The Labour Appeal Court of South Africa has delivered a split decision in the case of Kgomotso Phahlane, the former acting national commissioner of the South African Police Service (SAPS), who challenged his dismissal on the grounds of procedural and substantive unfairness. While the court ultimately dismissed his appeal, the two judgments revealed a sharp
divide in reasoning.
Phahlane challenged his dismissal on two main grounds. First, he argued that his dismissal was unlawful because it was not carried out by the president, as required by the Constitution. Second, he contended that the disciplinary process was procedurally unfair, alleging bias on the part of the presiding officer and improper use of regulations.
The Labour Court had dismissed Phahlane’s application for review, finding that the arbitrator’s decision was reasonable and that the dismissal was both substantively and procedurally fair. Phahlane then appealed to the Labour Appeal Court, which this week delivered two judgments with differing views on the legal issues raised.
Phahlane, who joined the SAPS in 1985 and rose to the rank of lieutenant-general in 2007, was appointed acting national commissioner by the president on October 14, 2015. However, his tenure was overshadowed by allegations of misconduct stemming from his previous role as divisional commissioner: forensic services.
The charges against Phahlane related to his alleged failure to comply with a contract between the SAPS and Ethemba Group for the supply of 360-degree panoramic cameras. The contract, valued at over R92-million, required SAPS to place orders for the equipment, but Phahlane’s department failed to do so, leading to a breach of contract. Ethemba subsequently sued the SAPS for damages, and the matter was settled with the state paying R24-million in damages without receiving any equipment in return.
Phahlane was suspended by then minister of police Fikile Mbalula on June 1, 2017, and dismissed on August 7, 2020, following a disciplinary inquiry.
He was found guilty of serious misconduct on two charges: causing non-compliance with the contract and failing to exercise his legal obligation to prevent wasteful expenditure.
The first judgment, delivered by acting Judge Bantubonke Tokota, focused on the legal point of whether Phahlane’s dismissal was unlawful under Section 207 of the Constitution.
Tokota said the Labour Court lacked jurisdiction to entertain the dispute as the appellant’s cause of action was based on unlawful dismissal, which falls outside the provisions of the Labour Relations Act (LRA).
“It seems to me that the referral to the Bargaining Council purporting to be based on unfair dismissal was in fact a referral of unlawful dismissal. It was, therefore, couched in such a manner that it should not oust the jurisdiction of the Bargaining Council. It is, therefore,
evident to me that the cause of action was based on unlawful dismissal, which is outside the provisions of the LRA.”
The judgment emphasised that the power to appoint and dismiss the national commissioner is vested exclusively in the president in terms of Section 207 of the Constitution.
Tokota reasoned that the appellant’s dismissal was unlawful because it was carried out by the national commissioner and not the president.
“Anyone, not being the president, purporting to act in terms of Section 207 of the Constitution acts unlawfully, and such act is a nullity,” the judgment stated.
Tokota concluded that the Labour Court should have dismissed the application on the grounds of lack of jurisdiction. “Once it is found that the actions of the employer are unlawful, cadit quaestio, it is the end of the case,” the judgment stated.
The second judgment, delivered by acting Judge Mahendra Chetty, took a different approach, focusing on the fairness of the dismissal under the LRA. Chetty disagreed with Tokota’s conclusion that the Labour Court lacked jurisdiction, arguing that Phahlane’s cause of action was based on unfair dismissal under the LRA, not unlawful dismissal.
The judgment stated that Phahlane’s dismissal was based on misconduct committed when he was divisional commissioner: forensic services, not as acting national commissioner.
Chetty also addressed Phahalane’s procedural fairness claims, finding that the expeditious process under Regulation 9 was properly sanctioned and that the appellant was afforded a fair opportunity to present his case. The judgment stated, “The appellant has had the benefit of an initial enquiry under the expeditious process under Regulation 9 of the Discipline Regulations. Despite his misgivings about the process and the presiding officer, both complaints which were found without substance, he was afforded an opportunity to present his version before an independent and impartial chairperson.”
The Labour Appeal Court ultimately dismissed Phahlane’s appeal, with no order as to costs.
