The Labour Appeal Court (LAC) has handed down a significant decision addressing a question that many employers and legal practitioners regularly confront. Can a disciplinary chairperson reject a lenient sanction emerging from a plea-bargaining process?
The LAC answered this question in the South African Police Services vs Mkonto and Others case. The judgment also highlights the limits of leniency within disciplinary proceedings. Mr Mkonto served as a sergeant in the South African Police Service (SAPS). SAPS charged him with serious misconduct involving the unauthorised use and parking of a SAPS vehicle. During the disciplinary hearing, Mr Mkonto pleaded not guilty. SAPS then led evidence from its first witness before postponing the matter because a second witness was unavailable.
Proceedings at the bargaining council
Mr Mkonto and SAPS later entered into a plea-bargaining agreement. Under the agreement, he would change his plea to guilty in exchange for a lenient sanction. The chairperson received details of the agreement and accepted the revised guilty plea.
However, the chairperson considered the misconduct too serious for the proposed sanction. Consequently, the chairperson rejected the lenient sanction and instead imposed dismissal. This decision became central to the debate around the limits of leniency.
Mr Mkonto challenged his dismissal by referring the matter to the Safety and Security Sectoral Bargaining Council. The arbitrator concluded that the chairperson lacked authority to reject the plea-bargaining agreement. As a result, the arbitrator found the dismissal procedurally and substantively unfair. The arbitrator also ordered Mr Mkonto’s reinstatement with full back pay.
Proceedings at the Labour Court
SAPS then took the matter under review to the Labour Court (LC). However, the court upheld the arbitration award because it found that the chairperson remained bound by the plea-bargaining agreement.
The LC further held that if the chairperson rejected the plea bargain, the chairperson should have allowed Mr Mkonto to revert to his original not-guilty plea. In addition, the chairperson should then have recused himself from the disciplinary hearing.
Proceedings at the Labour Appeal Court
SAPS appealed the LC’s ruling to the Labour Appeal Court. Consequently, the central issue became unavoidable. Could a disciplinary chairperson reject a lenient sanction created through plea bargaining, or must the chairperson simply accept the agreement reached by the parties?
The LAC first held that the plea-bargaining agreement did not bind the disciplinary chairperson. The court explained that the SAPS Disciplinary Regulations require chairpersons to determine appropriate sanctions independently. They must do this after considering all mitigating and aggravating factors. Therefore, the judgment reinforced the limits of leniency where serious misconduct exists.
The LAC then examined the procedure the chairperson should have followed. Importantly, the court warned that chairpersons cannot selectively accept only the parts of plea-bargaining agreements they prefer.
Instead, the court established a clear four-pronged framework that chairpersons should follow whenever parties present such agreements:
- First, the chairperson must formally inform the parties that he or she does not support the proposed lenient sanction. The chairperson must also provide reasons for this position.
- Second, the chairperson must allow the parties an opportunity to reconsider their positions and evaluate available options. These options may include:
- reopening plea-bargaining discussions to address the chairperson’s concerns and propose a different sanction; or
- terminating the plea-bargaining agreement entirely.
- Third, if the parties terminate the plea-bargaining agreement, the employee must receive permission to withdraw the guilty plea.
- Fourth, the disciplinary hearing must restart de novo before a different chairperson. However, this requirement falls away if the employee agrees to allow the same chairperson to continue presiding over the proceedings.
The court emphasised that these guidelines are not peremptory. Instead, their application depends on the specific facts of each matter.
Key takeaways from the judgment
Plea bargains in labour matters remain useful mechanisms for resolving disciplinary disputes efficiently. They allow charged employees, initiators and witnesses to focus on revenue-generating activities rather than lengthy disciplinary hearings.
This approach aligns with item 2(2) of the Code of Good Practice: Dismissal. However, employers must recognise the limits of leniency when negotiating disciplinary outcomes. Employers should therefore ensure that their disciplinary policies expressly address plea-bargaining agreements.
Policies should also clarify that chairpersons are not bound by such agreements. Furthermore, employers should clearly outline procedures that apply when chairpersons reject plea bargains either wholly or partially.
Employers should additionally include full and final settlement clauses within plea-bargaining agreements. This step can reduce the risk of employees challenging sanctions at a later stage. Ultimately, the judgment provides important guidance on balancing procedural fairness with the limits of leniency in workplace discipline.
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| Andries Kruger | Partner | mail me | | Bhekithemba Mbatha | Associate | mail me | |
| | Webber Wentzel | | |
