Phahlane v National Commissioner of the South African Police Services and Others (46485/18) [2020] ZAGPPHC 159 (4 May 2020)

THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

Case no: 46485/18

4/5/2020

In the matter between:

LIEUTENANT-GENERAL JOHANNES

KHOMOTSO PHAHLANE

Applicant

and

NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICES First Respondent

MINISTER OF POLICE Second Respondent

SOUTH AFRICAN POLICE SERVICE Third Respondent

MINISTER OF PUBLIC SERVICE

AND ADMINISTRATION Fourth Respondent

T MOTAU SC NO

Fifth Respondent

PUBLIC SERVICE COMMISSION Sixth Respondent

JUDGMENT

AC BASSON, J

[1] The applicant (Lieutenant-General Johannes Khomotso Phahlane) brought this application in terms of the Promotion of Administrative Justice Act[1] (“PAJA”) to review and set aside (alternatively declare invalid) the following:

(i) The interlocutory ruling of the fifth respondent (T Motau SC N.O. – chairperson of the disciplinary hearing – “the

chairperson”) relating to the legal authority of the first respondent to institute disciplinary proceedings against the applicant for misconduct that was allegedly committed by him whilst he was the acting National Commission of Police during the period

between 14 October 2014 to 1 June 2017 (Prayer 3 of the Notice of Motion);

(ii) An Information Note dated 18 February 2014 in terms of which vehicles must be disclosed using an electronic eDisclosure system (Prayer 4 of the Notice of Motion);

(iii) An investigative report prepared by Lieutenant-General Jephta (“the Jephta Report”) in that it does not comply with Regulation 4(m) of the South African Police Service: Discipline Regulations (“the Regulations”)[2] (Prayer 5 of the Notice of Motion).

(iv) An audit report prepared by Brigadier Matlou (“the Matlou Report”) in that it does not comply with Regulation 4(i) of the Discipline Regulations (Prayer 6 of the Notice of Motion).

[2] Lastly, the applicant seeks a declarator to the effect that the conduct of the third respondent, as the applicant’s employer, was unlawful and unfair for want of compliance with the timeframes in terms of Regulation 4(b) (Prayer 7 of the Notice of Motion); and

[3] Ancillary to the orders in terms of PAJA, the applicant seeks an order condoning his non-compliance with the 180-day requirement for the institution of the present review proceedings (Prayer 1 of the Notice of Motion) and an exemption from the requirement to exhaust internal remedies, to the extent that such relief may be necessary (Prayer 2 of the Notice of Motion).

[4] In his reply, the applicant changed tact and now seeks to make out a case for review under the principle of legality. As will be pointed out, apart from the fact that it is (generally) impermissible to raise new review grounds in reply, the Information Note, the interlocutory ruling and the two reports are, in any event (even if they were reviewable) not reviewable under the principles of legality in that they do not constitute the exercise of a public power or the performance of a public function. (I will return to the issue of legality hereunder.)

[4] The respondents[3] dispute that this is a proper review application and labels the review application as a thinly disguised attempt by the applicant to avoid the disciplinary proceedings instituted against him, to circumvent the regulatory process established in this regard and to avoid a full ventilation of the various allegations of misconduct levelled against him in the disciplinary enquiry and to avoid any consequent findings and sanctions that may be imposed.

Background facts

[5] The applicant was the Acting National Commissioner of the third respondent (“the SAPS”) for the period 14 October 2015

until 1 June 2017. He was suspended by the new Acting National Commissioner on 7 June 2017 and was charged with misconduct. On 28 July 2017, the applicant was served with a notice to appear at a disciplinary hearing to be convened and chaired under the fifth respondent.

[6] On 16 April 2018, the disciplinary hearing commenced before the chairperson. The applicant made an opening statement through his

legal representatives and raised a number of points in limine. These points were subsequently abandoned in reply (during the disciplinary hearing).

[7] When the hearing reconvened on 18 April 2018, the applicant’s legal representatives raised two further points in limine:

(i) The first point in limine related to the validity of the so-called Instruction or Information Note (of 18 February 2014) that directs Senior Management Service

members (“SMS”) to disclose vehicles as part of the general disclosure of any financial interests they may have. It was submitted on behalf of the applicant that this Instruction Note is ultra vires and unlawful.

(ii) In terms of the second point in limine, the applicant disputed the legal authority of the SAPS to charge him in terms of the SAPS Discipline Regulations for acts of misconduct

which occurred during the period that he was the Acting National Commissioner. According to him only the President has the power to discipline him and further that such discipline should have been done in terms of section 9(2) of South African Police Service Act[4] (“the SAPS Act”).

[8] On 13 June 2018, the Chairperson handed down his ruling in respect of the two points in limine concluding that:

(i) The Information Note of 18 February 2014 enjoining or directing SMS members to disclose vehicles as part of their financial interests had not been reviewed and set aside and therefore remained valid and binding. The chairperson accordingly had no power to rule on its validity or on any collateral challenge raised. The chairperson took into account that the Disciplinary Regulations – which defines his powers – did not confer on him the power to rule on the lawfulness or validity of the rules pursuant to which a disciplinary hearing has been convened. Therefore, the challenge to the Information Note was incompetent in circumstances where the lawfulness of the instrument pursuant to which the power is being exercised has not been challenged. Consequently, and with reference to the Oudekraal Estates (Pty) Ltd v City of Cape Town and others [5] principle, the Chairperson concluded the instruction to disclose vehicles remained valid and binding and accordingly dismissed the first point in limine.[6]

(ii) In respect of the second point in limine regarding the question whether only the President of the Republic has the power to discipline the applicant in terms of section 9(2) of the SAPS Act in relation to misconduct allegedly committed by the applicant during the time that he was the acting National Commissioner, the chairperson ruled that this question concerned “matters that are bound up with the merits and cannot competently be determined as a point in limine”. The chairperson accordingly deferred this point for later determination. The chairperson, however, remarked that it was unclear to him how the applicant can be insulated from a charge of misconduct that related to a rule that does not attach exclusively to the position when he was the acting National Commissioner.

[16] When his attempts to bring the hearing to an end failed, the applicant instituted an in media res review of these two interlocutory rulings. In addition, the applicant also seeks to review the two reports (the Matlou and the Japhta report) although his complaints about these two reports have not been raised at the disciplinary hearing.

[17] Should the in media res application be entertained at all by this court? Two issues will be considered in this regard: Firstly, whether the applicant should have exhausted his internal remedies and, secondly, whether exceptional circumstances have been placed before the court to warrant

interference in an incomplete disciplinary hearing?

Exemption for the failure to exhaust internal remedies

[18] In terms of s7(2) of PAJA, a court may not review an administrative action unless any internal remedy provided for in any other law has first been exhausted. In prayer 2 of the Notice of Motion, the applicant asks for an exemption for his failure to exhaust the internal remedies provided for in the SAPS regulations. This prayer is premised on the assumption that there is a proper review application before the court and that the actions challenged by way of a review are administrative action for purposes of PAJA.

[19] It is concluded in this judgment that none of the actions complained of in this application constitutes administrative action as contemplated by PAJA and that the review application therefore should be dismissed. I will return to this issue in more detail where I deal with the merits of the challenge in respect of each of the actions forming the subject of this review application.

[20] The applicant’s submissions in respect of why he has not exhausted his internal remedies are therefore, in my view academic. However, even if it is assumed for the moment that there is a proper review application before court, it is in any event difficult to follow what the applicant’s case is in respect of this point: The applicant does not tell the court what internal remedies (apart from a cursory reference to the SAPS regulations without any particularity) are available to challenge the Information Note, the ruling and the two Reports and why he is unable to follow these internal procedures. The only by the applicant is a bold allegation that it is in the best interest of the parties to stay the disciplinary proceedings pending the finalisation of the review application. But, the applicant does not tell the court why it is in the best interest of the parties that the disciplinary hearing be suspended for a substantial period of time pending the outcome of these proceedings.

[21] Because the applicant and the SAPS are engaged in an employment relationship, the explanation put up by the applicant should be considered having regard to the principles that govern this particular relationship. It is generally accepted that it is in the interest of both parties to the employment relationship that disputes should be dealt with, without undue delay. Although most pronouncements by the courts regarding the speedy resolution of disputes are made in the context of the dispute resolution processes post dismissal, it should be accepted that undue delays in the conclusion of disciplinary hearings are equally undesirable and not in the best interest of employers and employees who both are entitled to finality.[7]

[22] The applicant has not placed any persuasive facts before the court to justify why he has circumvented internal procedures before

approaching this court. The relief sought in prayer 2 of the Notice of Motion is consequently dismissed.

[23] To a large extent the considerations taken into account in considering the relief sought in prayer 2 of the Notice of Motion overlap with the question whether an in media res challenge should, in any event, be entertained by this court.

Review in media res

[24] This review was instituted before the disciplinary hearing could run its course. In fact, the disciplinary hearing did not even proceed beyond hearing and ruling on the points in limine. When the applicant was not satisfied with the chairperson’s rulings, the applicant resorted to a review application in media res. Should this be allowed?

[25] The courts may be willing to interfere with an incomplete disciplinary hearing and consider a review in media res, but will only do so in exceptional circumstances where an irregularity has occurred but only to the extent that it may cause serious prejudice to a party to the proceedings.

[26] In the present instance, no facts have been placed before the court as to why this in media res review should be considered particularly in the absence of facts that would support a conclusion that a grave injustice would result if the ruling is not reviewed and set aside. This approach was followed and explained by the Labour Court in Jiba v Minister: Department of Justice & Constitutional Development & others (Jiba):[8]

“I wish to deal with the application insofar as it relates to the chairperson’s ruling on a more preliminary basis. Exceptional circumstances aside, it is undesirable for this court to entertain applications to review and set aside rulings made in uncompleted proceedings. In Trustees for the Time Being of the National Bioinformatics Network Trust v Jacobson & others (2009) 30 ILJ 2513 (LC), I said the following (at para 4) in relation to the review of interlocutory rulings made by commissioners:

'There are at least two reasons why the limited basis for intervention in criminal and civil proceedings ought to extend to uncompleted arbitration proceedings conducted under the auspices of the CCMA, and why this court ought to be slow to intervene in those proceedings. The first is a policy-related reason - for this court to routinely intervene in uncompleted arbitration proceedings would undermine the informal nature of the system of dispute resolution established by Act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run their course without intervention by this court.'

The same considerations apply to internal disciplinary hearings, with the additional point that for this court to routinely consider applications such as that before me would entirely undermine the statutory dispute resolution system. By asking the court to rule that the disciplinary action initiated against the applicant was unauthorized and unprocedural, the applicant is effectively asking the court to bypass the bargaining council and to ignore its role in a carefully crafted scheme that acknowledges and gives effect to the value of self-regulation. This court, through its review powers, is mandated to exercise a degree of oversight over labour-related arbitrations - its powers as a court of first instance are constrained by the LRA, and that constraint must be respected.”

[27] I fully agree with the sentiments expressed in the Jiba matter. A similar approach was taken by the Labour Court in Trustees for the time being of the Bioinformatics Network Trust v Jacobson & others (albeit in the context of an arbitration process):[9]

“There are at least two reasons why the limited basis for intervention in criminal and civil proceedings ought to extend to uncompleted

arbitration proceedings conducted under the auspices of the CCMA, and why this court ought to be slow to intervene in those

proceedings. The first is a policy-related reason - for this court routinely to intervene in uncompleted arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the Act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run their course without intervention by this court. This conclusion was recently underscored by the Constitutional Court. In Commercial Workers Union of SA v Tao Ying Metal Industries & others (2008) 29 ILJ 2461 (CC), Ngcobo J stated at paras 62, 63 and 65:

' The role of commissioners in resolving labour disputes is set out in s 138(1) of the LRA which provides:

"The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities."

[28] In Hlophe v The Judicial Services Commission[10] Willis J emphasised that it is “contrary to public policy to allow reviews in media res and these will be allowed in exceptional circumstances only”:[11]

“…Inextricably linked to the requirement that internal remedies must be exhausted, is the question of prematurity. It is, in any event, contrary to public policy to permit reviews in medias res and these will be permitted in exceptional circumstances only. See, in this regard Wahlhaus v Additional Magistrate, Johannesburg; S v Western Areas Ltd and Others; Take and Save Trading CC and others v Standard Bank of SA Ltd; South African Commercial Catering and Allied Workers Union and others v Irvin & Johnson Limited (Seafoods Division Fish Processing). In terms of subsection 7(2)(c) of PAJA, an applicant must specifically apply to be exempt from the requirement of exhausting internal remedies if he or she wishes such exemption and must show that there are exceptional circumstances justifying such a course of action. No such application was made in the present matter and, in any event, in my opinion, no exceptional circumstances have been put before us to justify such a step especially as the JSC has made it plain that it will consider all submissions that the applicant may make in regard to any alleged unfairness. It must be emphasised that public policy is strongly against interventions of the kind which the applicant is now seeking before the matter has been disposed of by the tribunal in question. In this regard, the issue of precedent is all-important. A court must be careful not to open sluice-gates that could render the functioning of the courts and the innumerable administrative tribunals throughout the land untenable.”

[29] And lastly, in Zondi & others v President, Industrial Court & Others[12] the Labour Appeal Court pointed out that the applicant must go further and show that the gross irregularity will lead to a miscarriage of justice during partly-heard or incomplete disciplinary enquiries before relief will be granted.[13]

[30] As already indicated, no such facts have been placed before the court and there is no reason why the disciplinary process should not be allowed to run its course. The contention made in the replying affidavit that it would be in the best interest of the parties to deal with the ruling now and to avoid any unnecessary review at a later stage, is not sufficient justification to warrant a review at this stage. The fact that the allegations against the applicant have found its way into the public domain (via media reports) publications and that it would be in the public interest that the review not only should be heard but that it should be prioritised for by an expedited hearing by this court, certainly does not justify this court’s interference in media res. If our courts regard this as an exceptional circumstance, the floodgates would be thrown wide open.[14] As the Court in Wahlhaus[15] pointed out, “[t]his, however, is a power which is to be sparingly exercised”.

[31] In an attempt to lay a basis for prejudice, the applicant states in his replying affidavit that it “would be an injustice to be subjected to a process uncompliant with the regulations and policies of the SAPS” and that SAPS “abuse of power and overreach” entitles him to raise his objection in media res and not wait for the final review or appeal stage.

[32] There is no merit in this submission and falls short of showing the requisite prejudice required for this court to exercise its discretion in favour of allowing a review in media res. Apart from the fact that no foundation has been laid to show an abuse of power and overreach, the applicant will have ample opportunity

through the exercise of the comprehensive dispute resolution regime provided for by the LRA, to challenge any decisions or procedural

issues that he may have. In Independent Police Investigative Directorate and Robert McBride v The Minister of Police[16] the court refused to grant an interdict on the basis that the applicant would be able to protect his rights at a future litigation:

“I have also had the occasion to write a judgment about the requirements of interim interdicts in Afrisake NPC v City of Tshwane Metropolitan Municipality and Others under case number 74192/2013 dated 14 March 2014 (not reported). I also emphasized that the proper question would be whether an Applicant in interdictory proceedings required an order now so as to protect a right which he would otherwise not be able to protect at all. One does not require an interdict pendente lite to protect the right which one can in any event protect in future by, amongst others, litigation in due course. It is an absolute minimum requirement that in repairable harm must be shown to exist before the Court can grant such an interdict, and in the present context the Constitutional desirability of such an interdict weighs heavily on my mind.”

[33] Also, the mere fact that it may be inconvenient for an applicant to wait until the outcome of a disciplinary hearing is not sufficient

justification for a review to be entertained in media res. As the court held in S v Haysom[17] (albeit in the context of a criminal case):

“In any criminal proceedings an accused, who is required to await the conclusion of his trial before questioning in a Superior Court a magistrate's ruling on an objection in limine at his trial, is placed in similar position of jeopardy. Even although it may be highly inconvenient for him - as indeed for anyone standing trial on a criminal charge - to have to wait until the termination of a trial before going on review, being placed in such a position does not, in my view, subject applicant to a grave injustice, nor does it result in irreparable prejudice to him.”

[34] Furthermore, the investigation reports (the Jephta and Matlou reports) were not even challenged during the disciplinary hearing nor was the point raised that there was a delay in the prosecution of the disciplinary hearing. The chairperson of the disciplinary hearing was therefore not even placed in a position to consider these complaints. A challenge to these reports are, furthermore, in any event premature.

[35] Allowing a review to occur in the circumstances would amount to wasteful use of judicial resources and of legal costs and would result in the piecemeal review of the disciplinary proceedings. For these reasons, the purported review brought in media res should not be entertained and falls to be dismissed.

[36] Despite my view that the application should be dismissed for the reasons stated hereunder, I will nonetheless make a few observations

regarding the applicant’s complaints regarding the Information Note, the two reports and the decision to charge him with misconduct. I will deal with the issues raised in the two points in limine and thereafter consider the Matlou and Jephta Reports as these two reports stand on a different footing.

The Information Note (the first point in limine)

[37] One of the charges levelled against the applicant is that he failed to disclose his financial interest in four vehicles as required by the 2008 Employment Regulations.

[38] On 18 February 2014 an Information Note was circulated by the deputy National Commissioner in terms of the 2008 Employment Regulations and the 2001 Public Service Regulations concerning the disclosure of financial interests by all SMS members of the SAPS for the period 1 April 2013 to 31 March 2014.

[39] SMS members were advised that an electronic eDisclosure system for the capturing and management of financial disclosures has been developed and that SMS employees must register and henceforth disclose their financial interest for the period 1 April 2013 to 31 March 2014 by using the eDisclosure system.

[40] A list of financial interests that had to be disclosed is contained in clause 4 of the Information Note. An item “vehicles”

appears last on the list as a “new category” of financial interests that must be disclosed. The Information Note also explains with reference to gifts and hospitality, that SMS employees are required to disclose a gift with a value in excess of R 350.00 and must disclose any material advantage that they receive from any source. Clause 7 of the Note states that:

“In terms of Chapter 3H of the Public Service Regulations, any designated employee who fails to disclose an interest or wilfully provides incorrect or misleading details is guilty of misconduct.”

[41] Attached to the Information Note is an example of the new electronic form which was distributed to the SAPS by the sixth respondent (the Public Service Commission). The form was to be used for purposes of capturing and managing financial disclosures on the electronic

eDisclosure system.

[42] The applicant took issue with the fact that that he was required in terms of the Information Note to disclose his interests in vehicles when the category of vehicles did not form part of mandatory disclosures in the 2002 Public Service Regulations. It was only in 2016 that vehicles were included in the list of interests that had to be disclosed in terms of an amendment to the Public Service

Regulations.[18]

[43] In Prayer 4 of the Notice of Motion the applicant seeks an order reviewing and setting aside this Instruction Notice. The crux of the applicant’s challenge to the Information Note appears to be that it is ultra vires in that the decision-maker who took the decision to publish the Information Note was not authorised in terms of the SAPS Act or any other regulations to do so.

[44] The first issue to be considered is whether the Information Note constitute administrative action susceptible to review.

[45] The SAPS Act empowers the National Commissioner (or a designated member of SAPS)[19] to issue national instructions and to make regulations relating to various key areas.

[46] In terms of section 24(1) of the SAPS Act, the Minister is empowered to make different regulations (subordinate legislation) in respect of a variety of topics, including but not limited to the exercising of policing powers and the performance by members of their duties and functions; the recruitment, appointment, promotion and transfer of members; the training, conduct and conditions of service of members; the general management, control and maintenance of the service; returns, registers, records, documents, forms and correspondence in the service; labour relations, including matters

regarding suspension, dismissal and grievances; and the institution and conduct of disciplinary proceedings or inquiries. In general,

these regulations are aimed at ensuring the proper functioning of the police service and regulating the conduct of its members.

[47] In terms of section 25 of the SAPS Act, the National Commissioner may issue national orders and instructions regarding the following

matters which -

“(a) fall within his or her responsibility in terms of the Constitution or this Act;

(b) are necessary or expedient to ensure the maintenance of an impartial, accountable, transparent and efficient police service; or

(c) are necessary or expedient to provide for the establishment and maintenance of uniform standards of policing at all levels required

by law.”

[36] In terms of section 26[20] of the SAPS Act, Provincial Commissioners are also entitled to issue orders and instructions provided that they are not inconsistent with the SAPS Act or any national orders or instruction.

[37] These national instructions and orders are in the nature of administrative rules and are broadly intended to regulate and prescribe to members of SAPS how they should exercise their functions. As such they are mostly to be regarded as administrative action susceptible to the review powers of the courts.

[38] The Information Note in the present instance stands on a different footing. On the face of it, the Information Note in this matter does not purport to have been issued pursuant to the exercise of any of the powers provided for in either sections 24, 25 or 26 and thus falls outside of these categories of regulations, orders and instructions provided for in these sections of the SAPS Act. The Information Note in the present instance is therefore not akin to a national order or instruction (pursuant to a statutory power) nor is it akin to subordinate legislation such as the various regulations that have been issued by the Minister of Police in terms of section 24(1) of the SAPS Act to regulate issues such as discipline.

[39] The Information Note in the present matter is nothing more than an internal instruction from the employer to its senior management

employees (SMS members) regarding the manner in which these employees must register and disclose their financial interests. The heading of the Information Note “Online Registration for eDisclosure”, “Capturing of Financial Interest” and “Submission of Financial Disclosure” confirms that this document is aimed at devising internal procedures to ensure the effective management of internal disclosure of financial interests. The Information Note in this matter is not comparable to a note or circular or directive in terms of which

governmental officials are given guidance on how to implement governmental policy or legislation.

[40] Although internal policies or information notes are binding on the recipients, they do not necessarily constitute administrative action. Baxter[21] explains:

“In a neither world between law and administrative practice there exists a body of rules which are of great practical importance to the exercise of discretionary administrative powers. These comprise departmental circulars and instructions issued without clear

statutory authority to guide the conduct of officials in the exercise of their powers and (sometimes) to inform members of the public as to the general policies that are likely to be followed when discretionary administrative powers are exercised.”

[41] I am in agreement with Baxter’s assessment. It is accepted that circulars or directives may, in certain circumstances, constitute administrative action susceptible to review

proceedings. This would typically be in cases where a directive is envisaged in legislation. In those cases, a court will be willing to review it in light of the underlying legal authority. It is also accepted that even where the directive is not statutorily envisaged,

a court may still be willing to review it in circumstances pointed out by the Constitutional Court in Ahmed and others v Minister of Home Affairs and another:[22]

“The only remaining issue is whether it is necessary for this court to go any further. Can this court set aside the Directive? To answer this question regard must be had to the nature of a directive. The applicants argue that the Directive is binding on all employees of the Department and thus they are obliged to adhere to and act in accordance with it. The respondents contend that the Directive is merely a statement of policy which has no force in law and which cannot confer any rights nor deprive a person of rights.

The nature and status of a directive is unclear. A directive is an official policy document, which guides government departments on how to apply legislation. According to Baxter, directives belong to a 'body of rules which are of great practical importance' and which constitute 'instructions issued without clear statutory authority to guide conduct of officials in the exercise of their powers'. Baxter refers to departmental circulars and directives as 'administrative quasi-legislation', which are neither legislation nor subordinate legislation. This does not necessarily mean that a directive is unenforceable or that it has no legal status. Where it appears that an Act has anticipated the creation of a directive, a court will be more willing to find that it has legal authority and is enforceable. The fact that directives are not promulgated and there is uncertainty as to their legal status, may lead to a situation where an official or body relies on a directive that is not aligned to applicable law.

The nature of policy directives differs. They may be statutorily required, in which case their lawfulness is assessed against the empowering legislation seen through a constitutional lens. In other cases, the application of the statutory policy in individual instances may be challenged on the grounds of the infringement of certain fundamental rights, like the right to equality. In Barnard, this court held that there was no discrimination against the applicant because the policy was flexible and the functionary's exercise of discretion in accordance with that flexibility could not be faulted. Lastly, the policy may not be expressly required by legislation, but be an internal document that regulates the implementation and application of statutory powers granted to functionaries.”

[42] The Information Note in the present instance does not fall within any of the categories identified by the Constitutional Court as possibly warranting a court to assume jurisdiction to review it.

[43] In conclusion, The Information Note does not amount to administrative action as it does not go beyond informing employees of the duty to disclose their financial interests and to do so electronically. The Information Note is therefore not susceptible for review by this court and the relief sought in Prayer 4 of the Notice of Motion is dismissed.

[44] The applicant also appears to challenge the Information Note on the basis that the deputy National Commissioner did not have the legal authority to do so in that the Information Note “is not sourced from the SAPS Act” with reference to section 25 of the Act. Put

differently, the applicant contends that the Information Note was ultra vires in the sense that the deputy National Commissioner who took the decision to publish the Information Note was not authorised to do so in terms of the SAPS Act.

[45] There is no merit in this submission. Firstly, on a plain reading of the Information Note, it is evident that the deputy National Commissioner did not purport to act in terms of either section 24 or section 25 of the Act. Secondly, as already pointed out, the Information Note merely sets out to inform SMS members of their obligation to make financial disclosures under the new eDisclosure system. Regulation 12(1) of the 2008 SAPS Employment Regulations states that the Public Service Commission will determine the form to be used to disclose registrable interest. In this instance permission was sought from the Public Service Commission[23] prior to informing SMS members of the new format to be used in submitting their financial disclosure in accordance with both the

2001 Public Service Regulations and the 2008 SAPS Employment. Thirdly, the applicant also contended that the instruction to disclose vehicles was contrary to the 2001 Public Service Regulations and the 2008 SAPS Employment Regulations. More in particular, it is

contended that by inserting a new category of financial disclosure - namely vehicles – to the list of required financial disclosures - the Information Note purported to amend the 2001 Public Service Regulations and the 2008 SAPS Employment Regulations. In this regard, I am in agreement with the submission on behalf of the respondents that, although a new category (vehicles) was added to the category of disclosure of financial interest, it is not out of kilter with the purpose and scheme of the regulations concerning financial disclosure. The underlying intention of having to disclose financial interests is to combat and detect corruption and conflicts of interest among senior public servants. In terms of both sets of Regulations it is expected of SMS employees to display the “highest possible standards of ethical conduct” and to “ensure that they minimise conflicts of interest”.[24]

[46] Lastly, the applicant submitted that the consultation process as set out in Regulation 21 of the 2016 Public Service Regulations ought to have been complied with prior to any disciplinary proceedings having been instituted against him. Regulation 21 deals with a conflict of interest arising out of a disclosure. The Regulation is fairly detailed and sets out the procedure to be followed in the event a conflict of interest appears to exist from the interest disclosed.

[47] I fail to see how Regulation 21 is relevant in the context of this matter: The applicant did not disclose any interest in any of his vehicles. No possible conflict of interest could therefore have been verified by Commission in circumstances where there was in fact a non-disclosure.

Condonation for the late filing of the review

[48] In prayer 1 of the Notice of Motion, the applicant also asks for condonation for the late filing of the review application. If regard

is had to the applicant’s papers, it would appear that he only asks for condonation in respect of the challenge to the Information

Note.

[49] At the outset, it must be restated that the Information Note does not amount to administrative action susceptible for a review. Therefore, it is not necessary to apply for condonation for the late filing of this purported review. However, assuming for the moment that it does, no facts have been placed before the court as to why condonation for non-compliance with the 180-day period exists.

[50] The applicant then seems to change tact and now claims that he is raising the challenge as a collateral challenge. (I will return to the purported collateral hereunder.)

[51] In so far as an attempt is made to justify the late filing of the review application in terms of PAJA, the applicant simply avers that he did not know before that the Information Note would be relevant.

[52] The facts, however, do not sustain this submission. The applicant was aware from 2014 that the new eDisclosure system required the

disclosure of financial interests in vehicles. He was charged with misconduct in July 2017. The first charge of misconduct concerned the applicant’s failure to disclose financial interests in motor vehicles with reference to the Information Note. Yet the applicant did nothing in the face of this charge. Instead, the applicant waited until April 2018 when the disciplinary hearing was first convened and only then raise as a point in limine his collateral challenge to the validity of the Information Note.

[53] No explanation is provided as to why the applicant waited for almost a year to raise this issue at the disciplinary hearing. The

Constitutional Court in Khumalo and Another v MEC for Education, KwaZulu-Natal[25] explains what considerations must be taken in to account in considering a delay:

“In addition, it is important to understand that the passage of a considerable length of time may weaken the ability of a court to

assess an instance of unlawfulness on the facts. The clarity and accuracy of decision-makers' memories are bound to decline with time. Documents and evidence may be lost, or destroyed when no longer required to be kept in archives. Thus the very purpose of a court undertaking the review is potentially undermined where, at the cause of a lengthy delay, its ability to evaluate fully an allegation of illegality is impaired.

In Gqwetha the majority of the Supreme Court of Appeal held that an assessment of a plea of undue delay involves examining: (1) whether

the delay is unreasonable or undue (a factual enquiry upon which a value judgment is made in the light of 'all the relevant

circumstances'); and if so, (2) whether the court's discretion should be exercised to overlook the delay and nevertheless entertain the application.”

[54] The delay is therefore unreasonable or undue in light of all the circumstances. The applicant has also not placed any facts nor

argument before the court to persuade the court that it should, despite the unreasonable delay, exercise its discretion and overlook the delay.[26] Furthermore, the applicant also does not even attempt to comply with the express requirements of section 9(2) of PAJA by setting out any basis on which this Court could conclude that it would be in the interests of justice to grant condonation as sought.

[55] Condonation for the late filing of the review in respect of the Information Note (in so far as this relief is prayed for in the Notice of Motion) is therefore dismissed. Consequently, the relief sought in Prayer 1 of the Notice of Motions is dismissed.

Collateral challenge (in the alternative)

[56] The applicant ostensibly also raises a collateral challenge to the Information Note although it seems that it is done simply to

circumvent the prescribed 180-day period within which a review of the 2013 Information Note must be brought.

[57] Although it is accepted that a collateral challenge is available to a person against whom an unlawful administrative act is sought to be enforced,[27] it is difficult to see on what basis the applicant avers that he is entitled to raise a collateral challenge in circumstances where he first attempts to review and set aside the Information Note in terms of PAJA and then, in order to circumvent the 180-day time period, and as an alternative, resort to a collateral review. Furthermore, no mention of a collateral review is made in the applicant’s

papers apart from one cursory reference thereto in the context of asking for condonation for the late filing of the review application.

Relief sought in a collateral challenge

[58] The relief available on a collateral challenge vis à vis the relief sought in a direct review is different. In the Notice of Motion of this application, the applicant seeks an order to review and set aside the Information Note. In respect of the purported collateral review, the applicant provides the court with no particularity in respect of neither the merits of this collateral challenge, nor in respect of the relief that is now sought in terms of this (alternative) challenge. Generally, in a collateral challenge, the court may only conclude that the Regulation is unlawful and unenforceable – it may not go so far as to set it aside. In a direct review application, the court may set the regulation aside. In this application the applicant seeks to review and set aside (alternatively declaring invalid) the Information

Note.[28] For this reason alone, the purported collateral challenge should be dismissed.

Delay

[59] It is accepted that a “delay” in raising a collateral review stands on a different footing to a delay in instituting a review properly. In the former instance, the courts in general are not concerned with any delay in raising the unlawfulness of the act or conduct at issue as the court has no discretion not to consider and determine the collateral challenge. This is understandable since an applicant in a collateral challenge is entitled to wait until the state seeks to enforce the unlawful decision or exercise of power against him before raising the challenge as a defence. In direct review application proceedings the court has a discretion whether or not to grant condonation for a delay.[29]

[60] It is accepted that in most collateral reviews, the delay is axiomatically irrelevant,[30] but in others, such as the present matter, it is not axiomatically irrelevant because the collateral review was clearly raised in an attempt to circumvent the 180-day requirement. The applicant was aware of the Information Note since 2014. He was charged with misconduct in July 2017 yet waited until April 2018 when he raised the issue at the disciplinary hearing. His explanation that he did not know that the Information Note will affect him, is simply untrue. There is also no explanation on the papers as to why a review of the Information Note at the time he was charged with misconduct for non-compliance with the Information Note, could not have been brought at an earlier occasion.

[61] In the event, insofar as it can be said that the applicant raised a collateral review, it is dismissed. The relief sought in Prayer 4 of the Notice of Motion is therefore dismissed.

The ability to charge the applicant (second point in limine)

[62] In Prayer 3 of the Notice of Motion, the applicant seeks to review and set aside the decision of the chairperson relating to the authority of the National Commissioner of the South African Police Service (the first respondent) to institute disciplinary proceedings against him. The applicant simply submitted that the Chairperson was “incorrect” in his ruling. He persisted with his contention that the disciplinary regime that regulated the discipline of the National Commission was to be conducted in terms of section 9(1)[31] of the SAPS Act in terms of which a Board of Enquiry had to be established and that the President of the Republic was the only

entity clothed with powers to institute disciplinary proceedings against him.

[63] The relief sought in Prayer 3 is dismissed for the following reasons: (i) Firstly, the applicant seeks to “review and set aside” the “decision” of the chairperson to defer the question for later determination. Therefore, no “decision” has been made by the chairperson in respect of the authority to charge the applicant. The chairperson was clear in his ruling: The decision whether the applicant can be insulated from a charge of misconduct are bound up with the merits and that the point is deferred for later determination. A challenge to this ruling is therefore premature and should, in any event, not be entertained in media res for reasons already referred to. Once a decision has been taken by the chairperson as part and partial of the all the other issues

raised before him in the disciplinary hearing, the outcome of the disciplinary hearing, including any concerns the applicant may still have at that stage regarding the authority to institute disciplinary charges against him, may be challenged through following the appropriate dispute resolution procedures provided for by the LRA.

[64] Furthermore, the ruling in the present instance was merely interlocutory or preliminary in nature and does not have the finality that is required for judicial review. To amplify on the reasons already referred to as to why a challenge in media res should not be allowed: To allow a review to take place in these circumstances would not only amount to wasteful use of judicial

resources but would also would amount to a piecemeal review of the disciplinary enquire – a practice which is discouraged by our courts. In Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd[32] the court cautioned against reviewing decisions that are not final:

“The question of finality as a criterion is emphasised in the following passage in Chaskalson et al Constitutional Law of South Africa (1996) at 25-10:

'How final does administrative action need to be under s 33 before it attracts administrative justice rights? There would be very good reasons for only allowing final administrative action to be reviewable in court. As in civil actions, one would want to avoid interlocutory appeals and instead to consolidate all issues into one proceeding. To do so is to conserve judicial resources and to foster administrative efficiency.'

Concerning a decision to initiate proceedings the following is stated in footnote 2 at 25-11:

'Here the balance might be struck in favour of the efficient administration of the executive body and against the ability of the target of the action to impose significant delay costs upon the body; the issuance of a complaint letter should not be seen as final action since it only imposed costs of litigation. Federal Trade Commission v Standard Oil Company of California 449 US 232 (1980).'”

[65] In the event the relief sought in Prayer 3 of the Notice of Motion is dismissed.

Matlou and Jephta Reports

[66] As already stated, apart from the fact that there is no reason to interfere with the incomplete disciplinary hearing, neither report

can, in any event, be characterised as administrative action that may be susceptible to the review powers of a court under PAJA.[33]

The Matlou Report

[67] The Matlou Report arose out of a prior investigation and report by CPN Forensic & Accounting Services (Pty) Ltd (“the CPN Report”) and was finalised in 2014. Matlou was appointed to conduct an audit on the findings and recommendations of the CPN report to “confirm or dispel the allegations, report on the findings and recommend appropriate action.” Matlou therefore had free range to either confirm or reject the findings and recommendations contained in the CPN Report and to make her own findings and recommendations regarding appropriate action, if any, to be taken. The report did in fact made a number of findings concerning procurement irregularities and other concerns and recommended for action to be taken in response to those findings.

[68] By his own admission, the applicant became aware of the CPN report a year after it had been completed: So, as from April 2015, the

applicant was aware of the contents and recommendations of the CPN report.

[69] Despite the fact that the applicant had knowledge of the CPN Report (as from April 2015) and despite the fact that the implementation of the recommendations was the sole preserve of the National Commission, the applicant, during his time as acting National Commissioner, took no steps to implement the aforesaid recommendations. Instead it was left to his successor (Lt Gen Mothiba) to implement the recommendations of the CPN report.

[70] The applicant “stepped aside” in June 2017. Soon after the appointment of the new acting National Commission and on 3 July 2017, Matlou was instructed to conduct an audit on the findings and recommendations of the CPN Report in order to report on the findings and recommend appropriate action.

[71] Importantly, the Matlou Report and audit was not commissioned or carried out in terms of the Discipline Regulations but were carried as a result of an (internal) audit conducted by SAPS Internal Audit Division. Once completed, the results of the Report were provided to the Acting National Commissioner for further consideration.

[72] The applicant contended that the CPN exonerated him. This is not so. The CPN report made various recommendations, inter alia, that further investigations and detailed audits would be required.

[73] The applicant contends that the investigation does not comply with Regulation 4(m). This is disputed by the respondents firstly, on the ground that the question whether the investigation complied with the disciplinary regulations is an issue that must be dealt with as part and parcel of the disciplinary hearing. Secondly, Regulation 4(m) of the Discipline Regulations require that an investigation into an alleged misconduct must be conducted before charges may be preferred against a SAPS member. On the face of it, the Regulations do not require how the investigation may be done.

[74] Although the Matlou investigation was conducted by a member of the SAPS (and although SAPS is established in terms of the Constitution to execute a public function) regard must be had to the function and not the functionary.[34] Also, other than the fact that the report was drafted by Matlou (of the Internal Audit division of the SAPS) she did not, in doing so, exercise a public power or performance of a public function in terms of any legislation or empowering provision. The report emanated in the context of the employer-employee relationship and is in any event not final nor determinative of the applicant’s culpability nor can it be said that it had an adverse effect on any of the applicant’s rights. The employer will have to prove the facts upon which it relies and it is up to the chairperson of the disciplinary hearing to make a finding.

[75] This report does not constitute administrative action susceptible of the review powers of this court. In this regard the court in Gcaba v Minister for Safety and Security & others[35] held that the failure to promote and appoint the applicant (in that matter) did not amount to administrative action. Importantly, the court made it clear that the relationship between the applicant (the employee) and the respondent (the employer) was that of an employer and employee and that a dispute that arises in the context of this employer-employee relationship pursuant to conduct of the employer cannot be construed as administrative action:

“Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognized by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship between the state as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate the relationship between the state as employer and its workers. When a grievance is raised by an employee relating to the conduct of the state as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action...

In Chirwa Ngcobo J found that the decision to dismiss Ms Chirwa did not amount to administrative action. He held that whether an employer is regarded as 'public' or 'private' cannot determine whether its conduct is administrative action or an unfair labour practice. Similarly, the failure to promote and appoint Mr Gcaba B appears to be a quintessential labour related issue, based on the right to fair labour practices, almost as clearly as an unfair dismissal. Its impact is felt mainly by Mr Gcaba and has little or no direct consequence for any other citizens.

This view is consistent with the judgment of Skweyiya J in Chirwa, who did not decide this issue, but indicated a leaning in this direction. It furthermore does not contradict the unanimous judgment of this court in Fredericks, which left the issue open. There was no dispute about whether the decision at the centre of the dispute was administrative action.

Accordingly, the failure to promote and appoint the applicant was not administrative action. If his case proceeded in the High Court, he would have been destined to fail for not making out the case with which he approached this court, namely an application to review what he regarded as administrative action.”

[76] I am in agreement with this decision. The complaint pertaining to the non-compliance with Regulation 4(m) of the Disciplinary Regulations

is, as stated in Gcaba, “a quintessential labour related issue” and should be dealt with as such.

[77] The Matlou Report therefore meets none of the requirements of the definition of administrative action and is accordingly not reviewable

under PAJA. In the event the relief sought in prayer 6 is dismissed.

The Jephta Report

[78] The Jephta Report is different to the Matlou report in that the Jephta Report was as a result of an investigation contemplated and required by the Discipline Regulations in terms of both Regulations 4(i) and (m).

[79] Lieutenant General Jephta (“Jephta”) was appointed on 19 June 2017 - soon after the appointment of the new acting National Commissioner - to conduct an investigation as required by the Discipline Regulations.

[80] Jephta furnished her report on 26 July 2017. The investigation was thus completed and the report furnished 37 days after its commencement. In compiling her report, Jephta had regard to the CPN report, the report by Matlou and the IPID Investigation.[36] She also conducted numerous interviews. It is recommended in the report that the applicant be formally charged in terms of Regulation

5(3).[37]

[81] The applicant claims that because the investigation conducted by Japhta did not comply with regulation 4(m) of the Regulations, the court must review and set aside the report. It would seem that the complaint is that the process is somehow flawed because Jephta had regard to the Matlou Report, the CPN report and the IPID investigation.

[82] Apart from the fact that the applicant has not placed any exceptional grounds before the court as to why the court should interfere with the incomplete disciplinary hearing (already dealt with), the Jephta Report, in any event does not constitute administrative action susceptible to review in terms of PAJA. The Jephta investigation and resultant report were conducted in terms of the Regulations that govern discipline in the employment relationship (between the applicant as employee vis à vis the SAPS as his employer). As such any complaints about non-compliance with the internal regulations governing discipline in the SAPS, is a matter that falls squarely within the jurisdictional confines of the LRA. The disciplinary regulations of SAPS provide in fair detail for the procedures (and sections that must be imposed for the different

degrees of misconduct) that must be followed prior to instituting disciplinary action against an employee as well as for the procedures that must be followed once a decision has been taken to institute disciplinary procedures against an employee. Regulation 4(m) provides that an investigation must be conducted before a decision to prefer charges against an employee may be instituted. This is an important safeguard to protect an employee against having to face frivolous charges or charges that have no foundation.

[83] Similar to the Matlou report, the Jephta report is purely investigative in nature and makes no determination as to the culpability of the applicant. The report therefore has no adverse effect on the applicant’s rights. All that the investigation and Report do is to assist the decision-maker under the Regulations in determining whether or not to pursue charges of misconduct and initiate a disciplinary enquiry. It is the outcome of the disciplinary enquiry that may potentially have a grave or prejudicial impact on an employee, but not the investigation itself.

See in this regard Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another[38] where the Constitutional Court explained:

“It is unlikely that a decision to investigate and the process of investigation, which excludes a determination of culpability, could

itself adversely affect the rights of any person, in a manner that has a direct and external legal effect.”

[84] A similar approach to the one followed in Viking Pony [39] was followed in Eastern Metropolitan Sub-structure v Pieter Kleyn Investments (Pty) Ltd Pieter Klein Investments[40] where the plaintiff had taken a decision to sue the defendant in terms of a particular provision of an ordinance. The court concluded that the mere fact that the decision to sue was taken in terms of empowering legislation was not sufficient to render it liable to review under section 33 of the Constitution:

“The decision to sue the defendant was one taken in the exercise of the plaintiff's powers conferred in terms of s 49(2) of the ordinance.

That, however, is insufficient to render the plaintiff's conduct justiciable in terms of s 33 of the Constitution. As I have found,

the decision to sue does not prejudicially impact on the defendant’s right of recourse against the occupiers of its premises. Moreover, and more importantly, the decision lacks the requisite finality to attract administrative justice rights.”

[85] In the event, the relief sought in prayer 5 of the Notice of Motion is dismissed.

A review under the principle of legality?

[86] When the respondents raised the issue that PAJA is not applicable to the issues raised in the Founding Affidavit, the applicant changed tact and raised the legality challenge for the first time in his reply. This approach untenable on the papers as they stand: It is expressly stated in the Notice of Motion that this review is brought in terms of Rule 53, read with PAJA. No reference is made to the principle of legality. Having pinned his colours to the mast, the applicant should stand and fall by the basis for his review relief.

[87] Although a court has a discretion to allow a new issue to be raised in a replying affidavit, such an indulgence will only be allowed in exceptional circumstances.[41] No such exceptional circumstances have been shown. The applicant has not set out such exceptional circumstance that would have supported a legality challenge. In this case, although it is accepted that it may not be necessary for a litigant to specify the precise statutory provision relied upon, no facts have been pleaded that could substantiate a contention that a legality review is contemplated.[42] No facts have been pleaded, for example, that there has been an exercise of public power or performance of a public function, which

must have been conferred on the decision-maker by law (legality), that the power or function was required to be exercised in an

objectively rational manner (rationality), which would also include rationality of process (procedural fairness),[43] and that the decision or action complained of failed to meet these standards of legality or rationality, with the reasons for such

failure being specified.

[88] In the event, insofar as a legality review has been raised on the papers, such purported review is dismissed.

The declaratory relief sought in prayer 7

[89] In Prayer 7 of the Notice of Motion the applicant seeks a declaratory that the conduct of the employer was “unlawful and unfair”

for want of compliance with the timeframes in Regulation 4(b). In terms of this regulation “discipline must be applied in a prompt, fair, consistent and progressive manner”. The fairness or unfairness of the delay is a purely employment related matter and should be dealt with in the context of the LRA. In any event, the decision to institute disciplinary proceedings and any unfairness that may arise in delaying that decision, is not administrative action.

[90] The declaratory relief sought in Prayer 7 of the Notice of Motion also falls to be dismissed.

Complaints about the Rule 53 record

[91] In his supplementary affidavit the applicant raises a number of complaints concerning the Rule 53(1)(b) record (“the record”)

filed by the respondents. The first is that the respondent filed the record outside of the time period specified in the Notice of Motion. There is no merit in this contention in light of the fact that he has a remedy in relation to any non-compliance by the respondents in the filing of the record in terms of Rule 30A of this Court’s Rules. Secondly, the applicant complains that the respondent filed and served voluminous of documents that were never sought and are irrelevant to the application. There is no merit in this complaint. All documents that served before the decision-maker at the time when the impugned decision was taken must be provided in terms of Rule 53. According to the respondents, they provided what they had in their possession and were able to find taking into account the fact that the Information Note was circulated in 2014 and the two Reports in issue were compiled during July 2017.

[92] In terms of Rule 53(3) it is for the applicant to decide which parts of the record are relevant to its case and to ensure that those form the record. The court in Venmop 275 (Pty) Ltd and Another v Cleverland Projects (Pty) Ltd and Another explained[44]:

“Rule 53 of the Uniform Rules of Court provides a mechanism for an applicant, in review proceedings, to obtain a record of the

proceedings and to facilitate the presentation of the applicant's case in the review. Rule 53(1) provides for the notice of motion to call for the dispatch of the record of such proceedings to the registrar. Rule 53(4) provides the applicant with an opportunity,

after having inspected the record, to vary the terms of the notice of motion and supplement the supporting affidavit. The provisions of rule 53(3) are quite clear. They require the applicant to 'cause copies of such portions of the record as may be necessary for the purpose of the review' to be made. The purpose of the rule is equally clear. It is to provide an aggrieved applicant, who might not necessarily have all the evidence at his or her disposal, the opportunity to supplement the case made in the application by providing potential evidence in the full record of the review proceedings. Having been given such opportunity, it is the duty of the applicant to select what is relevant from the record to serve as evidence for the purpose of the review application. It is only what is selected by the applicant in terms of rule 53(3) that serves as evidence. Should there be documents forming part of the record omitted, which in the view of the respondent are relevant, these can be introduced into evidence as annexures to the answering affidavit. Any other part of the record omitted which is necessary to rebut what is said in answer might similarly be introduced as an annexure to the replying affidavit.”

[93] The applicant also complains that the record is incomplete and asks that the court sanctions the respondents with a punitive costs order. An applicant in review proceedings can compel the respondent to disclose such parts of the record which were not made available. Should the applicant fail to do so and is prepared to present its case on the record as was made available, it has waived its right to compel the respondent to disclose such portions of the record. Even where an incomplete record has been filed, the record disclosed would be the record before court. It is then for the applicant, if it is of the view that the record is incomplete, to draw such inferences as are sustainable on the facts and record.[45]

[94] None of these complaints amount to an abuse of process by the respondents, nor do they necessitate the expression of the Court’s

displeasure by the visitation of an adverse or punitive costs order. All of the applicant’s complaints are misplaced and ought to be disregarded by the Court.

Costs

[95] For the reasons set out hereinabove, the application in terms of prayers 1 – 7 is dismissed. I can find no reason why costs should not follow the result.[46]

Order

1. The application in terms of prayers 1, 2, 3, 4, 5, 6 and 7 of the Notice of Motion is dismissed.

2. The applicant is ordered to pay the costs of the first, second and third respondents.

AC BASSON

Judge of the High Court

Gauteng Division, Pretoria

3.

Appearances

For the applicant: Adv S Sethene

Instructed by: Botha, Du Plessis & Kruger Inc

For the first, second and third respondents: Adv JL Griffiths

Instructed by: The State Attorney

[1] 3 of 2000.

[2] No. 40389 Government Gazette, 1 November 2016 No. R. 1361: “4. Principles These Regulations are based on the following principles: (a) discipline is a corrective and not a punitive measure; (b) discipline must be applied in a prompt, fair, consistent and progressive manner; (c) discipline is a line management function; (d) the fair treatment of employees by ensuring that they (i) enjoy a fair hearing in both the formal and informer proceedings; (ii) are timeously informed of allegations of misconduct made against them; (iii) receive written reasons explaining the rationale for any decision taken; and (iv) have the right to recourse against any finding of misconduct or sanction imposed at a disciplinary hearing; (e) an employee who is impartial and not in any way connected to the alleged misconduct must represent the employer at, preside over the disciplinary hearing or investigate alleged misconduct against an employee; (f) as far as possible, the disciplinary proceedings must take place in the workplace and must be understandable to all employees; (g) the disciplinary proceedings will be instituted and finalised notwithstanding the fact that the act of misconduct is also a criminal offence; (h) disciplinary proceedings should not emulate court proceedings; (i) the employee appointed to investigate the alleged misconduct must be of equal or higher rank than the employee being investigated; (j) in all disciplinary proceedings the employee has the right to be represented by a union representative or a fellow employee; (k) in the event that the employee denies an allegation of e serious misconduct, a formal disciplinary hearing must be instituted; (I) a person appointed as a chairperson must act objectively, unbiased and protect the interest of both parties and at no stage must assume the role or act on behalf of any of the parties; and (m) the investigation into an alleged misconduct separate from any other investigation.” R. 1361 South African Police Service Act (68/1995): South African Police Service

[2] No. 40389 Government Gazette, 1 November 2016 No. R. 1361:

“4. Principles

These Regulations are based on the following principles:

(a) discipline is a corrective and not a punitive measure;

(b) discipline must be applied in a prompt, fair, consistent and progressive manner;

(c) discipline is a line management function;

(d) the fair treatment of employees by ensuring that they

(i) enjoy a fair hearing in both the formal and informer proceedings;

(ii) are timeously informed of allegations of misconduct made against them;

(iii) receive written reasons explaining the rationale for any decision taken;

(iv) have the right to recourse against any finding of misconduct or sanction imposed at a disciplinary hearing;

(e) an employee who is impartial and not in any way connected to the alleged misconduct must represent the employer at, preside over the disciplinary hearing or investigate alleged misconduct against an employee;

(f) as far as possible, the disciplinary proceedings must take place in the workplace and must be understandable to all employees;

(g) the disciplinary proceedings will be instituted and finalised notwithstanding the fact that the act of misconduct is also a criminal offence;

(h) disciplinary proceedings should not emulate court proceedings;

(i) the employee appointed to investigate the alleged misconduct must be of equal or higher rank than the employee being investigated;

(j) in all disciplinary proceedings the employee has the right to be represented by a union representative or a fellow employee;

(k) in the event that the employee denies an allegation of e serious misconduct, a formal disciplinary hearing must be instituted;

(I) a person appointed as a chairperson must act objectively, unbiased and protect the interest of both parties and at no stage must assume the role or act on behalf of any of the parties; and

(m) the investigation into an alleged misconduct separate from any other investigation.”

R. 1361 South African Police Service Act (68/1995): South African Police Service

[3] Only the first, second and third respondents were represented before court.

[4] Act 68 of 1995.

[5] 2004 (6) SA 222 (SCA).

[6] The Constitutional Court in Merafong City v Anglogold Ashanti Ltd 2017 (2) SA 211 (CC) explains: “[41] The import of Oudekraal and Kirland was that government cannot simply ignore an apparently binding ruling or decision on the basis that it is invalid. The validity of the decision has to be tested in appropriate proceedings. And the sole power to pronounce that the decision is defective, and therefore invalid, lies with the courts. Government itself has no authority to invalidate or ignore the decision. It remains legally effective until properly set aside.”

[7] See Mashego v Cellier NO & others (2016) 37 ILJ 994 (LC) at para [15] – [16]. See also Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2016) 37 ILJ 313 (CC): “[1] Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The

dispute-resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour

Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.”

[8] (2010) 31 ILJ 112 (LC) at para 11-12. LRA refers to the Labour Relations Act, 66 of 1996.

[9] (2009) 30 ILJ 2513 (LC) at para 4.

[10] 2009 JDR 0524 (GSJ). Although in the minority, the Court did not depart from Wills J’s reasoning in this regard.

[11] Ibid at para 12-13.

[12] (1991) 12 ILJ 1295 (LAC) at 1300 and 1303.

[13] See also Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A) at 119H – 120C and Magsistrate, Stutterhein v Mashiya 2004 (5) SA 209 (SCA) at 14. Although these cases were decided in the context of criminal law, the court in Mashiya made it clear that the principle would be equally applicable to civil proceedings before lower court. Equally, there is no reason why this approach should not be followed in respect of disciplinary enquiries.

[14] Wahlhaus at para [13].

[15] Ibid fn 13 at 119H.

[16] (6588/2015) [2015] ZAGPPHC 138 at para 12.

[17] 1979 (3) SA 155 (C) at 160H.

[18] Clause 19 of the 2016 Public Service Regulations now require that vehicles also be disclosed: “Vehicles: (i) A description (make and model) of the vehicle; (ii) the registration number of the vehicle; and (iii) the purchase price, date of purchase and the outstanding amount owing on the vehicle.”

[18] Clause 19 of the 2016 Public Service Regulations now require that vehicles also be disclosed: “Vehicles:

(i) A description (make and model) of the vehicle;

(ii) the registration number of the vehicle; and

(iii) the purchase price, date of purchase and the outstanding amount

owing on the vehicle.”

[19] Section 15(1)(a) of the SAPS Act.

[20] “26 Provincial orders and instructions (1) Provincial Commissioners may issue orders and instructions which are not inconsistent with this Act or the National Orders and Instructions. (2) Orders and instructions issued under subsection (1) shall be known and issued as the Provincial Orders and Instructions of the province concerned and shall be applicable to members under the command of the Provincial Commissioner concerned only. (3) If any Provincial Order or Instruction is inconsistent with a National Order or Instruction, the National Order or Instruction

shall prevail.”

[20] “26 Provincial orders and instructions

(1) Provincial Commissioners may issue orders and instructions which are not inconsistent with this Act or the National Orders and Instructions.

(2) Orders and instructions issued under subsection (1) shall be known and issued as the Provincial Orders and Instructions of the province concerned and shall be applicable to members under the command of the Provincial Commissioner concerned only.

(3) If any Provincial Order or Instruction is inconsistent with a National Order or Instruction, the National Order or Instruction

shall prevail.”

[21] L Baxter Administrative Law Juta 1995 at 200.

[22] 2019 (1) SA 1 (CC) at para 40 - 42. See also: Mzalisi NO. v Ochogwu 2019 JDR 2151 (SCA) at paras [16] – [19].

[23] A directive to this effect was issued to SAPS on 5 December 2013.

[24] Regulation 75(1) of the 2008 SAPS Employment Regulations.

[25] 2014 (5) SA 579 (CC) at para 48 -49.

[26] Khumalo at para 49.

[27] It is accepted that such a collateral challenge is available as a defence to a litigant in enforcement proceedings that is where a person is at risk of coercive action by the state on the basis of an allegedly unlawful administrative act. See Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at para 35 where the Court emphasized that the collateral challenge is only available where the right remedy is sought by the right person in the right proceedings. See also Merafong City v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC) where the court held as follows: “[32] So the remedies of review and collateral challenge differ distinctively in object, application and scope. The Supreme Court of Appeal explained in Oudekraal that where the validity of an administrative act is challenged collaterally, a court has no discretion to allow or disallow the raising of the defence: 'The right to challenge the validity of an administrative act

collaterally arises because the validity of the administrative act constitutes the essential prerequisite for the legal force of the action that follows.' It follows that the subject may not be precluded from challenging its validity. On the other hand, a court asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to grant or withhold the remedy: 'It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide. Each remedy thus has its separate application to its appropriate circumstances and they ought not to be seen as interchangeable manifestations of a single remedy that arises whenever an administrative act is invalid.'”. See also: Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) and Kouga Municipality v Bellingan & Others 2012 (2) SA 95 (SCA).

[27] It is accepted that such a collateral challenge is available as a defence to a litigant in enforcement proceedings that is where a person is at risk of coercive action by the state on the basis of an allegedly unlawful administrative act. See Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at para 35 where the Court emphasized that the collateral challenge is only available where the right remedy is sought by the right person in the right proceedings. See also Merafong City v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC) where the court held as follows: “[32] So the remedies of review and collateral challenge differ distinctively in object, application and scope. The Supreme Court of Appeal explained in Oudekraal that where the validity of an administrative act is challenged collaterally, a court has no discretion to allow or disallow the raising of the defence: 'The right to challenge the validity of an administrative act

collaterally arises because the validity of the administrative act constitutes the essential prerequisite for the legal force of the action that follows.' It follows that the subject may not be precluded from challenging its validity. On the other hand, a court asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to grant or withhold the remedy:

'It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide. Each remedy thus has its separate application to its appropriate circumstances and they ought not to be seen as interchangeable manifestations of a single remedy that arises whenever an administrative act is invalid.'”. See also: Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) and Kouga Municipality v Bellingan & Others 2012 (2) SA 95 (SCA).

[28] In Merafong ibid fn 27 … the Constitutional Court explains: “[32] So the remedies of review and collateral challenge differ distinctively in object, application and scope. The Supreme Court of Appeal explained in Oudekraal that where the validity of an administrative act is challenged collaterally a court has no discretion to allow or disallow the raising of the defence: 'The right to challenge the validity of an administrative act collaterally arises because the validity of the administrative act constitutes the essential prerequisite for the legal force of the action that follows.' It follows that the subject may not be precluded from challenging its validity. On the other hand, a court asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to grant or withhold the remedy: 'It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide. Each remedy thus has its separate application to its appropriate circumstances and they ought not to be seen as interchangeable manifestations of a single remedy that arises whenever an administrative act is invalid.”

[28] In Merafong ibid fn 27 … the Constitutional Court explains: “[32] So the remedies of review and collateral challenge differ distinctively in object, application and scope. The Supreme Court of Appeal explained in Oudekraal that where the validity of an administrative act is challenged collaterally a court has no discretion to allow or disallow the raising of the defence: 'The right to challenge the validity of an administrative act collaterally arises because the validity of the administrative act constitutes the essential prerequisite for the legal force of the action that follows.' It follows that the subject may not be precluded from challenging its validity. On the other hand, a court asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to grant or withhold the remedy:

'It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide. Each remedy thus has its separate application to its appropriate circumstances and they ought not to be seen as interchangeable manifestations of a single remedy that arises whenever an administrative act is invalid.”

[29] In Khumalo , the following was stated at para [48] as follows: “In addition, it is important to understand that the passage of a considerable length of time may weaken the ability of the court to assess an instance of unlawfulness on the facts. The clarity and accuracy of decision-makers’ memories are bound to decline with time. Documents and evidence may be lost, or destroyed when no longer required to be kept in archives. Thus the very purpose of a court undertaking the review is potentially undermined where, at the cause of a lengthy delay, its ability to evaluate fully an allegation of illegality is impaired.”

[30] Merafong supra note …. at para [81].

[31] Section 9 of the SAPS Act states as follows: “9 Misconduct by or incapacity of National or Provincial Commissioner (1) Subject to this section, subsections (1) to (8) of section 8 shall apply mutatis mutandis to any inquiry into allegations of misconduct by the National or Provincial Commissioner, or into his or her fitness for office or capacity for executing his or her official duties efficiently. (2) The board of inquiry established by virtue of subsection (1) shall make a finding in respect of the alleged misconduct or alleged unfitness for office or incapacity of executing official duties efficiently, as the case may be, and make recommendations as contemplated in section 8 (6) (b). (3) If the National Commissioner has lost the confidence of the Cabinet or a Provincial Commissioner has lost the confidence of the Executive Council or the National Commissioner, as the case may be, following on an inquiry in terms of this section, the provisions of section 8 (7) shall apply mutatis mutandis.”

[31] Section 9 of the SAPS Act states as follows:

“9 Misconduct by or incapacity of National or Provincial Commissioner

(1) Subject to this section, subsections (1) to (8) of section 8 shall apply mutatis mutandis to any inquiry into allegations of misconduct by the National or Provincial Commissioner, or into his or her fitness for office or capacity for executing his or her official duties efficiently.

(2) The board of inquiry established by virtue of subsection (1) shall make a finding in respect of the alleged misconduct or alleged unfitness for office or incapacity of executing official duties efficiently, as the case may be, and make recommendations as contemplated in section 8 (6) (b).

(3) If the National Commissioner has lost the confidence of the Cabinet or a Provincial Commissioner has lost the confidence of the Executive Council or the National Commissioner, as the case may be, following on an inquiry in terms of this section, the provisions of section 8 (7) shall apply mutatis mutandis.”

[32] 2001 (4) SA 661 (W) at para 14.

[33] This was emphasised by the court in Sokhela and others v MEC for Agriculture and Environmental Affairs (Kwazulu-Natal) and Others 2010 (5) SA 574 (KZP) at para 61: “[….] Thus, the determination of what constitutes administrative action does not occur by default, on the basis that, if it does not fit some other juristic pigeonhole, it is administrative action. There needs to be a positive finding that particular conduct is administrative action, in order for the power of judicial review under PAJA to be engaged. That approach ties in closely with the second purpose, which is to make it clear that the mere fact, that an exercise of public power or the performance of a public function

does not fall within one of the exclusions in subparas (aa) - (ii) of the definition of 'administrative action', does not necessarily mean that the exercise of public power or performance of a public function in question constitutes administrative action. It precludes the determination of what constitutes administrative action from becoming a mechanical exercise in which the court merely asks itself whether a public power is being exercised or a public function is being performed, and then considers whether it falls within one or other of the exceptions. The inclusion, of the requirement that the decision be of an administrative nature, demands that a detailed analysis be undertaken of the nature of the public power or public function in question, to determine its true character. This serves in turn to demonstrate that the exceptions contained in the

definition of administrative action are not a closed list, nor are cases falling outside those exceptions to be looked at on the basis that, if they are not eiusdem generis with the exceptions, they are automatically to be treated as constituting administrative action. There is accordingly no mechanical process by which to determine whether a particular exercise of public power or performance of a public function will constitute administrative action. That will have to be determined in each instance by a close analysis of the nature of the power or function and its source or purpose.”

[34][34] Minister of Defence and Military Veterans v Motau and Others (CCT 133/13) [2014] ZACC 18; 2014 (8) BCLR 930 (CC); 2014 (5) SA 69 (CC) “[35] As a starting point, in New Clicks Chaskalson CJ suggested that the definition of 'administrative action' under PAJA must be 'construed consistently' with the right to administrative justice in section 33 of the Constitution. As section 33 itself contains no express attempt to delimit the scope of 'administrative action’, it is helpful to have reference to jurisprudence regarding the interpretation of that section. [36] It is the function rather than the functionary that is important in assessing the nature of the action in question. The mere fact that a power is exercised by a member of the executive is not in itself determinative. It is also true that the distinction between executive and administrative action is often not easily made. The determination needs to be made on a case-by-case basis; there is no ready-made panacea or solve-all formula.” See also Chirwa (CCT 78/06) [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC); [2008] 2 BLLR 97 (CC) ; (2008) 29 ILJ 73 (CC): “[72] Only acts of an administrative nature are subject to the administrative justice right in section 33(1) of the Constitution. The focus of the enquiry as to whether conduct constitutes administrative action is not on the position which the functionary occupies but rather on the nature of the power being exercised. This court has held in a number of cases that in this enquiry what matters is not so much the functionary as the function; that the question is whether the task itself is administrative or not and that the focus of the enquiry is not on the arm of government to which the relevant functionary belongs but on the nature of the power such functionary is exercising.”

[34][34] Minister of Defence and Military Veterans v Motau and Others (CCT 133/13) [2014] ZACC 18; 2014 (8) BCLR 930 (CC); 2014 (5) SA 69 (CC)

“[35] As a starting point, in New Clicks Chaskalson CJ suggested that the definition of 'administrative action' under PAJA must be 'construed consistently' with the right to administrative justice in section 33 of the Constitution. As section 33 itself contains no express attempt to delimit the scope of 'administrative action’, it is helpful to have reference to jurisprudence regarding the interpretation of that section.

[36] It is the function rather than the functionary that is important in assessing the nature of the action in question. The mere fact that a power is exercised by a member of the executive is not in itself determinative. It is also true that the distinction between executive and administrative action is often not easily made. The determination needs to be made on a case-by-case basis; there is no ready-made panacea or solve-all formula.”

See also Chirwa (CCT 78/06) [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC); [2008] 2 BLLR 97 (CC) ; (2008) 29 ILJ 73 (CC): “[72] Only acts of an administrative nature are subject to the administrative justice right in section 33(1) of the Constitution. The focus of the enquiry as to whether conduct constitutes administrative action is not on the position which the functionary occupies but rather on the nature of the power being exercised. This court has held in a number of cases that in this enquiry what matters is not so much the functionary as the function; that the question is whether the task itself is administrative or not and that the focus of the enquiry is not on the arm of government to which the relevant functionary belongs but on the nature of the power such functionary is exercising.”

[35] 2010 (1) SA 238 (CC) at para 64, 66-68. .

[36] The Independent Police Investigation Directorate (“IPID”) also conducted an investigation into the applicant.

[37] “Nature of misconduct. The disciplinary officer designated by the National Commissioner is responsible for administrative matters including the development and maintenance of uniform standards relating to the functions of provincial disciplinary officers and employer representatives and has the final say in respect of all disputes that may arise between disciplinary officers.”

[37] “Nature of misconduct.

The disciplinary officer designated by the National Commissioner is responsible for administrative matters including the development and maintenance of uniform standards relating to the functions of provincial disciplinary officers and employer representatives and has the final say in respect of all disputes that may arise between disciplinary officers.”

[38] 2011 (1) SA 327 (CC) at para 38.

[39] Ibid.

[40] 2001 (4) SA 661 (W) at para 14.

[41] See Business Partners Ltd v World Focus 754 CC 2015 (5) SA 525 (KZD): “[8] It is trite that in application proceedings the affidavits constitute not only the pleadings but also the evidence. Equally

trite is that an applicant must make out his case in his founding affidavit and that he must stand or fall by the allegations

contained therein. It follows therefore that the applicant must set out sufficient facts in his founding affidavit which will entitle him to the relief sought. [9] The general rule is that the court will not permit an applicant to assert new facts in his replying affidavit which should have been set out in his founding affidavit. However, this rule, like all general rules, is not without exceptions. As was stated in Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) by Nestadt J: “This is not however an absolute rule. It is not a law of the Medes and Persians. The Court has a discretion to allow new matter to remain in a replying affidavit… This indulgence, however, will only be allowed in special or exceptional circumstances.” [10] A variety of factors can be taken into consideration by the court when exercising such a discretion. What is of overriding importance in the consideration of those factors is that the applicant should not be permitted to make a case in reply when no case at all was made out in the founding affidavit and 'none is authority for the proposition that a totally defective application can be rectified in reply'.”

[41] See Business Partners Ltd v World Focus 754 CC 2015 (5) SA 525 (KZD): “[8] It is trite that in application proceedings the affidavits constitute not only the pleadings but also the evidence. Equally

trite is that an applicant must make out his case in his founding affidavit and that he must stand or fall by the allegations

contained therein. It follows therefore that the applicant must set out sufficient facts in his founding affidavit which will entitle him to the relief sought.

[9] The general rule is that the court will not permit an applicant to assert new facts in his replying affidavit which should have been set out in his founding affidavit. However, this rule, like all general rules, is not without exceptions. As was stated in Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) by Nestadt J: “This is not however an absolute rule. It is not a law of the Medes and Persians. The Court has a discretion to allow new matter to remain in a replying affidavit… This indulgence, however, will only be allowed in special or exceptional circumstances.”

[10] A variety of factors can be taken into consideration by the court when exercising such a discretion. What is of overriding importance in the consideration of those factors is that the applicant should not be permitted to make a case in reply when no case at all was made out in the founding affidavit and 'none is authority for the proposition that a totally defective application can be rectified in reply'.”

[42] See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at para 27.

[43] See Zuma v Democratic Alliance and Others; Acting National Director of Public Prosecutions and Another v Democratic Alliance and Another [2017] 4 All SA 726 (SCA) at para 82 the where the SCA pointed out that a rationality review under the principle of legality requires that “both the process by which the decision is made and the decision itself must be rational”.

[44] 2016 (1) SA 78 (GJ) at para 17.

[45] Autozone Retail and Distribution (Pty) Ltd v National Commissioner of Police NO 2014 JDR 1975 (GP).ww

[46] In light of my conclusion, it is not necessary to deal with the applicant’s submission in respect of costs in terms of Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC)