THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 425/2012
Reportable

In the matter between:

IVAN MYERS                                                                         APPELLANT

and

THE NATIONAL COMMISSIONER
OF THE SOUTH AFRICAN POLICE
SERVICE                                                                 FIRST RESPONDENT

THE SAFETY AND SECURITY
SECTORAL BARGAINING COUNCIL         SECOND RESPONDENT

ADVOCATE COEN de KOCK (N.O)                 THIRD RESPONDENT

Neutral citation: Myers v National Commissioner of the SAPS (425/2012)
[2012] ZASCA 185 (29 November 2012)

Coram:
Mthiyane DP, Mhlantla and Pillay JJA and Plasket and
Swain AJJA

Heard:
5 November 2012
Delivered:
29 November 2012

Summary:
Policeman ─ holding rank of Superintendent ─ with
28 years unbroken service with the South African Police Service ─
dismissed from employ for misconduct relating to issuing a media
statement in breach of a Standing Order ─ whether dismissal
reasonable in the circumstances.

_____________________________________________________________________

ORDER

On appeal from: Labour Appeal Court, (Waglay DJP, Molemela and
Zondi AJJA sitting as court of appeal):

1.
The appeal succeeds with costs.
2.
The order of the Labour Appeal Court is set aside and replaced
with the following:
‘(i)
The first respondent’s dismissal is declared to have been
substantively unfair;
(ii)
The appellant is ordered to reinstate the first respondent to the
position he held before the first respondent’s dismissal;
(iii)
The order in (ii) above is to operate with retrospective effect to the
date of dismissal;
(iv)
The first respondent is given a final written warning valid for a
period of 12 (twelve) months from the date of this order;
(v)
No order is made as to costs.’
3.
The order referred to in (iv) above shall come into effect on the
date of this order.
4.
Each party is ordered to pay its own costs in the Labour Appeal
Court.
___________________________________________________________

JUDGMENT

MTHIYANE DP (MHLANTLA, PILLAY JJA, PLASKET AND
SWAIN AJJA CONCURRING):

[1] The appellant, Ivan Myers was a superintendent in the South
African Police Service (SAPS) and the Unit Commander of Maitland Dog

Unit with 28 years unbroken service in the SAPS before his dismissal. On
18 June 2007 he was charged with misconduct following a media
communication he made to ‘Die Burger’ newspaper concerning the
condition of police dogs in his unit, without having first obtained
authorisation from his commander or media liaison official. Consequently
he stood accused of having contravened the standing orders and
regulations of the SAPS. It was alleged that the communication
prejudiced the administration, discipline and efficiency of the SAPS as
contemplated in regulations 20(f) and (i) of the Regulations for the South
African Police Service.1 At a subsequent disciplinary hearing presided
over by Commissioner Strydom the appellant was found guilty of
misconduct as charged and dismissed from his employment with the
SAPS with effect from 13 July 2007. He was also ordered to pay a fine of
R500. The referral of the dismissal to the second respondent, the Safety
and Security Sectoral Bargaining Council, for arbitration did not yield a
different result.

[2] The appellant then referred the dispute to the Labour Court to
review and set aside the decision dismissing him from his employment
and ordering him to pay a fine of R500. He sought retrospective
reinstatement in his employment as Unit Commander: Maitland Dog Unit
with the full benefits that he would have received had he not been
dismissed on 12 July 2007. The matter came before Ngalwana AJ who
granted the application and made an order (a) reviewing and setting aside
the appellant’s dismissal; but (b) remitted the matter to the second
respondent for a de novo hearing on an urgent basis before a
commissioner other than the third respondent. The Labour Court found
that the commissioner had misdirected himself in a number of respects

1 Published in GN R643, GG 28985, 3 July 2006.

during the disciplinary proceedings. Amongst others the chairperson had
relied on ‘insolence . . . impudence, cheekiness, disrespect and rudeness’
even though the appellant had not been charged with contravening
regulation 20(s) which deals with insolence and disrespect.

[3] The first respondent appealed to the Labour Appeal Court with
leave granted by that Court, against the judgment and order of the Labour
Court reviewing and setting aside the arbitration award. In terms of the
arbitration award the third respondent had found that the appellant’s
dismissal was substantively fair and dismissed the referral. Procedural
fairness of the dismissal was not in dispute.

[4] The background facts leading up to the proceedings in both the
Labour Court and the Labour Appeal Court are the following. As already
stated the appellant was a Superintendent and Commander of the Dog
Unit in Maitland with 28 years unbroken service in the SAPS and was
only six years away from becoming eligible for early retirement when he
was dismissed on 12 July 2007.

[5] During February 2007, the South African Police Union (SAPU)
raised the issue of malnutrition of police dogs at Maitland Dog Unit with
the SAPS management. While the appellant was on leave the daily rations
for the police dogs in his unit were reduced from 700 grams of food to
500 grams on the instructions of the police management. The dogs
noticeably lost weight and SAPU strongly believed that a change in the
dogs’
weight,
which
became
evident
immediately
after
the
implementation of the instruction, was as a result of the reduction in their
daily rations.

[6] Thereafter SAPU invited the appellant to a meeting at its offices
since he was the Commander of the Unit. A journalist of ‘Die Burger’
newspaper who was also present at the meeting approached the appellant
as the Unit Commander and invited him to explain the reasons for the
situation at the Dog Unit. The appellant refused to comment before
establishing if the issue raised by SAPU during his absence had been
addressed by the police management.

[7] The appellant was concerned about the unfavourable media
attention that the issue of dog malnutrition was attracting. He raised his
concern with the Provincial Commander, Senior Superintendent Visser,
and asked him to take immediate steps to prevent the story from making
headlines in the media. The next day the story made headlines. It was
inter alia reported that the situation was so bad that the police dogs were
eating their own excrement. Members of the public reacted with shock
and anger to the news of the condition of the dogs, both in print and
electronic media.

[8] As Commander of the Unit concerned the appellant felt obliged to
do something about the situation. On 21 February 2007, he interrupted his
leave and returned to work. On his arrival he found the chief veterinarian
of the SAPS and other senior police officers. The chief veterinarian told
the appellant that they were about to hold a meeting concerning the dogs
issue. The appellant asked to be part of the meeting but his request was
turned down. He then left.

[9] Two days later, on 23 February 2007, he sent an e-mail to ‘Die
Burger’ newspaper seeking to address the dogs issue and to point out

steps he had taken to resolve the problem. His article appeared in ‘Die
Burger’ newspaper under the following headline:
‘Maitland: Bevelvoerder Verbreek Swye: Rompslomp laat honde ly’
(loosely translated the headline meant: ‘Maitland: Commander Breaks
Silence. Redtape allows dogs to suffer’).

[10] The SAPS management did not take kindly to the article. The
appellant was charged with contravening regulation 20(f) of the
regulations in that he had by issuing the media statement, prejudiced the
administration, discipline and efficiency of the SAPS.

[11] In the alternative, he was charged with contravening regulation
20(i) in that he had failed to carry out a lawful order or routine instruction
without just or reasonable cause. Paragraph 4(4) of the relevant Standing
Order 156 forbids communication with the media without the prior
authorisation of a member’s commander or a media liaison official in the
SAPS. It reads thus:
‘(4)
No member may, on his or her own initiative or that of another member,
approach or entertain any media for purpose of media coverage without the prior
authorization of his or her commander.’

[12] Despite the appellant’s plea of not guilty on both the main and the
alternative charge, he was convicted on the main charge in that he had
failed to follow the right channels when he issued the media statement.
He was, however, acquitted on the alternative charge. The sanction
imposed was one of dismissal with effect from 13 July 2007 and payment
of a fine of R500.

[13] The appellant then approached the Labour Court to review and set
aside his conviction and dismissal. The application was partially
successful. As already indicated the Labour Court found that the
arbitrator had committed ‘a number of fundamental misdirections’.
Amongst others it found that the arbitrator had conflated the main and the
alternative charge. The judge found that the two charges under
regulations 20(f) and (i) were not ‘very much intertwined’ as found by the
arbitrator. The judge also found that the arbitrator had in the
determination of the matter had regard to the appellant’s conduct during
the hearing, which the arbitrator described as evincing ‘insolence . . .
impudence, cheekiness, disrespect and rudeness’. The judge noted,
correctly in my view, that the appellant had not been charged with
contravention of regulation 20(s) which deals with insolence and
disrespect.

[14] In the light of the above misdirections, amongst others, the judge
considered himself at large to review and set aside the arbitration award
and replace it with what he considered to be an appropriate order.
Accordingly he made an order (a) reviewing and setting aside the
arbitration award; (b) remitting the matter to the second respondent, the
Safety and Security Sectorial Bargaining Council, and (c) directing the
first respondent to pay costs.

[15] The first respondent successfully appealed to the Labour Appeal
Court. By a majority (Waglay DJP with Molemela AJA concurring and
Zondi AJA dissenting), the appeal was upheld with costs and the order of
the Labour Court (Ngalwana AJ) was set aside and replaced with an order
dismissing the appellant’s application for review and setting aside of the

arbitration award. The appellant’s cross-appeal was dismissed with no
order as to costs.

[16] In a minority judgment, Zondi AJA found that the arbitrator was
correct in finding the appellant guilty of misconduct in contravention of
regulations 20(f) and (i) (with which the majority agreed) but that the
sanction of dismissal was unfair and fell to be set aside (with which the
majority disagreed). He held that the Labour Court’s decision to review
and set aside the award on the ground that it was not clear on which of the
two charges the appellant was found guilty was wrong. In the result, he
proposed the following order:
‘1.
The appeal succeeds and the judgment and orders of the Court a quo are set
aside and replaced with the following:
1.1
the first respondent’s [the appellant’s] dismissal is declared to have been
substantively unfair;
1.2
the appellant [the first respondent] is ordered to reinstate the first respondent
[the appellant] to the position he held in its employment before the first respondent’s
[the appellant’s] dismissal;
1.3
the order in 1.2 above is to operate with retrospective effect to the date of
dismissal;
1.4
the first respondent [the appellant] is given a final written warning valid for a
period of 12 (twelve) months from the date of this order;
1.5
no order is made as to costs.
2.
Each party is ordered to pay its own costs.’

[17] The appeal to this court, with leave granted by this court, in
essence raises two issues. The first is whether the appellant was correctly
convicted of misconduct. The second is whether the dismissal was fair.
The two issues will be dealt with in turn.

[18] As pointed out, the Labour Appeal Court upheld the finding of the
third respondent that the appellant had contravened the provisions of
regulations 20(f) and (i). Regulation 20(f) provides that an employee will
be guilty of misconduct if he or she:
‘(f)
prejudices the administration discipline or efficiency of a department, office or
institution of the State.’

[19] The Labour Appeal Court found that the appellant had been
correctly convicted of contravening regulation 20(f) because ‘it was
unreasonable for Myers to send to the media for publication a statement
which created an impression that he was deliberately being silenced when
there was no evidence to this effect and which in turn could only have the
effect of undermining the SAPS and thereby prejudicing its
administration and discipline’. As regards regulation 20(i) the Labour
Appeal Court found that ‘Myers, by releasing his statement for
publication in the media without having first consulted with the relevant
media liaison official, clearly breached regulation 29(i) and as such he
was properly found to have committed misconduct of contravening
regulation 20(i)’.

[20] In my view, both the majority and the minority judgments in the
Labour Appeal Court were, for these reasons, correct in their conclusion
that both charges were proved. The appellant’s excuse that he was not
aware of the relevant standing order requiring that he obtain prior
approval before making his statement in the newspaper, is far from
convincing.

[21] I turn to consider the question of the dismissal. In dealing with the
question of the appropriate sanction the majority in the court a quo found

that the misconduct of which the appellant was convicted was serious. It
correctly found that a media statement by an employee that undermines
his or her employer cannot go unpunished. The court continued that
where the employer serves the public and is expected to maintain a high
degree of discipline within its ranks, then a media statement that
undermines the employer displays a lack of respect for authority.

[22] The majority of the court also had regard to the fact that it was not
dealing with a junior officer, but one who had been in service for 28 years
and who occupied a very senior position as a commander of a unit. The
court quite rightly remarked rhetorically that if persons in such positions
fail to follow the rules and regulations, they cannot implement the rules
and regulations and demand that their juniors respect them.

[23] In mitigation the majority accepted the fact that it was the
appellant’s unit that was the focus of attention and that he was probably
best suited to be in the team to deal with the issues that were of public
concern at the time and yet he was excluded. Having taken note of this
valid observation the majority did not follow through and give
recognition to it. It back tracked somewhat by stating that it was not for it
to prescribe to the SAPS how it should deal with the issues that confront
it. I do not agree. The majority was under a duty to have regard to this
factor in mitigation of sanction just as it took into account the fact that the
appellant had only had six years’ service left before he was eligible for
early retirement.

[24] There is also the question of absence of evidence that the
relationship between the appellant and the SAPS had broken down to
such an extent that continued employment was out of the question or no

longer possible. In fact the majority suggested, implicitly, that the
appellant was best suited to deal with the dogs issue because it was his
unit that was the focus of public attention.

[25] In aggravation the majority noted that although the appellant was
aware that the SAPS management was addressing the concerns raised
about the diet of the dogs, and despite being told that he could not be
involved with the management in addressing the problem, he sought to
challenge their authority without any regard for the rules that regulate his
conduct at the workplace. The majority concluded that in this regard it
could not accept that the arbitrator’s decision fell outside the band of
decisions to which reasonable decision makers could come. It concluded
that while the dismissal was a harsh sentence it was not so unreasonable
that it stood to be reviewed and set aside.

[26] In the minority judgment Zondi AJA took a different view. He held
that the sanction of dismissal was too harsh and therefore unfair. The
learned judge accepted that the appellant had contravened regulations
20(f) and (i), by submitting his statement for publication by the media
without first consulting with the relevant media liaison police official. He
accepted that the appellant’s conduct remained serious but found that it
was not of such gravity that it made a continued employment relationship
between him and his employer or superiors intolerable. He concluded that
in the circumstances the dismissal should be set aside and be replaced
with an appropriate sanction.

[27] In my view there is a lot to be said for the approach adopted by
Zondi AJA. The fairness of the decision of the SAPS dismissing the
appellant from his employment must be tested against the review standard

laid down by the Constitutional Court in Sidumo & another v Rustenburg
Platinum Mines Ltd & others 2008 (2) SA 24 (CC) para 110. The test was
formulated as follows:
‘(I)s the decision reached by the commissioner one that a reasonable decision-maker
could not reach?’
Explaining the standard, the court said applying it would ‘give effect not
only to the constitutional right to fair labour practices, but also to the right
to administrative action which is lawful, reasonable and procedurally
fair’.

[28] It must therefore follow that to survive scrutiny the decision to
dismiss must be ‘reasonable’ and reasonableness must be tested in the
light of the facts and circumstances of a given case. In its judgment the
majority in the Labour Appeal Court correctly recognised (in para 103)
that the test for dismissal was the one set out in Sidumo. In my view,
however, it erred in its application of the test to the facts in the present
matter. In para 104 the majority accepted that the sanction imposed on the
appellant was ‘a harsh sanction’ but then added that ‘it is not so
unreasonable that it stands to be reviewed and set aside’. The majority of
the Labour Appeal Court, appears to have accepted that the decision was
unreasonable, but not sufficiently unreasonable to warrant interference.
This seems to be an application of the ‘gross unreasonableness’ test of the
pre-1994 era. By adopting such a standard the court inadvertently
imported a higher standard than that contemplated in Sidumo. Were this
to be the test, it would mean that a dismissed employee seeking to set
aside a dismissal would have to show not only that the decision-maker’s
decision is unreasonable but that it is ‘so unreasonable’ that it falls to be
reviewed and set aside. That cannot be the test.

[29] Turning to the arbitration award I have already indicated that the
application of the test requires one to look at the decision and how the
decision-maker came to the conclusion to which he or she did. Of course
it is important to bear in mind at all times that one is not dealing with an
appeal but a review. One is concerned with how the decision was arrived
at rather than the conclusion.

[30] In imposing the sanction that he did during the disciplinary hearing
Commissioner Strydom had little or no regard to the mitigating factors.
As observed by Ngalwana AJ in the Labour Court, he regarded as an
aggravating factor what he described as an element of ‘insolence . . .
impudence, cheekiness, disrespect and rudeness’, which was an irrelevant
consideration in that the appellant was not even charged with
contravening regulation 20(s) which deals with insolence. Significantly
the majority in the Labour Appeal Court does not even refer to this
misdirection in its judgment, which was pivotal to the imposition of the
sanction of dismissal, because the Commissioner stated unequivocally
that he regarded it as an aggravating factor.

[31] While the Commissioner had regard to the appellant’s unbroken
service of 28 years in the SAPS as proof that he knew the rules he
violated, he omitted to make reference to this factor as equally relevant in
the consideration of mitigating factors.

[32] Having regard to all of the above and the test in Sidumo a
reasonable decision-maker would have had regard to all of the above
factors and could not have come to the conclusion that the dismissal of
the appellant was the appropriate sanction.

[33] In the result the following order is made:
1.
The appeal succeeds with costs.
2.
The order of the Labour Appeal Court is set aside and replaced
with the following:
‘(i)
the first respondent’s dismissal is declared to have been
substantively unfair;
(ii)
the appellant is ordered to reinstate the first respondent to the
position he held before the first respondent’s dismissal;
(iii)
the order in (ii) above is to operate with retrospective effect to the
date of dismissal;
(iv)
the first respondent is given a final written warning valid for a
period of 12 (twelve) months from the date of this order;
(v)
no order is made as to costs.’
3.
The order referred to in (iv) above shall come into effect on the
date of this order.
4.
Each party is ordered to pay its own costs in the Labour Appeal
Court.

____________________

K K MTHIYANE

DEPUTY PRESIDENT

APPEARANCES

For Appellant:
A A Oosthuizen SC (with him J A
Nortje)
Instructed by:
Wynand du Plessis Attorneys, Cape
Town
Claude Reid Attorneys, Bloemfontein

For Respondent:

E A de Villiers-Jansen
Instructed by:
The State Attorney, Cape Town
The State Attorney, Bloemfontein
Supreme Court of Appeal of South Africa

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
29 November 2012

Status:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

MYERS v NATIONAL COMMISSIONER OF THE SAPS
(425/2012) [2012] ZASCA 185 (29 November 2012)

The SCA today upheld an appeal against the judgment of the Labour
Appeal Court confirming the appellant’s dismissal from his employment
with the South African Police Service.

The appellant, Superintendent Ivan Myers was a Commander of the Dog
Unit in Maitland. He was charged with misconduct alleging a breach by
Myers of Standing Order 156(4)(1) in that he had issued a media
statement bemoaning the condition of the dogs in his unit without the
permission of the relevant Media Liaison Officer or his Commander.
After a hearing in the Disciplinary Inquiry he was dismissed from his
employment with effect from 13 July 2007 and fined R500. He had sent
an e-mail to ‘Die Burger’ newspaper while he was on leave, stating that
the poor condition of the SAPS dogs that had lost weight was caused by
the police management’s decision to reduce their food rations from 700
grams to 500 grams.

The police management considered the statement to be prejudicial to the
administration, discipline or efficiency of the South African Police
Service ─ hence the charge of misconduct against Myers.

The Labour Appeal Court agreed with the Disciplinary Hearing’s
findings but disagreed with the Labour Court which had held that the
sanction of dismissal was harsh and referred the matter back to the
arbitration for rehearing.

The SCA held that the conviction for misconduct was correct but that the
sanction of dismissal was not fair given the circumstances. It found that
the majority of the Labour Appeal Court had not sufficiently considered
the mitigating factors and had adopted an incorrect test in approving of
the sanction of dismissal. It agreed with the judgment of the minority
(presided by Zondi AJA) that the sanction was unreasonable. The Labour
Appeal Court had found that the dismissal was harsh but not ‘so
unreasonable’ as to be set aside and which the SCA considered to be
inappropriate.

Myers had had unbroken service of 28 years in the SAPS and was a
Commander of a Unit who was only 6 years away from retirement. There
was nothing to suggest that if he was reinstated continued employment
relationship on the SAPS would be intolerable.

Having regard to all of the above factors the SCA considered the sanction
of dismal to be unfair, and reduced it to a written warning valid for a
period of 12 months from the date of this order and directed that he be
reinstated.