South Africa: North Gauteng High Court, Pretoria

REPUBLIC OF SOUTH AFRICA

NORTH GAUTENG HIGH COURT PRETORIA

CASE NO: 45970/13

DATE: 11 NOVEMEBR 2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

LEHLOHONOLO EDWARD CASSEL KHONGOANA...............................................................Applicant

and

MINISTER OF POLICE.........................................................................................................First Respondent

NATIONAL COMMISSIONER OF THE SAPS.............................................................Second Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT..................................................................................................................Third Respondent

JUDGMENT

LAZARUS AJ:

Introduction

1. This matter concerns the constitutionality of section 36 of the South African Police Service Act 68 of 1995.

2. This section and in particular subsection 36(1) deems to have been discharged from the South African Police Service (“SAPS”), any member who is convicted of an offence and is sentenced to a term of imprisonment without the option of a fine.

3. The section was invoked against the applicant who had been employed as a member of the SAPS since May 1986. On 26 January 2010, the applicant was convicted of assault with intent to do grievous bodily harm by the Magistrate's Court. He was sentenced to a five-year term of imprisonment, without the option of a fine. He did not appeal the conviction or sentence nor did he challenge his conviction in review proceedings. He served part of his jail sentence and was released on parole on 25 November 2010.

4. Upon his release on parole the applicant wrote a letter to the first respondent requesting that he be reinstated as a member of the SAPS. On 28 March 2011 the applicant was advised by letter from the Acting Head: Human Resource Practises and Administration of the SAPS that -

“According to this office’s records you were dishonourably discharged from the South African Police Service (SAPS), and due to this, it disqualifies you from being considered for re-enlistment within SAPS. ”

5. Having been advised by his attorney that he had been unfairly dismissed the applicant initially sought relief in terms of the Labour Relations Act 66 of 1995 (“the LRA”) from the Safety and Security Sectorial Bargaining Council and, later, from the Labour Court. The application to the Labour Court, however, was withdrawn by the applicant. The applicant pleads that he did so upon his legal representatives' realisation that his discharge from the SAPS did not occur pursuant to the provisions of the LRA, but rather by operation of section 36 of the South African Police Service Act (“the Act"). The applicant alleges that it was this realisation that then led to a "common understanding” amongst the legal representatives of the parties to this litigation. This “common understanding”, with the applicant having elected to withdraw his application, was not considered or pronounced upon by the Labour Court.

6. The applicant now seeks relief from this court. In essence, he seeks an order that section 36 of the Act be declared inconsistent with the provisions of sections 10, 23 and 33 of the Constitution of the Republic of South Africa (“the Constitution”) and with the common law principle of audi alteram partem and thus invalid. The applicant further seeks an order that he be reinstated into the services of the SAPS.

7. Section 36 of the South African Police Service Act, entitled “Discharge on account of sentence imposed’ provides as follows:

(1) A member who is convicted of an offence and is sentenced to a term of imprisonment without the option of a fine, shall be deemed to have been discharged from the Sen/ice with effect from the date following the date of such sentence: Provided that, if such term of imprisonment is wholly suspended, the member concerned shall not be deemed to have been so discharged.

(2) A person referred to in subsection (1), whose-

(a) conviction is set aside following an appeal or review and is not replaced by a conviction for another offence;

(b) conviction is set aside on appeal or review, but is replaced by a conviction for another offence, whether by the court of appeal or review or the court of first instance, and a sentence to a term of imprisonment without the option of a fine is not imposed upon him or her following on the conviction for such other offence; or

(c) sentence to a term of imprisonment without the option of a fine is set aside following an appeal or review and is replaced with a sentence other than a sentence to a term of imprisonment without the option of a fine,

may, within a period of 30 days after his or her conviction has been set aside or his or her sentence has been replaced by a sentence other than a sentence to a term of imprisonment without the option of a fine, apply to the National Commissioner to be reinstated as a member.

(3) In the event of an application by a person whose conviction has been set aside as contemplated in subsection (2) (a), the National Commissioner shall reinstate such person as a member with effect from the date upon which he or she is deemed to have been so discharged.

(4) In the event of any application by a person whose conviction has been set aside or whose sentence has been replaced as contemplated in subsection (2) (b) and (c), the National Commissioner may-

(a) reinstate such person as a member with effect from the date upon which he or she is deemed to have been so discharged; or

(b) cause an inquiry to be instituted in accordance with section 34 into the suitability of reinstating such person as a member.

(5) For the purposes of this section, a sentence to imprisonment until the rising of the court shall not be deemed to be a sentence to imprisonment without the option of a fine.

(6) This section shall not be construed as precluding any administrative action, investigation or inquiry in terms of any other provision of this Act with respect to the member concerned, and any lawful decision or action taken in consequence thereof. ”

The parties’ contentions

8. According to the applicant, members of the SAPS who have been convicted of an offence without the option of a fine (such as the applicant in the present matter) have no remedy to ameliorate the consequences of their deemed discharge in terms of section 36(1). This is so, the applicant contends, for two reasons: Firstly, because the discharge provided for in the section operates as a consequence of law and does not constitute administration action thus providing potential relief by way of review proceedings. Secondly, although section 36(6) does not preclude any administrative action, investigation or inquiry in terms of any other provision of the Act, these remedies are only available to members who have appealed or reviewed their conviction or sentence as contemplated in sections 36(2) - 36(5).

9. Providing no remedy (in particular a hearing) to members who have been discharged pursuant to section 36(1), the applicant contends, offends the right to dignity, fair labour practice and fair administrative action enshrined in sections 10, 23 and 33 of the Constitution and is further inconsistent with the common law principle of audi alteram partem. While mechanisms to discipline errant members of the SAPS are clearly necessary, the applicant contends that there are other less restrictive and more appropriate means to achieve the objects of section 36, namely the dispute resolution procedures contemplated in the LRA and the judicial review procedure contemplated in the Promotion of Administrative Justice Act, 2000. Accordingly, the applicant contends, section 36 is neither reasonable nor justifiable in an open and democratic society and thus falls to be declared invalid.

10. The respondents deny that section 36 deprives members of the SAPS of a remedy and in particular of a right to a fair hearing. The respondents contend that a member against whom the deeming provision operates remains entitled to approach the SAPS, following their conviction, and present evidence to rebut the deeming provision. According to the respondents, the provisions of section 36(1) only operate on a temporal basis; i.e. until evidence to the contrary is submitted. When that evidence is submitted, the respondents contend, the SAPS is obliged to consider it. For this proposition, the respondents rely on section 36(6), which, the respondents’ contend, precludes any interpretation of section 36(1) as excluding a hearing and investigation of the circumstances surrounding a member’s conviction or sentence. Should the SAPS refuse to entertain such a member's request for a hearing or his or her submissions tendered to rebut the deeming provision, such refusal, according to the respondents, is reviewable.

11. The respondents’ further contend that even if section 36(1) of the Act impermissibly limits certain rights in the Bill of Rights, the clause constitutes a reasonable and justifiable limitation as contemplated in section 36 of the Constitution. This is so, the respondents contend, for numerous reasons including the fact that the SAPS cannot afford to keep the post of a member who is serving a sentence vacant until such time as the sentence has been served, the public trust and confidence in the SAPS which depends largely on the conduct of its members and which could be breached by the re-appointment of members who have committed serious offences and the important role the section plays in deterring criminal conduct within the SAPS.

The interpretation of section 36 ofJheSouth African Police Service Act

12. In considering the interpretation of section 36 of the Act, I am required by virtue of section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights.

13. In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others¹ it was said of this section that it requires courts "to prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section”. In National Credit Regulator v Opperman and Others² the Constitutional Court added that “If more than one meaning is reasonably plausible, the one resulting in constitutional compliance must be chosen".

14. As stated in Hyundai, however, there is a limit to this principle. Courts may only give effect to the principle where a constitutionally compliant interpretation would not be unduly strained.³ The constitutionally compliant interpretation contended for must be a plausible interpretation or one that can reasonably be given to the legislation in issue.⁴ Any such interpretation must remain faithful to the actual wording of the statute.⁵

15. The first question that requires consideration in this matter is whether a member who falls within the ambit of section 36(1) of the Act has a remedy to address the consequences of the deeming provision containing in the section. As mentioned above, the respondents contend that this remedy is contained in section 36(6). It is thus in the interpretation of this subsection that the question of whether a constitutionally compliant interpretation is plausible. Should I find that section 36(1) indeed does deprive a member of a remedy and that subsection (6) does not assist, the further question that arises is whether the failure to provide a remedy to a member in the circumstances constitutes a limitation of the member’s fundamental rights as contained in the Bill of Rights. If so, the final question I need to consider, is whether a limitation of the rights of a member affected by the provision of section 36(1) is reasonable and justifiable in an open and democratic society as contemplated in section 36 of the Constitution.

16. It is correct, as the applicant contends, that the discharge contemplated in section 36(1) arises by operation of law. It is not dependant on an administrative decision which may be challenged in review proceedings.

17. I base this conclusion on the judgment of Mpati DP in Phenithi v Minister of Education and Others⁶ which considered the constitutionality of section 14(1) of the Employment of Educators Act 76 of 1998, which section is similar, in certain respects, with section 36(1) of the South African Police Service Act.

18. Section 14(1 )(a) of the Employment of Educators Act provides that "An educator appointed in a permanent capacity who is absent from work for a period exceeding 14 consecutive days without permission of the employer; shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct...”

19. In considering whether the appellant’s discharge constituted administrative action, Mpati DP, referring to Minister van Onderwys en Kultuuren Andere v Louw⁷. stated that where the employee is informed in a letter of discharge that he or she has been discharged in terms of such a provision “it is not the consequence of a discretionary decision, but merely the notification of a result which occurred by operation of law”⁸.

20. The fact that the deemed discharge of a member of the SAPS may not be an administrative act does not automatically mean, however, that the member has no remedy.

21. In the case of the Employment of Educators Act, section 14(1) the operation of the deeming provisions of section 14(1)(a) may be lifted or revoked by the employer directing otherwise. An educator may also be reinstated in terms of section 14(2), which provides that “If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act, approve the reinstatement of the educator in the educator's former post or in any other post on such conditions relating to the period of the educator's absence from duty or otherwise as the employer may determine".

22. On this basis it was found in Phenithi that section 14(1) of the Employment of Educators Act is not in conflict with the Constitution as “the educator is not precluded from placing before the employer material or facts that may move the latter to 'direct otherwise', i.e. to direct that the operation of the provisions of s 14(1)(a) be lifted or that the section shall not take effect’.⁹ Furthermore the Court found that section 14(2) “a/so affords an educator an opportunity to be heard and to be reinstated, provided he/she is able to show good cause as to why the employer should reinstate. The fact that s 14(2) provides fora hearing only after an educator has been deemed to be discharged in terms of s 14(1)(a) does not mean that the latter subsection is in conflict with the Constitution”.¹⁰

23. The same, however, cannot be said of section 36 of the South African Police Service Act.>