National Commissioner of Police Service and Another v Colonel MD Bobie N.O. and Another

The SAPS sought to review a decision made by the First Respondent (Colonel Bobie) in his capacity as Appeals Authority. The Appeals Authority had overturned the dismissal of the Second Respondent (Sergeant Caalsen). Caalsen had been charged with misconduct relating to the shooting death of a suspect. He was found guilty at a disciplinary enquiry and dismissed. On appeal, the Appeals Authority found that the disciplinary chairperson had not properly considered evidence that the deceased was fighting and throwing objects, that Caalsen had acted in private defence, and that there was no definitive evidence that Caalsen fired the fatal shot. The Appeals Authority noted that another officer (Mzuzu) also fired warning shots but only received a fine of R500, and ordered that Caalsen be treated similarly. The appeal was upheld and the dismissal overturned. SAPS filed a review application on 7 September 2016 in respect of the decision issued on 23 February 2016, and also sought condonation for the late filing. The review was unopposed.

• Whether a review application under section 158(1)(h) of the LRA requires an applicant to properly conceptualize and plead the specific legal ground upon which the review is based
• Whether a state employer can review decisions of its own functionaries merely because it regards the decision as incorrect
• Whether the distinction between review and appeal proceedings was properly maintained
• Whether the applicant properly identified whether PAJA or the common law principle of legality applied to the review
• Whether labelling a decision as 'irrational', 'unreasonable' or 'irregular' without proper legal foundation is sufficient for a successful review

The application for condonation and review was dismissed.

An application under section 158(1)(h) of the LRA requires a litigant to properly conceptualize the ground in law on which the review application is based and present this to the Court by means of its pleadings and submissions. A state employer that seeks to review the decision of its own functionary cannot do so merely because it regards the decision as incorrect. The distinction between review and appeal proceedings must be preserved - a review is not an avenue to re-argue factual findings or challenge the correctness of a decision, but requires establishing grounds of review that are permissible in law (whether under PAJA, common law, or the principle of legality). Simply labeling a decision as 'irrational', 'unreasonable' or 'irregular' without proper legal foundation and identification of the applicable review framework is insufficient for a successful review.

The Court made extensive observations about the uncertain and complex state of the law regarding the interplay between PAJA and the principle of legality, citing the Constitutional Court's acknowledgment in Cape Town City v Aurecon that 'the position in our law on this question is presently uncertain.' The Court noted that whether PAJA or the principle of legality applies can have implications for condonation applications, and referenced the recent SCA majority judgment in State Information Technology Agency v Gijima Holdings that held litigants cannot bypass PAJA to make legality challenges where PAJA applies. The Court also observed that this was one of a number of similar applications coming before the Labour Court relying on Hendricks v Overstrand Municipality on the misunderstanding that an employer may take its disciplinary decisions on review on any grounds permissible in law without proper conceptualization of those grounds.

This case is significant in clarifying the requirements for review applications under section 158(1)(h) of the LRA. It establishes that state employers cannot simply disagree with decisions of their own disciplinary functionaries and seek reviews without properly pleading and conceptualizing the legal grounds. The judgment reinforces the critical distinction between review and appeal proceedings in South African administrative and labour law, and underscores that a review cannot succeed merely because a decision is labeled as 'irrational' or 'unreasonable' without proper legal foundation. It contributes to the developing jurisprudence on the interplay between PAJA and the principle of legality in the context of labour law reviews, and highlights the need for clarity in pleadings as to which legal framework applies.