The police minister’s legal authority to suspend an acting national commissioner was subjected to scrutiny at the Labour Appeal Court this week.
During a virtual hearing, a full bench zeroed in on this pivotal question: Who had the legal authority to suspend the acting national commissioner of police, Lt-Gen Khomotso Phahlane, in June 2017?
The discussion during the inquiry into the ongoing legal saga of Phahlane’s exit from the South African Police Service (SAPS) was peppered with pointed questions from the court about what Phahlane’s role was when he was ordered to “sit at home” by then police minister Fikile Mbalula.
The thorny issue is whether Mbalula had the power to suspend Phahlane in the first place or whether that was solely President Cyril Ramaphosa’s prerogative.
Judges Bantubonke Tokota, Portia Nkutha-Nkontlwana and Mahendra Chetty pressed the point, repeatedly asking what Phahlane’s status was during his suspension, given that his acting post was already filled by another.
“Was he a divisional commissioner at that stage, or what? He had no status, perhaps?” Tokota queried.
Adv Yanela Ntloko, for the SAPS, conceded the complexity of the issue but ultimately struggled to provide a definitive answer. “He can’t have been acting when the actual national commissioner had been appointed,” Ntloko conceded, noting only that Phahlane “was a lieutenant-general in the SAPS” at the time.
The legal crux, as highlighted by the judges, is rooted in the division of authority under South African law. If Phahlane was suspended while acting
national commissioner, only Ramaphosa had the constitutional power to remove him.
If, however, he was considered a divisional commissioner, that authority rested with the national police commissioner – not the minister.
Tokota made it clear just how high the stakes are: “The SAPS had no authority to discharge him while he was still acting as the national commissioner. It was only the duty of the president. Let’s just address that,” he insisted.
The judges insisted that if the process was found to be unlawful, subsequent proceedings would be rendered irrelevant.
“We don’t have to go to the first disciplinary hearing or to the arbitrator; once we find that the process was illegal, everything else is irrelevant,” Tokota warned.
SAPS counsel attempted to distinguish between allegations arising before and after the commissioner’s acting appointment, arguing that only events occurring after a certain date would fall within the president’s purview.
The judges appeared unimpressed, noting that the legal division of authority was central to their determination.
The court’s questioning was direct and persistent. “Let’s not go there,” Tokota urged, steering the representative to address only whether dishonesty could be found in the commissioner’s actions. “If you say I can’t find [dishonesty], just concede that. If you don’t want to concede, then simply point us to that conduct.”
Ntloko conceded that no such finding had been made with respect to the charges under scrutiny. “My lord, as I indicated, there is no finding of dishonesty in relation to the SSSBC (Safety and Security Sectoral Bargaining Council),” she admitted, referencing the internal mechanism for evaluating misconduct.
The court appeared dissatisfied with any ambiguity. “Set aside what was found, what was not found. I just want you to point out from the facts – not from the judgment or arbitration – where do we find dishonesty?” pressed the bench.
Ntloko argued, “What we can find in his conduct, my lord, is that it meets the requirements of regulation 5(x), in that his conduct did bring the reputation of the service into disrepute.”
She maintained that the relevant regulation comprised a spectrum of misconduct, “very broad, my lord… One of the elements is dishonesty, but it does not in itself just deal with dishonesty.”
Judgment was reserved, and when it comes, it could plunge the SAPS into administrative chaos, where it ends up with an acting minister and acting national commissioner, while incumbent leader Lt-Gen Fannie Masemola’s appointment would probably be challenged as null and void.
