Kgomotso v South African Police Service and Others [2026] ZALAC 7

Court: Labour Appeal Court of South Africa, Johannesburg

Coram: Nkutha-Nkontwana JA, Chetty AJA, Tokota AJA

Date of Delivery: 5 February 2026

Factual Matrix

The appellant, Phahlane Johannes Kgomotso, joined the SAPS in 1985 and was promoted to Lieutenant General in 2007. He was appointed Acting National Commissioner by the President on 14 October 2015. A dispute arose concerning a procurement contract (Bid No. 19/1/9/1/187 TR[13]) for panoramic camera equipment awarded to Ethemba Forensic Group. The appellant, in his capacity as Divisional Commissioner: Forensic Services, disputed the award and refused to place orders. Ethemba subsequently sued the SAPS for breach of contract, resulting in a settlement of R24,494,080.65. The appellant was suspended by the Minister of Police on 1 June 2017 and dismissed on 7 August 2020 following a disciplinary enquiry conducted under Regulation 9 of the SAPS Discipline Regulations. He referred an unfair dismissal dispute to the Safety and Security Bargaining Council. The arbitrator upheld the dismissal as both procedurally and substantively fair. The Labour Court dismissed his review application.

Reasoning for the Finding

Tokota AJA (Minority Judgment – Unlawful Dismissal/Lack of Jurisdiction): The minority held that the Labour Court lacked jurisdiction because the appellant's cause of action was predicated on unlawful dismissal, not unfair dismissal under the LRA.

"[44] ...if the power to appoint an Acting National Commissioner vests in the President, as was the case in this matter, then the power to remove or suspend that Acting National Commissioner cannot shift to another functionary such as the Minister of Police or the National Commissioner." [para 39]

"[50] Accordingly, even though the power to dismiss is not expressly provided in the Constitution, it follows that such power is implied as a necessary corollary to the power to appoint." [para 41]

"[50] Anyone, not being the President, purporting to act in terms of s207 of the Constitution acts unlawful and such act is a nullity." [para 50]

"[51] In light of the fact that the cause of action was predicated as unlawful dismissal before the Labour Court, that court had no jurisdiction to entertain the dispute." [para 51]

Chetty AJA (Majority Judgment – Reasonableness Review): The majority held that the appellant's pleadings framed the dispute as an unfair dismissal under the LRA, and the arbitrator's findings were within the bounds of reasonableness.

"[85] Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case." [para 85, citing Gcaba]

"[127] The question central to the enquiry is whether the arbitrator's decision is one that a reasonable decision-maker could reach." [para 127]

"[134] I am satisfied that the evidence broadly reflects that the appellant acted negligently rather than intentionally. That distinction offers no succour to the appellant, as the respondent succeeded in establishing the essential ingredients of the charge on count one." [para 134]

Nkutha-Nkontwana JA (Concurring with Majority):

"[141] That the arbitrator referred to the appellant's failure, as the Acting National Commissioner, to intervene when he was made aware of an impending litigation that led to wasteful expenditure as an aggravating factor that justified dismissal does not cure the pleading defect." [para 142]

Finding/Order

The appeal was dismissed with no order as to costs. The majority upheld the arbitrator's finding that the dismissal was both procedurally and substantively fair. The minority would have dismissed the appeal on jurisdictional grounds (unlawful dismissal falling outside LRA jurisdiction), but all three judges concurred in the final order.