Mapyane v South African Police Service and Others (JR 1948/19) [2023] ZALCJHB 344; (2024) 45 ILJ 564 (LC) (24 November 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JR1948/19

In the matter between:

MAJOR GENERAL S. L. MAPYANE

Applicant

and

SOUTH AFRICAN POLICE SERVICE

First Respondent

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL

Second Respondent

TREVOR WILKES N.O. Third Respondent

Heard: 24 August 2023

Delivered: 24 November 2023

Summary: Review application – arbitrator failing to take into account unreasonable delay – Disciplinary Code and Procedure – public authorities are enjoined to apply the prescripts regulating management of discipline – disciplinary measures must be initiated promptly – unexplained excessive delay sullies the procedural fairness.

To successfully claim waiver due to unreasonable delay, the employee must show that the employer unequivocally abandoned its right to discipline – if not, the contention that delay vitiated the sanction of dismissal is unavailing.

Caution against conflating reviews with appeals – the legislature made a deliberate decision that arbitration awards are final and abiding – evidence considered in totality holistically shows that the outcome is reasonable.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] The applicant was employed by the first respondent as a police officer and held the position of Major General. He was dismissed on 25 January 2016 for misconduct in relation to five charges of falsification of his travel claims. He unsuccessfully challenged both the verdict and sanction internally through an internal appeal process. Subsequently, he referred an unfair dismissal to the second respondent. The third respondent (arbitrator) arbitrated over the matter and rendered the arbitration award under case number PSSS658-15/16 dated 3 July 2019.

Factual background

[2] The applicant commenced his career as a policeman in 1984 and progressed to the rank of Major General, a position he held up until his dismissal. On 25 February 2015, the applicant was served with a disciplinary notice to attend a disciplinary hearing together with a charge sheet. He was charged with five charges of alleged fraudulent claims on his official travelling disbursements for the period between August 2010 to July 2012.

[3] The applicant was mainly accused of fraudulent misrepresentation in that he claimed disbursements for official trips as if he had used his own private vehicles when, in fact, he had travelled in the first

respondent’s official vehicles. The charges are similar, save for the dates and incidents when contravention supposedly occurred.

The chairperson of the disciplinary hearing found the applicant guilty on all five charges and recommended a sanction of dismissal,

which was endorsed by the first respondent.

[4] Dissatisfied with the outcome of the disciplinary hearing, the applicant referred the dispute to the second respondent, challenging the procedural and substantive fairness of his dismissal. On procedural fairness, he contended that the first respondent flouted the South African Police Discipline Regulations, 2006 (SAPS Discipline Regulations), which require the first respondent to promptly institute disciplinary action. Consequently, the contravention of the SAPS Discipline Regulations tainted the overall substantive fairness of his dismissal, so he further contended.

[5] It is common cause that the delay in instituting the disciplinary hearing is about 3½ years. The main thrust for the applicant’s impugn was that the delay was extensive and the second respondent

failed to give an explanation for the delay. That being the case, the charges were vitiated by delay and ought to have been quashed.

[6] The arbitrator upheld the applicant’s contention in respect of charges one to three and particularly made the following observations:

‘261. From the above it appears that although the conduct which led to the charges occurred as early as August 2010, the respondent must have been aware of the misconduct on 23 June 2011.

…

267. The notice of disciplinary enquiry and charge sheet followed on 12 February 2015 more than 3 ½ years after the respondent became aware of the allegations. This was 20 months after the decision of the Director of Public Prosecutions and 18 months after the conclusion of a preliminary internal investigation report was available.

268. All in all, there were extensive delays.

277. No one among Sibiya, Sithole or Binta were called to provide any explanation.

278. Therefore, there is little or no explanation for the periods of delay.’[1]

[7] The arbitrator accordingly found that the first to third charges were vitiated by the first respondent’s delay in instituting disciplinary action, thus concluding that the first respondent had

not discharged the onus of proving the substantive fairness of the applicant’s dismissal in respect of those charges.

[8] The converse is true when it comes to the fourth and fifth charges. The arbitrator found that the first respondent had discharged the onus of proving the both procedural and substantive fairness of the

applicant’s dismissal. The applicant was charged as follows:

‘Charge 4

You contravened Regulation 20(z) of the South African Police Service Discipline Regulations, 2006 by committing a common law offence of fraud by unlawfully and intentionally misrepresenting the information on the claim form dated 15 November 2010 reflecting that you used your official car to travel to Waterval Safari Lodge outside Middleburg on 2 September 2010 to attend MELF meeting whereas you travelled to Nelspruit Waterval Safari Lodge in a state vehicle, Chevrolet Optra Sedan resulting in the payment of R2 745.22 which amount was not due to you and actually prejudiced the Department.

Factors which the allegations are founded are the following:

(a) The driver of the Chevrolet Optra places Major-General Mapyane in the vehicle to Waterval Safari Lodge and back to Nelspruit;

(b) Witnesses place Major-General Mapyane in the vehicle on arrival at Waterval Safari Lodge.

Charge 5

You contravened Regulation 20(z) of the South African Police Service Discipline Regulations, 2006 by committing a common law offence of fraud by unlawfully and intentionally misrepresenting the information on the claim form dated 18 July 2012 which reflected that you used your official car to attend to unrest in Ogies on 25 April 2012 whereas you travelled from Nelspruit to Ogies in a state vehicle, A Hyundai Combi with registration numbers FNH 382 MP, resulting in the payment of R2 391.90 which amount was not due to you and actually prejudiced the Department.

Factors on which the allegation are founded are the following:

(a) Witnesses place Major-General Mapyane in the Hyundai Combi leaving Nelspruit;

(b) Witnesses [place] Major-General Mapyane and the team from the DPCI arriving at Ogies in a Hyundai Combi;

(c) Passengers in the Hyundai Combi places Major-General Mapyane in the Hyundai Combi travelling to and from Ogies;

(d) Information retrieved from Toll plaza Middleburg confirms the Hyundai Combi passing through.’[2]

[9] In this application, the applicant seeks an order reviewing and setting aside the award rendered by the arbitrator on the following grounds:

9.1 There was a delay by the first respondent in taking disciplinary action against the applicant on the allegations that were known to the first respondent for an excessive period of more than three years. The first respondent did nothing to pursue charges against the applicant. This much was found by the third respondent for some charges but not others (the Excessive Delay); and

9.2 There are irregularities in how the third respondent evaluated the evidence that was before him. The standard that ought to have been used by the third respondent is “on a balance of probabilities”, not “beyond a reasonable doubt”. The third respondent accepted the evidence of the first respondent’s witnesses based purely on their demeanour and the impression that they did not try to implicate the applicant in their respective testimonies. Not on the actual merits of the evidence before him (the Inherent Probabilities).

The Excessive Delay

[10] In Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others,[3] the Constitutional Court endorsed the application of the following criminal factors in labour matters when considering the delay in instituting or finalising the disciplinary proceedings:[4]

‘(a) The delay has to be unreasonable. In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.

(b) The explanation for the delay must be considered. In this respect, the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.

(c) It must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process. In other words, it would be a factor for consideration if the employee himself or herself stood by and did nothing.

(d) Did the delay cause material prejudice to the employee? Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.

(e) The nature of the alleged offence must be taken into account. The offence may be such that there is a particular imperative to have it decided on the merits. This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious. What it means is that the nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable.

(f) All the above considerations must be applied, not individually, but holistically.’

[11] The applicant takes issue with the arbitrator’s decision to distinguish charges four and five. He contends that, having found that the delay of 3½ years is unreasonable, his conclusion that his dismissal in respect of charges four and five was fair is irrational. In essence, he contends that the arbitrator failed to appreciate that the delay negatively impacted the witnesses’ recollection of events. More seriously, the death of the first respondent’s main witness in respect of charge four, Mr Moremi, is indicative of the negative effect of the delay.

[12] The first respondent, on the other hand, contends that the applicant was not prejudiced by the delay as he managed to secure witnesses and present a defence in respect of charges four and five. Mr Moremi’s statement was admitted into evidence by agreement between the parties and, in any event, Mr Moremi’s evidence was corroborated by Colonel Steenkamp, so it was further contended.

[13] The reasons given by the arbitrator to overlook the delay he had already found to be unreasonable were the seriousness of the charge of misrepresentation and the fact that the applicant was a senior official.

[14] The applicant impugns the arbitrator’s findings and pulled to his assistance various authorities where an inordinate delay was found to have vitiated the decision to dismiss. In Department of Public Works, Roads and Transport v Motshoso and Others[5], the court was confronted with a delay of more than three years to finalise the disciplinary enquiry which had commenced two years after the alleged transgressions occurred. The reviewing court refused to interfere with the arbitrator’s finding that the delay was so grossly unfair and it vitiated the decision to dismiss the first respondent employee.[6]

[15] The applicant also places heavy reliance on Khumalo and another v Member of the Executive Council for Education: KwaZulu-Natal[7] where the apex court observed that section 237 of the Constitution underscores the importance of prompt and diligent compliance with constitutional duties. It was stated that:

‘[46] …Section 237 acknowledges the significance of timeous compliance with constitutional prescripts. It elevates expeditious and diligent compliance with constitutional duties to an obligation in itself. The principle is thus a requirement of legality.

[47] This requirement is based on sound judicial policy that includes an understanding of the strong public interest in both certainty and finality. People may base their actions on the assumption of the lawfulness of a particular decision, and the undoing of the decision threatens a myriad of consequent actions.’[8]

[16] In my understanding, the applicant’s impugn is twofold. Firstly, that the unreasonableness of the delay tainted the fairness of the disciplinary hearing because of the lapse in memory with time, the passing of a witness and difficulties in securing evidence to refute the first respondent’s evidence. Secondly, that the delay vitiated the decision to dismiss him.

[17] This impugn was taken in limine at the commencement of the arbitration proceedings. The arbitrator refused to rule on these issues without the benefit of evidence on prejudice. The arbitrator cannot be faulted for his approach as he had to establish the real effect of the delay on the outcome of the case.[9] Consequently, the arbitrator quashed the first three charges because he found that the applicant was trial prejudiced due to the excessive and unexplained delay.

Procedural fairness

[18] Management of discipline is regulated by the first respondent’s Disciplinary Regulations.[10] Regulation 4 provides that the regulations are undergirded by various principles which include “discipline must be applied in a prompt, fair, consistent and progressive manner”.[11] In essence, the first respondent is enjoined to act with necessary promptness when instituting a disciplinary enquiry. In Stokwe, the Constitutional Court (CC) was confronted with a similar provision in terms of the Employment of Educators Act[12] (EEA) and remarked as follows:

‘…It bears emphasising that the EEA itself provides that disciplinary proceedings must be completed in the shortest possible time-frame.

This is the internal standard to which the department is bound. Whilst failure to follow an internal disciplinary code is not in

itself fatal, it remains a relevant factor in determining its impact on the fairness of the process. On this score the remarks of the Labour Court in Stokwe are particularly apt. The Labour Court said:

“The Public Service, however, is far more regimented. The obvious reason for this is that public authorities are also regulated by

administrative law. ... Where a procedure and remedy is prescribed either by legislation or collective agreement in the public service, the public authority has to apply it.”’[13] [Own emphasis]

[19] Instructively, in Moroenyane v Station Commander of the South African Police Services, Vanderbijlpark[14], the court referred with approval to the authorities where it was held that an unreasonable delay implicates a right to a fair hearing.

Pertinently, it was stated:

‘In the employment law context, the approach in dealing with whether disciplinary proceedings should be ended on the basis of a delay is firmly founded in considerations of fairness. The former Industrial Court dealt with a delay in the conduct of a disciplinary hearing in the judgment of Union of Pretoria Municipal Workers and Another v Stadsraad van Pretoria[15] and said:

“Fairness, however, dictates that disciplinary steps must be taken promptly. Both the staff regulations and the recognition agreement echo the need for prompt action as all time-limits must be adhered to strictly and time-limits are provided for in paras 5.2.5 and 5.3.1. In Mahlangu v CIM Deltak (1986) 7 ILJ 346 (IC) one of the guide-lines for a fair hearing was a right to have the hearing take place 'timeously'. In Brassey & others The New Labour Law it is said that the enquiry must be held promptly. Article 10 of ILO Recommendation 166 suggests that:

‘The employer should be deemed to have waived his right to terminate the employment of a worker for misconduct if he has failed to do so within a reasonable period of time after he has knowledge of the misconduct.’”’

[20] The first respondent’s counsel, Ms Matlejwane, submitted that, despite the arbitrator’s finding that the first respondent failed to give an explanation for the delay, Ms Devasahayan, one of the first respondent’s witnesses, gave a detailed explanation for the delay. The first difficulty with this submission is that the arbitrator’s finding on the delay is not challenged and thus must stand. Secondly, the arbitrator obviously rejected Ms Devasahayan’s evidence as he was of the view that it did nothing but underscore the fact that there were long and unexplained delays throughout the overall period of delay.

[21] In Stokwe, faced with unexplained excessive delay, albeit in the context of a final determination of the appeal, the CC was not swayed by the respondent employer’s contention that the applicant employee suffered no prejudice as she was still gainfully employed during the period of delay. It was observed that the delay had a concrete impact on the applicant employee’s disciplinary process and on her personally as she had to contend with an uncertain future. This factor was found to have had a negative impact on the procedural fairness of the disciplinary hearing.[16]

[22] By the same token, in the present instance, it is of little comfort that the applicant was not suspended for the duration of the 3½ year delay. The applicant had to contend not only with an uncertain future but with his colleagues and subordinates as well with a sword of Damocles hanging over his head.

[23] It is inexplicable that the parallel criminal case against the applicant that was based on the same charges was investigated and commenced with expeditiously. No wonder there was no explanation proffered for the delay in respect of the disciplinary action. In my view, the first respondent’s conduct made a mockery of the constitutional imperative to execute justice promptly.

[24] It is true, as contended by the first respondent, that the arbitrator was alive to the issues to be decided and he correctly recorded them as follows:

‘1. Whether the applicant’s disciplinary action and subsequent dismissal was in breach of the South African Police Service Regulations Disciplinary Regulations; and

2. Whether as a result the Applicant’s dismissal was procedurally and substantively unfair; and if not

3. I must decide whether the dismissal of the Applicant was substantively unfair;

4. if so, what appropriate relief is to be awarded to the applicant.’[17]

[25] Yet, the arbitrator failed to interrogate the effect of the excessive delay, which he had found to be unreasonable, on the fairness of the procedure in terms of the mandatory provisions of the Disciplinary Regulations, particularly Regulation 4(b) of which enjoined it attend to discipline promptly.

[26] The arbitrator obviously misconceived the nature of the enquiry by placing reliance on Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and others[18], per Van Niekerk J, to support his finding that the first respondent complied with the requirements for a fair procedure.[19] In Avril, Van Niekerk J was dealing with a private sector employer and clearly appreciated that his observations would not apply in instances where the disciplinary procedure is, inter alia, a product of a collective agreement. He pertinently stated:

‘This is not to say that employers and unions cannot agree to retain the criminal justice model if they are so inclined, whether by way of a collective agreement... In this instance, employers are obviously bound to apply the standards to which they have agreed or that they have established. It is also possible that the application of administrative law to employment issues may require a greater degree of formality.’[20] [Own emphasis]

[27] The Disciplinary Regulations are certainly the product of a collective agreement and this fact was recognised by the Supreme Court of Appeal (SCA) in Provincial Commissioner, Gauteng: SA Police Service and another v Mnguni[21] where it was said:

‘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 and Security pursuant to the provisions of s 24(1)(f) of the South African 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 SAPS, as employer, and all the unions

admitted to the Safety and Security Sectoral Bargaining Council (reg 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…’ [Own emphasis]

[28] It is absolutely clear that the first respondent, a public authority, was enjoined to observe the procedure prescribed by the Disciplinary Regulations and promptly attend to the disciplinary action against the applicant. I am therefore persuaded that the delay of about 3½ years tainted the fairness of the procedure.

[29] In Palluci Home Depot (Pty) Ltd v Herskowitz and Others[22], the Labour Appeal Court (LAC) referred with approval to Head of the Department of Education v Mofokeng and others[23], aptly observed by the review of the award is not restricted to the enquiry on the unreasonableness of the outcome; but whether the arbitrator misconceived the enquiry or had undertaken the enquiry in a misconceived manner, which implicates fair trial of the issues.

[30] It follows that the arbitrator’s findings on procedural fairness are vitiated by gross irregularity as contemplated by section

145(2)(a)(ii) of the Labour Relations Act[24] (LRA).

Waiver

[31] The applicant contends that the delay vitiated the sanction of dismissal. Inherent in this contention is whether the first respondent’s

tardiness entailed that it had waived its right to take disciplinary action against the applicant. It is well accepted that the employee bears the onus to prove that the employer, with full knowledge of the right to discipline the employee, decided to waive or abandon it.[25]

[32] Despite the delay in charging the applicant and instituting the disciplinary hearing, it is common cause that he had already been charged criminally for the same offence. Moreover, the applicant had engagements with the investigating officers who were investigating the disciplinary allegations. As correctly contended by the first respondent, the arbitrator also took into cognisance the fact that the applicant subjected himself to the disciplinary enquiry and presented his case without serious protestation.

[33] Therefore, the applicant could not have harboured any expectation that the third respondent had waived its right to discipline him due to the delay. Accordingly, the arbitrator's finding in this regard is unassailable.

The Inherent probabilities

[34] At the heart of this impugn is the applicant’s persistent contention that his dismissal was also substantively unfair. The applicant criticises the arbitrator for failure to correctly analyse the evidence that was before him and to appreciate the versions of the first respondent’s witnesses are inherently improbable if due regard is had to the record of arbitration proceedings.

[35] I must mention in passing that the transcript of the arbitration proceedings is voluminous. Likewise, the award is prolix, with 66 pages. As a result, it was a daunting exercise to discern the pertinent issues as one had to go through a maze of immaterial facts. The arbitrator obviously failed to appreciate the provisions of section 138(7)(a) of the LRA that the award must be issued with brief reasons. This shortcoming was readily conceded by Ms Matlejwane.

[36] Even so, Ms Matlejwane correctly submitted that nothing much turns on the prolixity of the award as the arbitrator duly applied his mind to the evidence that was before him and accordingly arrived at a reasonable outcome. She entreated the court not to fall into a trap set by the applicant to turn the review proceedings into a form of appeal by adopting a piecemeal approach in evaluating a decision arrived at by the arbitrator. Instead, she submitted that a broad-based evaluation of the totality of evidence as directed by the LAC in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[26] should be preferred. I agree. Notably, in Booi v Amathole District Municipality and others,[27] the CC warned against conflating reviews with appeals, stating:

‘Despite the Labour Court having paid lip service to the question of whether the order of reinstatement fell outside of a band of decisions to which a reasonable arbitrator could arrive, it appears that the Court considered itself at large to conduct the enquiry that was before the arbitrator afresh – as if it were sitting as a court on appeal. This was a fatal error – one which this Court warned against in Sidumo, when it said that reviews should not be conflated with appeals…’

[37] Besides, it is well accepted that mere errors of fact or law may not be enough to vitiate the award, a notion that was underscored in Mofokeng[28] where it was stated:

‘…Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidence in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.’[29]

[38] Mr Mashigo ardently submitted that, by failing to evaluate the inherent probabilities in the versions that were before him and consequently placing reliance on credibility findings, the arbitrator arrived at an unreasonable outcome in relation to both charges. Even though this submission sounds prestigious, it is flawed. It is clear from the transcript that the arbitrator did make several findings of fact.

[39] In actual fact, the arbitrator rejected the applicant’s evidence that he travelled in his own motor vehicle, an Isuzu bakkie with registration SNG508GP, from Nelspruit to Ogies and back to Nelspruit on 25 and 26 April 2012, using a specific route that passed through Machadodorp Toll Plaza as opposed to route that passed through Middelburg Toll Plaza. He found it highly unlikely that the applicant could have taken a long route, which he testified was scenic, to attend to an urgent intervention in a case of community riots in Orgies. Likewise, he rejected the evidence that the applicant took the Machadodorp Toll Plaza route back to Nelspruit despite the fact that he had worked throughout the night.

[40] It is instructive that the first respondent led evidence to show that the Hyundai H1, the official motor vehicle, was picked up by the cameras passing through Middelburg Toll Plaza on 25 April 2012, while the applicant’s Isuzu bakkie with registration SNG508GP was never sported passing through Middelburg Toll Plaza. To the extent that the applicant’s defence was that he had used an alternative route which passed through Machadodorp Toll Plaza, he had the evidentiary burden to lead evidence to support his case, a burden he failed to discharge.

[41] The applicant also contends that the arbitrator failed to appreciate that the credibility of the first respondent’s witnesses (Holtzhasen, Zuma, Ntombela, Steenkamp, Ngwenya and Maredi) was tainted by the motive to wrongfully implicate him in wrongdoing because of the group grievance and individual gripes against him. Still, even if that was so, the applicant did not challenge the evidence of Major General Dlamini who testified that he had accompanied the applicant to the Hyundai H1 on 26 April 2012 and observed him getting in. Major General Dlamini was not accused of having a motive to wrongly accuse the applicant. It is also telling that none of the applicant’s witnesses testified that they saw the applicant’s Isuzu bakkie or witnessed him driving it when he arrived or was leaving Ogies and the MELF meeting.

[42] Thus, Ms Matlejwane is precise in her written submission that the applicant’s impugn is devoid of merit as it is based on cherry-picked evidence and a clear misconstruction of the arbitrator’s findings. It follows that the arbitrator was spot on in his finding that the applicant was guilty of fraud, at least in relation to charges four and five, based on the totality of evidence that was before him.

[43] That takes me to the issue of the appropriateness of the sanction of dismissal.

Appropriateness of the sanction of dismissal

[44] The applicant contends that the sanction of dismissal was too harsh in light of the delay in enforcing discipline and insignificant amounts of the travel claims he is accused of falsifying.

[45] The arbitrator was not convinced that the delay tainted the sanction of dismissal because of the seriousness of the crime of fraud and the fact that the applicant occupied a senior position. As a result, he found that the trust relationship was broken irretrievably, hence the sanction of dismissal was upheld. The first respondent is defending the arbitrator’s finding and contends that it is reasonable.

[46] In Khambule v National Union of Mineworkers & others[30], the LAC reiterated that a reviewing court should not defer to the reasoning of a commissioner as “the reasoning of a commissioner is no guiding light in determining whether the decision or more particularly the “order”

handed down is reasonable”[31]; but must consider all the evidence led at the arbitration and in the light of that evidence determine whether the award is one which any commissioner in the position of the commissioner, who determined the arbitration, could reasonably make. If the answer is in the positive, then there must be no interference with the award”.[32]

[47] In the present instance, the applicant was found guilty of a serious transgression of falsifying his travel claims. As a Major General, the applicant was expected to act in good faith and protect the interest of the first respondent as a custodian of discipline. Tellingly, the applicant was heading the serious organised crime unit.

[48] Confronted with the issue of the breakdown in the trust relationship occasioned by an employee's dishonest misconduct, the LAC in G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others observed as follows:

‘The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”.’ [Emphasis added]

[49] In Burton and others v Member of Executive Council, Department of Health, Eastern Cape Province and others[33], the LAC observed as follows:

‘While the long-service and disciplinary record of the appellants were relevant considerations, the misconduct committed, and the harm which resulted from it, was of a serious nature and underpinned by dishonesty on the part of senior public sector employees. In Naidu this court recognised that ‘[g]enerally, a sanction of dismissal is justifiable and, indeed, warranted where the dishonesty involved is of a gross nature’. In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration & others[34] it was recognised that ‘[d]ismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise’.”

[50] It is incontestable that honesty and integrity are integral requirements of all positions within national law enforcement agencies like the first respondent. If not upheld, the credibility of these institutions and the confidence of the general public in them would be undermined. Therefore, the decision arrived at by the arbitrator in this regard cannot be faulted as it is reasonable, given the totality of evidence that was before him.

Conclusion

[51] In all the circumstances, the review is successful only in relation to procedural unfairness. What remains is the determination of a remedy. In my view, to remit this matter back to the second respondent for hearing de novo will not be fair to both parties given the circumstances of this matter. In addition, the record is adequate so as to enable a proper determination of a remedy and to substitute the award.

Remedy

[52] In terms of section 193(2) of the LRA, the Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless the dismissal is unfair only because the employer did not follow a fair procedure. Section 194(1) provides that: “…the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal”.

[53] In South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others,[35] the CC observed that the award of compensation is not automatic in our law but a discretionary matter. The CC mentioned the following

factors to be considered when determining whether to grant compensation, if so for how many months:

‘[52] …In this regard one of the key factors is the need to ensure that employers are not inadvertently encouraged by the non-payment of compensation to adopt a shotgun approach of dismissing employees without affording them the opportunity to be heard. Employees are ordinarily vulnerable because, unlike employers, they do not often have the resources necessary to vindicate their rights by prosecuting cases all the way up to this Court. Condoning the flouting of laws that govern the fate of people’s livelihood is a matter so serious that it always requires greater sensitivity and care. Relevant factors are, of course, the marked deviation from procedure by the SARS Commissioner when he dismissed Mr Kruger. The impact of the gross misconduct that Mr Kruger is guilty of on the employer and its workplace environment is an important factor to help decide on compensation.

[57] But a conspectus of all the relevant factors suggests that compensation be paid to Mr Kruger. First, the sanction of dismissal is so livelihood-threatening and serious that a breach of the relevant regulatory framework ought generally to be viewed in a serious light.’[36]

[54] The above observations are equally applicable in the present instance. It is a serious issue that the first respondent, likewise, flouted the laws that govern the management of discipline as it affected the fate of the applicant’s livelihood. Also, I have considered the seriousness of the transgression of fraud or dishonesty. Therefore, I am convinced that compensation should be paid and that it should be equivalent to the applicant’s salary for three months as at the time of dismissal.

Costs

[55] In line with the requirements of law and fairness in terms of section 162 of the LRA, I am not inclined to make a cost order.

[56] In the circumstances, I make the following order:

Order

1. The arbitration award under case number PSSS658-15/16 dated 3 July 2019 is reviewed and set aside, only to the extent that the third respondent found the dismissal of the applicant procedurally fair, and is substituted with the following order:

‘a The dismissal of Major General S. L. Mapyane is procedurally unfair.

b The South African Police Service is ordered to pay Major General S. L. Mapyane compensation that is equivalent to his salary for three months as at the time of dismissal.’

2. There is no order as to costs.

______________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate G Mashigo

Instructed by:

NB Makhanya Attorneys

For the Third Respondent: Advocate B Matlejwane

Instructed by:

State Attorney, Pretoria

[1] See: Arbitration Award, Review Application, pp 78 - 79 and 81.

[2] Record, Part A, Bundle R, pp 113 – 118.

[3] [2019] ZACC 3; (2019) 40 ILJ 773 (CC) (Stokwe) at para 72.

[4] See: Moroenyane v Station Commander of the South African Police Services, Vanderbijlpark [2016] JOL 36595 (LC) (Moroenyane) at para 42; see also: Sanderson v Attorney-General, Eastern Cape [1997] ZACC 18; 1998 (2) SA 38 (CC) (Sanderson) at para 25.

[5] [2005] ZALC 62 (17 March 2005).

[6] See: Union of Pretoria Municipal Workers and another v Stadsraad van Pretoria (1992) 13 ILJ 1563 (Union of Pretoria) at 1570 D-E; Van Eyk v Minister of Correctional Services and others [2005] ZAECHC 13 (20 April 2005).

[7] [2013] ZACC 49; (2014) 35 ILJ 613 (CC).

[8] Id.

[9] See Sanderson supra fn 4.

[10] The South African Police Service Discipline Regulations (Disciplinary Regulations) were issued on 3 July 2006 in terms of section 24(1) of the South African Police Services Act 68 of 1995.

[11] See Regulation 4(b) of the Disciplinary Regulations.

[12] Act 76 of 1998.

[13] Stokwe supra at para 74.

[14] See Moroenyane above fn3 at para 40.

[15] Union of Pretoria supra fn 6 at 1659A-C.

[16] See Stokwe above fn3 at para 76.

[17] See Pleadings, p 23 at para 15 of the award.

[18] [2006] ZALC 44; [2006] 9 BLLR 833 (LC) (Avril).

[19] See Head of the Department of Education v Mofokeng and others [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) (Mofokeng) at paras 30 – 31; Palluci Home Depot (Pty) Ltd v Herskowitz and others [2014] ZALAC 81; (2015) 36 ILJ 1511 (LAC) (Palluci Home) at paras 15 - 16.

[20] Id at 841.

[21] (2013) 34 ILJ 1107 (SCA) at para 20.

[22] Palluci Home supra fn 19 at paras 15 - 16; see also Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] ZACC 22; (2007) 28 ILJ 2405 (CC); Mofokeng supra fn 19; Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others (Gold Fields) [2013] ZALAC 28, (2014) 35 ILJ 943 (LAC); Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] ZASCA 97, [2013] 11 BLLR 1074 (SCA) (Herholdt).

[23] Mofokeng supra.

[24] Act 66 of 1995, as amended.

[25] See National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC) at paras 60 - 61; See Stokwe above at para 77; See also Moroenyane above at paras 43 - 44.

[26] Gold Fields supra at paras 17-18.

[27] [2021] ZACC 36; (2022) 43 ILJ 91 (CC) (Booi) at para 44.

[28] Mofokeng supra at para 32.

[29] Id at para 32; see also Herholdt supra; Gold Fields supra.

[30] [2019] ZALAC 61; (2019) 40 ILJ 2505 (LAC) at para 11.

[31] Id.

[32] Id.

[33] [2022] ZALAC 101; (2022) 43 ILJ 2284 (LAC) at para 75; see also SA Revenue Service v National Education Health and Allied Workers Union on behalf of Kulati and another [2023] ZALAC 11; (2023) 44 ILJ 1929 (LAC) at para 38.

[34] (2000) 21 ILJ 1051 (LAC).

[35] [2016] ZACC 38; 2017 (1) SA 549 (CC).

[36] Id at paras 52 and 57.