IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)

CASE NO: 26912/12 

In the matter between: 

FREEDOM UNDER LAW - Applicant

and 

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS - First Respondent

THE NATIONAL COMMISSIONER: SOUTH AFRICAN POLICE SERVICE  - Second Respondent

THE HEAD: SPECIALISED COMMERCIAL CRIME UNIT - Third Respondent

THE INSPECTOR GENERAL OF INTELLIGENCE - Fourth Respondent

RICHARD NAGGIE MDLULI - Fifth Respondent

MINISTER OF SAFETY AND SECURITY - Sixth Respondent

ANSWERING AFFIDAVIT 

I, the undersigned 

NHLANHLA SIBUSISIO MKHWANAZI 

do hereby make oath and state: 

1. I am the Acting National Commissioner of the South African Police Service ("SAPS"). My office is situated at Wachthuis, 233 Pretorius Street, Pretoria, Gauteng. 
2. By virtue of the position which I occupy as head of the SAPS, I am duly authorised to depose to this affidavit. 
3. The facts deposed to herein are, unless the contents otherwise indicate, are within my personal knowledge and to the best of my knowledge and belief, true and correct. 
4. I have read the founding affidavit of the Applicant and the annexures thereto. At the outset, I wish to raise the following points in limine: 

LACK OF URGENCY 

5. The relevant provisions of Rule 6(12) of the Rules of the above Honourable Court provide as follows: 

"(12)(a) In urgent applications the Court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet. 

(b) in every affidavit or petition filed in support of any application under paragraph (a) of this subrule, the application shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course." 

6. In paragraph 122 of its founding affidavit, the Applicant states the following: 
"122. After the withdrawal of the criminal charges and disciplinary charges against him, General Mdluli resumed office as the head of Crime Intelligence of SAPS, with effect from 31 March 2012. I refer to a copy of the article which appears on page 5 of the Sunday Times, 6 May 2012 which indicates that General Mdlull confirmed that he has now resumed his official duties as the head of Crime Intelligence in SAPS. A copy of that article is annexed and marked "FA9". 

7. There is no indication in the founding affidavit that the Applicant was not aware that the Fifth Respondent's reinstatement took effect on 31 March 2012. There is no explanation in the founding affidavit of the Applicant as to why it waited for six (6) weeks before it decided to launch this application on 15 May 2012. 

8. The Applicant has attempted to deal with the issue of Urgent interim relief in paragraphs 53 to 59 of its founding affidavit. The Applicant does not anywhere in these paragraphs deal with the requirements of Rule 6(12) (a) and (b) of the rules of the above Honourable Court. There are no facts to prove that it will not obtain substantial redress at the hearing in due course. In the circumstances, Part A of the Applicant's application stands to be struck off the roll on the basis that there is no case made out that it should be heard as an urgent application. 

9. I do not intend to deal ad seriatim with the allegations contained in the Applicant's founding affidavit. However, I wish to bring the following information to the attention of the above Honourable Court in order to assist it to deal with Part A of the application. To the extent that I do not deal specifically with allegations which are relevant for the determination of Part A of this application, they should be deemed to be denied. 
10. It is true that the Fifth Respondent is employed by the South African Police Service and was formally the head of Crime Intelligence within the police. It is also correct that the Fifth Respondent was investigated and put on suspension relating to various allegations which are, inter alia, contained in the Applicant's founding affidavit. 

11. The Applicant, in Part A of its application seeks an order pending the determination of Part B of the application in the following terms: 

"(i) interdicting the fifth respondent from discharging any function or duty as a member and senior officer of SAPS; and 

(ii) interdicting the second and the sixth respondents from assigning any function or duty to the fifth respondent" 

12. I will attempt, herein below to demonstrate to the above Honourable Court that the Applicant is not entitled to the order which it seeks and that the granting of such an order would be legally incompetent. Effectively, what the Applicant is seeking is that the Second and the Sixth Respondents should contravene the labour laws of the country and suspend the Fifth Respondent in circumstances in which it may not be justifiable to do so. There is due process which, it is imperative for the SAPS to follow before it suspends any of its employees. What the Applicant is saying to the Court is that the due process provisions of the Constitution of the country, the Labour Relations Act, the South African Police Service Act and the disciplinary regulations should be ignored. Put differently, the Applicant is saying that the constitutionally endorsed principle of the rule of law, which incidentally forms the basis of its application, should not be adhered to. 

13. I deal, herein below with the relevant statutory provisions and regulations relating to the duty of the SAPS to act fairly towards the Fifth Respondent. 

14. Section 197 of the Constitution of the Republic of South Africa Act 108 of 1996 (‘the Constitution") reads as follows: 

"(1) Within public administration there is a public service for the Republic, which must function, and be structured, in terms of national legislation, and which must loyally execute the lawful policies of the government of the day. 

(2) The terms and conditions of employment in the public service must be regulated by national legislation. Employees are entitled to a fair pension as regulated by national legislation. 

(3) No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause. 

(4) Provincial governments are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their administrations within a framework of uniform norms and standards applying to the public service." 

15. Section 23 of the Constitution, which deals with labour relations, provides that everyone has a right to fair labour practices. I am advised that Section 23 of the Constitution was to ensure that both employer and employees were protected and that there was fairness in the dealings between employers and employees. I am also advised that the Fifth Respondent as an employee of the SAPS enjoys protection in terms this section and is entitled to fair labour practices" in terms of this section. I am further advised that labour practices", can only be regarded as fair from a Section 23 constitutional perspective if such practices are reasonable and lawful. I am advised further that fairness is a basic and core element in the employment relationship. 

16. The Applicant, admittedly, does not have adequate factual background to the decisions which were taken to reinstate the Fifth Respondent. Neither can the Applicant state whether a reasonable procedure was followed in the investigations of the allegations against the Fifth Respondent. The Applicant cannot also comment on the reasonableness of the decisions which were taken. 

17. I am advised that in terms of the disciplinary regulations in the SAPS the employer must institute disciplinary action against an employee on suspension within sixty (60) days, from the day of the suspension failing which the employee must be reinstated. In the Fifth Respondent's case, the sixty day period within which he was supposed to have been charged had lapsed a long time ago and there was no basis to continue with his suspension. 

18. The Labour Relations Act 66 of 1995 ("the LRA Act"), under schedule 8 of its Code of Good Practice emphasizes the element of fairness in dealing with employees. In item 4 of schedule 8 under the heading uFair procedure", the following is stated in the Code of Good Practice: 

"(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision." 

19. The South African Police Service Discipline Regulations governs the issue of discipline against members of the SAPS. The purpose of the regulations is set out in Regulation 3 of the Regulations as follows: 

"3. Purpose 
The purpose of these Regulations is to - 
(a) support constructive labour relations in the Service; 
(b) promote mutual respect between employees and between employees and the employer; 
(c) ensure that supervisors and employees share a common understanding of misconduct and discipline, to - 

(i) promote acceptable conduct in terms of the provisions of these Regulations; 
(ii) provide a user friendly framework in the application of discipline; and 
(iii) prevent possible arbitrary actions by supervisors 
towards employees in the event of misconduct." 

20. Regulation 13 provides as follows: 

"13. Precautionary suspension 
(1) The employer may suspend with full remuneration or temporarily transfer an employee on conditions, if any, determined by the National Commissioner. 
(2) The National or the Provincial or Divisional Commissioner (the Commissioner) may suspend the employee without remuneration, if the Commissioner on reasonable grounds, is satisfied that the misconduct which the employee is alleged to have committed, is misconduct as described in Annexure A and that the case against the employee is so strong that it is likely that the employee will be convicted of a crime and be dismissed: Provided that - 

(a) before suspending an employee without remuneration, the employee is afforded a reasonable opportunity to make written representations; 
(b) the Commissioner considers the representations and in form the employee of the outcome of the representations; 
(c) the disciplinary process must be initiated within fourteen (14) calendar days of the date of the decision to suspend the employee without remuneration; and 
(d) if the disciplinary process is not completed within sixty (60) calendar days from the commencement of the suspension, the questIon of continued suspension without remuneration must be considered by the Commissioner and the employee may again make written representations which the Commissioner must consider. The Commissioner must take any decision on continued suspension within seven (7) calendar days of receiving written representation on continued suspension and inform the employee of the outcome of the representations. A decision that the suspension continues, may only be for a further period of thirty (30) calendar days. 

(3) A suspension is a precautionary measure. 

(4) If an employee is suspended with full remuneration or transferred as a precautionary measure, the employer must hold a disciplinary hearing within sixty (60) calendar days from the commencement of the suspension or transfer. Upon the expiry of the sixty (60) days, the chairperson of the hearing must take a decision on whether the suspension or temporary transfer should continue or be terminated."

21. I am advised that there are no major conflicts between labour and administrative law requirements relating to the protection of the right to procedural fairness in labour disputes. I am further advised that both labour and administrative law recognize the right to be granted an opportunity to make representations as the core fairness element of the audi alteram partem rule. From a practical point of view, this means that labour and administrative law are in agreement as to the regulatory approach to a rationale for procedural fairness. 

22. I am further advised that the Constitutional Court, in Chirwa v Transnet Ltd 
2008(2) BLLR 97 (CC), stated "that because the LRA has been extended to virtually all employees, including those in the public sector, it is no longer necessary to apply the principles of administrative law to the field of employment relations." 

23. In this application, the Applicant has adopted the attitude that because the Fifth Respondent is a public sector employee he is not entitled to protection in terms of the Constitution and the labour laws of the country. If this approach of the Applicant is countenanced by the above Honourable Court, I am advised that the labour law jurisprudence based on the concept of fairness, as developed by the Courts over the years would lose its relevance. 

24. Apart from what is stated above, I am advised that Part A of the Applicant's application has become academic and cannot succeed for the following reasons: 

24.1 Before the Applicant lodged this application, the SAPS had been conducting new investigations into certain allegations of alleged misconduct which were leveled against the Fifth Respondent. 

24.2 The Fifth Respondent was given a notice in terms of the disciplinary regulations of the SAPS to show cause as to why he should not be suspended from his position within the SAPS. This notice was signed on 13 May 2012 and served personally on the Fifth Respondent on 15 May 2012. 

24.3 The Applicant was advised in a letter dated 22 May 2012 about the disciplinary proceedings which had been initiated against the Fifth Respondent. A copy of the letter is annexed hereto and marked annexure "AAI ". The contents of this letter are self-explanatory. 

24.4 The Applicant's attitude has been that all the Respondents should consent to the relief sought in Part A of the application and if there was no such consent, it would persist with the relief sought in Part A of the application. Copies of email exchanges between the Applicant's attorneys of record and my attorneys are annexed hereto and marked "AA2". 

24.5 The stance and attitude which were adopted by the Applicant were unreasonable in that the other Respondents did not have anything to do with Part A of the application. i do not understand the approach that they (the other Respondents), are required to consent to an order which did not concern them. 

24.6 On 28 May 2012, my attorneys of record again forwarded a letter to the Applicant's attorneys in which they advised that the Fifth Respondent has been suspended and there was therefore no need to persist with Part A of the application. I annex hereto marked "AA3"acopy of this letter. 

24.7 The Applicant did not agree to the removal of the matter from the roll. I annex hereto marked "AA4" a copy of the Applicant's response to the contents of annexure "AA3". The contents of annexure "AA4" are self-explanatory and I pray that same be incorporated herein. 

24.8 In the circumstances, I had no option but to file an affidavit opposing the relief which is sought in Part A of the application. There is no practical purpose which would be served even if the above Honourable Court were to grant the Applicant the relief which it seeks on its notice of motion as the Fifth Respondent has already been suspended from his duties within the SAPS. 

25. In the circumstances, it is submitted that Part A of the Applicants application should be dismissed with costs on the scale as between attorney and client. 

Signed

DEPONENT

SIGNED AND SWORN TO BEFORE ME AT PRETORIA ON THIS 29th DAY OF MAY 2012. THE DEPONENT HAVING ACKNOWLEDGED IN MY PRESENCE THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, THE PROVISIONS OF GOVERNMENT GAZETTE R1478 OF 11 JULY 1980 AS AMENDED BY GOVERNMENT GAZETTE R774 OF 20 APRIL 1982, CONCERNING THE TAKING OF THE OATH, HAVING BEEN COMPLIED WITH. 

Transcribed from PDF. Please check against the original.

Source: www.freedomunderlaw.org

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