01/03/2012 Police Commissioner, General Riah Phiyega after a media briefing regarding the alleged police brutality in Dayviton at SAPS training college in Pretoria. Picture: Phill Magakoe

Johannesburg - National police commissioner Riah Phiyega’s protracted battle with two deputies she tried to unilaterally move has resulted in the two officers, who have over 60 years of experience between them, leaving the force.

But their fight with Phiyega is far from over, with one of the officers – Lieutenant General Godfrey Lebeya – referring the matter to the Commission for Conciliation, Mediation and Arbitration and the Safety and Security Sectoral Bargaining Council.

The other – Lieutenant General Leah Mofomme – this week told The Sunday Independent that she was still considering her options.

She confirmed that her contract ended in May.

She would not be drawn into talking about the matter but said Phiyega had an obligation to follow the correct process when dismissing an employee in terms of the SAPS Act.

On Friday Lebeya’s lawyer, Charl van Eetveldt, told The Sunday Independent the matter had been referred to the commission.

“We are claiming reinstatement or alternatively damages,” said Van Eetveldt.

The bone of contention rests in whether the officers should be retrenched in terms of the basic conditions of employment or redundancy in terms of the South African Police Act.

In terms of the first, they would receive a week’s salary for each of the completed years of service while section 35 of the police act, used when an officer is considered redundant, suggests two weeks’ salary for each completed year.

Police spokesman Solomon Makgale said the officers had the right to take their matters to the commission but they made themselves redundant by refusing to unconditionally accept the positions they were offered.

These were the same rank of lieutenant general and benefits, he said.

He said there was a period of negotiations that yielded no positive results and it was not desirable to enter into this type of discussion indefinitely.

It was unfortunate that the generals declined the offers but the matter was now concluded and the two were no longer employees of the police, he said.

Makgale referred to a court battle where the SA Police Union (Sapu) wanted Phiyega to explain why she rejigged the police’s top structures without consulting the unions.

“The outcome was that the national commissioner is entitled to structure her office as she sees fit so as to enable her to fulfil her constitutional mandate.

“The exercise she undertook does not constitute a restructuring as envisaged on the agreement between the unions and the SAPS. If there is a restructuring within SAPS, the unions will be consulted. So Sapu was wrong,” he said.

Sapu president Mpho Kwinika disagreed with Makgale’s interpretation, saying that when those changes affected members, they needed to be consulted about that.

“What we are fighting is not that the commissioner does not have the right to restructure, but that she consults with us so we know the impact of restructuring on the members on the ground. All restructuring in the past was consulted.”

Lebeya and Mofomme’s battle began nine months ago when Phiyega removed Lebeya, Mofomme and four other deputy national commissioners, replacing them with only three posts.

Lebeya, who had been serving as a deputy since 2011, was to head the Research Institute, which was still to be established.

Mofomme, who headed human resources, was to be the chief executive officer of the police’s Education Trust.

Both accepted the new positions, but insisted on retaining their titles as deputy national commissioners – if, as Phiyega had said, the offers were not demotions.

The two had argued that if they were not being demoted, they should keep their rank of deputy national commissioner. If not, a demotion process should follow.

When the pair refused to accept Phiyega’s offer without their titles, she effectively retrenched them.

But the two separately approached the Johannesburg Labour Court to stop her from dismissing them without thoroughly consulting with them about retrenchments.

Sunday Independent