Africa-Press – South-Africa. General Shadrack Sibiya, the former Gauteng Hawks head who was dismissed in 2015, has won his appeal bid to be reinstated.
The Labour Appeal Court found Sibiya was entitled to back pay of 14 months and eight days, which is the period he was unemployed after his dismissal.
In his judgment, Judge Phillip Coppin ordered the police to reinstate Sibiya as a major-general, either in the position he occupied at his dismissal or in another post the national commissioner considered appropriate at the same rank and level.
Sibiya was fired in 2015 by then-acting head of the Hawks, Berning Ntlemeza, following a disciplinary inquiry into his alleged role in the illegal deportation of five Zimbabweans in 2010.
In 2020, the Labour Court ruled his dismissal was procedurally and substantially unfair.
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It ordered the police to pay Sibiya, who is now Johannesburg’s head of forensic investigations, a 12-month salary as compensation.
The court declined to award Sibiya the remedy of reinstatement, which prompted him to approach the Labour Appeal Court seeking reinstatement.
According to court papers, his legal representatives argued the Labour Court had erred in not reinstating him in circumstances where it had “vindicated him and had found that he was innocent and had been victimised by officials who lacked integrity”.
The legal team also argued there was no evidence a continued employment relationship between Sibiya and the police would be intolerable.
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The team said Sibiya did not originally seek reinstatement in his statement of claim because, at the time, the police was still “under the command of those individuals who were responsible for his dismissal, but that he never abandoned or waived his right to seek reinstatement”.
The police did not oppose Sibiya’s appeal application.
In his judgment, Coppin said there was no reason why Sibiya’s reinstatement should not have been ordered. He found the Labour Court was wrong in not finding Sibiya wanted to be reinstated.
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“Before, at the time of and during the trial, there could have been no doubt that the appellant wished to be reinstated.”
Coppin added the Labour Court had apparently accepted the argument by counsel of the police the position Sibiya held at the time of his dismissal had been filled and it would be impossible to reinstate him to that position.
But Coppin said this argument was not backed up by evidence.
Unfair
The judge added the fact the position he occupied at the time of his dismissal had been filled was no reason for refusing him reinstatement into the police.
He said: “The appellant’s [Sibiya] dismissal was both procedurally and substantively unfair, meaning that there was no fair reason for his dismissal and that the procedure, culminating in this dismissal, was unfair. He was not at fault at all, while SAPS, through the senior officers it employed then, was wholly at fault in dismissing him.”
“There has been no suggestion or contention that the appellant had been dilatory in his pursuit to vindicate his rights. Accordingly, there is no reason why his reinstatement should not have been ordered to be retrospective to the date of his dismissal.”
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Coppin added the fact that time had elapsed from the date of dismissal should not constitute a bar to his reinstatement.
“The fact that the SAPS [have] not opposed this appeal, despite being fully aware of the issues in this appeal and the appellant’s wish to be reinstated in the SAPS, further underscores his argument that there is no legitimate bar to his reinstatement.”
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