THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR810/23
In the matter between:
MABUZA, MOSES SIPHO Applicant
and
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL First Respondent
COMMISSIONER ANNELIE BEVAN Second Respondent
SOUTH AFRICAN POLICE SERVICE Third Respondent
Heard: 23 April 2026
Delivered: 25 August 2026
JUDGMENT
MUNSAMY, AJ
INTRODUCTION
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] This application in terms of section 145, read with section 158(1)(g), of the
Labour Relations Act 66 of 1995 (LRA) to review and set aside the arbitration
award issued by the Second Respondent (the commissioner) on 12 April
2023, as subsequently varied on 22 June 2023. The Commissioner found the
Applicant's dismissal by the South African Police Service (SAPS) was both
procedurally and substantively fair.
[2] The Applicant requests that the award be set aside and that this Court
substitute a finding that his dismissal was unfair. The SAPS “the Third
Respondent” opposes the application and seeks its dismissal with costs.
[3] The dispute concerns a police sergeant who made a sworn witness statement
about a drunken- driving arrest but later testified at the criminal trial that he
had been asleep and had not witnessed the facts recorded in that statement.
The Commissioner found that this conduct fell under regulation 5(4)(x) of the
South African Police Service Discipline Regulations, 2016 (the Regulations),
and justified dismissal.
CONDONATION
[4] The review application was filed approximately 60 days late. SAPS's
Answering Affidavit was also delivered approximately one month late, after an
agreed extension, and the R eplying Affidavit was delivered outside the
prescribed period without a substantive condonation application but there
appears to be no objection filed by the SAPS to the late filing of the Applicants
Replying affidavit.
[5] Condonation is not granted merely on request. The Court considers the
degree of lateness, the explanation, prospects of success, prejudice and the
importance of the matter, all of which are interrelated. In Melane v Santam
Insurance Co Ltd
1, the Appellate Division held that a slight delay and a good
explanation may compensate for weak prospects, while strong prospects may
compensate for a less satisfactory explanation. In Grootboom v National
1 1962 (4) SA 531 (A).
3
Prosecuting Authority and Another 2014 2, the Constitutional Court
emphasized that the overarching enquiry is the interests of justice.
[6] The Applicant's delay is material but not inordinate. His explanation, read as a
whole, is adequate. The matter concerns the loss of employment after 14
years of service . The SAPS does not persist in opposing condonation of the
review and the dispute ought to be finally determined on its merits.
Accordingly, condonation for the late institution of the review is granted.
[7] The SAPS explained that the official who had represented it at arbitration and
with whom its legal team had consulted died before the answering affidavit
could be finalised. A replacement official, who had no prior knowledge of the
matter, had to be consulted after the outstanding record documents were
obtained. The delay is adequately explained and no irremediable prejudice is
established. Condonation for the late answering affidavit is also granted.
[8] The Replying Affidavit was also filed late. There is no notice of objection on
file placing the late filing in dispute. It is therefore not necessary to grant
condonation for the late filing of the replying affidavit.
MATERIAL BACKGROUND
[9] The Applicant commenced employment with the SAPS in July 2007 and, at
the time of his dismissal on 25 May 2021, held the rank of sergeant within
Visible Policing, Hendrina. The misconduct arose from a criminal prosecution
for driving under the influence of intoxicating liquor.
[10] The Applicant deposed to a detailed statement in the police docket. However,
during the criminal trial on the 7
th of December 2020, he testified that he had
been asleep and did not witness the material events attributed to him in the
statement. Further, that he had copied the statement of another policeman
when he submitted his report regarding the matter. The accused was
discharged in terms of section 174 of the Criminal Procedure Act 51 of 1977.
2 (2) SA 68 (CC).
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[11] The SAPS invoked the expeditious procedure under regulation 9. The
Applicant was charged with contravening regulation 5(4)(h), relating to
defeating or obstructing the course of justice, and regulation 5(4)(x), relating
to conduct that detrimentally affects the SAPS's image, brings it into
disrepute, or involves an element of dishonesty. The formulation of t he
second charge referred to perjury and the making of a false oath or
affirmation.
[12] During the internal process , the chairperson considered an investigation
report and statements, including those of the P rosecutor, the I nvestigating
Officer, the S tation Commander and the A pplicant. The A pplicant was
represented, furnished with the allegations and supporting material, and
elected not to testify or call witnesses. He was found guilty and dismissed
after mitigation and aggravation were considered.
[13] At arbitration, the Commissioner found the Applicant not guilty of the charge
under regulation 5(4)(h) but guilty under regulation 5(4)(x). She found the
dismissal both procedurally and substantively fair.
THE REVIEW TEST
[14] The applicable test is settled. In Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others 3, the Constitutional Court held that an award is
reviewable if the decision reached is one that a reasonable decision- maker
could not reach. A r eview is not an appeal and does not permit this Court to
replace the commissioner's assessment merely because it may have reached
a different conclusion.
[15] In Herholdt v Nedbank Ltd (Congress of South African Trade Unions as
Amicus Curiae) 4 explains that a gross irregularity will justify interference
where the arbitrator misconceived the nature of the enquiry or arrived at an
unreasonable result an error of fact or law without more does not suffice.
3 2008 (2) SA 24 (CC) at para 110.
4 2013 (6) SA 224 (SCA) at para 25.
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[16] In Head of the Department of Education v Mofokeng and Others 5, the Labour
Appeal Court held that an irregularity or error must be material to the
outcome. The enquiry is whether it distorted the arbitrator's conception of the
case or produced an unreasonable result. The record and the reasons are
assessed holistically, not by subjecting every sentence of the award to
microscopic scrutiny.
[17] Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others 6 cautions against a
fragmented, process -related review. The Court asks whether the arbitrator
gave the parties a fair hearing, identified the dispute, understood the nature of
the enquiry, dealt with the substantial merits and reached a reasonable result.
GROUNDS OF REVIEW
[18] Although the F ounding Affidavit advances overlapping allegations of
misconduct, gross irregularity, excess of powers, errors of fact and law, and
unreasonableness, the complaint re duces to six questions: whether the
Commissioner (a) wrongly equated dishonesty with common- law perjury; (b)
disregarded the criminal -trial record; (c) departed from the pre -arbitration
minute or the charge; (d) failed to assess the fairness of the expeditious
procedure; (e) upheld dismissal without evidence that trust had broken down;
and (f) failed to apply her mind, as allegedly shown by irrelevant passages in
the award.
REGULATION 5(4)(X), DISHONESTY AND PERJURY
[19] Regulation 5(4)(x) define s serious misconduct as 'any act of misconduct
which detrimentally affects the image of the Service or brings the Service into
disrepute or which involves an element of dishonesty' . Its language is
disjunctive and broad. It is not confined to the common-law crime of perjury.
5 (2015) 36 ILJ 2802 (LAC) at paras 32-33.
6 (2014) 35 ILJ 943 (LAC) at paras 14 and 20.
6
[20] The Applicant's case places undue weight on the reference to perjury in the
charge sheet. A charge sheet in workplace discipline is not an indictment in a
criminal trial. The question is whether the employee was informed, with
sufficient particularity, of the case he had to meet and whether any departure
caused prejudice. See Woolworths (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others.7
[21] The factual al legation was unmistakable. The Applicant had made a false
sworn statement intended for use in a criminal prosecution. At arbitration, he
accepted that he copied allegations from Colonel Mahlangu's statement . That
he recorded matters he had not witnessed. That he knew he was not telling
the truth and that making a false statement under oath was an offence. He
understood and answered that case. No forensic prejudice arose from the
label attached to it.
[22] Even if the Commissioner were mistaken in concluding that all the technical
elements of common- law perjury were established, such an error would not
be material. The proven and admitted facts clearly fall within the scope of the
independent dishonesty and disrepute provisions of regulation 5(4)(x). The
award's reasonableness does not rely on a criminal conviction for perjury.
[23] The Applicant's submission that there can be no dishonesty without perjury
reverses the logical relationship between the concepts. Perjury necessarily
involves dishonesty and dishonesty is not limited to perjury. A police officer
who knowingly verifies facts he did not witness for inclusion in a docket and
use in court acts dishonestly, whether or not a criminal court later convicts him
of perjury.
[24] The Commissioner did not change the reason for dismissal or create a new
charge. She found the same charge under regulation 5(4)(x), based on the
facts disclosed in the notice and ventilated at arbitration. The decision in
POPCRU obo Vearey v National Commissioner of the South African Police
POPCRU obo Vearey v National Commissioner of the South African Police
7 (2011) 32 ILJ 2455 (LAC).
7
Service and Others8, relied on by the Applicant to support the proposition that
an employer may not rely at arbitration on an entirely different reason for
dismissal, is distinguishable. There was no new factual case here.
THE CRIMINAL-TRIAL RECORD
[25] The acquittal of the accused in the drunken- driving matter does not establish
whether the applicant engaged in workplace misconduct. The SAPS was not
prosecuting the applicant during that trial, as the purpose and parties involved
differed. Furthermore, the standard of proof at arbitration was based on a
balance of probabilities.
[26] The contention that the Commissioner ignored the criminal record is
contradicted by the award and the record. Evidence concerning the trial was
presented, the Commissioner considered the Prosecutor's testimony and the
Applicant's explanation, and she recorded the conflict between his sworn
statement, and his oral evidence. An arbitrator need not expressly refer to
every page of the record. What matters is whether the material substance was
considered.
[27] The evidence provided by the Applicant constituted the decisive proof. In both
versions, one of the two mutually exclusive accounts given under oath or
affirmation was knowingly false. His explanation that he 'withdrew' or
'retracted' the docket statement when called to testify did not negate the
original dishonesty or its consequences for the administration of justice.
THE PRE-ARBITRATION MINUTE
[28] The Applicant correctly invokes SA Breweries (Pty) Ltd v Louw
9: a pre- trial
minute is an agreement which l imits the issues and from which a litigant may
not unilaterally resile. The principle applies with equal force to a properly
concluded pre-arbitration minute.
8 [2024] ZALCCT 6.
9 (2018) 39 ILJ 189 (LAC) at para 8.
8
[29] It does not assist the A pplicant. The C ommissioner recorded the agreed
charges and the issues narrowed during the arbitration. On 14 September
2022, the existence, reasonableness, awareness and consistent application of
the rule were no longer disputed. The remaining substantive issues were
whether the misconduct occurred and whether dismissal was appropriate.
Those are the issues the Commissioner decided.
[30] Nor did the Commissioner detach dishonesty from the charge and thereby
escape the minute. Regulation 5(4)(x), which formed part of the agreed
charge, expressly includes misconduct involving an element of dishonesty.
The award remained within the agreed field of dispute.
PROCEDURAL FAIRNESS
[31] The Applicant submits, with reference to Leonard Dingler (Pty) Ltd v
Ngwenya10, that compliance with an agreed disciplinary procedure does not
automatically establish fairness. That proposition is sound. Fairness depends
on the procedure actually followed and the circumstances of the case.
[32] Regulation 9 authori zes an expeditious process when a designated senior
officer is satisfied that the alleged misconduct falls within regulation 5(4) and
is sufficiently serious. It requires notice of the allegations, representation,
access to available supporting material, an opportunity to defend against the
allegations, consideration of the employee's evidence, and mitigation before
sanction.
[33] The Applicant received the allegations and supporting statements, was
represented, and was afforded an opportunity to respond. He elected not to
testify or call witnesses during the internal proceedings. At the subsequent de
novo arbitration, he was provided with a full opportunity to challenge the
SAPS's evidence and to present his case. The Commissioner evaluated the
actual procedure, not merely the existence of the Regulations.
10 (1999) 20 ILJ 1711 (LAC)
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[34] The evidence established serious misconduct contemplated by regulation
5(4)(x). The jurisdictional basis for regulation 9 was present. The Applicant
has not identified a procedural deprivation that rendered the dismissal unfair,
let alone a material irregularity in the arbitration that produced an
unreasonable result.
SANCTION AND THE TRUST RELATIONSHIP
[35] The Applicant relies on Edcon Ltd v Pillemer NO and Others 11, where the
absence of evidence demonstrating the impact of misconduct on the trust
relationship was material. The principle is not that direct formulaic evidenc e is
invariably indispensable.
[36] In Woolworths (Pty) Ltd v Mabija and Others
12, the Labour Appeal Court held
that the nature of the misconduct may itself justify an inference that trust has
broken down. The relevant considerations include the nature of the
employer's enterprise, the nature and effect of the misconduct and whether
corrective discipline could prevent recurrence.
[37] That approach has been reaffirmed in Department of Home Affairs and
Another v Ndlovu and Others
13, G4S Secure Solutions (SA) (Pty) Ltd v
Ruggiero NO and Others 14, and Autozone v Dispute Resolution Centre of
Motor Industry and Others 15. Where dishonesty demonstrates
untrustworthiness and the employer's operations depend upon integrity, the
breakdown may be apparent from the offence and its setting.
[38] In any event, this is not a case in which the SAPS led no evidence on trust.
Captain Mahlangu addressed the damage caused by dishonest police officials
and the resultant loss of public and institutional trust. Brigadier Bolton testified
that honesty is a core principle of the SAPS Code of Conduct, that the SAPS
11 2010 (1) SA 1 (SCA).
12 (2016) 37 ILJ 1380 (LAC) at paras 17-19.
13 (2014) 35 ILJ 3340 (LAC) at para 18.
14 (2017) 38 ILJ 881 (LAC) at paras 26 and 30.
15 (2019) 40 ILJ 1501 (LAC) at para 12.
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cannot retain dishonest members, and that such conduct jeopardizes public
confidence and exposes SAPS to civil claims. The Commissioner referred to
this evidence.
[39] The context is decisive. Police officials enforce the law, investigate offences,
compile dockets and give evidence upon which personal liberty and public
confidence depend. A knowingly false sworn statement by a police sergeant
strikes at the core of those functions. It is not a peripheral lapse capable of
correction by instruction or progressive discipline.
[40] The Applicant had 14 years of service, a weighty mitigating factor. That did
not render dismissal disproportionate. Long service may aggravate rather
than mitigate where an experienced officer knows the importance of truthful
evidence. The Commissioner considered the seriousness of the misconduct,
the Applicant's position and the operational need for integrity. Her conclusion
that dismissal was fair was one a reasonable decision-maker could reach.
ALLEGED FAILURE TO APPLY THE MIND
[41] The Applicant points to paragraphs in the award said to concern matters that
the Commissioner was not called upon to decide and infers that facts from
another matter were imported. The criticism is not substantiated by a
demonstration that any such passage distorted the enquiry or affected the
outcome.
[42] An award is not reviewed for infelicity of expression. Read as a whole, it
identifies the parties, charges, agreed issues, evidence, governing
Regulations and applicable fairness enquiry. The Commissioner acquitted the
Applicant on the first charge, which itself demonstrates differentiated
consideration rather than mechanical acceptance of SAPS's case.
[43] The Commissioner understood that she had to determine whether the
misconduct under regulation 5(4)(x) occurred, whether the expeditious
process was fair, and whether dismissal was an appropriate sanction. She
addressed the substantial merits and reached a result supported by the
addressed the substantial merits and reached a result supported by the
Applicant's admissions and SAPS's evidence. The general allegation of non-
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application of mind does not cross the review threshold in Sidumo, Herholdt ,
and Mofokeng.
CONCLUSION
[44] The review case ultimately seeks an appeal on the merits. It isolates parts of
the award, treats the workplace charge as a criminal indictment, and
overlooks the breadth of regulation 5(4)(x) and the A pplicant's admissions.
None of the identified errors, individually or cumulatively, establishes that the
commissioner misconceived the enquiry or reached an outcome outsi de the
range of reasonableness.
[45] The award is therefore not susceptible to review under section 145 of the
LRA.
COSTS
[46] Section 162 of the LRA requires the Court to determine costs according to the
requirements of law and fairness. In Zungu v Premier of the Province of
KwaZulu-Natal and Others16, the Constitutional Court cautioned that costs do
not ordinarily follow the result in labour matters and that the Court must
exercise a judicial discretion with due regard to the ongoing relationship and
the chilling effect of adverse costs orders.
[47] This matter does not involve collective bargaining or an ongoing employment
relationship. The Applicant persisted in a review that materially
mischaracterized the wording of regulation 5(4)(x), despite his admissions and
the record showing that evidence on trust was led. The SAPS was required to
oppose a meritless application and to cure delays partly occasioned by the
state of the record.
[48] Considering these factors collectively, and without presuming costs as an
inevitable outcome of failure, the principles of law and equity substantiate an
order for costs in favour of SAPS.
16 (2018) 39 ILJ 523 (CC).
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[49] In the premises, the following order is made:
ORDER
1. The Applicant's late institution of the review application is condoned.
2. The Third Respondent's late delivery of its A nswering Affidavit is
condoned.
3. The review application is dismissed.
4. The Applicant is ordered to pay the T hird Respondent's costs on a
party and party scale-B, together with the costs of Counsel.
K.R. Munsamy
Acting Judge of the Labour Court of South Africa
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APPEARANCES
For the Applicant: Advocate J.S. Jansen Van Rensburg.
Instructed by Wynand Prinsloo & Van Eeden Inc.
For the Third Respondent: Advocate H.M. Vermaak.
Instructed by the State Attorney.