Former acting national police commissioner Khomotso Phahlane loses battle for reinstatement

Former acting national police commissioner Khomotso Phahlane. Picture: File

Former acting national police commissioner Khomotso Phahlane. Picture: File

Published Oct 26, 2023


Pretoria - Former acting national police commissioner Khomotso Phahlane lost his legal bid to review his dismissal after the Labour Court found it was fair and reasonable.

Phahlane turned to the Labour Court in Johannesburg to review and set aside an award made by the arbitrator in arbitration proceedings.

Commissioner Joyce Nkopane at the time concluded that he intentionally caused the non-compliance with a contract which resulted in wasteful expenditure of R24 494 080.65.

In July 2010, Phahlane was appointed as the Divisional Commissioner: Forensic Services of the police. He was in October 2015 appointed as the acting national commissioner.

He was fired in October 2020 for misconduct when he refused to honour a R46 million contract to buy panoramic cameras.

Criminal Records and Crime Scene Management, a division of forensic services, identified the need for procurement of a panoramic image capturing system, including the maintenance of the equipment under the criminal justice system budget.

Following a tender process and the evaluation of bids from Ethemba Forensic Group and Forensic Data Analysis, the contract was awarded to Ethemba. The contract between the SAPS and Ethemba Forensic Group was signed in July 2014. However, no orders were placed for the system.

In August 2014, Forensic Data Analysis disputed the awarding of the contract to Ethemba and requested information in terms of the Promotion of Access to Information Act on the bid.

Forensic Data Analysis claimed Ethemba’s proposal had not been properly assessed and all publicly available information on the Civetta product (the product provided by Ethemba in South Africa) indicated it would not satisfy the bid specifications.

As a result, Forensic Data Analysis claimed the contract was unlawful. Notwithstanding this complaint, there is no evidence that Forensic Data Analysis sought to review the decision to award the contract to Ethemba.

In September 2014, the supply chain management division of the SAPS forwarded Forensic Data Analysis’s allegations to Phahlane.

At this time no orders were placed with Ethemba for the system. Phahlane did not provide any explanation as to why his division did not place orders in accordance with the contract prior to being alerted to Forensic Data Analysis’s complaint.

Phahlane later requested that R46m which was allocated for the purchase of the system, be repurposed to cover the costs of Forensic Light Services.

At this time, no steps were taken to cancel the contract and the SAPS was in breach of the contract.

In September 2016, Ethemba served a combined summons on the SAPS, citing Phahlane, in his capacity as the acting national commissioner, as the defendant.

The dispute between Ethemba and the SAPS was ultimately settled, when the SAPS paid R24,494,080.65 to the company. Phahlane was eventually fired for misconduct over not honouring the contract.

The matter subsequently went on arbitration and the commissioner was of the view that the SAPS had established that Phahlane was guilty of misconduct in that he had acted intentionally in not complying with the contract relating to Ethemba. It was also found that his conduct resulted in fruitless and wasteful expenditure by the SAPS.

Acting Judge R Davey said there is nothing in the award or in Phahlane’s court papers that supports a finding that the commissioner ignored the laws of evidence or ignored or unreasonably rejected relevant evidence.

“The findings of the commissioner and the award as a whole are supported by evidence that was led at the arbitration and the commissioner’s decision falls within a band of reasonable decisions. Accordingly, there is no basis on which to review and set aside the award,” the judge said.

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