The South African Police Services v The Safety & Security Sectoral Bargaining Council and Others

The third respondent, Ms Nokuthula Ceki, was an administrative staff member (secretary to the station commanding officer) at Stellenbosch SAPS. On 16 January 2019, four suspects were arrested in connection with an ATM robbery. One of the suspects, Mr Paulos, was Ceki's "on-off" boyfriend of about a decade. Paulos phoned Ceki requesting her to come to the station to find out why they were arrested and to arrange legal representation. Ceki attended the station despite having no work-related reason to be there. She told the arresting officer, Captain Williams, that the hire vehicle allegedly used in the robbery was in Mbekweni the entire day. She persistently attempted to obtain the suspects' cell phones, which were exhibits in the case, despite being told she could only collect belts and shoelaces. Witnesses testified she followed the suspects to various locations including the PIVA room and cells, spoke to them in isiXhosa, and took a cell phone from one suspect before being ordered to return it. She was charged with three forms of misconduct: attempting to harm or prejudice the interests of SAPS; interfering with the justice process; and conducting herself in an improper and disgraceful manner. She was dismissed after being found guilty. Criminal charges against her were dismissed. The arbitrator found her guilty only of the second charge (improper conduct) and reinstated her with limited backpay.

• Whether the arbitrator misconstrued the disciplinary charge under Disciplinary Regulation 5(3)(b)(i) by failing to consider the element of intent
• Whether the arbitrator's findings on the substantive fairness of the dismissal were reasonable
• Whether the arbitrator erred in finding that the trust relationship between employer and employee was not irreparably broken
• Whether condonation should be granted for the late filing of the review application

1. The applicant's late filing of the review application is condoned. 2. The applicant (SAPS) must pay the third respondent's costs of opposing the condonation application. 3. The arbitrator's finding that the third respondent's dismissal was substantively unfair and the consequential relief in the award are reviewed and set aside. 4. The finding is replaced with a finding that the third respondent's dismissal was substantively fair.

An arbitrator commits a reviewable error when failing to consider an essential element of a disciplinary charge, specifically the element of intent in charges under Disciplinary Regulation 5(3)(b)(i). The regulation does not require proof of actual harm caused to the employer, but only proof that the employee acted with the intention to cause harm or prejudice to the interests of the service. Where the evidence establishes that an employee used her position to gain improper access to suspects, persistently attempted to obtain evidence (a cell phone) knowing it was needed for investigation, and the employer had to take special measures to restrict the employee's access to sensitive information, a finding that the trust relationship remains intact has no foundation in the evidence. A conclusion that dismissal is unfair in such circumstances is one no reasonable arbitrator could reach.

The Court expressed strong criticism of the administrative delays in the SAPS review process, particularly the nearly eight weeks the matter languished in the National Commissioner's office. Lagrange J questioned why the National Commissioner personally had to decide whether to review an arbitration award concerning a junior police official, suggesting this function should be delegated. The Court also noted there was no reason for counsel to take three weeks to draft founding papers given their provisional nature at the initial filing stage, and commented that founding affidavits can be comprehensively amended when supplementary affidavits are filed, so there is no need to strive for comprehensive applications at the outset. While the Court found nearly three months of unexplained delay, it noted there was no evidence of wilful neglect, distinguishing this from mere bureaucratic inefficiency.

This case is significant for clarifying the proper interpretation of Disciplinary Regulation 5(3)(b)(i) applicable to public servants. The Court emphasized that misconduct under this regulation requires proof of intent to cause harm, not proof of actual harm caused. The case also illustrates the importance of arbitrators properly considering all elements of disciplinary charges and demonstrates that a finding that the trust relationship remains intact is unsustainable where the employer has had to take special protective measures to prevent the employee accessing sensitive information. The judgment provides guidance on review standards and reinforces that an arbitrator's conclusion on the fairness of dismissal must have a foundation in the evidence, particularly regarding the trust relationship. It also addresses administrative delays in government review applications and the court's willingness to mark its displeasure with such delays through cost orders even while granting condonation.