C. Astle and A.C. Greyling v Safety and Security Sector Bargaining Council (SSSBC) and Others

The first applicant (Astle) was an investigating officer and the second applicant (Greyling) was a captain and branch commander at Fochville SAPS. On 11 February 2017, a complainant (Sefuthi) was assaulted by SAPS members who mistook him for someone else. He opened a case of assault on 12 February 2017 at Westonaria SAPS, which was transferred to Fochville SAPS on 13 February 2017 and allocated to Astle for investigation. On 29 March 2017, without conducting any investigation, Astle deposed to an affidavit stating the suspects were unknown and the case should be closed. Greyling approved the closure without properly reviewing the docket. More than a year later, Sefuthi complained he had received no feedback and the case was closed without investigation. An internal investigation was launched in February 2018, but the investigator (Mkwebula) created backdated written warnings dated 25 February 2018 to facilitate Greyling's promotion, leading to the withdrawal of initial disciplinary charges in March 2019. After the Deputy Provincial Commissioner discovered the irregularities, the disciplinary hearing was reinstituted in November 2019. Both employees were found guilty on multiple charges and dismissed on 21 February 2020. They referred an unfair dismissal dispute to the SSSBC, where the commissioner upheld their dismissal as substantively and procedurally fair.

• Whether the principle of double jeopardy applied where the initial disciplinary hearing was withdrawn based on manufactured written warnings
• Whether the employer acted ultra vires by reinstating disciplinary proceedings after the initial withdrawal
• Whether inordinate delay in bringing disciplinary charges rendered the dismissal procedurally unfair
• Whether the employees were guilty of the charges relating to failure to investigate and closing the docket as undetected
• Whether the sanction of dismissal was substantively fair in the circumstances
• Whether inconsistent application of discipline rendered the dismissal unfair

The application to review and set aside the arbitration award was dismissed. No order as to costs was made.

The binding principles established are: (1) The double jeopardy principle does not apply where prior disciplinary sanctions were manufactured, backdated and did not specify the nature of the misconduct for which employees were allegedly sanctioned. (2) An employer may reinstitute disciplinary proceedings where charges were withdrawn (as opposed to dismissed) based on fraudulent evidence. (3) Inordinate delay in disciplinary proceedings does not render a dismissal procedurally unfair where: (a) reasons for the delay are ascertainable, (b) the employee contributed to the delay, (c) the employee demonstrates no material prejudice, and (d) the misconduct is serious. (4) A police officer's complete failure to investigate a crime and closing a docket as undetected without any investigative steps constitutes serious misconduct justifying dismissal. (5) A branch commander who approves closure of a docket without applying his mind to whether an investigation was conducted commits serious misconduct. (6) Long service and clean disciplinary records do not preclude dismissal where: (a) the misconduct is serious and undermines public trust, (b) the employee shows no remorse or appreciation of responsibility, and (c) the employee demonstrates no likelihood of responding to progressive discipline. (7) Under the Sidumo test, a review court will not interfere with a commissioner's award merely because of errors or irregularities unless those resulted in an unreasonable outcome that no reasonable decision-maker could reach.

The court made several non-binding observations: (1) The court noted with approval the Constitutional Court's statement in AK v Minister of Police that the law does not require perfection from SAPS but conduct in line with a diligent and reasonable person, and that the duty is one of means, not results. (2) The court observed that the investigator Mkwebula 'acted rogue' in her investigation and was the root cause of the delay, noting her reprehensible conduct should not be used against SAPS to allow employees who committed serious misconduct to escape sanction. (3) The court commented that the conduct of the employees 'sends a chilling message to members of the public' and constitutes 'utter disrespect and disregard to the rights and dignity of the complainants and victims of crimes.' (4) The court observed that the message sent by such conduct is 'that the SAPS will investigate cases they consider important and serious, and only those cases where the suspects have been identified.' (5) The court noted that while not directly forming part of the charges, evidence that employees signed contrived written warnings could properly be considered when assessing whether progressive discipline was appropriate. (6) The court suggested the finding of guilt on charge 7 against Astle (giving a false statement that suspects were unknown) was problematic, as suspects were technically unknown because no investigation had been conducted, though they could have been easily identified had the investigation been done. (7) The court observed that a commissioner may take 'judicial notice' of public documents like Parliamentary Monitoring Group reports when these address relevant factual contexts, particularly where the factual accuracy is not challenged.

This case reinforces important principles in South African labour law regarding disciplinary proceedings in the public service, particularly the SAPS. It clarifies that the double jeopardy principle does not protect employees where prior disciplinary sanctions were manufactured and fraudulent. The judgment emphasizes that delay, even if inordinate, will not render a dismissal unfair where the misconduct is serious, the delay is explained, and the employee suffers no material prejudice. The case highlights the serious view taken of police officers' failure to investigate crimes, particularly where the suspects are fellow SAPS members. It demonstrates the courts' willingness to uphold dismissals for gross neglect of duty even where employees have long, clean service records, where the nature of the misconduct undermines public trust in policing. The judgment also clarifies that commissioners may take judicial notice of public documents like Parliamentary reports when assessing the context and seriousness of misconduct. The case applies the Sidumo test for review, confirming that awards will only be set aside where the outcome is one no reasonable decision-maker could reach, not merely for errors or irregularities in the reasoning process.