Former acting national police commissioner Khomotso Phahlane has returned to the Labour Appeal Court in a bid to declare his dismissal from the South African Police Service (SAPS) unfair.
The Johannesburg Labour Appeal Court will hear arguments in the case on Tuesday, as Phahlane seeks his job back.
The SAPS dismissed him in August 2020 due to a 2014 contract for the purchase of panoramic cameras with Ethemba Forensic Group.
At the time, Phahlane was the head of the forensic services division.
Axing was ‘appropriate sanction’
Phahlane is the applicant in the appeal case, and the respondents are the SAPS, the Safety and Security Sectoral Bargaining Council, its commissioner Joyce Nkopane, and the police minister.
According to court documents, on July 12, 2010, Phahlane was appointed to the position of divisional commissioner: forensic services until he was appointed on October 14, 2015, as acting national commissioner of the SAPS.
On or about June 1, 2017, Phahlane was asked by then police minister Fikile Mbalula to step aside as acting national commissioner, and consequently, on June 7, 2017, he was suspended and subsequently charged for alleged misconduct by the SAPS.
The SAPS subsequently dismissed Phahlane on August 7, 2020.
In July 2021, the Safety and Security Sectoral Bargaining Council found that Phahlane’s dismissal was an appropriate sanction. It ruled that his dismissal was procedurally and substantively fair.
In October 2023, the Johannesburg Labour Court ruled that Phahlane’s dismissal was right and justified.
He lost a bid to review the bargaining council’s decision that found his dismissal fair.
Dismissal labelled unfair
In his court papers before the Labour Appeal Court, Phahlane argues that his dismissal was procedurally and substantively unfair and that the 2021 decision by the safety and security sectoral bargaining council should be set aside.
He also wants the October 2023 Labour Court judgment set aside, stating that the Labour Appeal Court should rule he be reinstated to his position immediately with all benefits.
Phahlane claimed that a conflicted police officer led the SAPS’s swift disciplinary process.
“According to the sanction imposed by Lieutenant-General Riet, the appellant [Phahlane] was found guilty of dishonesty [on charges 1 and 3], which justified his dismissal from the SAPS.
“The expeditious disciplinary process conducted only involved the appellant, who was responding to questions from Lieutenant-General Riet.
“At the time the latter conducted this expeditious disciplinary hearing against the appellant, he was clearly conflicted, as he was now the divisional commissioner: supply chain
management.
“It is his department/division that signed the contract in issue and disagreed with the forensic services division led by the appellant,” said Phahlane.
Officer accused of bias
He continuted: “His independence was coloured, and his biasness glaring. He ought to have recommended that if there was any misconduct on the part of the appellant, which I contend there was none proved, the normal process in terms of Regulations 8 and 11 of the disciplinary regulations of 2016 ought to have been invoked.
“What’s startling about the sanction issued by Lieutenant-General Riet is that he could not even substantiate the dishonesty he attributed to the appellant even during the arbitration proceedings.
“Throughout the record, it is not clear why the expeditious disciplinary process was deemed prudent for the appellant, particularly when his alleged misconduct, according to the sole charge, commenced in 2013.
“Only in 2020 did the SAPS wake up from its slumber, even though it had known of the alleged misconduct seven years ago.”
Phahlane added: “On this aspect, the apex court held that labour disputes must be expeditiously dealt with without any delay, and if not expeditiously dealt with, the employer would be deemed to have waived its rights to charge.
“Having considered the record, I can find no evidence led by the SAPS that proved that the appellant’s alleged misconduct brought the image of the SAPS into disrepute.
“On the evidence before the review court, there was no rational basis to find that the arbitrator found the appellant guilty of serious misconduct that warranted dismissal.”
Fraud and corruption charges
Meanwhile, Phahlane, Lieutenant-General Godfrey Mahwayi, Major-General Maanda Obert Nemutandzhela, Major-General Mankosana Agnes Makhele, and businessmen Inbanathan Kistiah and Avendra Naidoo are facing charges of fraud, corruption, theft and contravention of the Public Finance Management Act relating to two contracts valued at about R54-million.
One of the contracts relates to the irregular procurement of software called RIPJAR that was meant to be used during the incidents of October 2015, wherein university students embarked on #FeesMustFall protests.
The other alleged irregular contract pertains to the procurement of communication encryption software called Daedalus, which was exclusively used for encrypting calls and deleting cellphone records and messages while Phahlane was under investigation by the Independent Police Investigative Directorate for the “blue lights” police tender and other irregular procurements during his tenure as acting police commissioner.
All accused are currently out on bail, and the matter is set to go on trial before the Pretoria High Court.
