Fired police captain who fought for his job wins — and gets 10 years' back pay

A police officer who lost his job when he was wrongly convicted of indecent assault is in line for a decade's worth of back pay after his six-year fight for reinstatement ended in victory.

The labour appeal court in Gqeberha ordered the national police commissioner this week to reinstate Capt Meshack Phopho “forthwith ... with no loss of rank, salary, allowances, privileges or benefits”.

In 2015, then-commissioner Riah Phiyega used a technicality when she rejected a recommendation to reinstate Phopho after the high court in Grahamstown upheld his appeal.

Phopho won his case for reinstatement in the labour court but the police appealed and unleashed a team of three advocates against Phopho's sole legal aid lawyer in the labour appeal court.

A bench of three judges concluded that Phiyega “acted arbitrarily and irrationally [and] in contravention of the principle of legality in the constitution” when she declined to reinstate Phopho after his successful appeal because he did not apply within 30 days of judgment being delivered.

Phopho's ordeal began when he was alleged to have indecently assaulted a colleague at Maclear police station in the Eastern Cape in 2010.

A disciplinary hearing cleared him but by then criminal charges had been pressed, and the regional court in Elliot convicted him and sentenced him to eight years' imprisonment.

Phopho immediately signalled his intention to appeal but within 11 days he was fired in accordance with the SA Police Service Act.

While he awaited an appeal date, he unsuccessfully applied for reinstatement, and he tried again in February 2015 after learning that the high court had cleared him.

In her response 18 months later, Phiyega said his application should have been made within 30 days of judgment being handed down in November 2014, even though Phopho's lawyer said he was notified of the outcome only three months later.

Phiyega said at the time: “The late submission is a matter of negligence by the lawyers of the dismissed member. It is therefore not an issue for SAPS. The lateness cannot be proved in any manner. The burden of proof is for the member and can be argued in court. SAPS must comply with the prescriptions and be consistent.”

In the labour appeal court ruling, Judge Philip Coppin said Phopho's successful appeal against his conviction ought to have resulted in his automatic reinstatement.

By requiring officers like him to apply for reinstatement, and to do so within 30 days, the SAPS Act was “open to a meaning which is inimical to and not in conformity with the constitution”, he said.

“For now, the issues raised in this matter possibly requires us, metaphorically speaking, to apply palliative therapy to a limb that may be gangrenous and might require amputation, possibly along with other limbs that are equally affected by the same malady.”

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