Phahlane’s attempt to slip out of SAPS disciplinary hearing dismissed

In his application, Khomotso Phahlane sought to challenge two investigative reports as well as the legal authority of the National Commissioner to discipline him in the first place. He also maintained that only President Cyril Ramaphosa had the power to discipline him.

Phahlane, said Judge Annelie Basson handing down her ruling on 4 May 2020, had not placed any “persuasive facts” before the court to justify why he had sought to circumvent internal SAPS procedures before approaching the court.

Phahlane was suspended as acting National Commissioner of the South African Police Service on 7 June 2017 on charges of misconduct. Prior to this, he acted in the position from October 2015 to June 2017. 

Phahlane was then served on 28 July 2017 with a notice to appear at a disciplinary hearing convened and chaired by Advocate Terry Motau.

From the start, said Basson, Phahlane and his legal representatives sought to challenge various aspects of the disciplinary hearing. The sitting was postponed and reconvened on 18 April 2018 when Phahlane’s legal team raised additional points.

Phahlane sought to challenge a 2014 SAPS “Information Note” requiring senior management to disclose vehicles “as part of the general disclosure of any financial interests they might have”. Phahlane argued the “note” was unlawful.

He also challenged the legal authority of the SAPS to charge him in terms of the SAPS Disciplinary Regulations for acts of misconduct. Phahlane maintained that only the president had the power to discipline him.

Basson found that the SAPS Information Note was indeed lawful. With regard to Phahlane’s insistence that only the president could discipline him, Basson said it was unclear how Phahlane “can be insulated from a charge of misconduct that related to a rule that does not attach exclusively to the position when he was the acting National Commissioner”.

When Phahlane’s attempt to shut down his hearing failed, he instituted, mid-way, an application seeking a review of two investigative reports, one prepared by Lieutenant-General Jephta (the Jephta Report) and another by Brigadier Matlou (the Matlou Report).

Phahlane had, at his disciplinary hearing, not raised any issues or concerns about the reports, Basson said.

It is clear from the sequence of events, as set out in Basson’s judgment, that Phahlane sought to derail the disciplinary hearing through a court order without having first exhausted internal remedies.

Phahlane had in fact requested to somehow be “exempted” for failing to adhere to internal remedies provided for in SAPS regulations. The application by Phahlane was brought against the National Police Commissioner, the Minister of Police, the Minister of Public Service and Administration, Advocate Terry Motau and the Public Service Commission.

Phahlane invoked the Promotion of Administrative Justice Act and asked the court to set aside or declare invalid an interlocutory ruling by Motau – who chaired Phahlane’s disciplinary hearing – with regard to the legal authority of the National Commissioner to institute legal proceedings.

Phahlane had maintained that the two reports as well as the Information Note requiring SAPS senior members to declare interests should also be declared unlawful.

Lawyers acting for the six respondents labelled Phahlane’s review application as “a thinly disguised attempt” by the former commissioner to avoid disciplinary proceedings.

They accused him of seeking to “circumvent the regulatory process established in this regard to avoid full ventilation of the various allegations of misconduct levelled against him in the disciplinary enquiry and to avoid any consequent findings and sanctions that may be imposed”.

Basson, in her judgment, concluded that “none of the actions complained of in this application constitutes administrative action as contemplated by PAJA and that the review application, therefore, should be dismissed”.

Phahlane’s explanation as to why he had not exhausted internal remedies were academic, said Basson, adding “and even if it was assumed for the moment that there is a proper review application before the  court, it is in any event difficult to follow what Phahlane’s case is in respect of this point”.

Phahlane, said Basson, had not set out what internal remedies were available to challenge the Information Note, the ruling as well as the two reports “and why he was unable to follow these internal procedures”.

Phahlane was also not able to explain to the court why it would be in the best interests of all parties that the disciplinary hearing “be suspended for a substantial period of time pending the outcome of these proceedings”.

None of Phahlane’s complaints amounted to an abuse of process by the respondents, nor did they “necessitate the expression of the Court’s displeasure by the visitation of an adverse or punitive costs order.

“All of the applicant’s complaints are misplaced and ought to be disregarded by the court.”

Phahlane was ordered to pay the costs of three respondents. DM