If Richard Mdluli’s suspension is overturned, it would be in contempt of court – following the Pretoria High Court’s ruling to strip him of his powers and interdict him from working as a police officer.
And, by fighting his suspension, Mdluli was persisting on a matter that had been overtaken by the course of events.
This was the contention of advocate William Mokhari SC, the lawyer representing the SAPS in its case against Mdluli.
Mokhari argued that if Mdluli felt his suspension was an unfair labour practice, it should have been referred to the bargaining council, or to the Commission for Conciliation, Mediation and Arbitration.
Last month, Mdluli approached the Johannesburg Labour Court to challenge his suspension by former acting national police commissioner Nhlanhla Mkhwanazi.
He argued, through his lawyer, advocate Graham Moshoana, that his suspension was “unfair and unlawful” and constituted “double-double jeopardy”.
He claimed, in his founding affidavit, that he was not personally served with the notice of intention of his suspension on May 15, and that he had heard it through the media only on May 25.
He added that his suspension had been enforced without his being accorded the opportunity to make representations in a disciplinary hearing.
While Lieutenant-General Fannie Masemola was not in court on Thursday, his name dominated proceedings.
Moshoana accused him of having flouted the Labour Relations Act procedures by not personally serving Mdluli with the notice of intention to suspend him.
In court documents, Masemola said he had served the notice to Mdluli on May 15. Mdluli had allegedly said he would sign it on May 16, once he had consulted his lawyers.
Moshoana denied that Mdluli had received the notice. This, he said, was despite a meeting between Masemola and Mdluli on May 14.
Moshoana questioned why, if Masemola purports to have served Mdluli with the notice on May 15, he (Masemola) had kept on pestering him with phone calls and an SMS, asking him to confirm if he had received the letter.
This, he said, was despite Masemola being aware that Mdluli had been booked off sick (with stress and hypertension).
But Mokhari said the Pretoria High Court’s interim order prevented him from working as a police officer.
“Any order contrary to that interim order cannot be enforced. That is the predicament. This application has been overtaken by the course of events. You cannot reinvent the wheel,” said Mokhari.
He said Mdluli’s version that he had not been served with the notice of his suspension was “far-fetched and fabricated”.
He said the Labour Court was not competent to adjudicate on Mdluli’s application as the suspension was a precautionary one and had not been done “in a draconian way”, Mokhari said.
Judgment was reserved until Monday. - The Star