Kgomotso v South African Police Service and Others (JA56/24) [2026] ZALAC 7 (5 February 2026)

THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no. JA 56/24
In the matter between
PHAHLANE JOHANNES KGOMOTSO Appellant
and
SOUTH AFRICAN POLICE SERVICE First Respondent
SAFETY AND SECURITY BARGAINING
COUNCIL Second Respondent
NKOPANE JOYCE N.O. Third Respondent
MINISTER OF POLICE Fourth Respondent
Heard: 16 September 2025
Delivered: 5 February 2026
Coram: Nkutha-Nkontwana JA, Chetty AJA et Tokota AJA
Summary: Labour Relations Act – dismissal for misconduct – CCMA has
jurisdiction to determine the fairness of dismissal and not legality – LRA
mechanisms to be used to challenge LRA breach for LRA remedy.
Pleadings – Labour Court – Jurisdiction – to be assessed on basis of pleaded cause
of action not substantive merits of case – it is impermissible for a party to
recharacterise or expand an unfair -dismissal dispute into a legality challenge
extraneous to the pleadings – the illegality claim, in any event, is untenable.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised

____________ ______________
Signature Date

2

Review – Reasonableness test – high threshold – judicial deference is required, and
interference is justified only where the decision is one that no reasonable
decision-maker could reach.
Minority judgment – unlawful dismissal – anyone, not being the President, purporting
to act in terms of section 207 of the Constitution acts unlawful and such act is a
nullity – Labour Court has no jurisdiction to entertain an unlawful dismissal dispute.
_________________________________________________________________
ORDER
_________________________________________________________________
Chetty AJA delivers a majority judgment in which Nkutha- Nkontwana JA concurs.
Tokota AJA concurs in the order, but for reasons distinct from the majority. The
following order therefore reflects the unanimous outcome of th is Court,
notwithstanding the difference in reasoning:
The appeal is dismissed with no order as to costs.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
TOKOTA, AJA
[1] Appellant joined the South African Police S ervice (the SAPS) on 8 N ovember
1985. He was dismissed by the National Commissioner of Police on 7 August
2020 on account of the alleged misconduct. At the time of his dismissal , he
was an Acting National Commissioner in the SAPS, and he was on
suspension, having been suspended by the Minister of Police. He referred a
dispute of unfair dismissal to the Safety and Security Bargaining Council ( the
Bargaining Council) for concili ation. The conciliation failed and the dispute
remained unresolved. It was then referred to arbitration. The arbitrator issued
an award upholding the dismissal on the basis that it was both procedurally
and substantively fair. The Labour Court dismissed his application for the

3

review of the award with no order as to costs. This appeal is against that order
with leave of this Court.
[2] I set out herein the chronological events which culminated in the appellant’s
dismissal. On 8 November 1985, the appellant joined the SAPS. In the years
following his appointment , he was promoted to various police ranks and
ultimately to the rank of Lieutenant General in 2007.
[3] On 12 July 2010, the appellant was deployed, as a Divisional Commissioner
Personnel, to the Division of Forensic Services , which was responsible for a
panoramic image capturing system for the visual representation of crime
scenes. In 2013, this Division identified a need to procure a 360 x 180
panoramic image capturing system , including the maintenance of the
equipment provided for under the Criminal Justice System Budget.
[4] On 21 November 2013, an invitation to bid was then issued calling upon the
bidders to submit their bids under Bid No. 19/1/9/1/187 TR [13] for the Supply
and delivery of 360 x180 Panoramic Image Capturing System for visual
presentation of Crime and Crash Scenes (360-degree panoramic camera
equipment), including a three (3) year Maintenance Contract: Criminal Record
and Crime Scene Management: Division Forensic Services. The two bidders
shortlisted, Ethemba Forensic Group (Pty) Ltd (Ethemba) and Forensic Data
Analysis (Pty) Ltd (FDA), were visited at their sites by the Bid Evaluation
Committee (the BEC) on 11 April 2014 and 14 April 2014, respectively.
[5] On 28 July 2014, the bidding process was finalised and the bid was awarded
to Ethemba by the Bid Adjudication Committee.
[6] On 22 August 2014, FDA addressed a letter to the D ivisional Commissioner
for the Supply Chain Management in which it disputed the award of the bid to
Ethemba. On 4 September 2014, this letter was forwarded to the appellant for
his attention in his capacity as the Divisional Commissioner for Forensic
Services.

4

[7] On 22 October 2014, the appellant sent a letter of complaint to Forensic
Services, stating that the bid offer was not compliant with the specifications
and recommending that the contract with Ethemba be withdrawn.
[8] On 5 November 2014, the Divisional Commissioner for Supply Chain
Management addressed a letter to the BEC directing that the committee
should reconvene and provide a report about the alleged misleading and non-
compliant offer by Ethemba
[9] On 14 November 2014, the BEC reconvened and it concluded that both
bidders were compliant . On 20 November 2014, the BEC recommended that
the matter be referred to the legal division for guidance.
[10] On 10 March 2015, the appellant addressed a further letter to the Supply
Chain Management Division, maintaining that the bid from Ethemba was non-
compliant with specifications. He pointed out certain shortcomings of the
Ethemba bid. He stated that Forensic Services could not be placed at risk ,
stating that “under no circumstances will the expert status of crime scene
experts be compromised”. He concluded by saying that his division did not
support the award made by the Bid Adjudication Committee.
[11] On 31 March 2015, the Supply Chain Management Division address ed a
letter to Ethemba, pointing out the alleged shortcomings and inviting it to
respond thereto. On 7 May 2015, Ethemba responded by furnishing an expert
report from Dr Weiss addressing the concerns, maintaining that the bid was
compliant. This information was forwarded to the appellant for his attention on
13 May 2015. No response was forthcoming in this regard.
[12] On 27 July 2015, the Acting Divisional Commissioner for Supply Chain
Management addressed a letter to Forensic Services, pointing out that its
reluctance to place orders with Ethemba was putting the SAPS at risk of
litigation. Further correspondence followed from the Division Supply
Management in this regard without any response fr om the appellant’s
Division.

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[13] On 25 September 2015, the appellant addressed a letter to Technology
Management Services requesting that an amount of R46million from the funds
that were allocated to procure a 360-degree panoramic camera system be
used to cover the costs of Forensic light sources , since there was still a
contractual dispute about the bid awarded to Ethemba.
[14] On 14 October 2015, the appellant was appointed by the President as the
Acting National Commissioner of the SAPS. The duration of this acting
appointment is not stated in the papers.
[15] On 10 February 2016, one retired Brigadier John Lambert , working for
Ethemba, addressed a letter to the Acting Divisional Commissioner for
Forensic Services demanding placement of the orders in accordance with the
contract. No orders were placed. On 29 March 2016, Ethemba, through
Brigadier Lambert, once again addressed a letter of final demand for the
placement of orders by Forensic Services. He pointed out that the matter
could be resolved without the intervention of the Public Protector.
[16] On 25 April 2016, the M anaging Director of Ethemb a wrote a letter to the
Acting Divisional Commissioner for Forensic Services, Lt. General Mokwana,
and proposed a joint meeting to resolve the dispute. On 29 April 2016, the
Acting Divisional Commissioner Forensic Services , Major General Ngokha,
addressed a letter to the Divisional Commissioner for Supply Chain
Management and recommended that , in view thereof that the two divisions
were not in agreement about the validity of the award, the matter should be
referred to CSIR for an independent assessment of the compliance or
otherwise of the bid specifications.
[17] On 14 July 2016, lawyers for Ethemba served the appellant , in his official
capacity as the Acting National Commissioner for the SAPS, with the notice in
terms of s. 3 of the Institution of Legal Proceedings Against Certain Organs of
State Act
1, informing him that Ethemba has accepted the repudiation by the

State Act
1, informing him that Ethemba has accepted the repudiation by the
SAPS and thereby cancelled the contract and would claim damages
accordingly. They threatened to serve summons imminently.

1 Act 40 of 2002.

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[18] On 29 September 2016 the Forensic Services Division received a letter from
the National Treasury advising it to request SABS for scientific and industrial
research to independently verify compliance with specifications.
[19] On 30 September 2016, the appellant , in his official capacity as the Acting
National Commissioner, was served with summons from Ethe mba claiming
damages in the amount of R14 879 500.
[20] On 1 June 2017, the appellant was suspended by the Minister of Police
without loss of his benefits.
[21] On 6 July 2020, the appellant was served with a notice to expeditious process
to appear before Lt. G eneral Riet, having been charged with misconduct . He
was subsequently found guilty and dismissed by the National Commissioner
of Police. As pointed out above, he referred a dispute of unfair dismissal to the
Bargaining Council.
[22] The arbitrator found that the dismissal was both substantively and
procedurally fair. The arbitrator found that “it is common cause that on 14
October 2015 the applicant [appellant ] was appointed as the National
Commissioner of South African Police Services ”. She found that although the
appellant claimed that at the time of the case against the SAPS by Ethemba
he was no l onger in charge of the Division, as a Divisional Commissioner, as
the overall head of the SAPS he ought to have found out what was happening
to the matter. The arbitrator acknowledged that the appellant, at that time, was
the Accounting Officer and, as such, he had a responsibility to find out what
was happening with the contract.
[23] The appellant then took the arbitration award on review before the Labour
Court. The Labour Court (per Davey AJ) dismissed the applicati on with no
order as to costs. The Labour Court subsequently refused leave to appeal ,
hence it was granted by this Court.
[24] The Labour Court dealt with the review on the basis of reasonableness or
otherwise of the arbitrator and concluded that the findings of the arbitrator

otherwise of the arbitrator and concluded that the findings of the arbitrator
were reasonable and that there was no reason to interfere with the award.

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[25] In view of the fact that I am satisfied that the appeal can be disposed of on a
point of law , I have decided not to traverse all the grounds of appeal.
Furthermore, I will refrain from dealing with the merits of the case for the
reasons that will follow . The point of law was pertinently raised in the review
papers, but was not dealt with by the Labour Court . The point is whether it
was lawful for the Minister of Police to suspend the appellant , who was t he
Acting National Commissioner at the time, and whether the National
Commissioner was empowered to charge and dismiss him since he was
never removed by the President as the Acting National C ommissioner. I may
mention at this stage that the point of suspension has become moot in view of
the dismissal.
[26] From the pleadings in the Labour Court , one is able to glean from the
appellant’s grounds of review what the cause of action was . These grounds
form the basis of his cause of action. From paragraphs 85 to 90 of the
founding affidavit , the nub of the complaint was that the allegations raised
against him related to his position as the Acting National Commissioner, not
as the Divisional Commissioner. In paragraph 86 he says “As such only the
President of the Republic of South Africa (the President) can take such action
against me for conduct which relates to averred misconduct committed by me
as the National Commissioner of the SAPS.” He states that the presiding
officer of the disciplinary enquiry was “extremely” aware of this fact. Except for
a bare denial and a rider that the appellant’s sense of impunity should be
frowned upon, these allegations are not dealt with pertinently by the
respondents. In Makhuva v Lukoto Bus Service (Pty) Ltd and others
2 the
Learned Acting Judge said:
“In the course of argument I put it to counsel for applicants that, where a
deponent is under a duty to admit or deny or to confess and avoid a direct
allegation, a reply that the allegations are 'taken note of' would, in the

allegation, a reply that the allegations are 'taken note of' would, in the
circumstances, amount to an admission. See in this respect the case of
McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) at 10E -
D where it is stated that whilst 'quiescence is not necessarily acquiescence', a

2 1987 (3) SA 376 (V) at 386 D – F.

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party who does not make a firm repudiation of an allegation when bound to do
so incurs the risk of an adverse inference being drawn against him.”
[27] Furthermore, in paragraphs 89 -90 appellant stated:
“From the mentioned examples in the C ommissioner’s award, it is clear that
the Commissioner held the view that I had certain duties as the National
Commissioner which I did not conform to, and these averred failures led to
her finding that I was guilty of the first charge.”
[28] Paragraph 90 thereof states:
“The Commissioner should at this point have concluded that action should
have been taken against me by the President, as the President was the only
person who could take such action. The Commissioner, however, failed to
recognise this fact and found me guilty of alleged omissions during the term
as National Commissioner. The Commissioner did not have the power to
venture this fa r and as such exceeded her powers and acted irregularly and
unlike a reasonable Commissioner”.
[29] The first charge related to a conduct which was alleged to have brought the
SAPS into disrepute in that , between 2013 and 2016, the appellant acted
intentionally or negligently in the repudiation in respect of the contract
between Ethamba and the SAPS, resulting in fruitless expenditure of R24
494.080.65.
[30] In the answering affidavit of the respondents , the allegations contained in
paragraphs 89 to 90 mentioned above were not pertinently deal t with . The
response was that it had always been the theme of his [appellant’s] case that
he should not be charged. It is further stated “[t]hus the applicant has always
held himself as one above discipline”.
[31] Again, in this Court, the above point was pursued in the heads of argument by
Counsel for the appellant. Counsel for the first respondent did not fi nd it
necessary to respond to this point in her heads of argument and simply took
the attitude that this point was new and that it was raised for the first time on

the attitude that this point was new and that it was raised for the first time on
appeal. As can be gleaned from the above quoted paragraphs, the point was
indeed raised before the Labour Court. However, even if it was raised for the

9

first time on appeal , it is a legal point and this Court would have dir ected the
parties to deal with it as it was covered in the pleadings.
[32] In CUSA v Tao Ying Metal Industries and others3 Ngcobo J stated:
‘Where a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the law is, a court is not
only entitled, but is in fact also obliged, mero motu, to raise the point of law
and require the parties to deal therewith. Otherwise, the result would be a
decision premised on an incorrect application of the law.'
[33] In Paddock Motors (Pty) Ltd v Igesund4 Jansen JA said:
'. . . it would create an intolerable position if a Court were to be precluded
from giving the right decision on accepted facts, merely because a party failed
to raise a legal point, as a result of an error of law on his part . . .'
[34] Consequently, this Court is obliged to decide the merits or otherwise of the
point.
[35] In Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and
another5 Van der Westhuizen J, writing for a unanimous Court, said:
‘In Barkhuizen Ngcobo J noted that this Court may consider a point of law that
is raised for the first time if the point is covered on appeal by the pleadings
and its consideration on appeal involves no unfairness to the other parties.
Khumalo supports this. In Lagoonbay this Court stated that it must be in the
interests of justice, which takes into account the public interest and whether
the matter has been fully and fairly aired, to hear a new argument for the first
time. In this case the issue was not properly raised on either the facts or the
law.’
[36] It is now timely to look at the relevant legal framework . Section 207 of the
Constitution of the Republic of South Africa, 1996, (the Constitution) provides
that ‘[t]he President as head of the national executive must appoint a woman

that ‘[t]he President as head of the national executive must appoint a woman

3 2009 (2) SA 204 (CC) at para 68 (CUSA). See also: Mighty Solutions t/a Orlando Service Station v
Engen Petroleum Ltd and another 2016 (1) SA 621 (CC) at para 63.
4 1976 (3) SA 16 (A) at 23 F.
5 2016 (1) SA 621 (CC) at para 63.

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or a man as the National Commissioner of the P olice service, to control and
manage the police service.’ This is the express primary power of the President
[37] Section 6(1) of the South African Police Service Act6 (the Police Act) provides:
‘There shall be a National Commissioner of the Service who shall be
appointed in accordance with section 207(1) of the Constitution of the
Republic of South Africa, 1996.
6(2) There shall be a Provincial Commissioner of the Service for each
province who shall be appointed by the National Commissioner subject to
section 207 (3) of the Constitution of the Republic of South Africa, 1996’.
[38] Section 7 of the Act provides for the terms of office of National a nd Provincial
Commissioners. It provides:
‘(1) Subject to this Act, the person who is appointed as National or Provincial
Commissioner shall occupy that office for a period of five years from the
date of his or her appointment or such shorter period as may be determined
at the time of his or her appointment by—
(a) the President, in relation to the National Commissioner; or
(b) ...’
In terms of ss .3 of s. 7, the President may, in writing and two months before
the expiry of the period of five years or such extended period as the case may
be, inform the National Commissioner of his intention to extend the period.
[39] The power to suspend 7 and remove the National Commissioner vests in the
President.8 Section 8(7) provides that the President ‘…may, upon receipt of a

6 Act 68 of 1995.
7 Section 9 provides:
“(1) If the … is of the opinion that the National Commissioner … is guilty of misconduct or is not able
to carry out the duties of his or her office efficiently, the President …may establish a board of inquiry
consisting of a judge of the Supreme Court as chairperson and two other suitable persons to—
(a) inquire into the alleged misconduct or incapacity;
(b) compile a report; and
(c) make recommendations.

(b) compile a report; and
(c) make recommendations.
(2) The President … may, after hearing the Commissioner concerned, pending the outcome of the
inquiry referred to in subsection (1), suspend him or her from office.
(3) A Commissioner who is suspended from office under subsection (2), shall, during the period of
such suspension, be entitled to any salary, allowance, privilege or benefit to which he or she is

11

recommendation contemplated in subsection (6), remove the Commissioner
concerned from office, or take any other appropriate action. ’ In my view , it
follows that if the power to appoint an Acting National Commissioner vests in
the President, as was the case in this matter, then the power to remove or
suspend that Acting National Commissioner cannot shift to another
functionary such as the Minister of Police or the National Commissioner . The
power to appoint a Provincial Commissioner is vested in the National
Commissioner.
9 The appointment of such Acting National Commissioner is for
such period as the post of a permanent National Commissioner is still vacant
or such other period as the President may consider appropriate, and, the
removal of such Acting National Commissioner , to make way for the newly
appointed one, vests in the President as corollary power.
[40] The power to dismiss the National Commissioner of the SAPS is a corollary of
the power to appoint and is an executive action that does not constitute
administrative action, and could only be reviewed on the grounds of legality
principle. It has been held that ‘ [t]hese powers to appoint and to dismiss are
conferred specially upon the President for the effective business of
government …’
10
[41] The power to appoint the National Commissioner of Police is expressly
conferred on the President in terms of the Constitution and Police Act ,
respectively and the power to remove him or her is implied in the respective
Acts. ‘As a general rule, express powers are needed for the actions and
decisions of administrators. Implied powers may, however, be ancillary to the
express powers or exist either as a necessary or reasonable consequence of
the express powers. Thus, ‘what is reasonably incidental to the proper
carrying out of an authorised act must be consi dered as impliedly
authorised’.
11 Accordingly, even though the power to dismiss is not expressly

authorised’.
11 Accordingly, even though the power to dismiss is not expressly

otherwise entitled as a member, unless the President or the National Commissioner, as the case may
be, determines otherwise.”
8 Ss 8(3)(a) and.8(7) of the Police Act
9 Section 207(3) of the Constitution.
10 Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) ; 2008 (1)
BCLR 1 (Masetlha) at para 77.
11 Hoexter Administrative Law in South Africa (Juta, Cape Town 2012) at 43-4.

12

provided in the Constitution, it follows that such power is implied as a
necessary corollary to the power to appoint.
[42] According to De Ville:
“[w]hen powers are granted to a public authority, those granted expressly are
not the only powers such public authority will have. The powers will include
those which are reasonably necessary or required to give effect to and which
are reasonably or properly ancillary or incidental to the express powers that
are granted.”12
[43] If regard is had to the above quotations, it is clear that, although the dismissal,
when it was referred to the Bargaining Council, was couched as an unfair
dismissal, from the outset the appellant’s cause of action was based on the
fact that the dismissal by the Commissioner of Police was unlawful. Instead of
the word ‘unlawful’ he used the word ‘irregularly’.
[44] When the President exercises his powers to dismiss the Commissioner of
Police, he exercises an executive power , not an administrative action. His
decision can only be reviewed on the grounds of legality.
13 Therefore, anyone
purporting to act in terms the powers vested in the President acts unlawfully
and such act is a nullity.
[45] It seems to me that the referral to the B argaining Council purporting to be
based on unfair dismissal was in fact a referral of unlawful dismissal. It was
therefore couched in such a manner that it should not oust the jurisdiction of
the Bargaining Council. I t is therefore evident to me that the cause of action
was based on unlawful dismissal , which is outside the provisions of the
Labour Relations Act14 (the LRA).
[46] The rule of law prohibits the exerc ise of power that is not conferred on the
functionary. The invalidity of such conduct flows from the Constitution itself
and courts merely confirm invalidity thereof by a declaration. The principle of
legality requires that a functionary can exercise only those powers conferred

legality requires that a functionary can exercise only those powers conferred

12 De Ville Judicial Review of Administrative Action in South Africa (LexisNexis Butterworths, 2003) at
108.
13 Masethla (id fn 10) at para 77.
14 Act 66 of 1995.

13

by statute and no more. 15 However, the authority conferred on the President
must be exercised lawfully, rationally and in a manner consistent with the
Constitution.16 Procedural fairness is not a requirement. In Masethla17 the
court said:
‘It would not be appropriate to constrain executive power to requirements of
procedural fairness, which is a cardinal feature in reviewing administrative
action’.
[47] The authority in section 85(2)(e) of the Constitution is conferred in order to
provide room for the President to fulfil executive functions and should not be
constrained any more than through the principle of legality and rationality.
[48] In view thereof that the exercise of power to dismiss the National
Commissioner of Police falls outside t he realm of the LRA , the Labour C ourt
has no jurisdiction to entertain the review thereof. The Labour Court derives
its power from s157 of the LRA. 18 The LRA makes no provision for unlawful
dismissal.
[49] In Steenkamp and Others v Edcon Limited 19 Zondo J, as he then was,
delivering the majority judgment , referred to the principle, which is trite,
namely, that the pleadings determine the cause of action. The court held that
if an empl oyee wants hi s/her dispute to be entertained by the Labour Court
he/she must categorise it as unfair dismissal. The difficulty in the present
matter is that the appellant has elected to categorise his dismissal as
unlawful. Although the appellant did not mention by name the section of the
Constitution in terms of which he could have been dismissed it is obvious that
he must have contemplated section 207 read with section 9 of the Police Act.

15Department of Transport and Others v Tasima (Pty) Limited (CCT5/16) [2016] ZACC 39; 2017 (1)
BCLR 1 (CC); 2017 (2) SA 622 (CC) at para 81.
16 See: Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3)

BCLR 241 (CC) and Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) ; 1997 (6) BCLR
759 (CC) at para 25.
17 Masethla (id fn 10) at para 77.
18 Section 157 provides: ‘1) Subject to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere
in terms of this Act or in terms of any other law are to be determined by the Labour Court.’
19 (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC) ; [2016] 4 BLLR 335 (CC) ; 2016 (3) SA 251 (CC )
(Steenkamp) at para 103.

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This must be so especially if regard is had to his contention that only the
President could dismiss him.
[50] It is clear to me from his founding affidavit that the main cause of his action is
the alleged unlawfulness of his dismissal. The LRA did away with
unlawfulness of dismissal and replaced it with unfairness. Therefore, the
Labour Court, as a creature of statute does not have jurisdiction to make a
declaratory order for unlawfulness of dismissal. 20 Anyone, not being the
President, purporting to act in terms of s207 of the Constitution acts unlawful
and such act is a nullity.
[51] Accordingly, in my view, in light of the fact that the cause of action was
predicated as unlawful dismissal before the Labour Court , that court had no
jurisdiction to entertain the dispute. Once it is decided that the court has no
jurisdiction to entertain the dispute, it is not necessary to deal with the merits.
That must be left to a court which has jurisdiction. This must be so because
where the court has no jurisdiction its order is a nullity and it is not even
necessary to have it set aside.21
[52] In Communication Workers Union and another v Telkom SA Ltd and another22
Southwood J said:
‘A court must have jurisdiction for its judgment and/or order to be valid. If the
court does not have jurisdiction its judgment and/or order is a nullity. No
pronouncement is required. It is simply treated as such. Lewis & Marks v
Middel 1904 TS 291 at 303; Suid-Afrikaanse Sentral Ko-0peratriewe
Graanmaatskappy Bpk v Shifren and Others and the Taxing Master 1964(1)
SA 162 (o) at 164 G -H; Trade Fairs and Promotions (Pty) Ltd v Thomson
and Another 1984(4) SA 177 (W) at 183D-E.
Jurisdiction in this context means ‘the power invested in a court by law to
adjudicate upon, determine and dispose of a matter’ (Ewing Mc Donald & Co
Ltd v M & M Products Co, 1991(1) SA 252 (A) at 256G).’

20 See: Steenkamp (ibid). See also: Leshabane v Minister of Human Settlements and Others [2023]

ZALCJHB 341; [2024] 3 BLLR 306 (LC); (2024) 45 ILJ 833 (LC).
21 Favish Vidavsky v Body Corprate of Sunhill Villas 2005 (5) SA 200 (SCA) at para.14;
Communication Workers Union and another v Telkom SA Ltd and another 1999 (2) SA 586 (T).
22 1999 (2) 586 (T) at 593 G – J.

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[53] The Supreme Court of Appeal in The Master of the High Court (North
Gauteng High Court, Pretoria) v Motala N.O. and others23 also held that where
the court has no jurisdiction, its order is a nullity and it is unnecessary to have
it first set aside as it is ineffectual. The Constitutional Court distinguished
Motala from the case of Municipal Manager O.R. Tambo District Municipality
and Another v Ndabeni
24. The distinction lies in whether the power exercised
is invested in another functionary or not and whether the court has such
power. If the court has the jurisdiction to determine the issue and the power to
make the order, as happened in Ndabeni it is immaterial whether or not the
order is considered to be wrong, it has to be obeyed and cannot be regarded
as a nullity.
[54] In light of the above the incoming National Commissioner of Police had no
power to discipline and dismiss the appellant . The dismissal was therefore
unlawful. Counsel for the first respondent submitted that , at the time of his
dismissal, the appellant was not the Acting National Commissioner of Police.
There is no merit in this argument. Once the appellant was appointed by the
President, the duty to remove him also vested in the President. His dismissal
was in conflict with the rule of law and specifically the principle of legality.
These principles require administrative functionaries to exercise only public
powers conferred on them and nothing more.
[55] In light of the above, the Labour Court should have dismissed the application
on the grounds of lack of jurisdiction. Once it is found that the actions of the
functionaries are illegal , cadit quaestio it is the end of the case. The appeal
therefore cannot succeed.
[56] What remains is a question of costs. In labour matters , the rule that costs
follow the event does not apply. In Member of the Executive Council for
Finance, KwaZulu-Natal v Wentworth Dorkin N.O . and another .25, Zondo JP,

Finance, KwaZulu-Natal v Wentworth Dorkin N.O . and another .25, Zondo JP,
as he then was, explained the reason for the departure as follows:

23 2012 (3) SA 325 (SCA) at para 14.
24 [2022] 5 BLLR 393 (CC) ; (2022) 43 ILJ 1019 (CC); 2022 (10) BCLR 1254 (CC) ; 2023 (4) SA 421
(CC).
25 (2008) 29 ILJ 1707 (LAC) at para 19.

16

“The rule of practice that costs follow the result does not govern the making of
orders of costs in this Court. The relevant statutory provision is to the effect
that orders of costs in this Court are to be made in accordance with the
requirements of the law and fairness. And the norm ought to be that costs
orders are not made unless the requirements are met. In making decisions on
costs orders this Court should seek to strike a fair balance between on the
one hand, not unduly discouraging workers, employers, unions and
employers’ organisations from approaching the Labour Court and this Court
to have their disputes dealt with, and, on the other, allowing those parties to
bring to the Labour Court and this Court frivolous cases that should not be
brought to Court.’26
[57] The rule of practice described above has become a norm and I see no reason
to deviate from the norm.
[58] In the result, the following order is made:
Order
1. The appeal is dismissed with no order as to costs.


_______________________
B. R. Tokota
Acting Judge of the Labour Appeal Court of South Africa

CHETTY, AJA (Nkutha-Nkontwana JA concurring)
[59] I have considered the judgment of my colleague Tokota AJA (to which I will
refer to as the first judgment) pursuant to a point of law being raised by the
appellant. My colleague reaches the conclusion that the appeal should be

26 See also: Martin Vermaak v MEC for Local Government and Traditional Affairs, North West
Province (JA15/2014) [2017] ZALAC 2 (10 January 2017).

17

dismissed, as do I. However, we differ in our reasoning. The first judgment
has set out the background events giving rise to the charges being levelled
against the appellant. I shall not repeat those facts, save to make reference to
them where necessary.
[60] It is noteworthy that the first judgment refers to the appellant as having been
appointed by the President as the Acting National Commissioner of the SAPS
on 14 October 2015. The contention of the appellant is that he impugns the
SAPS’s authority to discipline him in accordance with the South African Police
Service Discipline Regulations, 2016, when, at the time of the alleged
misconduct, he had been serving as the Acting National Commissioner and
thus could only be disciplined or removed from the SAPS exclusively by the
President in terms of s 9 of the Police Act, read with s 207(1) of the
Constitution. The facts, however, indicate that the genesis of the charges
against the appellant arose from the period prior to his appointment as the
Acting National Commissioner.
[61] Before proceeding to consider the import of ss 8 and 9 of the Police Act
27 to
the present context, I accept that, as the first judgment contends, s 207(1) of

27 Sections 8 and 9 of the Police Act provide as follows:
‘8. Loss of confidence in National or Provincial Commissioner.—
(1) If the National Commissioner has lost the confidence of the Cabinet, the President may
establish a board of inquiry consisting of a judge of the Supreme Court as chairperson, and two other
suitable persons, to—
(a) inquire into the circumstances that led to the loss of confidence;
(b) compile a report; and
(c) make recommendations.
(2)(a) If a Provincial Commissioner has lost the confidence of the Executive Council, the member of
the Executive Council may notify the Minister of such occurrence and the reasons therefor.
(b) The Minister shall, if he or she deems it necessary and appropriate, refer the notice
contemplated in paragraph (a) to the National Commissioner.

contemplated in paragraph (a) to the National Commissioner.
(c) The National Commissioner shall, upon receipt of the notice, establish a board of inquiry
consisting of not more than three persons, of which the chairperson shall, subject to paragraph (d), be
a person who, for at least 10 years after having qualified as an advocate or an attorney, practised as
such, to—
(i) inquire into the circumstances that led to the loss of confidence;
(ii) compile a report; and
(iii) make recommendations.
(d) The National Commissioner may appoint any other person suitably qualified in law as
chairperson of the board of inquiry.
(3)(a) The President or National Commissioner, as the case may be, may, after hearing the
Commissioner concerned, pending the outcome of the inquiry referred to in subsection (1) or (2)(c),
suspend him or her from office.

18

the Constitution provides for the prerogative of the President, as head of the
national executive, to appoint the National Commissioner. This power is also
located in s 6(1) of the Police Act.
[62] It is not disputed that the appellant was appointed as the Acting National
Commissioner by the President, although it is apparent that s 207(1) of the
Constitution makes no provision for the appointment of an Acting National
Commissioner nor is there any reference to an acting appointment in s 6(1) of
the Police Act. Similarly, Chapter 9 of the Police Act, which deals with
appointments and terms and conditions of service, makes no reference to
acting appointments.
28
[63] The Constitutional Court in Masetlha 29 noted that although s 209(2) of the
Constitution30 only speaks of the power of the President to appoint the head of
the intelligence services and makes no mention of the power to dismiss, it
found that the power to appoint implied the power to dismiss. The
Constitutional Court held, with reference to the intelligence services, which, in
my view, is equally applicable to the police service, the following:
31

(b) A Commissioner who is suspended from office under paragraph (a), shall, during the period of
such suspension, be entitled to any salary, allowance, privilege or benefit to which he or she is
otherwise entitled as a member, unless the President or the National Commissioner, as the case may
be, determines otherwise…
9. Misconduct by or incapacity of National or Provincial Commissioner.—
(1) Subject to this section, subsections (1) to (8) of section 8 shall apply mutatis mutandis to any
inquiry into allegations of misconduct by the National or Provincial Commissioner, or into his or her
fitness for office or capacity for executing his or her official duties efficiently.
(2) The board of inquiry established by virtue of subsection (1) shall make a finding in respect of
the alleged misconduct or alleged unfitness for office or incapacity of executing official duties

efficiently, as the case may be, and make recommendations contemplated in section 8 (6) (b).
(3) If the National Commissioner has lost the confidence of the Cabinet or a Provincial
Commissioner has lost the confidence of the Executive Council or the National Commissioner, as the
case may be, following on an inquiry in terms of this section, the provisions of section 8 (7) shall
apply mutatis mutandis.’
28 See, however, s 32(2) of the Public Service Act 103 of 1994, which deals with acting appointments
provides as follows:
‘(2)(a) An employee may be directed in writing to act in a post subject to such conditions as may be
prescribed.
(b) Such acting appointment shall be made—
(i) in the case of the post of head of department, by the relevant executive authority;
(ii) in the case of any other post, by the employee occupying the post, unless otherwise
determined by the head of department.’
29 Masetlha (id fn 10) at paras 66–68.
30 Section 209 of the Constitution deals with the establishment and control of intelligence services.
31 Masetlha (id fn 10) at para 68.

19

‘Without the competence to dismiss, the President would not be able to
remove the head of the Agency without his or her consent before the end of
the term of office, whatever the circumstances might be. That would indeed
lead to an absurdity and severely undermine the constitutional pursuit of the
security of this country and its people. That is why the power to dismiss is an
essential corollary of the power to appoint and the power to dismiss must be
read into s 209(2) of the Constitution. There is no doubt that the power to
appoint under s 209(2) of the Constitution and the power under ISA implies a
power to dismiss.’
[64] The appellant, who initiated the litigation giving rise to this appeal, has not
included as part of the record or exhibits, the written confirmation by the
President of his acting appointment, the terms or the duration. Ideally, this
would have been sourced from a Presidential Minute. Section 101 of the
Constitution provides:
'(1) A decision by the President must be in writing if it -
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the President must be counter -signed by another
Cabinet member if that decision concerns a function assigned to that
other Cabinet member…’
[65] Had the President been cited as a party, or joined in the litigation, such details
may have been placed before the court. The absence of the President as a
party to these proceedings is a matter which assumes particular relevance, as
the first judgment reaches its conclusion, not on the basis of an unfair
dismissal as pleaded by the appellant, but on the ground of a breach of the
principle of legality. I deal with this in greater detail below.
[66] The appellant was asked to ‘step-aside’ from his duties as the Acting National
Commissioner by the Minister of Police on 1 June 2017, followed by his
suspension on 7 June 2017. The appellant’s version is that since the date of

suspension on 7 June 2017. The appellant’s version is that since the date of
his suspension to the date of his dismissal on 7 August 2020, he was neither
involved nor participated in the execution of any official duties in the police

20

service, nor was he contacted in relation to the contractual dispute between
the SAPS and Ethemba. The latter was the successful entity to have been
awarded the contract to supply specialised photographic equipment to the
SAPS and, in particular, to the Forensic Services department, headed, at the
time, by the appellant.
[67] It is revealing that during the entire period which the appellant was on
suspension, he elected not to approach the courts to challenge the lawfulness
of his suspension on the basis that it was effected by the Minister of Police
and not the President, whom the appellant now contends is the only person
with the authority to affect his tenure while he was the Acting National
Commissioner. This much is clearly articulated in the appellant’s heads of
argument, where it is contended that:
‘As the appellant was appointed Acting National Commissioner on 14 October
2015, it con notes that any misconduct on his part from the date of his
appointment could only be exclusively dealt with by the President of the
Republic as provided for in section 9 of the South African Police Act…’
(My emphasis.)
[68] The absence of any action by the appellant to challenge the legality of his
suspension is at odds with the approach taken in Masetlha, where Mr
Masetlha was informed in a letter by the Minister that he had been suspended
as the Director -General of the Intelligence Agency . Three weeks after his
suspension, Mr Masetlha approached the court, seeking to review and set
aside his suspension as being unlawful. He did not proceed with that
application, as the President recorded in writing that the decision to suspend
was his decision and not that of the Minister. Mr Masetlha rejected this
explanation, contending that it was an attempt to disguise the unauthorised
actions of the Minister. He launched another review application taking aim at
the suspension. Ultimately, the Constitutional Court was not called upon to

the suspension. Ultimately, the Constitutional Court was not called upon to
rule on the issue of the lawfulness of his suspension in light of the finding that
his dismissal was a rational exercise of the President’s executive powers,
albeit that there was no hearing afforded to Mr Masetlha prior to the decision
to dismiss being made.

21

[69] The comparison to Matsetlha serves to illustrate that apart from the appellant
taking no steps to challenge his suspension, his reliance on the principle of
legality, namely that only the President had the power to discipline him in
accordance with s 207(1) of the Constitution, is raised as a belated tactic to
challenge, what the respondent contends, is an otherwise procedurally and
substantively fair dismissal.
[70] In the recent decision of Sibiya v South African Police Department and
Others,
32 a full court refused to interdict the National Commissioner of Police
who issued a ‘stay at home’ order to the Deputy National Commissioner,
pursuant to certain allegations of impropriety being levelled against the latter
and pending an on- going investigation. It was contended that the ‘stay at
home’ order (similar to the ‘step aside’ order issued by the Minister of Police to
the appellant) exceeded the National Commissioner’s powers and offended
the rule of law principle, as he was not afforded a reasonable opportunity to
make written representations prior to the decision. The court rejected this
argument, notwithstanding the Discipline Regulations, promulgated in terms of
the Police Act, making no provision for such an order. This, however, the court
held, ‘does not mean that such an instruction by a senior officer to a
subordinate cannot be made’ .
33 Such orders were demonstrated by the
Commissioner to be ‘ suitable, necessary, reasonable, relevant, rational and
proportional under the circumstances’ .34 This put paid to any complaint
regarding the ‘step-aside’ instruction. In the present case, the appellant was
content to allow the process to unfold without any demur on his part in respect
of the decision to cause him to ‘step-aside’.
[71] The first judgment states ‘that if the power to appoint an Acting National
Commissioner vests in the President, as it was in this matter, then the power
to remove or suspend the Acting National Commissioner cannot shift to

to remove or suspend the Acting National Commissioner cannot shift to
another functionary such as the Minister of Police or the National
Commissioner’. As pointed out earlier, there was no challenge to the
lawfulness of the appellant’s suspension. The first judgment, therefore, seeks

32 (123874/2025) [2025] ZAGPPHC 910 (9 September 2025) (Sibiya).
33 Sibiya (ibid) at para 64.
34 Sibiya (ibid) at para 63.

22

to pronounce on a matter which was not part of the dispute before this Court. I
allude to further instances below where, respectfully, similar missteps occur.
[72] I accept, on the basis of authority, including CUSA 35 that this court is at large
to consider a point of law which is apparent on the papers but not pursued by
the parties. The over -arching basis for doing so is to ensure a just result,
provided there is no unfairness to other parties. It is to the latter aspect that I
turn my attention. The primary point at which I depart from the reasoning and
order of the first judgment is the assertion that a:
‘point of law was pertinently raised in the review papers but was not dealt with
by the Labour Court. The point is whether it was lawful for the Minister of
Police to suspend the appellant, who was at the time the Acting National
Commissioner, and whether the National Commissioner was empowered to
charge and dismiss him since he was never removed by the President as the
Acting National Commissioner.’
[73] In support of this assertion, the first judgment makes references to extracts
from the award of the third respondent (the arbitrator) in which the latter found
that, at the time of the appellant’s appointment as the Acting National
Commissioner, he was aware that the contract with Ethemba was extant, and
had not been set aside.
36 Notwithstanding that he was no longer responsible
for the operational activities of the Forensic Services Division, the arbitrator
found that in his new role as the Accounting Officer of the SAPS, the appellant
had a ‘greater responsibility’ to enquire into what had transpired regarding the
contract and under a duty to protect the finances of the State. The arbitrator
considered this to be an aggravating factor.
37

35 CUSA (id fn 4).
36 During his testimony at the arbitration, the appellant conceded that he had received the summons
in which Ethemba cited him as the defendant, in his capacity as the acting National Commissioner.

The summons appears to have been served via the sheriff in September 2016, at the time when the
appellant was appointed as the acting National Commissioner. His version was that counsel for the
SAPS mistakenly attributed the charges against him in his capacity as the acting National
Commissioner, whereas the charges related to his tenure as Divisional Commissioner.
37 The arbitrator concluded at para 109 of the award that the misconduct for which the appellant was
found guilty ‘was serious as he had a responsibility to ensure that the finances of the respondent are
not wasted. What I find aggravating is the fact that from 2015 October the applicant was appointed as
acting National Commissioner. He was the accounting officer for the South African Police Services
and I am of the view that he had a greater responsibility to ensure that the finances and assets of the
respondent were protected. He failed to do this… ’

23

[74] In light of this conclusion, the appellant, in his founding affidavit, assumes that
this statement by the arbitrator demonstrates that he strayed beyond the limits
of his jurisdiction and
‘should at this point have concluded that action should have been taken
against me by the President, as the President was the only person who could
take such action. The Commissioner however failed to recognise this fact and
found me guilty of alleged omissions during my term as National
Commissioner.’
[75] He contends that the arbitrator exceeded his powers by referencing acts
performed by the appellant whilst he was the acting National Commissioner.
[76] I am not persuaded by the correctness of this argument, and less by the
acceptance thereof in the first judgment.
38 The appellant was appointed the
Acting National Commissioner in October 2015. Whether he was promoted or
seconded to this position is not clear, but he asserts in his founding affidavit
that he ‘relinquished’ his position as Divisional Commissioner: Forensic
Services. Major General Manamela was then appointed to act in his stead. An
appointment to act is self -evidently a temporary measure, with no degree of
permanency. If the President, pursuant to s 207(1) of the Constitution,
decided to appoint another individual as National Commissioner, the appellant
would have reverted to his role as Divisional Commissioner: Forensic
Services, or transferred to some other position. The contention that he
‘relinquished’ his role as a Divisional Commissioner was also his evidence at
the expedited proceedings in terms of regulation 9(1) of the Discipline
Regulations and at the arbitration. This assertion formed the basis for the
appellant’s contention that once he was appointed as the Acting National

38 Paragraphs 85-86 of the appellant’s founding affidavit in the review application only serve to cloud
the basis for the purported reliance on the principle of legality, which the first judgment considers

having been ‘pertinently’ raised. The charges levelled against the appellant related to misconduct
committed (or which stemmed) from his tenure as Divisional Commissioner: Forensic Services. He
assumes, however, that such alleged misconduct also relates to his tenure as acting National
Commissioner. This is apparent from the following paragraphs of the founding affidavit:
‘85. It was further trite during the disciplinary hearing, as well as the arbitration proceedings, that the
allegations against me were raised against me in lieu of the position which I have as the Divisional
Commissioner : Forensic Services.
86. As such, only the President of the Republic of South Africa [the President] can take action against
me for conduct which relates to overt misconduct committed by me as the National Commissioner of
the SAPS.’

24

Commissioner, any negligence or misconduct ascribed to the Forensic
Services Department, including the failure to revert to correspondence or to
take any steps to set aside the contract between the SAPS and Ethemba
could not be attributed to him. There is nothing on record to indicate that his
role as Divisional Commissioner had come to an end on the assumption of the
acting appointment.
[77] The overlap between the two consecutive positions occupied by the appellant,
that of Divisional Commissioner: Forensic Services and Acting National
Commissioner, cannot be interpreted as altering the fundamental basis of the
charges levelled against him, which related to misconduct as a result of the
breach of the contract between the SAPS and Ethemba. The breach is
attributed to the SAPS for failing to order equipment from Ethemba, as it was
contractually obliged to. The breach is alleged to have spanned t he period
from 31 March 2015 to 29 March 2016, during which period the SAPS ignored
demands for payment as a result of the breach. Although the appellant was
the Acting National Commissioner from 14 October 2015 onwards, it is
nonsensical to infer that he would have lost all accountability for anything
which he performed as a divisional commissioner. It appears to me that the
genesis of the appellant’s assertion that he was being disciplined for acts
performed when he was the Acting National Commissioner ar ises from the
later date of 29 March 2016, which was misinterpreted as forming part of the
charge against him. The evidence at the arbitration was only that he had
knowledge in 2016 of a letter of demand having been issued against the
SAPS by Ethemba’s attorneys claiming damages for breach of contract. It is
common cause that he did nothing to arrest the situation. It is this that leads
the appellant to assert that the charges levelled against him related to his role
as the Acting National Commissioner and thus, by implication, only the

as the Acting National Commissioner and thus, by implication, only the
President had the authority to initiate disciplinary proceedings against him.
[78] In my view, the above contention is misplaced and out of context when viewed
against the charges and the appellant’s response to them, as articulated both
at the disciplinary hearing and the arbitration. A fair reading of the arbitration
record indicates that at no stage prior to the hearing before this Court did the

25

appellant pertinently raise the point that his dismissal was unlawful on the
grounds that it violated the principle of legality.
[79] Throughout the arbitration proceedings and the disciplinary enquiry, the
appellant took issue with the procedure followed at the expeditious enquiry
convened in terms of regulation 9, arguing that the chairperson was biased
and lacked the necessary status as a higher ranking officer to chair the
enquiry; that he should have been permitted legal representation; that he had
been ‘misled’ as to the purpose of the enquiry ; that the institution of the
charges had been preceded by an undue delay ; and that the res ort to an
enquiry under regulation 9, rather than regulation 8, was for an ulterior
purpose. He likened the proceedings against him to a ‘kangaroo court’, adding
that the ‘abuse of Regulation 9 cannot be allowed to continue’. The appellant’s
attorneys called upon the SAPS to abandon the current disciplinary
proceedings and ‘for de novo proceedings to be commenced, should the
employer still be so inclined’.
[80] The point I emphasise is that at no time was a challenge mounted to the
lawfulness of the proceedings nor was it contended that the appellant could
not be disciplined in accordance with the Discipline Regulations. His
complaint at that stage was that the SAPS ought to have proceeded in terms
of regulation 8. It is only in this Court that the appellant contends that, as
opposed to being disciplined in terms of the Discipline Regulations, a board of
inquiry in terms of s 9(2) of the Police Act, chaired by a j udge, ought to have
been established. As stated earlier, the only hint in his founding affidavit
traversing the contention that the President had exclusive authority to
exercise discipline over him is tucked away in an oblique reference to the
misconduct being committed while he was the Acting National Commissioner.
This was the high watermark of the appellant’s purported reliance on a

This was the high watermark of the appellant’s purported reliance on a
challenge based on a breach of the principle of legality, drawing on the
Constitutional Court’s dictum in Masetlha. It is a salutary principle that litigants
should state clearly in their pleadings the grounds on which their case is
based. I am therefore not surprised that the respondent’s counsel did not

26

respond to this point, as it did not form part of the appellant’s case before the
arbitrator.
[81] Turning to the charges, the appellant was served with a notice in terms of
regulation 9(2)(b) of the Discipline Regulations, in which he was notified of
three charges levelled against him, constituting serious misconduct. The
notice, dated 6 July 2020, was issued by Lt General J Riet, who was assigned
to chair the expeditious process, to commence on 13 July 2020. The appellant
was informed that he could be represented by a fellow employee or a union
representative.
[82] The charges against the appellant were the following:
‘Charge 1
Contravening regulation 5(4)(x) of the SAPS Discipline Regulations, 2016
“Any act of misconduct which detrimentally affects the image of the service or
brings the service into disrepute or which contains an element of dishonesty”
in that between 2013 to 2016 you acted intentionally or negligently in the
repudiation / non-compliance in respect of the contract 19/1/9/1/187 TR (13)
purchase of 360 degree panoramic cameras resulting in a loss/fruitless
expenditure in the amount of R24 494 080.65
Charge 2
Contravening regulation 5(4)(x) of the SAPS Discipline Regulations, 2016
“Any act of misconduct which detrimentally affects the image of the Service or
brings the service into disrepute or which contains an element of dishonesty
in that you made a misrepresentation to National Treasury by shifting funds in
the amount of TR (R46 000 000.00) allocated for the purchase of the 360
degree panoramic cameras whilst knowing that the failure to perform in terms
of contract 19/1/9/187 TR(13) was the subject of pending litigation.
Charge 3
Contravening regulation 5(4)(x) of the SAPS Discipline Regulations, 2016
“Any act of misconduct which detrimentally affects the image of the service or
brings the service into disrepute or which contains an element of dishonesty
in that you Failed to comply with section 44 of the Public Finance

27

Management act in that you wilfully/negligently failed to exercise a legal
obligation with regard to the repudiation/non-compliance with contract
19/1/9/187 TR(13) resulting in fruitless expenditure in the amount of
R24 494 080.65.’
[83] Following an enquiry in terms of the Discipline Regulations, the appellant was
found guilty of the first and third counts on the basis that he was responsible
for the non- performance of the contract by failing to issue orders for
equipment from Ethemba. The appellant was afforded an opportunity to make
written submissions in respect of an appropriate sanction, but declined to do
so, contending that the procedure resulting in him being found guilty was
tainted by unfairness. He also threatened an impending legal challenge to halt
the disciplinary process. Absent any legal restraint, the chairperson of the
enquiry forged ahead and concluded that the appropriate sanction in light of
the misconduct committed was the appellant’s dismissal from the service in
accordance with regulation 12(e) of the Discipline Regulations. The sanction
of dismissal was ratified by the incumbent National Commissioner on 7
August 2020.
[84] It is pertinent that following the handing down of the sanction, the appellant
referred ‘an unfair dismissal dispute to the Council’. The pre-arbitration minute
concluded between the parties, and which served to crystalise the issues in
dispute, reaffirmed that the issues which the arbitrator was asked to
determine related to whether the appellant’s dismissal was substantively and
procedurally fair, and whether dismissal was the appropriate sanction. In
addition, the arbitrator was also called upon to determine whether the
presiding officer at the enquiry, Lt General Riet, was biased against the
appellant. At no stage during the pre- arbitration process did the appellant
challenge the lawfulness of the procedure embarked upon leading to his
dismissal.
39

challenge the lawfulness of the procedure embarked upon leading to his
dismissal.
39

39 Albeit with reference to pre-trial as opposed to pre-arbitration proceedings, see Telkom SA SOC Ltd
v Van Staden and Others (2021) 42 ILJ 869 (LAC) para 16 which noted that ‘a pretrial agreement is a
consensual document which narrows down the issues in dispute between the parties so as to limit the
scope of litigation. Such an agreement binds the parties and the court in the same way as
pleadings. Where parties have concluded such a minute, the issues as set out in pleadings have not
been abandoned but -

28

[85] As stated earlier, the appellant, on legal advice, contended that the enquiry
should have proceeded under regulation 8 rather than regulation 9. That
argument is fundamentally different from the challenge mounted in this Court
relating to the lawfulness of the procedure based on a legality challenge, and
the contention that the President, as the head of the executive, should have
initiated proceedings in terms of s 9 of the Police Act and established a board
of inquiry presided over by a judge. The point I make was set out by the
Constitutional Court in Gcaba v Minister for Safety and Security and Others ,
40
which held that:
‘Jurisdiction is determined on the basis of the pleadings, as Langa CJ held
in Chirwa, and not the substantive merits of the case.’ (Footnote omitted.)
[86] The arbitrator was not asked to determine a dispute based on a legality
challenge and whether the President ought to have subjected the appellant to
an enquiry convened by a board of inquiry in terms of s 9 of the Police Act. It
also begs the question that even if a legality challenge were to be raised
before the arbitrator, whether he had any jurisdiction to pronounce on the
matter or whether such a challenge should properly have belonged in the high
court. This dichotomy was recognised by the Constitutional Court in
Masetlha,
41 where Moseneke DCJ said that:

“the premises upon which the issues were to be advanced had been refined and limited by the terms
of the minute, which is the very purpose of the minute... It was therefore inappropriate to fall back on
the generalities of averments about procedural and substantive unfairness. Were that approach to be
permissible, there would be no point at all to efforts to narrow issues and trim down the scope of
contestations. It was suggested in argument on behalf of Louw that the contention on behalf of SAB
was that Louw had narrowed his cause of action; that understanding is incorrect. The argument,

was that Louw had narrowed his cause of action; that understanding is incorrect. The argument,
properly understood, was that the terms of the minute narrowed the permissible grounds upon which
the cause of action was to be presented.”’ (Footnotes omitted.)
40 [2009] ZACC 26; 2010 (1) SA 238 (CC) at para 75. See also SA Breweries (Pty) Ltd v Louw (2018)
39 ILJ 189 (LAC) (SA Breweries) paras 14-15.
41 Masetlha (id fn 10) at para 63. See Steenkamp (id fn 20) where the Court said the following in
relation to the importance of how a case is framed in order for the Labour Court to have jurisdiction
over the particular dispute. At para [106] the Court pointed out that Section 189A of the LRA deals
with unfair dismissals, and conspicuously absent is any provision “that every employee has a right not
to be dismissed unlawfully. If this right had been provided for in section 185 or anywhere else in the
LRA, it would have enabled an employee who showed that she had been dismissed unlawfully to ask
for an order declaring her dismissal invalid. Since a finding that a dismissal is unlawful would be
foundational to a declaratory order that the dismissal is invalid, the absence of a provision in the LRA
for a right not to be dismissed unlawfully is an indication that the LRA does not contemplate an invalid
dismissal as a consequence of a dismissal effected in breach of a provision of the LRA.”

29

‘The power and indeed obligation of the President to appoint the head of an
intelligence service is not sourced from a private law relationship. It is a public
law power. In other words, this dispute between the parties is not merely
about a breach or wrongful termination of an employment contract. It is rather
about whether public authority has been exercised in a constitutionally valid
manner. That much is quite apparent from the very claim and relief that the
applicant is pursuing.’ (My emphasis.)
[87] The underlying premise for the contention that any attempt at the discipline or
dismissal of the appellant triggers a hearing in terms of s 9 of the Police Act
lies in his contention that by virtue of him being the Acting National
Commissioner, only the President could remove him pursuant to s 207 of the
Constitution. Neither s 8 nor 9 of the Police Act, which must be read with s
207(1) of the Constitution, makes any reference to these processes applying
to an Acting National Commissioner. It was not the case of the appellant in
this court that the above-mentioned sections of the Police Act apply equally to
both an incumbent National Commissioner and to those who may be acting in
that capacity.
[88] Turning to the conclusion in the first judgment that the ‘Minister had no power
to suspend the appellant and the National Commissioner had no power to
discipline and dismiss him ’ (which grounds were not raised before the
arbitrator), the point which arises is following the ‘step-aside’ and subsequent
suspension of the appellant, what was his status at the time when the
disciplinary enquiry under regulation 9 commenced? At that stage, it emerges
from the record (although without any exact date being apparent) that General
Sithole had already been appointed by the President as the new National
Commissioner. The appellant, as from the date of his suspension, would have
ceased to hold the status and title of ‘Acting National Commissioner’. His

ceased to hold the status and title of ‘Acting National Commissioner’. His
status was that which he held prior to being assigned to act as the National
Commissioner - that of the Divisional Commissioner: Forensic Services. It is
not apparent from the record whether that position too had been permanently
filled.
42

42 In POPCRU and Another v MEC for the Department of Transport, Safety and Liaison: Northern
Cape and Others [2015] ZALCJHB 272 the issue arose whether a head of department had the power

30

[89] The inescapable fact is that by the time the enquiry commenced in 2020 into
the allegations of serious misconduct against the appellant, he was no longer
the Acting National Commissioner, as this would have been incongruous with
the factual position where a National Commissioner had already been
appointed by the President. On this ground alone, the contention that a board
of inquiry ought to have been convened at the behest of the President, in
terms of the Police Act, read with s 207 of the Constitution, cannot be
sustained. In my view, the employer was perfectly entitled to subject the
appellant to an enquiry in terms of its Discipline Regulations, as it would have
for any other officer accused of serious misconduct falling within the ambit of
regulation 5(4). Moreover, as I have pointed out earlier, the appellant’s legal
representatives raised procedural challenges to the enquiry, not that he
should not be disciplined under the Discipline Regulations.
[90] The implication of the order reached in the first judgment is that the President
erred in not subjecting the appellant to the disciplinary regime set out in s 9 of
the Police Act. As I have already alluded to, the challenge to the dismissal on
the basis of legality was not squarely canvassed in the founding affidavits in
the review application nor pertinently before the arbitrator or the Labour Court.
Reference to this is obliquely contained in the heads of argument by way of
reference to the dictum in Matsetlha. Where a party wishes to raise a
challenge based on a fundamental breach of the rule of law, this should be
fully canvassed and argued in the appropriate forum, rather than being tucked
away in the heads of argument.
43 I disagree with the first judgment that this
ground of legality was ‘pertinently’ raised in the enquiry, before the arbitrator
or in the court a quo.

to suspend and institute disciplinary proceedings against a person who had been appointed as the

acting head of the department while the former had been on leave. The court concluded that the head
of department had no authority to institute disciplinary proceedings against the applicant in respect of
misconduct which arose during his duties as acting accounting officer. This case is distinguishable
from the facts of the present matter where the acts of misconduct are alleged to have taken place as
the time when the appellant was Divisional Commissioner: Forensic Services and not attributable to
his role as the Acting National Commissioner.
43 See: SA Breweries (id fn 42) at para 4 where Sutherland JA said the following:
‘To state the obvious, litigation is complex. Among the duties of legal practitioners is to conduct cases
in a manner that is coherent, free from ambiguity and free from prolixity. True enough, the holy grail of
translating what is complex into simplicity is not always attainable, but the ground rules are
irrefrangible: say what you mean, mean what you say and never hide a part of the case by a resort to
linguistic obscurities. The norm of a fair trial means each side being given unambiguous warning of
the case they are to meet.’

31

[91] For reasons canvassed earlier, Masetlha is distinguishable from the facts in
the present matter, if for no other reason than that Mr Matsetlha was the head
of the intelligence agency at the time when he was suspended and eventually
dismissed. The appellant, conversely, was the Acting National Commissioner
when he was asked to step- aside and then suspended. By the time he was
subjected to a disciplinary enquiry, he ceased to occupy any acting position,
as the President had by then appointed a new National Commissioner in
terms of s 207(1) of the Constitution. Mr Masetlha, in contrast, launched a full -
frontal attack against the President and the Minister of the Intelligence
Services, contending that the manner of his dismissal breached the principle
of legality. He sought his reinstatement.
[92] In the present case, neither the President nor the incumbent National
Commissioner, who initiated the disciplinary enquiry and ratified the decision
of Lt General Riet to dismiss the appellant, were cited as co- respondents or
joined in the proceedings. They were therefore not called upon to make
submissions as to why the removal of the appellant was not dealt with in
terms of s 207 of the Constitution, read with s 9 of the Police Act.
[93] In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
44 the Constitutional Court held that:
‘Generally, a party must be joined in proceedings if it has a direct and
substantial interest in any order the court might make, or when an order
cannot be effected without prejudicing it.’
[94] A direct and substantial interest has been interpreted to mean an interest in
the subject -matter of the litigation, and not a mere financial or academic

44 [2011] ZACC 33; 2012 (2) SA 104 (CC) at para 44.

32

interest.45 Joinder must be a matter of necessity, not convenience, unless the
court is satisfied that a party has waived the right to be joined.46
[95] As stated earlier, the first judgment concludes that the Minister had no power
to suspend the appellant and that the incoming National Commissioner had
no power to discipline and dismiss him. In this court, the appellant, in his
heads of argument, seeks that the order of the Labour Court be set aside and
replaced with an order that the arbitration award be reviewed and set aside;
the appellant’s dismissal be declared procedurally and substantively unfair ;
and that he be reinstated.
[96] Neither the arbitrator nor the Labour Court was asked to rule on the issue of
the suspension or the powers of the National Commissioner to discipline a
former acting National Commissioner. The first judgment infers that the
President, by omission or otherwise, permitted or endorsed the suspension
and removal of the appellant in circumstances where only the President could
exercise such powers. In this context, and in light of the fact that neither the
President nor the National Commissioner is a party to this appeal, the
following extract from Fischer and Another v Ramahlele and Others
47
becomes relevant:
‘[13] Turning then to the nature of civil litigation in our adversarial system, it
is for the parties, either in the pleadings or affidavits (which serve the
function of both pleadings and evidence), to set out and define the
nature of their dispute, and it is for the court to adjudicate upon those
issues. That is so even where the dispute involves an issue pertaining
to the basic human rights guaranteed by our Constitution, for “(i)t is
impermissible for a party to rely on a constitutional complaint that was
not pleaded”. There are cases where the parties may expand those

45 Minister of Finance v Afribusiness NPC [2022] ZACC 4; 2022 (4) SA 362 (CC) at para 23 :

45 Minister of Finance v Afribusiness NPC [2022] ZACC 4; 2022 (4) SA 362 (CC) at para 23 :
‘A party is entitled to join and intervene in proceedings where they have a direct and substantial
interest in the matter. A person is regarded as having a direct and substantial interest in an order if
that order would directly affect that person's rights or interests. The interest must generally be
a legal interest in the subject-matter of the litigation and not merely a financial interest. In this matter,
the prejudice being suffered by Fidelity and SANSEA is a financial interest and does not relate to a
right or legal interest.’ (Footnotes omitted.)
46 Judicial Service Commission and Another v Cape Bar Council and Another [2012] ZASCA 115;
2013 (1) SA 170 (SCA) at para 12; Bowring NO v Vrededorp Properties CC [2007] ZASCA 80; 2007
(5) SA 391 (SCA) at para 21.
47 [2014] ZASCA 88; 2014 (4) SA 614 (SCA).

33

issues by the way in which they conduct the proceedings. There
may also be instances where the court may mero motu raise a
question of law that emerges fully from the evidence and is necessary
for the decision of the case. That is subject to the proviso that no
prejudice will be caused to any party by its being decided. Beyond that
it is for the parties to identify the dispute and for the court to determine
that dispute and that dispute alone.
[14] It is not for the court to raise new issues not traversed in the pleadings
or affidavits, however interesting or important they may seem to it, and
to insist that the parties deal with them. The parties may have their
own reasons for not raising those issues. A court may sometimes
suggest a line of argument or an approach to a case that has not
previously occurred to the parties. However, it is then for the parties
to determine whether they wish to adopt the new point. They may
choose not to do so because of its implications for the further conduct
of the proceedings, such as an adjournment or the need to amend
pleadings or call additional evidence. They may feel that their case is
sufficiently strong as it stands to require no supplementation. They
may simply wish the issues already identified to be determined
because they are relevant to future matters and the relationship
between the parties. That is for them to decide and not the court. If
they wish to stand by the issues they have formulated, the court may
not raise new ones or compel them to deal with matters other than
those they have formulated in the pleadings or affidavits.”
[97] The finding that the incoming National Commissioner had no power to
discipline and dismiss the appellant was not an issue which the arbitrator was
asked to determine. In Bondev Midrand (Pty) Ltd v Puling and Another and a
Similar Case
48 it was pointed out that courts ‘should refrain from dealing with
legal issues unnecessary to determine in order to properly deal with a matter

legal issues unnecessary to determine in order to properly deal with a matter
before it’. The Constitutional Court in Albutt v Centre for the Study of Violence
and Reconciliation and Others,
49 held that:

48 [2017] ZASCA 141; 2017 (6) SA 373 (SCA) at para 9.
49 [2010] ZACC 4; 2010 (3) SA 293 (CC) at para 82.

34

‘Sound judicial policy requires us to decide only that which is demanded by
the facts of the case and is necessary for its proper disposal…Judicial
wisdom requires us to resist the temptation and to wait for an occasion when
both the facts and the proper disposition of the case require an issue to be
confronted…”
[98] In light of the conclusion I reach on the point in limine, albeit for different
reasons to my colleague Tokota AJA, I proceed to consider the merits of the
appellant’s dismissal which was dealt with extensively in the heads. The first
judgment adopts the view that it is not necessary to consider the merits as the
Labour Court had no jurisdiction to entertain a claim based on the
unlawfulness of a dismissal. It reasons that “ anyone, not being the President,
purporting to act in terms of s.207 of the Constitution acts unlawfully and such
act is a nullity.’ I disagree in as much as neither the arbitrator nor the Labour
Court were called upon to pronounce on the issue of the lawfulness of the
dismissal. They approached the matter on the basis of an unfair dismissal. It
was only in this Court that the unlawfulness and legality challenge evolved.
[99] I consider it prudent and in the interests of justice that the issue of the
appellant’s claim to have been unfairly dismissed be disposed of in its entirety.
The administration of justice will not be served if the appellant, in light of this
court not considering the merits, were to be left with the perception that his
challenge to the merits was side -stepped. The principle of finality in litigation
cannot be overstated.
[100] In broad terms, relying on Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others ,
50 the appellant contends that the decision reached by the
arbitrator is so unreasonable that no decision- maker could have reached the
same decision in the circumstances.
[101] The appellant was charged with three counts of misconduct falling under

[101] The appellant was charged with three counts of misconduct falling under
regulation 5(4)(x) of the Discipline Regulations. The chairperson, Lt General
Riet, considered the factual evidence placed before him and concluded that
Ethemba was awarded the bid to supply the SAPS with 360- degree

50 [2007] ZACC 22; 2008 (2) SA 24 (CC).

35

panoramic camera equipment, as per the specifications in contract
19/1/9/1/187TR(13). It is common cause that Ethemba subsequently sued the
SAPS for damages based on the repudiation of the contract through the
SAPS’s failure to place any purchase orders for the equipment, as it was
contractually obliged to. The claim was eventually settled, with the SAPS
paying an amount of R24 494 080 in damages. The appellant was found guilty
on the first and third counts, with the chairperson concluding, in terms of what
he referred to as a ‘liability test’, that the non- performance of the contract
could, from inception, only be attributed to the appellant. In determining an
appropriate sanction, Lt General Riet found that the appellant breached the
SAPS Code of Conduct, which required every member of the service to utilise
all available resources efficiently, responsibly and cost effectively and to act in
its best interests.
51 The enquiry concluded that the sanction of dismissal from
the SAPS was justified.
[102] The appellant, at the arbitration, challenged the procedural fairness of his
dismissal: he challenged the authority of Lt General Riet to preside over him ;
that Lt General Riet was biased; and that the employer resorted to convening
the enquiry incorrectly utilising regulation 9 instead of regulation 8.
[103] Aggrieved at his dismissal, the appellant referred the matter to arbitration
before the Bargaining Council. The appellant was represented by counsel,
which representation he was denied at the expeditious process. The appellant
contended that he was not aware that the expeditious process, falling under
regulation 9, was a formal disciplinary enquiry. The notice of the enquiry was
served on the appellant and his attorneys and informed him that he could be
represented by a fellow employee or a union representative. The latter would
not have been applicable in the case of the appellant, as he formed part of

not have been applicable in the case of the appellant, as he formed part of
senior management. This did not deter the appellant, whose attorneys wrote
to the SAPS contending that the regulation 9 process was being abused, as
the SAPS was seeking to ‘evade’ the problems it could encounter under a
regulation 8 process.

51 Regulation 2(3)(b) of the Regulations for the South African Police Service relating to the Code of
Conduct for Members of the Service, GN R529, GG 27642, 10 June 2005.

36

[104] The election of which process to follow is that of the employer. Both the
chairperson of the disciplinary enquiry and the arbitrator were satisfied that
the regulation 9 process was sanctioned by the appellant’s supervisor ; that
the misconduct attributed to the appellant fell within the definition of ‘serious
misconduct’, as contemplated in regulation 5(4)(x) and that Lt General Riet,
who was assigned to preside over the process, was of a rank higher than a
brigadier. Whatever the appellant’s personal perceptions of the individuals
involved in this process were, those views are immaterial and irrelevant,
provided that there was compliance with the statutory prescript of regulation 9.
[105] To the extent that the appellant claims not to have been aware of what the
process entailed in an expeditious hearing, it was submitted by the
respondents that such a claim rang hollow as the appellant was the A cting
National Commissioner at the time of the promulgation of the Discipline
Regulations on 1 November 2016. Regulation 1 defines the ‘employer’ as the
‘National Commissioner or any person delegated by him or her to perform any
function in terms of these Regulations’. The record indicates that the issue of
legal representation was raised by the appellant but after being refused legal
representation, the appellant elected to proceed. The hearing had a ring of
informality, with Lt General Riet essentially gathering evidence or ascertaining
from the appellant his response to the charges. To the extent that this process
was more ‘streamlined’ than a conventional enquiry.
[106] This is consistent with the standard required for procedural fairness at
disciplinary enquiries, as articulated by Van Niekerk J in Avril Elizabeth Home
for the Mentally Handicapped v Commission for Conciliation, Mediation and
Arbitration and Others ,
52 prior to the present amendments to the Code of
Good Practice.53
[107] The complaint of any procedural short -comings of the expeditious process

[107] The complaint of any procedural short -comings of the expeditious process
must have regard to the appellant having been granted the fullest opportunity
to present his case, where the record displays no hint of any animosity or bias

52 (2006) 27 ILJ 1644 (LC).
53 See A van Niekerk ‘ The Evolution of the Right to Fair Procedure in Dismissals for Misconduct’
(2024) Acta Juridica 55.

37

towards the appellant. On the contrary, it indicates a respectful, cordial
interchange between the presider and the appellant. The allegation of bias
appears to be built on the foundation that Lt General Riet was now in charge
of the Supply Chain Division, which the appellant contends ought to have
been disciplined, rather than him for the consequences arising from the
repudiation of the contract with Ethemba. There was no evidence to support
this assertion. Further, any averment of bias cannot hold, particularly in light of
Lt General Riet accommodating the appellant to place further information
before him, even after the conclusion of the enquiry. This conduct is
inconsistent with someone who has a preconceived agenda or bias towards
an employee.
[108] In any event, the appellant had ample opportunity to seek Lt General Riet’s
recusal, which he did not. I agree with the sentiment expressed by the
arbitrator, with reference to Bernert v ABSA Bank Ltd,
54 that this complaint of
bias appears to stem more from an adverse finding against a disgruntled
litigant than anything of substance at the enquiry. I am satisfied that the
arbitrator correctly concluded, on the evidence before him, that there was no
procedural unfairness at the enquiry. This accords with the finding by the court
a quo that the dismissal was procedurally fair with no reasonable basis on
which to support the claim that Lt General Riet was biased.
[109] The arbitrator delivered a well -reasoned, comprehensive award after hearing
the evidence of the employer’s witnesses, including Dr Weiss, the CEO of
Weiss AG, and the inventor of the Cevitta panoramic camera system, which
was the subject matter of the successful bid by Ethemba. Dr Weiss explained
that he also founded Spheron VR, whose camera system, SpheroCam, was
put forward by the unsuccessful competitor, Forensic Data Analysis (FDA). He
gave a detailed analysis of the competing camera systems and confirmed that

gave a detailed analysis of the competing camera systems and confirmed that
both Ethemba and FDA were afforded equal opportunities to demonstrate
their systems to the members of the Bid Evaluation Committee (BEC). He
further confirmed that his camera system complied with all the specifications
set out in the bid document and rejected the suggestion, eventually advanced

54 [2010] ZACC 28; 2011 (3) SA 92 (CC).

38

by the appellant (after it was raised by FDA), that the camera system selected
by the BEC was non-compliant with the end user’s requirements. In summary,
the complaint advanced by the appellant, while he was Divisional
Commissioner: Forensic Services, was that the Civetta camera system was
not fit for purpose and would compromise the evidence- gathering abilities of
the SAPS, rendering it susceptible to being rejected in court. As a result of the
SAPS and the Forensic Services failing to place orders for the purchase of the
cameras, as they were contractually obliged to, Ethemba sued for damages
on the basis of a repudiation of the supply service contract.
[110] The arbitrator thereafter considered the evidence of Lt General Kruser, the
Divisional Commissioner in charge of Supply Chain Management, who
testified to events leading up to the issuing of the bid for the supply of the 360-
degree panoramic camera equipment, which was to capacitate the Forensic
Services component of the SAPS. The evidence of the appellant at the
arbitration was that his department, Forensic Services, was instrumental in
contributing to the drawing up of the specifications for the camera system.
Following the advertisement of the tender, Ethemba was awarded the
contract, with a total value of over R92 million. The evidence at the arbitration
was that 65 cameras were to be ordered within the first year of the contract,
with the balance to be supplied in the remaining year. The contract was
concluded with Ethemba on 28 July 2014, with a requirement being that
orders would be placed shortly thereafter. Almost two months after the
successful awarding of the bid to Ethemba, FDA wrote to Lt General Kruser
requesting information in terms of the Promotion of Access to Information
Act
55, seeking documentation pertaining to Ethemba’s successful bid as well
as the evaluation of the competing bids. The letter from FDA contends that
Ethemba’s bid ought to have been rejected on the basis that it did not comply

Ethemba’s bid ought to have been rejected on the basis that it did not comply
with the bid specifications. Such complaints are not uncommon from a
disgruntled tenderer. FDA proceeded to explain at some length, as well as
providing a detailed analysis, of why its camera system ought to have been
preferred over that of Ethemba.

55 Act 2 of 2000.

39

[111] The complaint lodged by FDA was subsequently brought to the attention of
the appellant, who took up the issue of the camera system’s non -compliance
with much zeal, setting out several shortcomings found with the equipment. It
is not clear from the record what expertise the appellant relied on in
advancing the complaints regarding the Civetta system or why these
complaints did not surface prior to FDA’s letter. The appellant recommended
that the contract awarded to Ethemba be withdrawn ‘ since the bid offer was
misleading and not compliant with the specifications’. This constituted the first
step by the appellant leading to his eventual dismissal.
[112] Following the letter from FDA, Ethemba was invited to address the concerns
raised, in particular that the cameras were not according to the required
specification. Their response of 7 May 2015 was forwarded to the appellant
on 13 May 2015, with the request that he revert to the Supply Chain Services
Division on or before 20 May 2015. The response of the appellant, after
having received the letter, was on 4 June 2015 that he would respond to the
contents of the response ‘at an opportune time’. A further reminder was sent
to him on 27 July 2015, drawing to his attention that the failure or reluctance
to place orders with Ethemba was placing the State at risk of being sued for
damages. A further letter was sent to the appellant on 2 October 2015 and
was met with no response from him. It is common cause that the appellant
was appointed Acting National Commissioner on 14 October 2015.
[113] An opinion was eventually sought from the Legal Services Component of the
SAPS regarding the insistence of the Forensic Services department on the
cancellation of the contract, emanating from the appellant’s refusal to place
orders for the camera equipment at the time when he was Divisional
Commissioner: The opinion was sent to the appellant, who was at that stage
the Acting National Commissioner. The stance adopted by Forensic Services

the Acting National Commissioner. The stance adopted by Forensic Services
was that the product produced by Ethemba was non- compliant, implying that
the administrative decision taken by the BEC was invalid. Attention was
directed to the decisions of Oudekraal Estates (Pty) Ltd v City of Cape Town
and others
56 and MEC for Health, Eastern Cape and Another v Kirland

56 2004 (6) SA 222 (SCA).

40

Investments (Pty) Ltd t/a Eye and Lazer Institute,57 which held that the State
could not simply ignore an invalid decision taken by it and until the invalid
decision is set aside by judicial review, it continues to exist and has legal
consequences. Importantly for the divisions and administrators involved in the
procurement of the camera system to be used by Forensic Services, their
attention was pertinently drawn to the observations by the Constitutional Court
in Kirland
58 that ‘government should generally not be exempt from the forms
and processes of review. It should be held to the pain and duty of proper
process. It must apply formally for a court to set aside the defective
decision…’. The opinion concluded with the recommendation that the SAPS
would be duty -bound to initiate review proceedings if it believed that the
administrative decision to award the contract to Ethemba was invalid. Despite
this advice, issued on 1 June 2016, no steps were taken by Forensic Services
to rescue the situation, notwithstanding the knowledge that Ethemba had
issued a demand for payment of R14,8 million based on breach of the
contract. Summons for this amount was ultimately issued in September 2016.
[114] It was common cause that during the period when the appellant served as
Divisional Commissioner: Forensic Services, he took no steps to set aside the
contract with Ethemba, despite his views that their product was non-
compliant. Even after he was appointed as the Acting National Commissioner,
he simply took no steps to address the SAPS’s failure to place orders with
Ethemba, as it was contractually obliged to. His attitude was to simply ignore
a validly binding contract, despite legal advice on the consequences of such
conduct. Having regard to the evidence before the arbitrator, it appears that
the appellant’s complaint with the evaluation process was that a member of
Forensic Service, who was to have been part of the evaluation team, was

Forensic Service, who was to have been part of the evaluation team, was
relegated to the status of an observer. What impact this had on the
procurement process is uncertain. Whatever impact it had did not justify the
supine approach of the appellant to ignore the reality of the contractual
obligations on the State, non- compliance with which would result in the State
being sued for damages.

57 [2014] ZACC 6; 2014 (3) SA 481 (CC) (Kirland).
58 Kirland (ibid) at para 64.

41

[115] The arbitrator found no evidence to indicate that the appellant at any stage
thereafter responded to the letter from Ethemba, despite undertaking to do so
at an ‘opportune moment’. The arbitrator proceeded to find that the appellant’s
conduct was reckless in light of the threatened legal action, which eventually
materialised, resulting in the State eventually settling the dispute and paying
an amount of R24 494 080 to Ethemba, without receiving anything in return.
The arbitrator rejected the appellant’s version that he was ignorant of the
letters written to him drawing his attention to the grave consequences of
ignoring the demand by Ethemba’s attorneys.
[116] It was further found that at no stage of the process, in which the appellant
disputed Ethemba’s contention that their product was compliant with the bid
specifications, did the appellant seek to have the camera equipment
subjected to an independent assessment, including by the CSIR, as had been
suggested by the National Treasury. Despite his evidence that he was vigilant
that the State should not have to incur wasteful expenses on cameras that
were non-compliant, the appellant’s actions or inaction resulted in significant
wasteful expenditure.
[117] The arbitrator further found that the appellant, although aware that the
contract with Ethemba had not been set aside, even while he was the
Accounting Officer of the SAPS by virtue of his appointment as Acting
National Commissioner, took no steps to address the consequences of the
contract. He adopted the view that this was no longer his responsibility. The
arbitrator found this conduct, albeit that he was no longer Divisional
Commissioner: Forensic Services, to be aggravating. The arbitrator rejected
the contention that there was no link between the inaction of the appellant and
the loss incurred by the State.
[118] In light of all of the evidence presented, the arbitrator found that the employer

[118] In light of all of the evidence presented, the arbitrator found that the employer
had succeeded in proving on a balance of probabilities that the appellant
‘intentionally’ caused the non- compliance in respect of the contract with
Ethemba, resulting in a loss of approximately R24,5 million. While the
disciplinary enquiry found the appellant guilty on count three relating to a

42

breach of his duties under the Public Finance Management Act 59, the
arbitrator concluded that the evidence pertaining to this count would
essentially be the same as that required to sustain a finding on count one. For
this reason, the arbitrator concluded that a finding of guilty on count three
would amount to undue splitting of charges.
[119] In determining that the sanction of dismissal was appropriate when having
regard to the circumstances of the matter, the arbitrator noted the appellant’s
attitude in not appreciating the wrongfulness of his conduct and seeking to
apportion blame to everyone else but himself and failing to show any remorse
for his actions. Notwithstanding the appellant’s evidence that he saw no
impediment to his reinstatement, the arbitrator, relying on authority from this
court, concluded that such an option of ‘ allowing the employee back into the
fold’ was untenable.
[120] The arbitrator accordingly concluded that the appellant’s dismissal was both
procedurally and substantively fair.
[121] On review to the Labour Court , the appellant canvassed the same issues he
did in the arbitration, contending that the finding which the arbitrator made
was one which no reasonable decision- maker could reach. The Labour Court
considered the application of the Discipline Regulations, in particular
regulation 9, which applied to the enquiry chaired by Lt General Riet. The
Labour Court concluded that regulation 9 applied to specific circumstances
and found no basis to set aside the expeditious process.
[122] It was contended that the arbitrator made a finding in relation to the second
charge levelled against the appellant. There was no merit to this ground, as
the arbitrator confined himself to the first and third charges, eventually finding
that the evidence could only sustain a finding of serious misconduct on the
first charge. The appellant had ‘intentionally’ caused the non- compliance in
respect of the contract to purchase the 360- degree cameras from Ethemba,

respect of the contract to purchase the 360- degree cameras from Ethemba,
and had failed to take any steps to mitigate the damages or avoid the litigation
which was launched by the aggrieved contracting party. The Labour Court

59 Act 1 of 1999.

43

found that the findings of the arbitrator were supported by the evidence and
that the decision to find the appellant guilty on the first count was a
reasonable decision. In particular, the Labour Court confirmed the finding of
the arbitrator that the appellant provided no evidence or explanation as to why
he did not place orders for the equipment prior to the complaint from FDA
being received. There was no evidence, despite his insistence that the
cameras were non- compliant, to counter that of the inventor of the cameras,
Dr Weiss, that the complaints of the disgruntled bidder, FDA, were ill -founded
and without substance. The Labour Court observed that in the absence of an
independent assessment, the appellant ‘accepted FDA’s say -so on the
matter’. Despite the response of Ethemba having been forwarded to the
appellant and his commitment to respond as soon as it was opportune, he
never did.
[123] The Labour Court further concluded that the appellant’s conduct put in motion
a sequence of events resulting in significant and wasteful expenditure to the
State. It further found that he was dismissed as a consequence of his conduct
as a Divisional Commissioner, and that his inaction, post that position, was
correctly taken into account as an aggravating factor.
[124] In the result, the Labour Court found no reason to interfere with the findings of
the arbitrator and dismissed the review application, with no order as to costs.
[125] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others ,
60 Waglay JP noted that
the review court
‘… is not required to take into account every factor individually, consider how
the arbitrator treated and dealt with each of those factors and then determine
whether a failure by the arbitrator to deal with one or some of the factors
amounts to process -related irregularity sufficient to set aside the award. This

amounts to process -related irregularity sufficient to set aside the award. This
piecemeal approach of dealing with the arbitrator’s award is improper as the
reviewing court must necessarily consider the totality of the evidence and
then decide whether the decision made by the arbitrator is one that a
reasonable decision-maker could make.’

60 [2014] 1 BLLR 20 (LAC) at para 18.

44

[126] The appellant has had the benefit of an initial enquiry – the expeditious
process under regulation 9 of the Discipline Regulations. Despite his
misgivings about the process and the presiding officer, both complaints which
were found to be without substance, he was afforded an opportunity to
present his version to an independent and impartial chairperson. He was
found guilty and dismissed. He was then afforded a second opportunity to
convince an independent umpire of his innocence. The arbitrator found that
his dismissal was procedurally and substantively fair. His application to review
the arbitrator’s award was his third attempt to revisit the charges against him.
The Labour Court rejected his contentions of an irregular procedure employed
by the employer in disciplining him pursuant to a hearing under regulation 9.
The Labour Court found no basis to interfere with the arbitrator’s findings.
[127] It must be stressed that it is neither the function of a review court nor that of
an aggrieved litigant to microscopically analyse the evidence at the arbitration
in an attempt to demonstrate that the award under review is incorrect and
should therefore be set aside. This approach results in a conflation of the
approach to the correctness of the award and creates an opportunity for what
is otherwise an appeal in the guise of a review.
61 The question central to the
enquiry is whether the arbitrator’s decision is one that a reasonable decision-
maker could reach. Sutherland JA in Makuleni v Standard Bank of SA (Pty)
Ltd and Others
62 warned of a review court yielding ‘to the seductive power of a
lucid argument that the result could be different’ . The court went on to state
that:63
‘At the heart of the exercise is a fair reading of the award, in the context of the
body of evidence adduced and an even-handed assessment of whether such
conclusions are untenable. Only if the conclusion is untenable is a review and
setting aside warranted.’

setting aside warranted.’
[128] Having had the benefit of three different fora pronouncing on the charges
against the appellant, this court must consider whether there was any
misdirection by the Labour Court in confirming the findings of the arbitrator.

61 See: Cox v CCMA and Others [2001] 2 BLLR 141 (LC).
62 Makuleni v Standard Bank of SA (Pty) Ltd and Others (2023) 44 ILJ 1005 (LAC) at para 4.
63 Makuleni (ibid) at para 4.

45

Was the finding by the arbitrator so egregious that no reasonable person
could reach such an award?64
[129] In this court, the appellant persisted in his heads of argument with very much
the same arguments presented before the arbitrator, calling for a forensic
introspection of the evidence presented. At the forefront of his contentions is
that he was no longer the Divisional Commissioner: Forensic Services at the
time when the settlement of almost R24,5 million was concluded with
Ethemba, and that he was being used as the proverbial scapegoat in light of
the fruitless expenditure.
[130] The inescapable conclusion, as alluded to by the arbitrator, is the tendency of
the appellant to look to everyone else but himself as being responsible for the
loss, which undoubtedly detrimentally affected the image of the State in the
eyes of right -thinking citizens. Where inaction by senior officers results in
wasteful expenditure, the image of the public service as an entity is tarnished,
especially in the minds of the general public servants.
[131] Viewed in its totality, the appellant was the catalyst in refusing to place orders
with Ethemba, thereby dishonouring the State’s contractual obligations. He
initially expressed no signs of resistance to the terms of the contract or to the
specifications for the cameras, which his department was instrumental in
drafting. For reasons that are not quite apparent, once the letter from FDA
was received contending that Ethemba’s product was not fit for purpose, the
appellant seized the opportunity and was emboldened in his resistance to
comply with the terms of the agreement. As a senior ranking officer, his stance
from the outset was that of non-compliance with a valid binding contract, even
in the face of the looming threat of litigation exposing the State to significant
loss.
[132] If, as the appellant claims, he was concerned that the State had entered into
an agreement to commit almost R92 million for the purchase of camera

an agreement to commit almost R92 million for the purchase of camera
equipment which was inferior and ill -suited for their purpose, the appellant’s
choices were readily apparent. He could have invited the aggrieved bidder,

64 Makuleni (id fn 64) at para 13.

46

FDA, to launch its review application under the Promotion of Administrative
Justice Act 65 and allow the courts to determine the veracity of FDA’s
complaints. No doubt, the SAPS would have been cited as a party and the
appellant could have placed his views before the court as a diligent senior
public official. As Cameron J, writing for the majority in Kirland,
66 pointed out:
‘The Constitution entrenches the right to lawful, reasonable and procedurally
fair administrative action. But, in the same breath, it obliges Parliament to
“provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal”. In doing so, the
Constitution foresees that the administration that would answer to it would be
imperfect. Those charged with state administration will inevitably on occasion
fall short of the high aspiration of just administrative action. When they do, the
courts are able to intervene.’ (Footnotes omitted.)
[133] The second option available to the appellant, in his capacity as the Divisional
Commissioner, was to apply to the court to review the administrative actions
of his own department, on the grounds that Ethemba ought not to have been
selected as the successful bidder and, more importantly, that its product was
not fit for purpose.
67 Even in his capacity as the Acting National
Commissioner, he was alerted to this responsibility following an opinion
obtained from the SAPS’s Legal Services. He acted with reckless indifference.
His inaction was self -evident and its financial consequences alarming to the
taxpayer.
[134] I can find no grounds to interfere with the decision of the Labour Court in
confirming that the dismissal of the appellant was substantively and
procedurally fair. I hasten to add, however, that I disagree with the finding of
the arbitrator (confirmed by the Labour Court ) that the employer succeeded in
proving on a balance of probabilities that the appellant ‘ intentionally caused

proving on a balance of probabilities that the appellant ‘ intentionally caused
non-compliance’ with the terms of the contract. The evidence before the
arbitrator did not establish intention. This would have required evidence of a

65 Act 3 of 2000.
66 Kirland (id fn 59) at para 91.
67 See: State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd [2017] ZACC 40 ;
2018 (2) BCLR 240 (CC) ; B uffalo City Metropolitan Municipality v Asla Construction (Pty) Limited
[2019] ZACC 15; 2019 (6) BCLR 661 (CC).

47

pre-conceived plan by the appellant not to honour the State’s contractual
obligations. This is a high threshold. However, it is not one which is necessary
for a guilty finding on count one of the charge against the appellant. The
respondent was required to prove that the misconduct ‘detrimentally affected
the image of the Service’ or brought the SAPS ‘into disrepute’, in that he acted
‘intentionally or negligently’. I am satisfied that the evidence broadly reflects
that the appellant acted negligently rather than intentionally.
68 That distinction
offers no succour to the appellant, as the respondent succeeded in
establishing the essential ingredients of the charge on count one.
[135] There is nothing in the record that demonstrates a reviewable irregularity on
the part of the arbitrator which manifests itself in an unreasonable result,
where the outcome of the proceedings under review represents a decision
that no reasonable decision-maker could reach on the available evidence. For
reasons canvassed earlier, I would find the dismissal of the appellant an
appropriate sanction.
[136] Equally, the arbitrator’s finding that there was no dishonesty on the part of the
appellant is of no assistance. The charge sheet clearly articulated the case
details he had to meet.
69 So, the SAPS's labelling of the alleged misconduct is
less important. It will generally be sufficient if the employee has adequate
notice and information to ascertain what act of misconduct he is alleged to
have committed.
70



[137] I would accordingly dismiss the appeal, with no order as to costs.


68 Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and
Others (2008) 29 ILJ 964 (LAC) para 102.
69 See: EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others
[2019] ZALAC 57, (2019) 40 ILJ 2477 (LAC) at paras 16-17.
70 EOH Abantu (ibid).

48


___________________
M R Chetty
Acting Judge of the Labour Appeal Court of South Africa

NKUTHA-NKONTWANA JA
[138] I have had the advantage of reading the two judgments penned by my
colleagues Tokota AJA (the first judgment) and Chetty AJA (the second
judgment). The first judgment disposes of the appeal on the basis that, to the
extent that he is challenging the legality of his dismissal, on the dictum in
Steenkamp,
71, the Labour Court had no jurisdiction in terms of the LRA to
entertain the matter. By this edict, he steers clear of deciding the merits of the
dispute.
[139] While I agree with the first judgment’s finding that the Labour Court has no
jurisdiction to entertain an unlawful dismissal claim under the LRA jurisdiction
and the order it has reached, I regrettably disagree that the legal point
pertaining to the legality of the appellant’s dismissal is meritorious. The
appellant’s cause of action, as articulated in the pleadings, is based on unfair
dismissal in terms of the LRA. He further sought an LRA relief in the following
terms:
‘1. THAT the arbitration award issued by the third respondent of the
second respondent under case reference number PSSS 210-20/21
dated 16 July 2021 be reviewed and set aside in terms of section 145,
alternatively 158(1)(g) of the …LRA…
2. THAT the award be substituted in terms of section 145(4) of the LRA
with an award to the effect that the dismissal of the applicant was both
substantively and procedurally unfair and that the applicant be
retrospectively reinstated into the employ of the first respondent.’

71 Steenkamp (id fn 20).

49

[140] In this Court as well, the appellant assails the Labour Court’s failure to review
and set aside the arbitration award, which he contends was not rationally
justifiable. The appellant then contends that, to the extent that the arbitrator
found his actions as the Acting National Commissioner led to the breach of
contract between the SAPS and Ethemba, he ought to have been disciplined
by the President. It is on this point that the first judgment turns. It agrees with
the appellant that his dismissal was unlawful and had the following to say
regarding the course of action he pursued:
“It seems to me that the referral to the Bargaining Council purporting to be
based on unfair dismissal was in fact a referral of unlawful dismissal. It was
therefore couched in such a manner that it should not oust the jurisdiction of
the Bargaining Council. It is therefore evident to me that the cause of action
was based on unlawful dismissal, which is outside the provisions of the
Labour Relations Act 66 of 1995 (the LRA).”
[141] It is a well- accepted principle that the cause of action pleaded constrains
jurisdiction and remedy. 72 In Baloyi v Public Protector and others,73 the
Constitutional Court found that where more than one cause of action flows
from the termination of a contract of employment, a litigant could therefore
choose which cause of action to pursue. The dispute- resolution procedures in
the LRA would only apply if the litigant chose to pursue an unfair dismissal
claim. This is what happened in this case; hence, the arbitrator and the
Labour Court were confined to determining procedural fairness and
substantive fairness of the dismissal.
[142] That the arbitrator referred to the appellant’s failure, as the Acting National
Commissioner, to intervene when he was made aware of an impending
litigation that led to wasteful expenditure as an aggravating factor that justified
dismissal does not cure the pleading defect. Nor could it support a finding that

dismissal does not cure the pleading defect. Nor could it support a finding that
the dispute that served before the arbitrator pertained to an unlawful dismissal
camouflaged as an unfair dismissal dispute. In the appellant’s own version, he

72 See: Gcaba (id fn 41); Makhanya v University of Zululand 2010 (1) SA 62 (SCA) ; (2009) 30 ILJ
1539 (SCA); Archer v Public School —Pinelands High School and others (2020) 41 ILJ 610 (LAC ) ;
Baloyi v Public Protector and others 2022 (3) SA 321 (CC) ; (2021) 42 ILJ 961 (CC), Passenger Rail
Agency of SA and others v Ngoye and others (2024) 45 ILJ 1228 (LAC).
73 Baloyi v Public Protector and others (ibid).

50

was charged with the transgressions that transpired when he was the
Divisional Commissioner: Forensic Services. 74 Moreover, he accepts that he
was dismissed for those transgressions, and he duly availed himself of the
LRA dispute resolution mechanism to challenge its fairness.
[143] I accept the trite principle that a legal point can be raised for the first time at
appeal.75 However, in the present case, the appellant's legal point is
unmeritorious.
[144] For all these reasons, I agree with the second judgment of my colleague,
Chetty AJA, that the unlawful dismissal claim is untenable and stands to be
dismissed, and that the appeal be decided on the merits. I also agree with the
findings Chetty AJA reached on the merits.

____________________
P. Nkutha-Nkontwana
Judge of the Labour Appeal Court of South Africa


74 See paragraph 84 of the founding affidavit where the appellant asserts that: “ It was further trite
during the disciplinary hearing, as well as the arbitration proceedings, that the allegations against me
were raised against me in lieu of 20 the position which I held as the Divisional Commissioner:
Forensic Services.”
75 See: Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC) at para 39, where the following is
said: “The mere fact that a new point of law is raised on appeal is not itself sufficient reason for
refusing to consider it. If the point is covered by the pleadings and its consideration on appeal
involves no unfairness to the party against whom it is directed, this Court may in the exercise of its
discretion consider the point. Unfairness may arise, where for example, a party would not have
agreed on material facts, or on only those facts stated in the agreed statement of facts had the party
been aware that there were other legal issues involved and that “[it] would similarly be unfair to the
party if the law point and all its ramifications were not canvassed and investigated at trial.”

51

APPEARANCES:
For the Appellant: S. Sethene
Instructed by : David H Botha, Du Plessis
and Kruger Inc.
For the First and Fourth Respondents: Y S Ntloko
Instructed by: the State Attorney