In South African Police Services v Mkonto and Others (PA 8/24, 8 January 2026) (LAC) the Labour Appeal Court (“LAC”) dealt with whether a chairperson of a disciplinary enquiry is entitled to reject a plea-bargain entered into between an employer and its employee.
Mr Mkonto, a member of the South African Police Service (“SAPS”), was charged with misconduct linked to the private use and parking of a SAPS vehicle, together with allegations of dishonesty in the recording of trips. At the commencement of the disciplinary enquiry, Mr Mkonto pleaded not guilty to the allegations.
Prior to the finalisation of the enquiry, Mr Mkonto and SAPS reached a plea bargain agreement in terms of which Mr Mkonto agreed to plead guilty to the charges, and SAPS agreed to impose a sanction short of dismissal. The chairperson accepted the guilty plea but was not willing to endorse the sanction the parties had agreed to, being a dismissal which was suspended for a period, and the payment of a fine of R500. Instead, the chairperson imposed a sanction of dismissal.
The dispute went to arbitration and then to the Labour Court, eventually reaching the LAC. The key question was whether a chairperson is bound to accept the sanction agreed between the parties in a disciplinary plea bargain.
The LAC’s answer to this question was that a chairperson is not required to simply accept an agreed sanction which is embodied in a plea bargain agreement. If the chairperson considers the proposed sanction inappropriate, the chairperson is entitled to reject it. At the same time, the LAC highlighted that rejecting the agreed sanction cannot be done in a way that is unfair to the employee, especially where the guilty plea was entered on the basis that the employee would receive a more lenient sanction.
The LAC then set out a practical approach for these situations. Where the chairperson is not inclined to accept the agreed sanction, the chairperson should explain that to the parties and provide reasons for this view. Then the parties must be given a fair opportunity to reconsider how they want to proceed. This includes the possibility that the parties renegotiate the plea-bargain agreement, or that the employee withdraws the guilty plea and the matter starts again before a different chairperson. The LAC highlighted that these steps are a guideline, and not an inflexible checklist, as flexibility should be allowed where fairness requires it.
On the facts, the LAC found that the dismissal was procedurally unfair because, once the chairperson rejected the plea bargain sanction, Mr Mkonto was not given a fair opportunity to reconsider his position or make further submissions in light of the chairperson’s decision.
However, the LAC upheld the reason for dismissal. It confirmed that private use of a SAPS-owned vehicle should justify the sanction of dismissal, particularly where dishonesty is involved. The LAC emphasised that SAPS officials are expected to display unimpeachable integrity, and misconduct that undermines trust in the SAPS should be treated seriously.
The LAC upheld the dismissal, but was awarded Mr Mkonto limited compensation for the procedural unfairness.
An important consideration arising from the judgment is that a chairperson is entitled to reject an agreed sanction if it is considered too lenient, but a fair process must be followed in these circumstances. Where the plea bargain is not endorsed, procedural fairness requires that the employee be afforded a proper opportunity to reconsider their plea and to make further submissions in light of the chairperson’s stance.
The law expects higher standards of integrity from those who hold public office, and those entrusted with the administration of justice, including lawyers. This conclusion is undoubtedly correct. This decision also serves as a reminder that disciplinary chairpersons must exercise their independent judgment and are not required to simply do the employer’s bidding. There is no doubt that the chairperson in this matter was correct: there is no place for dishonest persons in the public service, most particularly within SAPS.
