When plea deals collapse: SA Labour Appeal Court provides new guidelines on plea-bargain agreements

In the recent judgment handed down in South African Police Services v Mkonto and Others, the Labour Appeal Court (LAC) was confronted with the question as to what should happen where the chairperson of a disciplinary enquiry rejects a proposed lenient sanction in a plea-bargain agreement. 

The matter marks the first time that the LAC has had an opportunity to pronounce on disciplinary plea-bargain agreements.

The chairperson, the bargaining council, and the Labour Court

Mkonto, a sergeant within the South African Police Services (SAPS), was charged with five allegations of serious misconduct relating to the unauthorised use and parking of a SAPS motor vehicle and for falsifying or manipulating his travel records.

Mkonto pleaded not guilty to all charges levelled against him during the initial sitting of the disciplinary hearing. However, on the resumption of the matter, Mkonto entered into a plea bargain agreement wherein he pled guilty to all charges in exchange for a more lenient sanction short of dismissal. The agreed sanction was a suspended dismissal valid for six months and ZAR 500 fine. 

The chairperson accepted the plea of guilty but rejected the proposed lenient sanction, and imposed a sanction of dismissal.

Mkonto challenged the fairness of his dismissal at the Safety and Security Sectoral Bargaining Council. The arbitrator found that the chairperson had no power to interfere with the plea-bargain agreement. Therefore, Mkonto’s dismissal was found to be procedurally and substantively unfair, and he was awarded reinstatement with full backpay. The SAPS reviewed the arbitrator’s award on the ground that he misinterpreted the law in finding that the plea-bargain agreement was binding on the chairperson. The Labour Court ruled that the award was unassailable, as it met the threshold of reasonableness.

Labour Appeal Court’s approach to plea-bargain agreements

The SAPS took the matter on appeal, where the LAC had to decide whether the chairperson of the disciplinary hearing may reject a lenient sanction in a plea-bargain agreement, and whether the procedural unfairness tainted the disciplinary enquiry to the extent that it inhibited a substantively fair outcome.

The LAC confirmed that the chairperson was not bound by the plea-bargain agreement. In terms of the SAPS Disciplinary Regulations, the chairperson was enjoined to decide on sanction after considering mitigating and aggravating circumstances. However, the chairperson could not cherry-pick which parts of the agreement to endorse. The rejection of the lenient sanction collapsed the plea-bargain agreement, leaving no basis upon which to impose an appropriate sanction. In the Court’s view, the approach adopted by the chairperson violated the audi alterum partem rule.

To avoid similar ’procedural bungles’, the LAC developed flexible guidelines for the procedure to be followed when a chairperson is disinclined to endorse a lenient sanction proposed in a plea-bargain agreement:

• First, the chairperson must inform the parties of the intention to reject the lenient sanction and give reasons.

• Second, the chairperson must allow the parties to review their positions, which may include reopening the plea-bargain discussions to propose another appropriate sanction, or terminating the plea-bargain agreement.

• Third, if the plea-bargain agreement is terminated, the employee must be allowed to withdraw the plea of guilty.

• Lastly, the disciplinary enquiry must commence afresh before a different chairperson, except where the employee consents to the same chairperson continuing to preside over the enquiry.

On the issue of substantive fairness, the LAC reiterated that an arbitration is a de novo hearing, which means that the procedural irregularity could not have impeded the arbitrator from deciding on substantive fairness. 

On the assessment of the evidence before the arbitrator, the LAC found that there was overwhelming evidence of misconduct against Mkonto. Moreover, the LAC found that dismissal was an appropriate sanction, as the breakdown of trust was evident from the nature of the allegation, which revealed a stratagem of dishonesty.

Considering the above, the LAC found that the dismissal was procedurally unfair (for want of audi) but was substantively fair. The LAC awarded Mkonto three months’ remuneration as compensation.

Key takeaways

Plea-bargain agreements remain useful in the expeditious resolution of labour disputes. In considering them, disciplinary chairpersons are encouraged to follow the LAC’s four-step flexible guideline where they have reservations about the proposed lenient sanction. This will ensure the observation of audi and may mitigate against compensation awards for procedurally unfair dismissals.

Further, despite the existence of a plea-bargain agreement, where a dismissal is challenged, employers will need to present all the relevant evidence required to sustain the sanction of a dismissal at the arbitration, including evidence on the irreparable breakdown of the trust relationship. This de novo presentation of the evidence would allow the arbitrator to make an informed determination on the fairness or otherwise of the dismissal.

AmandlakaThixo Magubane is a Senior Associate in the Johannesburg office of Bowmans, who has advised corporate and public sector clients on matters related to various aspects of employment and administrative law, including review proceedings in the Labour Court, unfair dismissals, disciplinary enquiries, and litigation in private arbitrations.