THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: PA 8/24
In the matter between:
SOUTH AFRICAN POLICE SERVICES Appellant
and
BF MKONTO First Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL Second Respondent
CLARENCE RANDALL, N.O. Third Respondent
Heard: 30 September 2025
Delivered: 08 January 2026
Coram: Mahalelo ADJP, Nkutha-Nkontwana JA, Basson AJ
Summary: Labour law — Disciplinary proceedings — plea bargain agreement
— guilty plea in exchange for a lenient sanction — Whether the
chairperson has the power to reject the lenient sanction —
proposed guideline on a procedure to follow when the
chairperson rejects the proposed lenient sanction.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NKUTHA-NKONTWANA, JA
(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised

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Signature Date

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Introduction
[1] Plea-bargain agreements, in which guilty pleas are exchanged for lenient
sentences, form an integral part of our criminal justice system .1 They are an
efficient and cost -effective mechanism for resolving numerous criminal cases.
This concept is not foreign in labour matters , as employees commonly plead
guilty to disciplinary charges in exchange for a lenient sanction short of
dismissal.2 Plea-bargain agreements are equally crucial in labour matters. They
enable hassle-free coalface problem-solving and save time and resources.
[2] Nonetheless, plea- bargain agreements are not immutable. They must be
subjected to scrutiny by the chairperson of the disciplinary enquiry, as they
usually would be by the trial court in criminal cases. What should happen if the
chairperson of the disciplinary enquiry rejects the proposed lenient sanction in
terms of the plea- bargain agreement? That is the question that confronts us in
this appeal, which is by the leave of this Court.
Condonation
[3] Before I turn to the merits, I need to address the appellant's (SAPS) application
for condonation of the late filing of the record of appeal. The delay is 60 days
and is attributed to the glitches in the collation and transcription of the record.
While the first respondent ( Mr Mkonto) opposes the condonation, he, however,
does not complain of any prejudice arising from the delay . In my view,
condonation should be granted, and the lapsed appeal be reinstated. The delay
is not egregious, and the explanation is relatively acceptable. As well, t he
interest of justice dictates that the appeal be disposed of on the merits. This
Court never had the opportunity to pronounce on plea-bargain agreements.




1 They are regulated by section 105A of the Criminal Procedure Act 51 of 1977 (the CPA).
2 See: Member of the Executive Council : Department of Health, E astern Cape Province v Public

2 See: Member of the Executive Council : Department of Health, E astern Cape Province v Public
Health and Social Development Sectoral Bargaining Council and Others [2016] 6 BLLR 621 (LC) . In
this case, the Labour Court endorsed a plea bargain agreement with selected accused employees
who pleaded guilty and became the employer’s witnesses in exchange for lenient sanctions.

3

Facts
[4] Mr Mkonto commenced his employment with the SAPS on 19 September 2003
and held the position of constable. In 2007, he moved to the Child Protection
and Sexual Offences Unit, which had jurisdiction over several areas, including
Cookhouse, Cradock, Hofmeyer, Tarkastad, Bedford, and Middelburg. On 1
July 2015, he was promoted to the rank of sergeant.
[5] Mr Mkonto was charged with allegations of serious misconduct, including
unauthorised use and parking of the SAPS’s motor vehicle. According to SAPS,
these actions were aggravated by dishonesty , which entailed falsifying or
manipulating his travel records. Mr Mkonto was unable to account for the usage
of the SAPS motor vehicle, which he had driven 799 km for private or
unauthorised purposes.
[6] The first sitting of the disciplinary hearing, scheduled for 10 and 11 March 2015,
was postponed, allowing Mr Mkonto an opportunity to seek legal
representation. The disciplinary hearing resumed on 27 May 2015. Mr Mkonto
pleaded not guilty to all charges levelled against him. SAPS led the evidence of
its first witness, Brigadier Tega , the investigating officer. The matter was
postponed to 31 July 2015 due to the unavailability of the SAPS' second
witness.
[7] On 31 July 2015, the parties’ representatives engaged in a successful plea
bargaining. Mr Mkonto changed his plea from not guilty to guilty on all five
charges, in exchange for a lenient sanction, a suspended dismissal valid for
six months and a R500 fine. The chairperson was informed of the plea-
bargain agreement and requested to endorse it . However, while the
chairperson accepted the plea of guilty, he rejected the proposed lenient
sanction and imposed a sanction of dismissal.
The arbitration proceedings
[8] Mr Mkonto challenged his dismissal by referring a dispute to the second
respondent (SS SBC), contending that it was procedurally and substantively
unfair. The third respondent (arbitrator) was appointed to arbitrate the dispute

unfair. The third respondent (arbitrator) was appointed to arbitrate the dispute
following a failed conciliation. The parties concluded a pre- arbitration minute,

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which records as common cause that the parties entered into a plea -bargain
agreement. Pertinently, the main issue for determination was whether the
chairperson was empowered to overturn the plea-bargain agreement.
[9] The SAPS contended that the chairperson of the disciplinary hearing, Colonel
Lairi, was not bound by the plea -bargain agreement. That is so because the
SAPS Discipline Regulations 3 enjoins the chairperson to pronounce on the
verdict, having satisfied herself that the sanction was commensurate with the
offence. Colonel Lairi testified that she viewed the plea-bargain agreement as
a proposal regarding the sanction and therefore allowed the parties to submit
mitigating and aggravating circumstances. Mr Mkonto duly filed his mitigation
circumstances. While she conceded that the SAPS did not submit any
aggravating circumstances , she was adamant that the charges against Mr
Mkonto were serious enough to warrant a sanction of dismissal. She took into
consideration that Mr Mkonto was dishonest and showed no remorse, as he
changed his plea to guilty only after the SAPS had commenced to lead its
evidence.
[10] The SAPS contended further that Mr Mk onto’s dismissal was substantively
fair. The essence of its case was that Mr Mkonto used and garaged (parked)
the state motor vehicle with registration number FXP 739 EC at his private
residence without authorisation; falsified the kilometres he had travelled with
the motor vehicle; compromised the efficiency of the unit which has a high
responsibility to families and children; and failed to maximise the use of the
motor vehicle during the impugned period. The alleged incidents that led to
the charges occurred during trips between Cradock and Hofmeyer from 10
December 2013 to 5 January 2014.
[11] It was not disputed that the use of state -owned motor vehicles is regulated by
the National Instruction 4 of 201 1 (the National Instruction), which requires ,

the National Instruction 4 of 201 1 (the National Instruction), which requires ,
inter alia, that a state motor vehicle be used for official purposes, the driver, a
state employee, must complete a motor vehicle register upon receiving and
returning the motor vehicle and accurately record the destination of the
journey and the odometer reading after completing the trip. The National

3 South African Police Service Discipline Regulations, 2016.

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Instruction also directs that a senior official must authorise the use and
garaging of a motor vehicle, and the reason for us ing it after hours must be
recorded in the motor vehicle register.
[12] Mr Mkonto denied the charges. His explanation for pleading guilty during the
disciplinary hearing was that he was assured of a lenient sanction. Otherwise,
his supervisor at the time, Captain Sefa, had given him blanket verbal
authorisation to drive and garage the motor vehicle at his private residence.
That was consequent upon Captain Sefa appointing him to act as the head of
the unit and to perform standby duties during the impugned period as
recorded in the motor vehicle register.
[13] Captain Sefa corroborated Mr Mkonto’s evidence. However, he was
constrained to concede that the National Instructions provide that
authorisation to use and garage a state- owned motor vehicle in a private
residence must be in writing. He further conceded that he could not have
authorised the unlawful garaging of the motor vehicle or the falsification of
information in relation to the trips undertaken.
[14] The arbitrator found that the parties were constrained by the pre -arbitration
minute. Therefore, the issue for determination was whether the plea-bargain
agreement was binding on the chairperson. On the strength of the dictum in
Minister of Justice and Constitutional Development v General Public Service
Sectoral Bargaining Council and Others 4 (Minister of Justice ), the arbitrator
found that the chairperson had no power to interfere with the plea -bargain
agreement. That, he reasoned further , meant the SAPS, through the
chairperson, interfered with a plea- bargain agreement and dismissed Mr
Mkonto in a procedurally and substantively unfair manner. He ordered his
reinstatement with full back pay.
The Labour Court proceedings
[15] The SAPS impugned the award on various grounds , including the contention
that the arbitrator misinterpreted the case law he relied on to support his

that the arbitrator misinterpreted the case law he relied on to support his

4 (2017) 38 ILJ 213 (LC).

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finding that the plea- bargain agreement was binding on the chairperson; that
he rendered a contradictory award; and that he unreasonably concluded that
dismissal was an appropriate sanction.
[16] The Labour Court upheld the arbitrators’ finding that the c hairperson was
compelled to honour the plea-bargain agreement and to impose the lenient
sanction. Otherwise, the chairperson ought to have allowed Mr Mkonto to
revert to his plea of not guilty or t o recuse himself from the disciplinary
hearing. The Labour Court also found no contradictions in the award and no
evidence to support the SAPS’s contention that the employment relationship
had broken down, justifying a sanction of dismissal. In its view, the award was
unassailable as it met the threshold of reasonableness . It therefore dismissed
the SAPS review application.
The proceedings in this Court
[17] The SAPS submits that the Labour Court erred by endorsing the arbitrator ’s
finding to the effect that the chairperson was compelled to honour the plea-
bargain agreement. Moreover, it attacks the Labour Court’s reliance on this
Court’s dictum in SA Revenue Service v Commission for Conciliation,
Mediation & Arbitration & others 5 (SARS), which settled the question of
whether the employer may substitute the chairperson’s lenient sanction with
dismissal. SARS was found to have acted unlawfully in substituting the
sanction.6
[18] By the same token, the SAPS impugns the arbitrator’s reliance on the dictum
in Minister of Justice , as well as the Labour Court’s endorsement of th at
finding. It contends that both the arbitrator and the Labour Court misconstrued
the legal tenets implicated in th ose cases. The SAPS contends further that,
given the seriousness of the charges against Mr Mkonto, the arbitrator ought
to have found the sanction of dismissal appropriate.
[19] Mr Mkonto defends both the arbitration award and the Labour Court’s
judgment. He contends that the chairperson unlawfully rejected the lenient

judgment. He contends that the chairperson unlawfully rejected the lenient

5 (2016) 37 ILJ 655 (LAC).
6 Id at para 42.

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sanction as she was bound by the plea- bargain agreement . Therefore, the
arbitrator rendered a reasonable awar d, which the Labour Court correctly
upheld.
Discussion
Plea bargain agreement
[20] The main issue for determination in this appeal is whether the chairperson of
the disciplinary hearing may reject a lenient sanction pursuant to the plea-
bargain agreement. Generally, plea-bargain agreements are mundane and
are readily sanctioned by trial judges in criminal cases. On the odd occasion,
as typified in the present case, a trial judge may reject a plea- bargain
agreement if they are of the view that the proposed sentence is unjust (unduly
lenient or harsh). In essence, trial judges are not bound by the plea-bargain
agreement. However, the parties will have an option to withdraw from the
plea-bargain agreement ; if they do, the accused will revert to a plea of not
guilty, and the trial will commence de novo before a different presiding officer,
unless the accused does not object.7
[21] In the present case, the chairperson was similarly not bound by the plea-
bargain agreement. As correctly contended by the SAPS, the Disciplinary
Regulations enjoin the chairperson to decide on the sanction after considering
mitigating and aggravating circumstances . That is what happened here.
Having rejected the lenient sanction agreed to by the parties, the chairperson
imposed a sanction she deemed appropriate, given the seriousness of the
charges.
[22] Therefore, reliance on the dicta in SARS 8 and Minister of Justice9 by both the
arbitrator and the Labour Court is misconceived. In those cases, the
respective employers unlawfully interfered with the chairperson's decision to
impose a lenient sanction. Conversely, SARS supports SAPS’s contention
that the chairperson was clothed with the persona of the employer and, as

7 See section 105A(9) of the CPA.
8 SARS above fn 5.
9 Minister of Justice above fn 4.

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such, her decision is that of the employer .10 Therefore, the arbitrator’s finding
that the plea- bargain agreement was binding on the chairperson is
unreasonable.
[23] Yet, the chairperson could not pick and choose which part of the plea- bargain
agreement to endorse. By rejecting the lenient sanction, the chairperson
effectively collapsed the plea-bargain agreement. Consequently, there was no
basis upon which to impose a sanction she considered appropriate. In my
view, the approach adopted by the chairperson show ed no fidelity to the audi
alterum partem rule , a fundamental principle of natural justice that requires a
fair hearing before a n adverse decision is made. It follows that there is no
merit in the SAPS’ contention that the arbitrator failed to furnish reasons for
his finding that Mr Nkonto’s dismissal was procedurally unfair.
[24] It would seem to me that the procedural bungle in the present case stems
from the absence of a prescribed procedure to be followed when a lenient
sanction is rejected in labour matters. I, therefore, propose the following brief
guidelines for the procedure to be followed when the chairperson of a
disciplinary enquiry has reservations about the lenient sanction proposed in a
plea bargain agreement.
24.1 First, the chairperson must inform the parties that they are disinclined
to endorse the proposed lenient sanction and give reasons.
24.2 Second, the parties must be allowed to review their positions and
consider their options, which may include the following:
26.2.1 To reopen the plea- bargain discussions to address the
chairperson's concerns and propose another sanction.
26.2.2 Alternatively, to terminate the plea bargain agreement.
24.3 Third, in the event the parties decide to terminate the plea- bargain
agreement, the accused employee must be allowed to withdraw the
plea of guilty.

10 SARS above fn 5 at para 41.

9

24.4 Finally, the disciplinary enquiry must commence de novo before a
different chairperson, unless the accused employee has consented that
the same chairperson may continue to preside over the disciplinary
enquiry.
[25] This guideline is, nonetheless, not cast in stone; a degree of flexibility ought to
be permitted as and when practical justice demands.
Substantive unfairness
[26] The next question is whether the procedural unfairness tainted the enquiry to
the extent that it inhibited a substantively fair outcome. In SARS, this Court
cautioned against turning the distinction between substantive and procedural
unfairness into a legal principle that creates two separate concepts , as its
usefulness is context sensitive. The following observations in SARS drive the
point home:
‘An unlawful act will always be, within the Labour jurisprudence paradigm,
both substantively and procedurally unfair. A lawful act may be both
substantively and procedurally unfair, and sometimes only one or the other.
Sometimes a defective and thus unfair procedure may taint an enquiry so as
to prevent a fair decision on a substantive issue from being taken.
Sometimes, an unfair procedure does not get in the way of discerning a
substantively fair dismissal.’11
[27] As a point of departure, in Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others 12 (Sidumo), a locus classicus on the reasonableness review
test, the Constitutional Court found that, in determining the fairness of a
dismissal, the arbitrator is not required to defer to the employer’s decision as
the arbitration is a de novo hearing. The test is one of fairness , which entails
weighing factors such as the gravity of the misconduct, the employee's
circumstances, the impact on the employer, and whether the sanction is
appropriate in the context of the employment relationship.13

11 SARS above fn 5 at para 33.
12 (2007) 28 ILJ 2405 (CC)
13 Id at para 79.

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[28] The SAPS contends that the arbitrator unreasonably failed to pronounce on
the fairness of the sanction of dismissal , despite the overwhelming evidence
that Mr Mkonto committed serious acts of misconduct , which the arbitrator
himself acknowledged. The arbitrator was of the view that, by entering into the
plea bargain agreement , the SAPS must have accepted that t he trust
relationship had not broken down and that the actual misconduct was not
serious enough to warrant a sanction of dismissal. This view is untenable,
given my conclusion that the plea- bargain agreement did not bind the
chairperson.
[29] Moreover, since the arbitration is a hearing de novo, I do not see how the
procedural irregularity could have impeded the arbitrator from determining the
substantive fairness of Mr Mkonto’s dismissal , particularly because he was
confronted with overwhelming evidence on the merits. The evidence showed
that Mr Mkonto failed to adhere to the National Instructions, which provide that
the authority to use the state-owned motor vehicle must be in writing. Captain
Sefa could not explain the source of his powers to verbally appoint Mr Mkonto
to act in his position and to use the motor vehicle.
[30] Even if Mr Mkonto had been granted verbal authorisation to use the motor
vehicle, he was still expected to seek a written authorisation to garage it at his
private residence for not more than seven days and to provide precise details
of the trips undertaken. It is also telling that, while Mr Mkonto insisted that he
was performing standby duties, his name did not appear on the standby duty
roster for the impugned period.
[31] The only conclusion to be drawn from the evidence, viewed in its totality, is
that Mr Mkonto used the state motor vehicle for his private trips, clocked
about 799 km, and garaged it at his private residence, in breach of the
National Instructions.
Inconsistency
[32] Mr Mkonto’s claim that the sanction of dismissal was inconsistently applied

[32] Mr Mkonto’s claim that the sanction of dismissal was inconsistently applied
cannot assist him. It is a well- accepted notion that an inconsistency is a factor
to be considered in the determination of the fairness of the dismissal, but it is

11

not decisive.14 The SAPS contend s that what distinguished Mr Mkonto’s
conduct from that of his comparators was that he was also accused of
dishonesty. This evidence was not seriously disputed. Moreover, it was Mr
Mkonto’s own version that the transgressions occurred when he was the
acting head of the unit . That being the case, he had a duty to exemplify
compliance with the prescripts, but he dismally failed to do so. It is also
disquieting that Mr Mkonto showed no remorse for his conduct. Instead, he
mounted a complete volte- face in his plea and engineered a justification for
his conduct that is plainly untenable.
Dishonesty
[33] Worse still, Mr Mkonto’s dishonest conduct, which reflects a lack of integrity or
straightforwardness, marred the employment relationship.15 A high premium is
placed on honesty and integrity within the SAPS and all other national law
enforcement agencies, a point aptly underscored in the cases referred to by
SAPS.16 The following observations in National Commissioner of the SA
Police Service & Another v Mphalele NO & Another,17 are instructive:
‘The evidence demonstrates indisputably that Mezichel had succumbed to his
personal difficulties and had acted fraudulently in a manner that made him
wholly unreliable as a police officer, a lawyer and an employee in whom the
station commander needed to repose considerable trust. Such an employee
is required to observe the highest standard of integrity, good faith, honesty
and reliability. Police officers and lawyers should always (not only in the
discharge of their official duties) act honourably in a manner befitting their
office, free from fraud, deceit and falsehood, and be virtuous in their
behaviour. A police officer must maintain high standards of rectitude in private
as well as in public life. A police officer, who in fulfilment of his or her duties is
required to act against fraud, when he or she practices such in his or her own

required to act against fraud, when he or she practices such in his or her own
life, is a hypocrite. This inevitably will result in a total loss of confidence in the

14 Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others (2017) 38 ILJ 860 (LAC) para 31.
15 See: Nedcor Bank Ltd v Frank and Others (2002) 23 ILJ 1243 (LAC) at para 15.
16 See: SA Police Service v Magwaxaza (2020) 41 ILJ 408 (LAC) at para 48; and Booysen v Safety
and Security Sectoral Bargaining Council and Others (2021) 42 ILJ 1192 (LAC) at para 19.
17 (2019) 40 ILJ 806 (LAC) at para 19.

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officer concerned, which could rub off on the SAPS more generally, adding to
a loss of public confidence in SAPS…’ (Emphasis added)
[34] The arbitrator unreasonably held that the SAPS failed to lead evidence to
justify the dismissal of Mr Mkonto. The breakdown of trust was evident from
the nature of the offence, which revealed a stratagem of dishonesty
perpetrated by Mr Mkonto, a police officer.18 The Labour Court ac cordingly
erred by sanctioning the arbitrators' findings that Mr Mkonto’s dismissal was
substantively unfair, contrary to this Court's caution against deferring to the
arbitrator's reasoning. 19 Instead, it should have determined the
reasonableness of the award based on the totality of evidence on the record
of the arbitration proceedings.20
Conclusion
[35] In all the circumstances, the appeal succeeds in part and only in relation to the
substantive unfairness of the dismissal. What remains is the determination of a
relief for a procedural unfairness claim . I deem it expedient that this Court deal
with this matter to finality rather than remit it back to the SSSBC for a de novo
hearing, given the unfortunately long and protracted history of the matter , and
fairness to both parties. Also, the parties took no issue with the adequacy of the
record.
Relief
[36] The relief for procedurally unfair dismissal is compensation, rather than
reinstatement or re- employment. Compensation must be just and equitable in
all the circumstances, but not be more than the equivalent of 12 months’
remuneration calculated at the employee’s rate of remuneration on the date of
dismissal.21 Since compensation is not automatic , in awarding compensation, I
have considered, as alluded to above, inter alia , the extent of the SAPS'
deviation from its own procedure, the impact of Mr Mkonto’s transgression on

18 See: Autozone v Dispute Resolution Centre of Motor Industry & others (2019) 40 ILJ 1501 (LAC) at
paras 12 and 13.

paras 12 and 13.
19 See: Khambule & Another v Impala Platinum Ltd & others (2019) 40 ILJ 2505 (LAC) at para 11.
20 Id.
21 See: Section 193(2) and 194(1) of the LRA.

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the SAPS operations and the general public .22 Mr Mkonto should accordingly
be paid compensation equivalent to three months' remuneration as at the time
of dismissal.
Costs
[37] As to costs, b oth parties are considerably successful. The SAPS succeeded in
reversing the reinstatement order. At the same time, Mr Mkonto defended the
order of procedural unfairness and secured compensation. It therefore accords
with the principles of fairness and equity that each party pays their own costs.
[38] In a result, the following order is made:

Order
1. Condonation for the late filing of the record of appeal is granted, and
the lapsed appeal is reinstated.
2. The appeal is upheld in part.
3. The orders of the Labour Court are set aside, and are replaced with the
following:
‘The review application succeeds in part, and the arbitration
award dated 26 September 2019 is reviewed and set aside,
save for the order that the dismissal was procedurally unfair,
and substituted with the following:
(i) The dismissal of Mr Mkonto was
substantively fair.
(ii) The SAPS shall pay Mr Mkonto
compensation equivalent to his salary for 3
months at the time of dismissal.’
4. No order is made in respect of the costs of the appeal.

22 See: SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and others
(2017) 38 ILJ 97 (CC) at para 52 and 53.

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___________________

Nkutha-Nkontwana JA

Mahalelo ADJP et Basson AJA concur.

APPEARANCES:

FOR THE APPELLANT: Adv M Thys
Instructed by State Attorney

FOR THE RESPONDENT: Mbulelo Qotoyi Attorneys