- Commissioner rules that changing a one-month suspension to dismissal without reasons breached SAPS discipline regulations and prejudiced the employee.
- Brigadier Nzama’s verbal sanction of one month’s suspension was binding under Regulation 9 of the SAPS Discipline Regulations, 2016.
- SAPS failed to provide written reasons or follow the three-day variation procedure required before escalating to dismissal.
A police officer who stepped in to help colleagues break up a fight was told he would receive a one-month unpaid suspension. Days later, without any explanation or written justification, that outcome was quietly replaced with dismissal.
However, the Commission for Conciliation, Mediation and Arbitration (CCMA) found that the process by which that outcome was reached was unlawful. It told SAPS it had no authority to do that.
CCMA Commissioner Hilda Grobler found that the moment Brigadier Nzama, the designated chairperson of the expeditious meeting, communicated a sanction of one-month’s suspension, that decision was final and binding, and what came after it was a breach.
What happened and what the transcript showed
The events that set everything in motion unfolded in the early hours of 24 June 2023 outside Pirates Arms at Maydon Wharf in Durban. A fight broke out between two groups, and although he was off duty, Pillay stepped in to help SAPS members restore order.
What followed was not a formal disciplinary hearing but an expeditious process, a mechanism under SAPS Regulation 9 designed to resolve misconduct matters quickly and informally. Under this process, a designated officer meets with the employee, hears their response to the allegations, and then imposes a sanction.
Critically, the officer must impose a final sanction at or shortly after the meeting. Any variation must be fully motivated and communicated in writing within three working days, and only where exceptional circumstances exist.
At the end of the meeting, Nzama told those present that his recommendation was one-month’s suspension without pay. He added that he would put the recommendation forward to the relevant authority, and that the sanction would only be confirmed once the SAPS Chief had signed off on it.
In his own words, recorded in the transcript, Nzama said: “So my recommendation is one-month suspension. For now, that is what I will recommend to them.”
Commissioner Grobler found that while Nzama had treated the outcome as provisional, the governing rules required that a sanction be imposed at that point and not held over for someone else to confirm.
What each side argued
Pillay argued that the shift from suspension to dismissal was not merely unfair but unlawful. He maintained that he was never given an opportunity to respond to the harsher outcome and that no written reasons were ever provided to justify the change.
In his affidavit, he stated that the decision appeared to have occurred outside the scope of the prescribed procedure and without proper notification or authorisation.
He further argued that the variation was made without justification, motivation or any lawful reliance on the procedures set out in Regulation 11(6) of the SAPS Discipline Regulations, 2016.
SAPS maintained that nothing improper had occurred, arguing that the chairperson’s role was limited to making a recommendation and that a ruling was only final once it had been approved by the Provincial or National Commissioner.
The employer’s representative, Colonel Dludla, stated in his affidavit that “standard procedure within the SAPS is that a ruling is only final once it has been approved by the Provincial or National Commissioner.” SAPS insisted there had been no variation at all, only one final outcome approved by the Provincial Commissioner.
What the commissioner decided
Commissioner Grobler rejected that argument outright. She found that it conflicted with the very structure of the expeditious process, pointing out that the regulations do not create a recommendation stage and instead require the designated officer to take a definitive decision.
She drew support from two Labour Court decisions. In Khan v South African Police Service and Others, the Court confirmed that the expeditious process is not a disciplinary hearing and that fairness must be assessed in light of its informal character.
In SAMWU obo Mahlangu v SALGBC and Others, the court held that where a collective agreement assigns the power to impose a sanction to a chairperson, an employer who overrides that sanction acts in flagrant breach of the agreed process. Commissioner Grobler found that the same principle applied here.
She was clear that even an informal process remains bound by strict procedural rules. The designated person was required to impose a sanction, not merely suggest one. Any change had to be fully motivated and communicated in writing. None of that had happened.
In her award, Commissioner Grobler wrote that the manner in which the sanction was changed “from the initial decision that the appropriate sanction would be a suspension of one-month without pay to a dismissal without any reasons being provided… was prejudicial to the applicant.”
She found that SAPS had failed to follow its own rules and that Pillay had paid the price for that failure. The dismissal was invalid because a sanction had already been communicated to him and his representative before it was imposed.
Award and reinstatement
The CCMA confirmed that the original sanction must stand. The verbal outcome of the expeditious meeting, one-month’s suspension without pay, was declared the only valid, effective and binding sanction. The dismissal was declared without force or effect and set aside entirely.
Pillay was retrospectively reinstated on the same terms and conditions that applied at the time of his dismissal. Back pay must be paid into his account by 25 April 2026, his benefits restored from the date of the award, and he was ordered to report for duty at his original office by 1 April 2026.
The commissioner also addressed the question of double jeopardy, agreeing with both parties that it did not arise. The sanction was determined at the end of a single expeditious meeting, and there was no second hearing, so there was no basis for a double jeopardy argument.
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