THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
CASE Number: 2026 – 096701
In the matter between:-
VIRGIL SCOTT DAVIDS Applicant
and
THE MINISTER OF POLICE First Respondent
THE PROVINCIAL COMMISSIONER
WESTERN CAPE Second Respondent
This judgment was handed down electronically by circulation to the parties and
legal representatives by email and by uploading onto CaseLines. The date and
time for hand-down is deemed to be 12 June 2026.
Summary:
Urgency – applicant satisfying considerations of urgency – matter heard as
urgent application
Jurisdiction – s 157(1) – applicant failing to establish jurisdiction of the Court
to grant the relief sought – Court not having general jurisdiction as relied on by
applicant – Court having no jurisdiction to intervene in incomplete disciplinary
proceedings under section 157(1) – Court having no jurisdiction to consider
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO
OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
12 June 2026
2
case based on unfairne ss bought directly to Court – statutory process under
LRA must be followed – matter falls to be dismissed for want of jurisdiction
Procedural fairness – Regulation 9 of SAPS Disciplinary Regulations
considered – purpose of regulation is to allow attenuated process – constitutes
a process distinct from ordinary disciplinary process – employer entitled to
implement process – not for the Court to prescribe to employer what process
to follow
Procedural fairness – Regulation 9 of SAPS Disciplinary Regulations
considered – provision does not contemplate the calling of witness and cross
examination – such right not part of basic tenets of fair disciplinary
proceedings under LRA – whether procedural unfairness exists depends on
the particular facts – refusal / failure to afford these rights not per se unfair
Procedural fairness – applicant requesting Court to finally determine whether
conduct of respondent procedurally fair – procedural fairness in casu related
to disciplinary proceedings for misconduct – bargaining council required to
make such a final determination – not competent to request Labour Court to
make such determination on final basis on motion
Alternative remedy – applicant has proper / prescribed alternative remedy
available in the form of unfair dismissal proceedings in normal course as
prescribed by the LRA
Interdict – final relief – applicant failing to establish clear right to final relief
sought – applicant having proper alternative remedy – applicant failing to
satisfy requirements for interdict – application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
3
[1] This is yet another one of those urgent applications where this Court is being
asked to micro -manage internal disciplinary proceedings in an individual
employer (the respondent s), whilst such disciplinary proceedings are still
ongoing. Whilst I have understanding for why the applicant did what he did in
bringing this application, the fact remains that such kind of intervention sought
by the applicant is generally not appropriate and should be discouraged. The
point must always be that where there are specific dispute resolution
processes prescribed by the Labour Relations Act (LRA) 1, as is the case in
casu, those processes should be followed without seeking to approach this
Court directly to intervene on what is in reality nothing else but a first instance
basis. That is not the function of this Court.
[2] The applicant is representing himself in these proceedings. I must say that I
think he did quite a decent job of presenting his case. The case has been
properly pleaded. Contrary to what is normally the case with self -represented
litigants seeking urgent intervention from this Court, the applicant’s approach
to the case was to the point and made deciding the matter easier. Even
though the applicant’s notice of motion is somewhat convoluted, I was able to
establish without much effort what the applicant is seeking in these
proceedings. It is clear that the applicant is asking for final relief on an urgent
basis. The applicant prays for this Court to intervene in the internal disciplinary
proceedings currently in the process of being conducted against him , in terms
of Regulation 9 of the South African Police Service Discipline Regulations (the
Regulations).2 The applicant is seeking an interdict against t he proceedings
being conducted in terms of Regulation 9, instead of it being conducted under
Regulation 8 which concerns disciplinary proceedings in the ordinary course.
In the alternative, the applicant seeks an order that the respondents be
In the alternative, the applicant seeks an order that the respondents be
ordered to allow the calling of witnesses and the cross examination of those
witnesses in the Regulation 9 disciplinary proceedings, if the matter proceeds
on that basis.
1 Act 66 of 1995 (as amended).
2 The Regulations were promulgated under section 24(1) of the South African Police Service Act 68 of
1995, by way of GN 1361 as contained in GG 40398 of 1 November 2016.
4
[3] Because the applicant is seeking final relief with regard to these prayers in the
notice of motion, he must satisfy three essential requirements, which must all
be shown to exist, being: (a) a clear right; (b) an injury actually committed or
reasonably apprehended (prejudice); and (c) the absence of any other
satisfactory remedy.
3
[4] This matter came before me as an urgent application on 5 June 2026. It was
opposed by the respondent s, who filed an answering affidavit. After hearing
argument by both parties, and considering t all he affidavits and heads of
argument filed, I indicated that judgment will be g iven on 12 June 2026. This
judgment is now handed down accordingly. For ease of reference in this
judgment, I will refer to the respondents jointly as ‘SAPS’.
Background facts
[5] The background facts in this case are straight forward, and largely undisputed.
[6] The applicant is a warrant officer in SAPS. He was appointed by SAPS as a
Chaplain, stationed at SAPS Vredendal.
[7] In a notice as contemplated by Regulation 8(1) dated 19 September 2025, the
applicant was informed that he was being investigated for serious misconduct.
The notice wa s signed by the Provincial H ead: Human Resource
Development, being B rigadier Mnymeni. On the same date, Captain L J van
Rhyn was appointed to investigate this misconduct. The notice referred to the
alleged misconduct as relating to sexual assault / sexual harassment
pertaining to incidents which occurred at SAPS Vredendal on 24 July 2024,
which had now been brought forward by three individual complainants.
According to the appl icant, he was presented with the aforesaid notice by
Captain Van Rhyn on 2 October 2025.
[8] At his own request, and whilst these allegations remained undecided , the
applicant was transferred to Vanrynsdoprp VISPOL, where he is currently
3 See Setlogelo v Setlogelo 1914 AD 221 at 227; V & A Waterfront Properties (Pty) Ltd and Another v
Helicopter and Marine Services (Pty) Ltd and Others 2006 (1) SA 252 (SCA) at para 20; Mere v
Tswaing Local Municipality and Another (2015) 36 ILJ 3094 (LC) at para 4.
5
working. Needless to say, the applicant disputes that he has committed the
misconduct concerned.
[9] Following the completion of the investigation, the Provincial Commissioner of
SAPS decided to implement the expedited disciplinary process as
contemplated by Regulation 9. In terms of Regulation 9(1), Brigadier K Y
Mawela was appointed as the designated functionary to officiate this expedited
process. In a notice dated 8 January 2026, the terms of appointment were
specified, and Brigadier Mawela was directed to follow the prescribed
processes under Regulation 9. Brigadier Mawela then satisfied himself by
virtue of Regulation 9(2)(a) that the institution of expedited disciplinary
proceedings were justified.
[10] In a formal disciplinary hearing notification dated 16 A pril 2026, the applicant
was then summoned in terms of Regulation 9(2)(b) to appear at an expedited
hearing process on 22 April 2026 before Brigadier Mawela. The notice set out
all the charges against the applicant, and indicated what documentary
evidence and statements would be relied upon in the proceedings, which were
also attached to the notice. This notice was actually served on the applicant on
17 April 2026. Of importance to the matter in casu is that the hearing
notification contained two charges as contemplated by R egulation 5(4), being
a charge of sexual harassment under regulation 5(4)(v), and a charge of
bringing the image of the Service in disrepute, as contemplated by Regulation
5(4)(x).
[11] Upon receipt of this disciplinary hearing notice, the applicant on 19 April 2026
requested the Provincial Commissioner to convert the expedited disciplinary
process sunder Regulation 9 to a disciplinary process in the ordinary course
under Regulation 8. According to the applicant, there was precedent for this
kind of converting where it came to serious allegations such as rape,
corruption and extortion. The deadline given by the applicant to accede to this
corruption and extortion. The deadline given by the applicant to accede to this
request was 20 April 2026. There was no response forthcoming fr om the
Provincial Commissioner to this request.
[12] The applicant then launched urgent proceedings to challenge the Regulation 9
disciplinary process in the High Court in Cape Town, under case number
2026-092423. The case was heard on 23 April 2026. The High Court decided
6
that it had no jurisdiction to decide the case as pleaded by the applicant and
that the matter had to be dealt with by this Court. However, and as a result of
these High Court proceedings , the disciplinary hearing set down for 22 April
2026 was postponed to 28 April 2026.
[13] According to the applicant, and following these abortive High Court
proceedings, he communicated with Brigadier M awela on 25 April 2026 by
way of WhatsApp, enquiring whether witnesses would be called in the
disciplinary proceedings on 28 April 2026 and whether he would be allowed to
cross examine those witnesses. Brigadier Mawela answered on 26 April 2026
that no witnesses would be called, and no cross examination would take
place.
[14] Whilst it was not disputed that Brigadier Mawela gave this answer to the
applicant, SAPS explained that this view expressed by Brigadier Mawela is not
a final determination. According to SAPS, the applicant will be legally
represented in the hearing, and the issue of witnesses could still be canvassed
in the hearing itself, depending on how the chairperson decided to conduct the
hearing, which was in the prerogative of the chairperson to do.
[15] The current urgent application then followed on 29 April 2026. The disciplinary
proceedings against the applicant have be en postponed pending the outcome
of the current application.
Urgency
[16] I intend to first deal with the issue of urgency, as SAPS has contended that the
matter is not urgent. According to the applicant, the disciplinary hearing notice
issued to him on 17 April 2026 was the was the catalyst for the application, as
this is what initiates the Regulation 9 process, with which the applicant has an
issue. I accept this contention. Before this notice, there was effectively only an
investigation, which first had to determine whether disciplinary action would be
instituted. The disciplinary hearing notice of 17 April 2026 would constitute that
instituted. The disciplinary hearing notice of 17 April 2026 would constitute that
determination, and also determined what process would be applied. From that
point on, and if the applicant wanted to challenge the proceedings, he would
have to with due expedition approach this Court. I believe he did.
7
[17] I am thus convinced that the applicant indeed acted with due expedition, even
though his first attempt at challenging the process was misguided. He was
before the High Court within a week after receiving the notice. When those
proceedings failed, he sought to enquire fr om the chairperson whether
witnesses would be called and if he could cross examine them. Following the
response on 26 April 2026 that this would not be the case, the current
application followed three days later , w hich is surely sufficiently expeditious
conduct to satisfy the requirements of urgency. It is clear that throughout the
period after 17 April 2026, the applicant was actively attending to the matter.
[18] Overall considered, the manner in which the applicant attended to this matter,
was prompt and immediate action which I consider to be line with the
requirements to establish urgency. SAPS was afforded sufficient opportunity to
oppose and answer the application. The facts relating to the matter were
simple and straight forward. And when the matter was argued, urgency was
not really placed in issue. Pursuant to the principles set out in Association of
Mineworkers and Construction Union and Others v Northam Platinum Ltd and
Another
4, I will accept that the applicant took sufficiently prompt and urgent
action, and satisfies the requirement that the application was in effect brought
at the earliest appropriate opportunity . It is in any event in my view important
that this matter be disposed of on the merits, considering that it also concerns
an issue of jurisdiction, and there is a pending disciplinary process that hinges
on the outcome of this matter . I will thus decide the application as one of
urgency.
Analysis
[19] It is trite that the case this Court would be required to decide is determined on
the basis of what the applicant has pleaded in the founding affidavit . In the
founding affidavit, the applicant pleads : ‘I have a prima facie right to fair
founding affidavit, the applicant pleads : ‘I have a prima facie right to fair
disciplinary process in terms of section 23 of the Constitution. Furthermore, I
have the right to test the credibility of the evidence of the witnesses under
cross examination’. The applicant further pleads that he will suffer irreparable
harm, because he will lose the right to cross examine witnesses which creates
4 (2016) 37 ILJ 2840 (LC) at paras 21 – 26. See also Jiba v Minister: Department of Justice and
Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; Transport and Allied
Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.
8
the risk of an adverse finding based on untested evidence. The applicant
further contends that SAPS will suffer no prejudice i f the disciplinary
proceedings are converted to proceedings under Regulation 8. And lastly, the
applicant has raised a complaint concerning the undue delay occasioned by
SAPS in instituting the disciplinary proceedings against him , however
considering the basis upon which I will dispose of this matter, as set out below,
I do not see any need to decide this particular issue and will not consider it
further.
[20] Where it comes to the issue of jurisdiction, the applicant specifically relies on
section 157(1) of the LRA, pleading that ‘ The present matter concerns a
dipsute arising from my employment with the South African Police Service and
relates to the procedural fairness of disciplinary proceedings ins tituted against
me under the Disciplinary Regulations of the SAPS’. The applicant also states
that he challenges the ‘rationality’ of the decision by SAPS to apply Regulation
9, and not Regulation 8, thus implying some sort of legality review.
[21] The pleaded case of the applicant unfortunately faces some significant
jurisdictional challenges. In Du Plessis v Public Protector and Others5 the
Court said:
‘Jurisdiction cannot be assumed or implied. It either exists or it does not.
Jurisdiction is the power of the Court to decide a matter that has been brought
before it. If the Court does not have the power to do so, it cannot consider the
matter, no matter what the merits or equities may be … ’
[22] In Gcaba v Minister for Safety and Security and Others 6, the Court described
the concept of ‘jurisdiction’ as follows: ‘… The specific term 'jurisdiction', which
has resulted in some controversy, has been defined as the 'power or
competence of a court to hear and determine an issue between parties … ’.
And in Makhanya v University of Zululand 7, the Court also dealt with the
And in Makhanya v University of Zululand 7, the Court also dealt with the
meaning of jurisdiction as follows: ‘…. Judicial power is the power both to
uphold and to dismiss a claim. It is sometimes overlooked that the dismissal of
a claim is as much an exercise of judicial power as is the upholding of a claim.
5 (2020) 41 ILJ 919 (LC) at para 20. See also Makhanya v University of Zululand (2009) 30 ILJ 1539
(SCA) at para 23; SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) at para 8.
6 (2010) 31 ILJ 296 (CC) at para 74.
7 (2009) 30 ILJ 1539 (SCA) at para 23.
9
A court that has no power to consider a claim has no power to do either (other
than to dismiss the claim for want of jurisdiction).’
[23] As set out above, it is clear that the applicant has specifically pleaded, as a
source of jurisdiction of this Court, reliance on section 157(1) of the LRA. The
section reads:
‘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.’
[24] In terms of section 157(1) , the jurisdiction of the Labour Court is specifically
circumscribed and determined by statute, being the LRA itself. The crisp
question is whether this section allows intervention by this Court in medias res
on an urgent basis where it comes to pending disciplinary proceedings
internally in an employer, in circumstances where it is contended that such
proceedings would be unfair or unlawful. Answering this question involves
some historical context. Previously, and by virtue of the authority in Booysen v
Minister of Safety and Security and others
8, it was considered that section
157(1) allowed the Labour Court to intervene to restrain any alleged
illegalities, irregularities or unfairness in incomplete workplace proceedings,
provided that exceptional circumstances exist that would justify such
intervention. The Court in that case had said:
9 ‘… the Labour Court has
jurisdiction to interdict any unfair conduct including disciplinary action.
However such an intervention should be exercised in exceptional cases … ’.
[25] But the jurisprudence in this regard has since progressed f ollowing Booysen.
The first development concerned instances where the challenge was based on
‘unlawfulness’. Following the judgment of the Constitutional Court in
Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA
Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)10, where the Court decided that : ‘… invalid dismissals and a
declaratory order that a dismissal is invalid and of no force and effect fall
outside the contemplation of the LRA. Such an order cannot be granted in a
case based on the breach of an obligation under the LRA concerning a
8 (2011) 32 ILJ 112 (LAC).
9 Id at para 54.
10 (2016) 37 ILJ 564 (CC) at para 136.
10
dismissal …’, it was then accepted by the Labour Court that where the
challenge to the disciplinary proceedings was based on allegations of
unlawfulness or illegality, it did not have the jurisdiction to so intervene.11 This
approach was then considered by the LAC in Cibane and Another v Premier of
Province of Kwazulu- Natal12 where the Court specifically referr ed to Edcon
supra and decided:13
‘In the absence of any statutory provision conferring jurisdiction on the Labour
Court both in respect of employer conduct alleged to be unlawful and in
employment-related matters generally, there can thus be no general rule, as
the judgment in Booysen might be construed, to the effect that the Labour
Court has jurisdiction to intervene in medias res to restrain any alleged
illegalities, irregularities or unfairness in incomplete disciplinary proceedings .’
(emphasis added)
The Court then concluded:14
‘In summary: to the extent that Booysen has been interpreted to establish a
general rule, qualified only by exceptionality, that the Labour Court has
jurisdiction to intervene in uncompleted disciplinary proceedings, this is not an
interpretation that can be sustained by section 157(1) of the LRA.
’
[26] In my view, Cibane has now clarified the issue of jurisdiction of the Labour
Court under section 157(1) where it comes to intervening in medias res in
internal disciplinary proceedings in an employer that are not completed. The
Labour Court does not have any general jurisdiction to intervene and / or
adjudicate any alleged unlawfulness, illegalities or irregularities pertaining to
11 In Democratic Municipal and Allied Workers Union of SA and Others v City of Johannesburg (2020)
41 ILJ 912 (LC) at para 7 it was said: ‘… The effect of this judgment is that when an applicant alleges
that a dismissal is unlawful (as opposed to unfair), that applicant has no remedy under the LRA and
this court has no jurisdiction to make any determination of unlawfulness. If a remedy is sought under
the LRA, the applicant must categorise the alleged unlawfulness as unfairness …. And in Neumann v
Western Cape Education Department and Others (2021) 42 ILJ 561 (LC) at para 13 the Court held: ‘…
Since the decision of the Constitutional Court … there is now serious doubt whether a dismissal or
other forms of employer conduct or action can be challenged under the LRA on the basis of
unlawfulness. See also National Education Health and Allied Workers Union and others v University of
South Africa and another 2022) 43 ILJ 2351 (LC) at para 15. See further Shezi v SA Police Service
and Others (2021) 42 ILJ 184 (LC) at para 12.
12 (2025) 46 ILJ 2587 (LAC).
13 Id at para 27.
14 Id at para 32. This approach has recently once again been confirmed by the L AC in Kgomotso v
South African Police Service and Others [2026] 5 BLLR 438 (LAC) at para 45 where it was said: ‘… 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 …’.
11
any conduct or failure of any party to the employment relationship where it
comes to incomplete internal disciplinary proceedings. 15 Fortunately for the
applicant, in casu, he has at least not sought to contend that the pending
disciplinary proceedings are invalid or unlawful.
[27] But what about urgent intervention in the case of alleged unfairness. That is
really the cornerstone of the applicant’s case. He contends that allowing the
Regulation 9 proceedings to continue rather than converting it into a
disciplinary process in the ordinary course under Regulation 8, would deprive
him of his right to a fair hearing. Added to this is a case that even if the
Regulation 9 disciplinary process continues, the failure to call witnesses and
allow the applicant to cross examine those witnesses in the hearing equally
infringes on his right to a fair hearing. In my view, and for the reasons to
follow, I do not believe that this Court is competent to intervene even on these
grounds.
[28] One issue must be dealt with from the outset . The applicant has pleaded
reliance on section 23 of the Constitution where it comes to his right to a fair
hearing. B y virtue of the application of the principle of subsidiarity, this
approach is not permissible. The concept of the prohibition of unfair conduct in
the workplace is regulated by the LRA, pursuant to the Constitutional
imperative in section 23, and the LRA gives actual effect to this right .16 It
follows that t he applicant cannot rely on the Constitution directly to assert his
right to procedural fairness. He is bound to find his salvation in the LRA. This
is made clear by way of the following dictum in My Vote Counts NPC v
Speaker of the National Assembly and Others17:
'First, allowing a litigant to rely directly on a fundamental right contained in the
Constitution, rather than on legislation enacted in terms of the Constitution to
15 See also Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC) at para 24, where it was held:
‘… Crucially, s 157(1) does not afford the Labour Court general jurisdiction in employment matters … ’
16 In SA Airways (SOC) Ltd (In Business Rescue) and Others v National Union of Metalworkers of SA
on Behalf of Members and Others (2020) 41 ILJ 2113 (LAC) at para 38 it was said: ‘ … The
constitutional right to fair labour practices finds legislative expression in the LRA. Its scope covers the
interests of both employers and employees … ’. See also Public Servants Association on behalf of
Ubogu v Head of the Department of Health, Gauteng and Others (2018) 39 ILJ 337 (CC) at para 42;
Safcor Freight (Pty) Ltd t/a Safcor Panalpina v SA Freight and Dock Workers Union (2013) 34 ILJ 335
(LAC) at para 18.
17 2016 (1) SA 132 (CC) at para 160. See also South African Human Rights Commission obo South
African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC) at para 102; SA National
Defence Union v Minister of Defence and Others (2007) 28 ILJ 1909 (CC) at paras 50 – 51.
12
give effect to that right, would defeat the purpose of the Constitution in
requiring the right to be given effect by means of national legislation. Second,
comity between the arms of government enjoins courts to respect the efforts of
other arms of government in fulfilling constitutional rights. Third, allowing
reliance directly on constitutional rights, in defiance of their statutory
embodiment, would encourage the development of two parallel systems of law
… ’
[29] So, once the applicant ’s right to fair hearing is a right found in and regulated
by the LRA, which it clearly is, then the applicant faces another
insurmountable obstacle. This obstacle is created by virtue of the reality that
the LRA does not bestow rights in a vacuum. Where the LRA bestows a right,
it equally prescribes a specific process that must be followed to give effect to
such right, or to enforce that right.
18 As pertinently said in Edcon supra:19
‘The scheme of the LRA is that, if it creates a right, it also creates processes
or procedures for the enforcement of that right, a dispute-resolution procedure
for disputes about the infringement of that right, specifies the fora in which that
right must be enforced and specifies the remedies available for a breach of
that right.’
[30] The aforesaid puts paid to the applicant’s reliance on the right to a fair hearing
as a basis for intervention. This would include the suggestion that the decision
by SAPS to institute disciplinary proceeding sunder Regulation 9 and not
Regulation 8 is somehow unreasonable and should be set aside , which case
notionally would concern a review in terms of section 158(1)(h) .20 The point is
whether it is a direct challenge of the disciplinary proceedings based on a right
18 As held in Chirwa v Transnet Ltd and Others (2008) 29 ILJ 73 (CC) at para 41: ‘… It is my view that
the existence of a purpose -built employment framework in the form of the LRA and associated
the existence of a purpose -built employment framework in the form of the LRA and associated
legislation infers that labour processes and forums should take precedence over non- purpose-built
processes and forums in situations involving employment related matters . …’. Also, in Gcaba (supra)
at para 56 it was similarly said: ‘… Once a set of carefully crafted rules and structures has been
created for the effective and speedy resolution of disputes and protection of rights in a particular area
of law, it is preferable to use that particular system …’.
19 Id at para 130. See also Chirwa (supra) at para 68; Gcaba (supra) at para 69; Hendricks v
Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC) at paras 12 and 27; SA Social Security
Agency v Hartley and Others (2023) 44 ILJ 1334 (LC) at para 3; Mohlomi v Ventersdorp/Tlokwe
Municipality and Another (2018) 39 ILJ 1096 (LC) at para 40; O'Connor v Department of Education,
Eastern Cape and Others (2024) 45 ILJ 1041 (LC) at para 44.
20 Section 158(1)(h) reads ‘The Labour Court may … review any decision taken or any act performed
by the State in its capacity as employer, on such grounds as are permissible in law’.
13
to procedural fairness, or a review challenge tied to procedural unfairness 21,
such a challenge would not be competent and it must be pursued in terms of
the ordinary dispute resolution processes under the LRA . In simple terms, the
applicant must participate in the disciplinary proceedings, and if an adverse
outcome results and he considers what happened in the disciplinary
proceedings to be unfair, he must refer an unfair dismissal or unfair labour
practice dipsute (depending on whether the outcome o f the hearing is
dismissal or a lesser sanction) to the applicable bargaining council. In that
forum, the applicant would be able to make out a case that his right to
procedural fairness was violated and he could then obtain relief , under the
LRA. The following dictum in Zungu v Premier of the Province of KwaZulu-
Natal and Others22 is apposite, where the Court held as follows:
‘The Labour Appeal Court was correct in upholding the Labour Court’s
decision that it did not have jurisdiction in the matter. This is because the claim
by the applicant relating to the Premier’s decision not to appoint her, and the
contention that this was unlawful, falls squarely within the definition of
dismissal in s 186(1) (b) of the LRA. The dispute should have been referred to
conciliation and ultimately to arbitration under s 191 of the LRA. Therefore, the
applicant cannot bypass the dispute-resolution process envisioned in the
LRA. The applicant was obliged to follow the dispute-resolution process in
chapter VIII of the LRA but did not do so.’
[31] Two further references in this regard bear mention. In Shezi v SA Police
Service and Others23 the Court decided that: ‘… Where the employer conduct
complained of is alleged to be unfair, the court is precluded from granting final
relief since it has no jurisdiction in respect of matters that concern the
procedural fairness of disciplinary proceedings. At most, the court has
procedural fairness of disciplinary proceedings. At most, the court has
jurisdiction to grant interim relief. Even then, the court has held that it is not
desirable that disputes about the exercise of workplace discipline be dealt with
21 The Court Leshabane v Minister of Human Settlements and Others (2024) 45 ILJ 833 (LC) at para
46 decided: ‘… insofar as this court may be empowered to consider a legality challenge by an
employee of the state such as the applicant in casu, such entitlement is always subject to such an
employee being required, if not obliged, to instead utilise the prescribed dispute- resolution processes
under the LRA, like any other employee …’. And in Magoda v Director-General of Rural Development
and Land Reform and Another (2017) 38 ILJ 2795 (LC) at para 11 it was held : ‘… The principle
emerging from Hendricks (and related case law) is that s 158(1)(h) reviews (including legality review)
are only permissible where there is no other remedy available under the LRA …’.
22 (2018) 39 ILJ 523 (CC) at para 20. See also Member of the Executive Council for Education, North
West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) at para 46.
23 (2021) 42 ILJ 184 (LC) at para 14.
14
on a piecemeal basis, particularly by way of the review of every decision taken
by the employer in the disciplinary process …’. And in National Union of
Metalworkers of SA on behalf of Members v BMW (SA) (Pty) Ltd 24 the Court
had the following to say:
‘… it would be quite inappropriate to finally decide an issue like procedural
fairness in an unfair dismissal dispute by way of motion proceedings. There
are many case by case factual nuances that would or could be relevant in
deciding whether a dismissal is procedurally fair. It must always be considered
whether an employee, overall, was given a fair opportunity to state his or her
case prior to dismissal. This is best dealt with by way of viva voce evidence,
hence arbitration is prescribed. For example, an employee could be
considered to be procedurally fairly dismissed even if there was no disciplinary
hearing at all, depending on circumstances. The current process of arbitration
is also relatively expeditious, with most disputes being finally arbitrated in
under six months from when the dispute was first referred to the CCMA /
bargaining council. There is simply no need for urgent Court intervention in
this respect. So therefore, NUMSA was compelled to have pursued its claim
that its members were unfairly dealt with in the disciplinary proceedings
instituted against them, by way of a referral to the CCMA / bargaining council.
It was not competent to approach this Court directly. As such, and by virtue of
its failure to follow what is the described dispute resolution processes under
the LRA, NUMSA simply has no right to the declaratory relief sought in its
amended notice of motion.’
[32] In summary regarding the above, the applicant is effectively crying at the
wrong funeral. It is simply not competent for him to seek to assert his right to
procedural fairness in the manner that he did. This Court has no jurisdiction to
intervene at this stage and afford the applicant relief based upon a final
intervene at this stage and afford the applicant relief based upon a final
determination of procedural unfairness , which is what the applicant is asking
for. The applicant’s right to procedural fairness flows fr om the LRA, and the
LRA has prescribed a specific process that must be followed in giving effect to
that right. The applicant can always raise any case of procedural unfairness
before the bargaining council, and if his case is sustained, he will obtain relief
under the LRA. All said, the disciplinary proceedings must be allowed to run its
course, and any fairness challenges that may result from it must be addressed
24 (2025) 46 ILJ 2712 (LC) at para 47.
15
by way of the dipsute resolution processes specifically prescribed by the LRA.
This C ourt should simply not intervene at this stage, stated by the Court in
BMW supra25 as such:
‘… Of critical importance for consideration in this case is that this right so
afforded by the LRA, is directly and specifically linked to prescribed process
where it comes to its enforcement. Or in other words, the LRA specifically
prescribes in what manner such right must be asserted. This prescribed
method of assertion does not include the Labour Court, as Court of first
instance … ’
[33] But even if I am wrong in this regard, and this Court still retains the power to
intervene, I am compelled to say that the applicant’s challenge in any event
has no substance. He has simply illustrated no clear right to the relief sought.
My reasons for this conclusion now follow.
[34] As I have touched on above, the right to procedural fairness that would accrue
to the applicant is a right squarely founded on the LRA. This is specifically
provided for in section 188(1)(b), which stipulates that a dismissal for
misconduct (which is what the case in casu is about) must also be
procedurally fair. What would be considered, as a general proposition, to be
procedurally fair, is then provided for in the Code of Good Practice (the Code)
as contained in Schedule 8 to the LRA . The Code was substantially amended
on 4 September 2025.
26 What would be a fair procedure is now regulated in
item 11.27 It contemplates an even further departure from the notion of formal
criminal law type disciplinary hearings, in which witnesses must always be
called and cross examined. The relevant parts of item 11 read:
25 Id at para 45. See also O'Connor v Department of Education, Eastern Cape and Others (2024) 45
ILJ 1041 (LC) at para 44, where the Court held: ‘In short, the LRA has a unique scheme where it
comes to resolving disputes that arise in the scope of the employment environment … The LRA
comes to resolving disputes that arise in the scope of the employment environment … The LRA
creates a right to a fair dismissal and a fair labour practice, and then provides for a prescribed dispute-
resolution process to give effect to such right. … At a level of policy, this court should always strive to
give primacy to these prescribed dispute- resolution processes of the LRA and the notions underlying
it’.
26 The Code was amended on 4 September 2025 GN 3470 in GG 53294 of 4 September 2025.
27 The predecessor to item 11 was item 4(1), which read: Normally the employer should conduct an
investigation to determine whether there are grounds for dismissal. This does not need to be a formal
enquiry. The employer should notify the employee of the allegations using a form and language that
the employee can reasonably understand. The employee should be allowed the opportunity to state a
case in response to the allegations. The employee should be entitled to a reasonable time to prepare
the response and to the assistance of a trade union representative or a fellow employee. After the
enquiry the employer should communicate the decision taken, and preferably furnish the employee
with written notification of that decision.’
16
‘(1) The purpose of a fair procedure is to ensure a genuine dialogue and an
opportunity for reflection before any decision is taken.
(2) A fair procedure is one in which an employee has been given an adequate
and reasonable opportunity to respond to the allegation of misconduct.
(3) An investigation or enquiry does not have to be formal. Its nature should be
appropriate to the circumstances, including the type of allegation and the
nature and size of the employer.
(4) Usually, before a decision is taken to dismiss, the employee should be-
(a) notified of the allegations of misconduct, preferably in writing;
(b) given an opportunity within a reasonable period of time to prepare and
make representations on both the misconduct allegations and the appropriate
sanction;
(c) allowed the assistance of a fellow employee or trade union
representative;
(d) where reasonably possible, provided with the opportunity to converse in a
language that the employee is comfortable with. …
’
[35] With the above provisions of Item 11 being given proper consideration, c an it
be said that it is essential or indispensable for a fair hearing in casu that it
must be directed that witnesses be called in the disciplinary proceedings and
be cross -examined. And added to this, would it be appropriate or even
competent for this Court to prescribe to SAPS that it should rather institute
disciplinary proceedings under Regulation 8 and not Regulation 9? In my view,
and just on the application of Item 11 as quoted above, the answer to this
must be in the negative.
[36] Having due regard to what is provided for in Item 11, a proper conspectus of
the Regulations itself remains necessary . It is obviously a prescribed
disciplinary process in SAPS that must be followed and adhered to. In
Provincial Commissioner, Gauteng: SA Police Service and Another v Mnguni28
the Court held, specifically referring to the Regulations:
28 (2013) 34 ILJ 1107 (SCA) at para 20.
17
‘The regulations in terms of which the disciplinary and appeal procedures that
led to the dismissal of the respondent were conducted were promulgated by
the Minister for Safety & Security pursuant to the provisions of s 24(1) (f) of the
SA Police Service Act 68 of 1995. The section empowers the minister to make
regulations regarding 'labour relations, including matters regarding
suspension, dismissal and grievances'. The regulations are a product of an
agreement reached between the National Commissioner of SA PS, as
employer, and all the unions admitted to the Safety & Security Sectoral
Bargaining Council (regulation 2). Their purpose is set out in regulation 3, and
is, inter alia, to support constructive labour relations in the police service, to
ensure that supervisors and employees share a common understanding of
misconduct and discipline, to provide a user -friendly framework in the
application of discipline, and to prevent possible arbitrary actions by
supervisors towards employees in the event of misconduct. … ’
Even the newly amended Code recognises the primacy of these kinds of
arrangements, considering Item 2(3) of the C ode which reads: ‘This Code
does not alter the rights and obligations created under a collective agreement’.
[37] It is necessary to refer to some of the principles upon on which the
Regulations are based, as found in Regulation 4. The essence of the general
fair treatment of employees in disciplinary proceeding is found in Regulation
4(d), which is quite similar to Item 11(4) of the Code. The basic tenets of a fair
process by virtue of this provision in the R egulations is a fair hearing (referring
to the opportunity to state one’s case), timeous and proper notice of
allegations of misconduct, written reasons for any decision taken, and the right
of recourse against any decision taken. Significantly, the calling of witnesses is
not considered an essentiality for a fair process , by definition. Regulation 4(h)
not considered an essentiality for a fair process , by definition. Regulation 4(h)
prescribed that the proceedings should not emulate court proceedings . And
lastly, the right to representation is prescribed by way of Regulation 4(j).
[38] Where it comes to what would constitute misconduct, there is a detailed
exposition in Regulation 5(3) of all kinds of different misconduct that would
warrant disciplinary action. In turn R egulation 5(4) identifies what forms of
misconduct would entitle SAPS to opt for the expedited (attenuated)
disciplinary process under Regulation 9. A conjunctive reading of Regulations
5(3) and 5(4) leaves be convinced that the misconduct listed under Regulation
5(3) is not different or distinct to the misconduct listed under regulation 5(4).
18
Regulation 5(4) simply constitutes specifically defined instances of misconduct
falling under the broader ambit of the misconduct identified under regulation
5(3). In fact, the case in casu illustrates the point. It has been alleged the
applicant committed sexual assault / sexual harassment. Sexual harassment
is misconduct identified under Regulation 5(3)(m). But it is also misconduct
identified under Regulation 5(4)(v). That means that it is the kind of
misconduct that could competently be referred to an expedited disciplinary
process under the Regulations . So, in simple terms, Regulation 5(3)
circumscribes serious misconduct. Regulation 5(4) then determines which of
this serious misconduct may be expeditiously dealt with under Regulation 9.
[39] When the charges against the applicant are considered, as it appears from the
notice presented to him on 17 April 2026, it is clear that the substance of the
charges against him concerns alleged sexual harassment committed by him
on 24 July 2024. This would be the kind of misconduct for which the expedited
disciplinary process under Regulation 9 is competent. Further, there is charge
of bringing SAPS into disrepute, which is equally a charge found under
Regulation 5(4)(x) for which such proceedings would be competent.
Accordingly, SAPS was well within its rights under the Regulations to decide to
opt for the expedited disciplinary process as contemplated by Regulation 9.
[40] It is of course true that SAPS may decide not to utilise the provisions of
Regulation 9 and instead opt for disciplinary proceedings in the ordinary
course, as contemplated by Regulation 8 as read with Regulation 11. This is
because charges in terms of Regulation 5(4) would be covered by R egulation
5(3) as well. But this is an election that lies entirely within the discretion /
choice of SAPS. Once it is competent to make the election, i t is not for any
employee, such as the applicant, to insist on the procedure under Regulation 8
employee, such as the applicant, to insist on the procedure under Regulation 8
being followed. And similarly, it would not be for this Court to micro- manage
the process and prescribe to SAPS what process it should follow. Not only
would this Court not have jurisdiction to do so, as I have discussed earlier, but
it would be inappropriate and, in my view, quite wrong for this Court to micro-
manage internal disciplinary processes of SAPS under the Regulations, based
on what the Court may believe would be fair. As said in BMW supra: ‘… In
simple terms, it is not for this Court in micro -manage internal disciplinary
proceedings in an individual employer, be it on an urgent basis, or otherwise
19
…’.29 This was also made clear in Minya v SA Post Office and Others 30, as
follows:
‘From a plethora of such cases that are routinely brought on an urgent basis, it
has become increasingly apparent that this court is more often than not, called
upon to micro-manage these internal proceedings, and that every little
complaint about internal disciplinary proceedings, whether real or perceived,
has by default, become an “exceptional circumstance”. It has long been stated
that the powers of this court under the Labour Relations Act (LRA) do not
include the micro-management of workplace discipline or every dispute arising
out of the workplace. This is so in that the prerogative to maintain discipline
remains that of the employer, and further since the framework of the LRA is
such that it is dispute specific.
’
[41] The applicant referred me to Khan v South African Police Service and
Others31. In that judgment, the Court recognised that the procedure in terms of
Regulation 9 is distinguishable from that in terms of R egulation 8 as read with
Regulation 11, and that in terms of Regulation 8 and 11, an employee would
be allowed to bring witnesses to the hearing and to challenge the evidence of
witnesses by way of cross examination. 32 In my view, this finding by the Court
is correct. The Court then also correctly identifies what R egulation 9 is all
about, finding that:33
‘Whereas, with respect to regulation 9, although the employee is given an
opportunity to defend himself against the allegations, this is not a hearing but
a meeting between the parties. This meeting has no particular procedure to be
followed and provides the designated person a very wide discretion to direct
the process. The employee may not lead evidence and be cross -examined.
The purpose of this procedure is not to allow the employee to lead evidence
and to be cross-examined but to put allegations to the employee and to afford
him an opportunity to respond to the allegations.
him an opportunity to respond to the allegations.
The designated person may ask questions only to seek clarity but may not
interrogate or cross -examine the employee as the meeting is not a hearing.
Once the meeting is finalised, the designated person must consider the
29 Id at para 59. See also Shezi (supra) at para 14.
30 (2021) 42 ILJ 141 (LC) at para 2. See also Mlaba v Minister of Home Affairs and Another (2024) 45
ILJ 139 (LC) at para 47.
31 (121530/2024) [2024] ZALCJHB 488 (4 December 2024).
32 Id at paras 41 – 43
33 Id at paras 44 – 45
20
evidence namely, the report, the version of the employee, as well as any
documents and statements that may be available and make a finding within
five calendar days.’
[42] The aforesaid conclusions by the Court in Khan as to the clear meaning and
import of Regulation 9 in my view cannot be faulted. Reading this Regulation,
as will be more fully dealt with below, clearly envisages such a dispensation,
considering the clear text thereof and applying the principles of interpreting
documents as set out in Natal Joint Municipal Pension Fund v Endumeni
Municipality34, being: ‘… Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to those responsible for
its production. Where more than one meaning is possible each possibility must
be weighed in the light of all these factors. The process is objective, not
subjective. A sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent purpose of
the document. …. ’.
However, and with respect to the Court in Khan supra,
what the Court then did next cannot be sustained. I am aware that in terms of
the principle of stare decisis, I have to follow previous judgments by this Court,
unless I consider the judgment to be ‘clearly wrong’.35 In this case, other than
the correct findings I have quoted above, I would differ from the judgment of
Khan, for the reason that I believe it to be clearly wrong, and I decline to follow
it. The reasons for my view in this regard now follow.
[43] In Khan, the Court accepted that the disciplinary process in terms of
Regulation 9 met the basic requirements of procedural fairness, deciding
that:36 ‘The respondent has submitted that the expeditious disciplinary process
meets the three basic requirements of natural justice in the conduct of
meets the three basic requirements of natural justice in the conduct of
disciplinary hearings in that the employee should know the nature of the
34 2012 (4) SA 593 (SCA) at para 18 . See also University of Johannesburg v Auckland Park
Theological Seminary and Another 2021 (6) SA 1 (CC) at para 66.
35 See Public Servants Association on behalf of Liebenberg v Department of Defence and Others
(2013) 34 ILJ 1769 (LC) at para 22; SA Transport and Allied Workers Union and Another v Garvas and
Others (2012) 33 ILJ 1593 (CC) at para 114; Gcaba v Minister for Safety and Security and Others
(2009) 30 ILJ 2623 (CC) at para 58; Chizunza v MTN (Pty) Ltd and Others (2008) 29 ILJ 2919 (LC) at
para 7; National Education Health and Allied Workers Union v University of Cape Town and Others
(2003) 24 ILJ 95 (CC) at para 26; National Union of Metalworkers of SA v Commission for Conciliation,
Mediation and Arbitration and Others (2000) 21 ILJ 1634 (LC) at para 22; Eskom v Hiemstra NO and
Others (1999) 20 ILJ 2362 (LC) at para 17.
36 Id at para 49.
21
accusation against him/her; the employee should be given an opportunity to
state his/her case and that the tribunal should act in good faith. I do not differ
with this opinion, however, there are circumstances where the process can
result in injustice and prejudice to one of the parties …’ (emphasis added). It
this emphasised portion of the judgment that leads to the anomaly I have an
issue with. Based on this reasoning, the Court in Kh an then reasoned that
considering the particular circumstances of the case at hand and what it may
involve, it could be unfair to have a disciplinary hearing under Regulation 937.
The Court then concluded:38
‘My view is that none of the parties will suffer any prejudice if regulations 8 and
11 procedures are followed. This will prevent a situation where the referee
also becomes a player and the process will allow for a proper ventilation of the
issues between the applicant and his employer. The issues seem very fragile
and peculiar to be dealt with in the form of a meeting where no leading of
evidence is allowed and no cross -examination of witnesses takes place. The
inquisitorial nature of regulations 8 and 11 is, in my view, the most suitable
procedure to apply to achieve fairness and avoid prejudice, more so if an
independent adjudicator is appointed.
It may be so that the procedure in terms of regulation 9 is the subject of a
collateral agreement entered into between the employee’s trade union and his
employer. I am also mindful of its binding effect on all the parties, however,
regulation 5 (4) suggests that the nature of the offence may warrant the
institution of the expeditious procedure as provided for in regulation 9 or it may
not. This will therefore depend on the circumstances of each case. My view is
that the very nature of the offence and its surrounding circumstances justify a
deviation from a procedure in terms of regulation 9 to ensure proper ventilation
of the issues
.’
of the issues
.’
[44] The above reasoning in Khan, with respect, cannot be correct. As I have
already said above, it is not for this Court to decide for an on behalf of SAPS
what provisions of the Regulations to apply based on the basis of what the
Court may believe to be the nature of the case or in order for it to be fair . This
Court cannot prescribe to SAPS, especially on the basis of what the Court
believes to be fairest option and the least prejudice to the parties, how it must
37 Id at para 50.
38 Id at paras 51 – 52.
22
conduct its own disciplinary proceedings and how it should have exercised its
election under the Regulations. At the very best, and I doubt whether even this
may be competent considering the approach I have summarized above, it
could be ascertained whether the qualifying requirements of invoking
Regulation 9 have been met, namely whether it relates to misconduct as
contemplated by R egulation 5(4) and whether the procedural pre- requisites
under Regulation 9 itself have been fulfilled . But it simply cannot be
permissible for this Court to say to SAPS that it was perfectly entitled to invoke
Regulation 9, but in the circumstances, it should not have done so . This
approach was recently confirmed by the LAC in Kgomotso v South
African Police Service and Others 39 where the Court , when delaying with
similar objections to those raised by the applicant in casu about why the
process under Regulation 8 should be followed and not that under R egulation
9, made the following clear:
‘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.’
[45] This brings me to what is the real thrust of the applicant’s case is. According to
him, fairness dictates that Regulation 9 be applied so as to include that
witnesses must be called and to cross examine those witnesses. For this he
relied on the judgment in Schouten v Safety and Security Sectoral Bargaining
relied on the judgment in Schouten v Safety and Security Sectoral Bargaining
Council (SSSBC) and Others 40. That judgment concerned a review
application, in which the bargaining council arbitrator had inter al ia found that
the expedited disciplinary process adopted by SAPS in that case was
procedurally fair. The Court in Schouten however made no finding on the issue
of whether the procedure adopted under Regulation 9 was inherently unfair or
39 [2026] 5 BLLR 438 (LAC) at para 104.
40 (C44/2022) [2025] ZALCCT 36 (29 May 2025).
23
should be read or applied differently . Instead, the Court had an issue with
SAPS in that particular case relying only on witness statement in the hearing
without affording the employee to question these witnesses. The Court
decided:41
‘Prima facie, it was unfair to deny the applicant an opportunity to confront his
accusers and to put questions to them. In a case such as the present one,
which turns on a direct dispute of fact between the SAPS witnesses and the
applicant, I do not see how the chairperson could have arrived at a fair
outcome without hearing the witnesses and permitting cross -examination.
There is no fair manner of weighing up and assessing written evidence in
support of one version against oral evidence in support of an irreconcilable
version
.’
[46] Properly considered, the judgment in Schouten does not support the
applicant’s case. The Court in Schouten evaluated the findings of an arbitrator
with regard to procedural fairness based on the facts of that particular case. In
fact, as I will discuss later in this judgment, any disciplinary process, no matter
what form it takes, is always subject to being scrutinised to determine whether
it is procedurally fair, in the context of and having due regard to the facts of
each and every individual case. The Court in Schouten in fact concluded that
considering the particular facts in that case, it was unfair not to have called
witnesses, and in my view, this reasoning cannot be faulted. 42 However, the
Court never found that in order to be fair , Regulation 9 must always be read to
allow the calling of witnesses and cross examination, per se. The Court in
Schouten was at pains to emphasise that its finding of procedural unfairness
was: ‘… in the circumstances of this case … ’. All said, Schouten cannot
support the applicant’s case of an unfettered right for witnesses to be called
and to be cross examined even in expedited proceedings under Regulation 9.
and to be cross examined even in expedited proceedings under Regulation 9.
[47] In the end, t he entitlement to call witnesses and to cross examine such
witnesses is not one of the basic tenets of procedural fairness under the LRA
where it com es to internal disciplinary proceedings. This is evident from what
is not provided for in I tem 11 of the Code, as quoted earlier in this judgment.
This notion was in any event made clear in Avril Elizabeth Home for the
41 Id at para 19.
42 This appears to be what the Court found in paragraph 20 of the judgment.
24
Mentally Handicapped v Commission for Conciliation, Mediation and
Arbitration and Others43, as follows:
‘… The rules relating to procedural fairness introduced in 1995 do not replicate
the criminal justice model of procedural fairness. They recognize that for
workers, true justice lies in a right to an expeditious and independent review of
the employer's decision to dismiss, with reinstatement as the primary remedy
when the substance of employer decisions is found wanting. For employers,
this right of resort to expeditious and independent arbitration was intended not
only to promote rational decision making about workplace discipline, it was
also an acknowledgment that the elaborate procedural requirements that had
been developed prior to the new Act were inefficient and inappropriate,
and that if a dismissal for misconduct was disputed, arbitration was the
primary forum for determination of the dispute by the application of a more
formal process. …
’
[48] Similarly, and in Public Allied Workers Union of SA on Behalf of Netshikhudini
v Commission for Conciliation, Mediation and Arbitration and Others 44, the
Court expressed the following view:
‘There are a number of other reasons why the application ought to be refused.
The right to a fair procedure established by the LRA is elaborated by the code
of good practice. The code envisages that an employee who is accused of
misconduct is afforded an opportunity, in an informal setting, to respond to the
employer’s allegations. The Act does not envisage, as the applicant appears
to contend, an elaborate court-like hearing at which the rules applicable in a
court of law necessarily apply … ’
[49] In th e specific context of attenuated disciplinary proceedings where the
misconduct charge was decided on the basis or representations submitted by
the parties without the calling of any witnesses, the C ourt in BMW supra
decided:45
‘Insofar as the attenuated disciplinary process itself is concerned, there is
decided:45
‘Insofar as the attenuated disciplinary process itself is concerned, there is
nothing in law that compels BMW to hold an in person and oral disciplinary
43 (2006) 27 ILJ 1644 (LC) at 1651I – 1652B. See also Strydom v Arcelormittal SA (2024) 45 ILJ 931
(LC) at para 30; Broadcasting Electronic Media and Allied Workers Union and Others v SA
Broadcasting Corporation and Others (2016) 37 ILJ 1394 (LC) at para 17; Kelly Group Ltd v Khanyile
and Others (2013) 34 ILJ 2035 (LC) at paras 22 – 23.
44 (2022) 43 ILJ 2812 (LC) at para 10.
45 Id at para 54.
25
hearing before deciding to dismiss an employee. The right to be heard, in this
context, in essence involves three considerations. The first is that the
employee should know the nature of the accusation against him or her, the
second is that the employee must be given an opportunity to state his or her
case, and the third is that the employer acts in good faith. These three
principal objectives have found their way into item 4 of schedule 8 of the LRA.
Not only is there nothing in the entire item 4 of schedule 8 that makes an in
person / oral disciplinary hearing compulsory, but item 4(1) actually stipulates
there does not need to be a formal enquiry in order to comply with the
employee’s right to state a case. It is quite acceptable, where circumstances
so dictate, to conduct the disciplinary process by way of representations.’
[50] The concept of an attenuated disciplinary process by way of the exchange of
submissions / statements was also considered in Broadcasting Electronic
Media and Allied Workers Union and Others v SA Broadcasting Corporation
and Others46, where the Court held as follows:
‘Although the process adopted by the SABC in this case is different from that it
normally adopts, I do not think that it can be said that it is not a 'formal
disciplinary hearing'. It envisages a hearing chaired by an independent and
experienced chairperson on the panel of a respected dispute-resolution
agency. It envisages a hearing, albeit on paper without hearing oral evidence
or argument. In my view it satisfies the requirements set out in the Code of
Good Practice: Dismissal of the Labour Relations Act 66 of 1995 and set out
by my brother Van Niekerk o n the well -known case of Avril Elizabeth
Home for the Mentally Handicapped v Commission for Conciliation, Mediation
& Arbitration & others … ’
[51] Considering once again the R egulations itself , it does not encompass such
right under the basic requirements for fairness under Regulation 4. Whilst
right under the basic requirements for fairness under Regulation 4. Whilst
Regulation 8 as read with Regulation 11 provides for the calling of witnesses
and cross examination, that process is specifically distinct and separate from
the expedited process in R egulation 9, and those provisions simply cannot be
46 (2016) 37 ILJ 1394 (LC) at para 17. See also Mathabathe v Nelson Mandela Bay Metropolitan
Municipality and Another (2017) 38 ILJ 391 (LC) at para 23, where Court had the following to say: ‘…
In my view, the applicant was afforded a right to be heard on terms that satisfy the requirements of the
code of good practice. The applicant was afforded an opportunity to state her case, which she did with
the assistance of counsel. The second respondent considered the applicant's submissions, and made
a decision. He communicated that decision to the applicant and advised her of her right to pursue the
matter further. … ’. See also para 25 of the judgment
26
read into Regulation 9. In Phahlane v South African Police Services and
Others47 the Court held:
‘When one considers the regulations it is clear that regulation 9 provides for
circumstances where a disciplinary hearing, as envisaged by regulation 8,
may be bypassed. Regulation 11 specifically sets out the conduct of a
disciplinary hearing, it does not apply to the conduct of an expeditious process
… ’
[52] The point is this. There is nothing inherently unfair in Regulation 9. It is the
product of collective bargaining and statutory enforcement. It meets the three
essences for procedural fairness under the LRA. There is no need to read
anything into it to ensure a fair procedure.
[53] I must stress one thing in particular. The right of SAPS to invoke and apply the
disciplinary process under Regulation 9 does not guarantee it of a finding of
procedural fairness where it comes to the overall assessment to be conducted
by an arbitrator as to whether SAPS had discharged its onus to prove the
dismissal of an employee was procedurally fair. What it does guarantee is that
it cannot be said, as the basis for a finding of procedural fairness, that SAPS
should have allowed the calling of witnesses and cross examination per se ,
and that the failure to do so is unfair without more. There may be a case
where even under the expedited process, and as the enquiry unfolds, it should
have become apparent to the chairperson what viva voce evidence may be
necessary to properly decide the matter . But that is course something for the
chairperson to decide. If the decision that i s made by the chairperson is that a
witness not be called and that compromises the fairness of the disciplinary
hearing, then that may be the basis for a n arbitrator finding procedural
unfairness to exist . But this is an issue that must be decided by the arbitrator
on the particular facts of that case at that point in time, and not by this Court
on the particular facts of that case at that point in time, and not by this Court
directly on an urgent basis . As dealt with earlier in this judgment, that is
exactly what happened in Schouten supra. The following dictum in BMW supra
is apposite:48
‘In the end, the fact is that the duty (onus) is on an employer to prove that the
dismissal of an employee for misconduct is fair. In this context, it is up to the
47 (JR1671/21) [2023] ZALCJHB 280 (18 October 2023) at para 46. See also para 77 of the judgment.
48 Id at para 58.
27
employer to decide how to conduct the disciplinary proceedings, and having
made such a decision, it would have to prove to an arbitrator that what it
decided to do was fair. It follows that BMW is entitled to adopt the attenuated
disciplinary process in the manner that it did, and it would then be up to BMW
to establish and prove to an arbitrator deciding the fairness of the dismissal of
the employees (if employees are indeed dismissed) that the process it decided
to adopt qualifies as being fair in line wi th the guiding principles in item 4 of
schedule 8 of the LRA.’
[54] Thus, I believe the applicant has failed to demonstrate the existence of a right
to call witnesses and to cross examine in his expedited disciplinary hearing
under Regulation 9, which could serve as basis for the relief he seeks. These
rights are not essential to satisfy the notion of procedural fairness in SAPS
internal expedited disciplinary proceedings, especially considering the clear
terms of Regulation 9. There is nothing to indicate that the applicant will not
have a fair and proper opportunity to state his case, and as said by SAPS, he
will be allowed presentation, and the chairperson will decide on how the
process unfolds once the hearing gets underway. In short, the calling of
witnesses and cross examination is not a sine qua non for a fair disciplinary
hearing under Regulation 9.
[55] And lastly, should the applicant still be dissatisfied concerning the procedural
fairness of the process he had been subjected to, after the conclusion of the
disciplinary hearing and should he be dismissed, he has the right to challenge
it when referring an unfair dismissal dispute to the bargaining council. He can
raise all his complaints with the arbitrator, and should the arbitrator believe
that on the particular facts of his case that witnesses should have called and
cross examination allowed, then a finding of procedural unfairness can be
cross examination allowed, then a finding of procedural unfairness can be
entered in his favour, and he can obtain relief. He thus has a perfectly suitable
alternative remedy at his disposal. It must also be emphasised that this
alternative remedy is not only suitable, but it is actually prescribed.
[56] In the end, I am convinced that the applicant has failed to demonstrate a clear
right to the relief he seeks , and has an alternative remedy available. As such,
the other considerations for the granting of the interdict and declaratory relief
he is asking for, becomes moot.
Conclusion
28
[57] For all the reasons as set out above, I conclude that overall considered, this
Court does not have the jurisdiction to consider the applicant’s application and
grant him the relief sought, especially considering that final relief is sought.
The applicant’s reliance on section 157(1) as source conferring jurisdiction , is
misplaced, and this Court does not have jurisdiction to entertain the applicant’s
pleaded case in this matter, based on this provision. Where it comes to the
applicant’s reliance on his rights to a fair procedure under the LRA as basis for
intervention, he must also fail, because he is compelled to follow the
prescribed dispute resolution processes under the LRA and not approach this
Court directly. And finally, the applicant had failed to demonstrate that he a
clear right to the relief he seeks, in that it is not essential to his right to
procedural fairness under the L RA that witnesses must be called and he must
be entitled to cross examine such witnesses, in his disciplinary proceeding
sunder Regulation 9. His application must fail and thus falls to be dismissed.
Costs
[58] This then only leaves the issue of costs. In this respect, and in terms of section
162(1) of the LRA, I have a wide discretion. I know there are many instances
relating to these kinds of applications where this Court has expressed its
dissatisfaction about these applications being brought in the first place, and
have punished litigants with costs orders. I have done so myself on many an
occasion. But the point remains that , as said in Union for Police Security and
Corrections Organisation v SA Custodial Management (Pty) Ltd and Others49:
‘In the labour context, the judicial exercise of a court’s discretion to award
costs requires, at the very least, that the court must do two things. First, it
must give reasons for doing so and must account for its departure from the
ordinary rule that costs should not be ordered. Second, it must apply its mind
ordinary rule that costs should not be ordered. Second, it must apply its mind
to the dictates of the fairness standard in s 162, and the constitutional and
statutory imperatives that underpin it … ’
[59] In this instance, I do not think the applicant was acting mala fide or deploying a
stratagem to either scupper or delay the disciplinary proceedings. I am
satisfied of his bona fides. He is a lay person, but nonetheless conducted
proper research into his matter and came up with what is certainly an arguable
49 (2021) 42 ILJ 2371 (CC) at para 35.
29
case. In fact, he has done better than many a legal r epresentative that I had
the unfortunate experience of coming across in matter s such as these. His
papers were succinct, and he only focused on the real issues, not becoming
embroiled in irrelevant and emotive considerations , which is also often the
case in applications such as these. Overall, he conducted the litigation in a
proper manner. In the end, he was simply misguided, and for that, he should
not be punished with a costs order. Fairness dictates that no order as to costs
be made.
[60] For all the reasons set out above, I make the following order:
Order
1. The application is heard as one of urgency.
2. The applicant’s application is dismissed.
3. There is no order as to costs.
_____________________
S Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: In person
For the Respondent: Advocate K Ngqata
Instructed by: State Attorneys – Cape Town
30
Date of hearing: 5 June 2026