- Three former DCS officials accused of falsifying parole supervision records must return to arbitration.
- The Labour Court found their reinstatement settlement was unlawfully concluded because mandatory approval procedures were ignored.
- The court ruled that the legality of the settlement did not determine whether the officials were guilty, leaving that question to a fresh arbitration.
Three former Department of Correctional Services (DCS) officials from the Krugersdorp Community Corrections Office, accused of creating false records to show they had supervised parolees when no visits had taken place, will once again have to defend their dismissals after the Johannesburg Labour Court set aside a settlement that had reinstated them with full back pay.
Acting Judge S Snyman delivered the judgment in the Labour Court in Johannesburg in a case brought by the Department of Correctional Services against former officials ME Kgowe, AW Zwane, and IO Banda. The Police and Prisons Civil Rights Union (POPCRU) and the General Public Service Sector Bargaining Council (GPSSBC) were also respondents in the matter.
The department approached the court under Section 158(1)(h) of the Labour Relations Act, seeking to review and set aside a settlement agreement that it argued had been concluded unlawfully and without the necessary authority.
Investigation uncovered alleged false parole supervision records
The dispute arose from a 2022 investigation by the department's Departmental Investigation Unit into alleged fraudulent activity at the Krugersdorp Community Corrections Office.
According to the department, investigators found that the three officials had falsified offender monitoring records by recording parole supervision visits that never took place. The records created the impression that parolees had been visited and monitored when, in reality, no supervision visits had occurred.
The department regarded the conduct as dishonest because the officials allegedly misrepresented that they had performed their official parole supervision duties.
Following the investigation, each employee was charged with misconduct and appeared before an independent disciplinary chairperson. They were found guilty and dismissed on 13 February 2024. Their internal appeals were unsuccessful.
The officials subsequently referred unfair dismissal disputes to the GPSSBC, where the matters were consolidated for arbitration.
Settlement reinstated dismissed officials
Before arbitration could proceed, the department assigned a new representative to handle the case. The official recommended that the disputes be settled, advising that there was insufficient evidence to prove the misconduct and that the department had little prospect of successfully defending the dismissals.
Based on that recommendation, the department concluded a settlement agreement on 27 March 2025. The agreement reinstated all three officials with effect from 1 May 2025, restored them to their previous positions and awarded them retrospective back pay dating back to their dismissals. The settlement was subsequently made an arbitration award.
The department later questioned how the settlement had been approved after investigators who handled the original case maintained there had been strong evidence supporting the dismissals.
According to the department, the official who recommended the settlement had failed to consult investigators or key witnesses before concluding that the dismissals could not be defended.
Parties differed over legality of the settlement
The DCS argued that the settlement agreement was unlawful for two reasons. It said the recommendation to settle was based on incorrect advice that ignored the evidence gathered during the investigation and disciplinary proceedings.
The department also argued that the agreement breached Delegation 102, which required its Finance division to be consulted before any employment settlement with financial implications could be approved. Because that mandatory consultation never occurred, the officials who authorised the agreement lacked the authority to conclude it.
POPCRU and the employees opposed the application. They argued that the department had delayed bringing the review application and had already implemented the agreement by reinstating the employees and paying them more than R1 million in back pay.
They further contended that any procedural defects had effectively been ratified by the department's conduct and that the settlement's conversion into an arbitration award protected it from later challenge.
Court finds mandatory approval process ignored
Judge Snyman accepted that part of the department's delay in bringing the review application was unreasonable but found that the interests of justice required the matter to be heard because it involved the legality of public decision-making and the continued expenditure of public funds.
The settlement agreement was unlawfully concluded and set aside, the judge said. The court found that prior consultation with the department's Finance division was a mandatory requirement before concluding a settlement with significant financial implications.
Rejecting the argument that the defect could be corrected afterwards, the judge said requirements must be complied with before the conclusion of the agreement. The court also dismissed the argument that implementing the settlement validated it, holding that an agreement concluded without the necessary authority could not be cured after the fact.
Judge Snyman further ruled that making the settlement an arbitration award under the Labour Relations Act did not shield it from review where the underlying agreement itself had been unlawfully concluded.
The current state of affairs cannot be allowed to perpetuate. It would not be in the interest of justice to do so, the judge said.
Dispute returns to arbitration
The Labour Court reviewed and set aside both the settlement agreement and the arbitration award that incorporated it. However, the court did not determine whether the officials were guilty of the allegations against them.
Instead, Judge Snyman restored the parties to the position they occupied before the settlement was concluded and ordered that the unfair dismissal disputes return to the GPSSBC for a fresh arbitration before a different arbitrator.
The new arbitration will determine whether the Department of Correctional Services can prove its allegations that the three officials falsified parole supervision records by recording visits that never occurred.
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