Meshack Phopo v National Commissioner of the South African Police Service and Others

The applicant, a former SAPS Captain, was convicted of indecent assault in 2010 and sentenced to imprisonment in March 2011. By operation of section 36(1) of the SAPS Act, he was automatically discharged from SAPS on 26 March 2011. On appeal, the Grahamstown High Court set aside both his conviction and sentence on 20 November 2014. Section 36(2)(c) of the SAPS Act allows an ex-member whose conviction or sentence is set aside to apply for reinstatement within 30 days of the judgment. The applicant applied for reinstatement on 13 February 2015, outside 30 days from the date of judgment but within 30 days from when he alleged he became aware of the judgment (6 February 2015). SAPS refused reinstatement on the basis that the application was late and that the 30-day period was not condonable. The applicant sought review of that decision under sections 158(1)(h) and 157(1)(2) of the LRA, alternatively challenging the constitutionality of section 36(2)(c).

The decision of the National Commissioner refusing reinstatement was reviewed and set aside. The matter was remitted to SAPS for reconsideration of the applicant’s reinstatement in accordance with a purposive and constitutionally compliant interpretation of section 36(2)(c) of the SAPS Act.

This case is significant for clarifying that statutory time periods in employment-related legislation affecting public servants must be interpreted purposively and in line with constitutional values. It affirms that rigid reliance on peremptory language may yield to substantial compliance where strict compliance would undermine the purpose of the statute. The judgment also confirms the Labour Court’s review jurisdiction under section 158(1)(h) of the LRA over administrative decisions taken by SAPS.