Top cop Shadrack Sibiya has won his bid to be reinstated to his old job at the SA Police Services (SAPS).
He approached the Labour Appeal Court (LAC) to argue an earlier judgment by the Labour Court that only ordered his compensation, instead of reinstatement, was erroneous.
The earlier judgment found Sibiya’s axing from his position as the Gauteng head of the Hawks in 2015 was procedurally and substantively unfair, but awarded him a year’s salary.
Sibiya, currently the City of Joburg’s head of the Group Forensic Investigative Services, launched an appeal on the grounds he should have won a reinstatement order.
He submitted at the LAC that the Labour Court overlooked amendments to his relief pleas that he wished to go back to his old job.
Sibiya submitted he initially did not wish to go back to the SAPS because former Hawks national head Berning Mthandazo Ntlemeza was still on the job. He said Ntlemeza caused his axing on trumped-up charges.
These charges were he played a part in the illegal rendition of Zimbabwean nationals sought by their country for alleged crimes.
Sibiya was found guilty in an internal disciplinary hearing and axed, only to be cleared by the Labour Court.
He submitted in the LAC the Labour Court should have taken note of amendments he made and which indicated that due to Ntlemeza’s departure from the Hawks in 2017, he wished to go back to his old job.
In a fresh judgment, Judge of Appeal Phillip Coppin found in favour of Sibiya’s argument.
“The court (Labour Court) was wrong in not finding that the appellant wanted to be reinstated … and in not granting the amendment which was sought, or alternatively, in not finding that the parties had widened the issues as pleaded to include the issue of reinstatement,” said Judge Coppin.
“The court was not justified in such circumstances to assume that the appellant did not wish to be reinstated (or re-employed) in the SAPS. Before, at the time and during the trial, there could have been no doubt that the appellant wished to be reinstated.”
The SAPS, which did not oppose Sibiya’s LAC application, also had no room to claim he could not be reinstated on grounds that his old job was now occupied, said Judge Coppin.
“The SAPS is a vast organisation, with multiple positions for officers with the rank of Major-General, which is the rank the appellant held at the time of his dismissal.
“The fact that the position he occupied at the time of his dismissal, namely that of Provincial Head of Hawks, had since been filled is no reason for refusing him reinstatement into the SAPS, as he may be re-assigned following a proper and fair procedure to a post at the same rank and level as that he held at the time of his dismissal,” Judge Coppin said.
“The fact that the SAPS has 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.”
Judge Coppin ordered Sibiya’s retrospective pay should be limited to the period he was unemployed immediately after his dismissal from the SAPS.
He was unemployed for 14 months and 8 days before being appointed head of Joburg’s internal anti-corruption unit in November 2016.