from work, which culminated
in his loss of medical aid. Dr Plaatjies says so in his report, which
was issued 18
months later. However, despite this condition, the
applicant was able to attend the disciplinary hearing and later the
arbitration
proceedings until September 2021. There is nowhere in the
record of the proceedings that suggests that the applicant’s
attendance
was disrupted by the mental condition.
[11]
Significantly, the applicant did not refer
to any specific dates that he consulted Dr Plaatjies, nor did he
attach any documentary
proof of his consultation with Dr Plaatjies.
Dr Plaatjies’ report equally makes no mention of the dates he
consulted the
applicant and the last date of consultation. Surely, Dr
Plaatjies would have created a file for the applicant and the record
of
his various consultations with the applicant, which should have
been set out in the affidavit. The date of consultation shortly
after
the applicant received the award was crucial. Dr Plaatjies does not
state that he consulted the applicant shortly thereafter
and on any
specific day at all. Dr Plaatjies states that the applicant has shown
remarkable improvement over the last few months,
after falling into
MDE in March or April 2021. Further, he lists the medical “
problems”
that were allegedly faced by the applicant, without sharing details,
to the extent necessary, about the extent of these conditions
and how
they affected his capacity and ability to initiate steps to challenge
the award, for example, contacting his attorneys
shortly after 4
November 2021.
[12]
The applicant’s averments regarding
his medical condition are inadequate. The reference to the medical
report does not take
the matter forward because the report contains
general, vague and unsubstantiated statements about the applicant’s
alleged
mental condition. The report does not cure the deficiency in
the content of the affidavit and is unhelpful to the applicant’s
case.
[13]
The explanation relating to the financial
constraints starts on 8 February 2022, when the applicant consulted
his attorneys. The
applicant provides no explanation whatsoever about
his financial status at the time of receipt of the award in November
2021. When
he approached his attorney and was informed that a deposit
of R70 000.00 was required before the review application could be
initiated,
it took him more than six months to raise the deposit.
This six-month period is unexplained and unaccounted for. There was a
duty
on the applicant to explain to the Court what he was up to
during this period.
[14]
The applicant does not state when his legal
insurance with Legal Wise lapsed. Therefore, the Court will not
speculate whether it
lapsed during the period he was attending
arbitration proceedings, or after receipt of the award on 4 November
2021.
[15]
The
delay of over 10 months is excessive. The explanation for this
excessive delay has been poorly substantiated and, for this reason,
is rejected.
T
he
excessive delay and the paucity of the explanation provided by the
applicant may justify the immediate refusal of condonation.
However,
these factors are not necessarily dispositive of the question of
condonation. I am enjoined to consider other factors
such as the
prospects of success, which could tilt the scales of the interest of
justice to the other side.
[4]
[16]
In
considering the prospects of success, the Court must determine
whether
prima
facie
,
the award may be reviewed and set aside based on the review test as
set out
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[5]
- that is, whether “
the
decision reached by the commissioner is one that a reasonable
decision-maker could not reach?”
.
This is a stringent test, one that ensures that awards are not
interfered with lightly
[6]
and
one that does not require this Court’s agreement with the
award, but simply requires an enquiry into the reasonableness
of the
award
[7]
, bearing in mind that
errors and irregularities are not of themselves sufficient to vitiate
the award.
[8]
[17]
The
applicant was charged with and dismissed for contravening regulations
5(3)(b), 5(3)(d), 5(3)(u) of the South African Police
Service
Discipline Regulations
[9]
(Discipline Regulations) and the SAPS Code of Conduct.
[18]
Regulation 5(3)(b)(iii) prohibits an employee from
performing or failing to perform any act with the intention to inter
alia
“
not
to comply with his or her duties or responsibilities
”
.
National Instruction 4 of 2011 regulates the record keeping of the
use of the state vehicles. Clause 41 requires each state vehicle
to
have a vehicle register or logbook, which must remain in the vehicle
and be completed by the driver before the start of and
after the
completion of the trip. In terms of clause 42(3):
‘
The
driver of the state vehicle must always record in the Vehicle
register the destination of the journey, the nature of the duties
that was performed and the odometer reading after completing the
journey.’
[19]
Clause 48(2) of the National Instruction 4 of 2011 provides that the
state
vehicle:
‘
may not be used
for official journeys outside the borders of the area to which it has
been allocated, if such journeys can be undertaken
by more cost
effective means of transport,
unless the journey is directly
connected to the investigation and prevention of crime
.’
(Emphasis added)
[20]
In terms of regulation 5(3)(d), an employee is
guilty of misconduct if he or she “
without
permission possesses, uses or appropriates property of the State or
property under the control of the State”
.
[21]
Regulation 5(3)(u) provides that an employee who
contravenes any prescribed Code of Conduct of the SAPS of public
service is guilty
of misconduct. Members of the SAPS commit
themselves to, in terms of the Code of Conduct:
‘
with
integrity, render a responsible and effective service of high
quality…
utilize the available
resources responsibly, effectively and cost effectively to maximise
their use…
act impartially,
courteously, honestly, respectfully, transparently and in an
accountable manner…’
[22]
The
genesis of the above charges and the catalyst for the applicant’s
dismissal is the permission granted to him by his line
manager,
Dyasopo, in early 2020.
In
May 2020, the country was under lockdown regulations after the
President declared the national state of disaster in terms of
the
Disaster Management Act
[10]
.
Some
of the measures at the time included a restriction on the number of
people attending funerals and a curfew. Dyasopo testified
that he had
a good working relationship with the applicant. The applicant
explained their relationship as a hand and glove. The
applicant was
second-in-command. To monitor funerals and enforce the Covid-19
regulations applicable to funerals, Dyasopo and the
applicant
alternated between the weekends. For these reasons, the applicant was
permitted to take the state vehicle home to Humansdorp,
which was
about 29km from Hankey, to do his weekend duty.
[23]
Armed with this permission, the applicant
undertook four trips to Port Elizabeth on 3, 9, 16 and 30 May 2020,
which is outside his
cluster area. These trips are not in dispute.
The applicant did not seek and/or obtain the necessary authority to
travel outside
his cluster area. All four trips were also not
recorded on any SAPS’ official documents, such as logbook,
diary and occurrence
book. He informed no one about these trips, not
even his station commander whom he had a good working relationship
like a hand
and glove and had daily meetings to discuss their
respective work, not before any of the trips, not after.
[24]
The applicant’s case was that he
undertook these trips on his own as part of some investigation or
prevention of crime. He
claimed that he was following a well-known
and dangerous suspected drug leader,
Wagen Vogelstruis
(Vogelstruis),
after receiving information from
his informer. Therefore, because all four trips were undertaken in
connection with an investigation
and prevention of crime, permission
to travel outside his cluster was not necessary. For this argument,
he relied on the exception
or qualification in c
lause 48(2) of
the National Instruction, which reads that 4 of 2011, which allows
members to travel outside their area if their
trips are “
directly
connected to the investigation and prevention of crime”
.
[25]
In addition, the applicant said that he did
not record the trips in the logbook because the original logbook for
May 2020 was lost,
and he had to reconstruct it. He therefore made a
mistake and forgot to include the trips in the reconstructed logbook.
His failure to record the trips in the occurrence book was
attributed to the sensitivity of the information he received from the
informer and his lack of trust on his colleagues which made him fear
that the informer’s safety may be jeopardised. Further,
he did
not inform anyone, including Dyasopo, of the trips, despite their
good working relationship and their daily discussions
on the work
they were doing.
No explanation was proffered why
he did not record the trips in his diary.
[26]
The applicant further challenged the
sanction of dismissal. His case was that the charges do not warrant a
sanction of dismissal.
Mr le Roux, who appeared for the applicant,
submitted upfront that if the applicant is found to have been
dishonest, as the commissioner
had found, it would be difficult to
argue against a sanction of dismissal.
[27]
The commissioner found that charges 4 and 5
constitute duplication of charges. He found that the applicant was
given verbal permission
by Dyasopo to use the vehicle between his
workplace and his place of residence. His trips to Port Elizabeth
exceeded the permission
because the applicant was not allowed to
travel outside his policing area without the authority of the cluster
commander.
[28]
The commissioner considered the defence
invoked by the applicant, that the trips were connected to the
investigation and prevention
of crime as envisaged in clause 48(2) of
the National Instruction 4 of 2011. He considered that the applicant
informed no one about
these trips, even though he had a good
relationship with Dyasopo and would discuss everything about their
work and what they were
doing daily. He rejected the applicant’s
versions that Dyasopo told him not to contact him about everything
and that he did
not trust members at the station because these were
new versions introduced for the first time in his evidence and put to
Dyasopo.
[29]
He accepted Dyasopo’s evidence that
even if the member did not require prior authorisation in terms of
the exception in clause
48(2), the member was still required to
report to him.
The commissioner concluded that:
‘
When
considering his version, I concluded that there are too many things
that did not add up. He did not convince me that the trips
were to
investigate information about drug smuggling activities. I concluded
that he did not undertake the trips to investigate
and prevent
criminal activities. He could thus not rely on Clause 48(2) of the
National Instruction. According to me he should
have had a trip
authority from the Cluster Commander or Brigadier De Kock to
undertake the trip outside the Cluster. He had permission
to take the
vehicle to Humansdorp, but not to Port Elizabeth and thus offended in
that regard as well.
I had to decide whether
there was an element of dishonesty in his conduct. He informed no one
of the four trips which he undertook.
He did so without the necessary
permission and authority. No official record has been kept of the
trips. He had an obligation to
at least inform his Station Commander
concerning his trips. He had an obligation to complete the sheets. On
the whole the Applicant’s
conduct came across as clandestine
and deceptive. It seems as if he deliberately tried to conceal the
trips from the Respondent.
For this reason, I concluded that there
was an element of dishonesty in his conduct.’
[30]
Regulation 5(3)(b) requires the applicant
to comply with his duties and responsibilities prohibits an employee
from performing or
failing to perform any act with the intention to
inter
alia
“
not to comply with his or her
duties or responsibilities”
and
regulation 5(3)(d) makes it an offence for an employee if he, without
permission “
possesses, uses or
appropriates property of the State or property under the control of
the State”
. The substance of
these allegations was that the applicant undertook the four trips to
Port Elizabeth, an area outside his cluster,
without authorisation.
These two charges were found correctly to be a duplication. The gist
of the allegations is that the applicant
had no authority to
undertake the trips in question. There can be no question that the
applicant was not granted permission to
travel to Port Elizabeth.
[31]
Whether this conduct warrants dismissal
depends on the nature and purpose of the trips. This enquiry
inevitably leads to another
enquiry into charge 14 and whether the
exception in clause 48(2) of the National Instruction applies, that
is, whether there was
a legitimate reason for the four trips, or put
differently, whether the four trips, as the applicant claimed, were
in connection
with the investigation and the prevention of crime. If
not, the applicant required permission to travel to Port Elizabeth,
which
he did not have, and the exception does not apply. A further
enquiry would be his failure to record the trips in the occurrence
book, logbook and diary, and whether his omission in the completed
logbook amounts to dishonesty.
[32]
The applicant testified that for each trip, he received the
same information about the suspected drug dealer, Vogelstruis. He
testified
that Vogelstruis was dangerous and had cases of murder,
attempted murder, and possession of drugs against which were
withdrawn.
His informer, on each of the four occasions, told him that
Vogelstruis was driving to Port Elizabeth to buy drugs, using a black
BMW, a white Bantam bakkie and a white Toyota Corolla Sprinter. He
followed these vehicles. Later, his testimony was that he was
following the white Bantam, which was allegedly carrying drugs.
[33]
With knowledge that Vogelstruis was dangerous, the applicant
wanted to be a hero and have all the credit attributed to his police
station. He did not contact anyone, nor did he discuss the trips with
anyone, not even his station commander. He instead elected,
by
himself, to follow the dangerous suspected drug dealer’s three
vehicles, or the white Bantam. He did not want to effect
an arrest
outside his policing area because that would take away his police
station’s credit. Not only was the applicant
not prepared to
give away the credit of a drug bust to another police station, but he
also confirmed during cross-examination that
he was prepared to risk
the suspected drug-dealer evading arrest, for so long as the arrest
is not within his policing area.
[34]
The applicant’s explanation for not recording the trips
in the occurrence book and logbook is abysmal. The human error or
mistake in omitting to record in the logbook was brought about by the
missing logbook, which he had to reconstruct at the end of
May 2020
or the beginning of June 2020 for submission on 7 June 2020. In his
process of reconstruction, he could not remember the
four trips,
despite his last trip being on 30 May 2020.
The
reason for not recording in the occurrence book was that the
information was sensitive, and he had to protect the informer,
this
was not put to Dyasopo and is, in any event, preposterous when
considering that all that needs to be recorded are mainly the
dates,
times, destination and odometer readings.
[35]
The applicant’s failure to record the trips was
calculated and deliberate. It was important for him to conceal these
trips
because they were not only unauthorised, but they may have been
furthering criminal activities. The applicant’s evidence,
in
which he wanted to portray himself as a hero cop who single-handedly
confronted a dangerous suspected drug dealer travelling
in three
vehicles, was unfortunately based on a script that had been poorly
executed.
[36]
The commissioner’s decision to reject
the applicant’s evidence and find him guilty of the charges,
including charge
14, is reasonable. The applicant cannot claim to be
a man of integrity when he conceals what he calls investigation
and/or prevention
of crime, when he wants to work in silos without
his colleagues’ and bosses’ knowledge and when he is
driven by individual
success. He acted with no integrity. He was not
transparent. His evidence was fabricated. He was not honest. Based on
Mr le Roux’s
submission, which I fully agree with, the act of
dishonesty was destructive of a trust relationship. Accordingly, the
ultimate
decision reached by the commissioner that the applicant was
guilty and the sanction of dismissal was appropriate and/or fair is
reasonable. There are no prospects of this Court interfering with the
commissioner’s decision on review.
[37]
Based on the excessive delay, the poor
explanation for the delay and extremely weak prospects of success,
the interest of justice
dictates that the application for condonation
must fail, and with it, the review application collapses. This marks
the end of the
enquiry. Whilst the application fails, and in my view
should fail with costs, the SAPS, represented by the State Attorney,
did
not assist the Court to deserve costs in its favour. Their
opposition was filed outside the time period with an application for
condonation for the late delivery of its answering affidavit, which
is inadequate. Their opposition to the condonation application
was a
blanket denial of the facts without articulating the basis for the
denial of the facts and why the application should not
succeed.
[38]
In the premises, the following order is made:
Order
1.
The applicant’s application for condonation
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 F le Roux
Instructed by:
AC Greyling &
Associates Inc.
For the 3
rd
Respondent:
Ms M Morgan
Instructed by:
The State Attorney,
Gqeberha
[1]
Act 66 of 1995, as amended.
[2]
Grootboom
v National Prosecuting Authority and another
2014 (2) SA 68
(CC);
[2014] 1 BLLR 1
(CC) at paras 22 – 23;
Mankayi
v AngloGold Ashanti Ltd
[2011]
ZACC 3
;
2011 (3) SA 237
(CC) at para 8.
[3]
Ibid;
see also
Brummer
v Gorfil Brothers Investments (Pty) Ltd and others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3;
Van
Wyk v Unitas Hospital and another (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20.
[4]
Mphephu-Ramabulana
and Another v Mphephu and Others
[2021] ZACC 43
;
2022 (1) BCLR 202
(CC)
at
para 38.
[5]
[2007] ZACC 22
; (2007) 28 ILJ 2405 (CC)
at
para 110.
[6]
Fidelity
Cash Management Services v Commission for Conciliation, Mediation
and Arbitration and Others
[2007] ZALAC 12
; (2008) 29 ILJ 964 (LAC) at para 100.
[7]
Duncanmec
(Pty) Ltd v Gaylard NO & others
(2018)
39 ILJ 2633 (CC);
[2018] 12 BLLR 1137
(CC) at paras 42 - 43.
[8]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34 ILJ 2795 (SCA);
[2013] 11 BLLR 1074
(SCA) at para 25;
Head
of Department of Education v Mofokeng & Others
(2015) 36 ILJ 2802 (LAC);
[2015] 1 BLLR 50
(LAC) at paras 31 –
33.
[9]
South African Police Service Regulation; GG 40389, 1 November 2016.
[10]
Act 57 of 2002.