South African Police Service v POPCRU obo KD Mmatli

Constable Mmatli was employed by SAPS and was stationed at the Johannesburg Public Order Police Unit in Diepkloof. On 1 April 2013, Const. Mmatli shot and killed Mr Simpiwe Sitele at his home in Dobsonville. According to Const. Mmatli's version (as relayed to Warrant Officer Miya), he was preparing for work between 03h00 and 04h00 when he saw a figure walking past his bathroom window. He shouted at the deceased and went outside to investigate, but the deceased had fled. When he came out again, he noticed the deceased peering over the boundary wall into his yard. Suspecting the deceased was a threat to his life, he shot and killed him with his service firearm, firing a single shot that struck the deceased in the forehead. Investigation revealed a metal rod measuring more than a metre in the yard, a plastic bag with women's cosmetics near the deceased's body, and a pair of sports shoes. SAPS charged Const. Mmatli with: (1) murder under Regulation 20(z) of the SAPS Discipline Regulations 2006; (2) endangering the lives of others under Regulation 20(e); and (3) firing a service pistol under Regulation 20(q). He was found guilty of charges 1 and 3 at the disciplinary hearing and dismissed. He referred an unfair dismissal dispute to the Bargaining Council. The arbitrator found the dismissal substantively unfair and ordered reinstatement. SAPS sought to review this award in the Labour Court, which dismissed the review application.

• Whether the arbitrator correctly applied the provisions of Regulation 20(z) of the SAPS Discipline Regulations 2006 regarding dismissal for committing a common law offence
• Whether the arbitrator correctly allocated the evidentiary burden in relation to the defence of justification/private defence
• Whether the arbitrator's acceptance of hearsay evidence as primary evidence was correct
• Whether the arbitrator correctly applied the legal principles applicable to the defence of private defence
• Whether the Labour Court applied the correct test for review as set out in Herholdt v Nedbank
• Whether an acquittal in criminal proceedings is relevant to a finding of misconduct under the SAPS Discipline Regulations

The appeal was upheld with no order as to costs. The order of the Labour Court was set aside and substituted with an order that: (a) Paragraph 2 of the arbitrator's award was set aside and substituted with a finding that the dismissal of Constable KD Mmatli was substantively and procedurally fair; and (b) there was no order as to costs.

The binding legal principles established by this judgment are: (1) Under Regulation 20(z) of the SAPS Discipline Regulations 2006, a police officer is guilty of misconduct if he commits a common law or statutory offence, and it is sufficient for SAPS to prove this on a balance of probabilities; an acquittal in criminal proceedings is irrelevant to the disciplinary enquiry. (2) Where an employee raises a defence of justification or private defence in disciplinary proceedings, and the basis for that defence is peculiarly within the employee's knowledge, the employee bears the evidentiary burden to lead evidence in support of that defence. (3) Section 192(2) of the LRA places an onus on the employer to prove that a dismissal was substantively and procedurally fair, but does not place an onus on the employer to disprove a defence of justification raised by the employee. (4) Hearsay evidence cannot be treated as primary evidence of an employee's version unless the employee confirms it under oath; where an employee elects not to testify, his out-of-court statements remain inadmissible hearsay. (5) For the defence of private defence to succeed, it must be shown on a balance of probabilities that: (a) the person was subject to an unlawful attack which had commenced or was imminent, and (b) the means used to avert the attack was reasonable and commensurate with the nature and extent of the threat. (6) The unlawful shooting and killing of a civilian by a police officer without justification constitutes very serious misconduct that warrants dismissal, as it is inconsistent with the obligations imposed by the SAPS Code of Conduct and undermines public confidence in the police service.

The Court made the following non-binding observations: (1) The Court noted that the shooting and killing of a civilian without just cause 'detrimentally affects the image of the police and brings it into disrepute, thus undermining public confidence in the police service.' This observation underscores the broader public interest considerations in cases involving police misconduct. (2) The Court considered it 'fair and just' not to make a costs order against Const. Mmatli in both the review application and the appeal, though no detailed reasons were given for this decision. This suggests the Court took into account factors beyond the mere success or failure of the litigation, possibly including the employee's personal circumstances or the public interest nature of the proceedings. (3) The Court noted that the SAPS Code of Conduct requires police officers to 'exercise the powers conferred upon him or her in a responsible and controlled manner and uphold and protect the fundamental rights of every person.' This observation, while not central to the ratio, reinforces the high standard of conduct expected of police officers.

This case is significant in South African labour law and police disciplinary law for several reasons: (1) It clarifies the application of Regulation 20(z) of the SAPS Discipline Regulations 2006, confirming that a member is guilty of misconduct if he commits a common law or statutory offence, regardless of the outcome of criminal proceedings. (2) It establishes that it is sufficient for SAPS to prove on a balance of probabilities that a member committed the act constituting the offence, and that an acquittal in criminal proceedings (where the standard is proof beyond reasonable doubt) is irrelevant to disciplinary proceedings. (3) It clarifies the allocation of the evidentiary burden in disciplinary proceedings where an employee raises the defence of justification or private defence. The employee bears the evidentiary burden to lead evidence in support of such a defence, particularly where the facts are peculiarly within the employee's knowledge. (4) It confirms that section 192(2) of the LRA does not place an onus on the employer to disprove every possible defence raised by an employee, but merely requires the employer to prove that the dismissal was substantively and procedurally fair. (5) It reinforces the principle that hearsay evidence requires proper admission and confirmation, and cannot be treated as primary evidence without the declarant testifying under oath. (6) It emphasizes the serious view taken of police officers who unlawfully kill civilians, noting that such conduct is inconsistent with the SAPS Code of Conduct, detrimentally affects the image of the police, and undermines public confidence in the police service. (7) It provides guidance on the application of the Herholdt test for review of arbitration awards in the labour context.