National Commissioner of the South African Police Service and Others v Phopho

The respondent, a SAPS captain, was convicted in the regional court of indecent assault and sentenced to imprisonment. By operation of section 36(1) of the SAPS Act, he was deemed discharged from SAPS. His internal disciplinary hearing had earlier acquitted him. On appeal, the Eastern Cape High Court set aside both his conviction and sentence. About 55 days after the High Court judgment, the respondent applied to the National Commissioner for reinstatement under section 36(2)(c) of the SAPS Act, explaining that he only became aware of the judgment weeks later due to delays by the registrar and his legal representatives. Despite favourable recommendations from SAPS officials and legal advisers, the National Commissioner refused reinstatement solely because the application was lodged outside the 30‑day period. The Labour Court reviewed and set aside that refusal, holding the late application condonable and remitting the matter for reconsideration. The SAPS authorities appealed, and the respondent cross‑appealed seeking reinstatement or a declaration of unconstitutionality.

The appeal by the SAPS authorities was dismissed and the cross‑appeal by the respondent was not upheld. The Labour Court order reviewing and setting aside the refusal to reinstate and remitting the application to the appellants for reconsideration remained in force.

The case clarifies the interpretation of section 36 of the SAPS Act in light of constitutional principles and the Constitutional Court’s decision in Maswanganyi. It affirms that overturned criminal convictions are treated as never having occurred and that administrative authorities may not rigidly rely on statutory time bars in a manner that defeats the purpose of reinstatement provisions and ignores binding appellate outcomes. The judgment reinforces rationality and fairness in administrative decision‑making affecting public servants dismissed by operation of law.