The Supreme Court of Appeal (SCA) has dismissed, with costs, an appeal brought by Adrian Paul Barnes who had been shortlisted as one of the candidates for the position of the first executive head of the Mangaung Metropolitan Police Service or metro police chief, but failed to get the job.
The other shortlisted candidate was Ketsebae Israel Kgmanyane, who has since been appointed to the position.
The position of metro police chief was advertised in July 2017 and the panel conducting the interview rated Kgamanyane higher than Barnes.
On November 17, 2017 the Mangaung council resolved to appoint Kgamanyane as the first metro police chief.
On November 23, 2017 Barnes was told that his application was unsuccessful and Kgamanyane started work on January 1, 2018.
Aggrieved at this, Barnes approached the Free State High Court to review and set aside that appointment but his application was dismissed with costs, leading him to approach the SCA.
The respondents in the matter were Mangaung Metro and Kgmanyane.
The crisp contention which founded the basis of the application by Barnes, according to the SCA, was that only a registered traffic officer could lawfully be appointed as metro police chief.
He contended that, since it was accepted that Kgamanyane was not registered as a traffic officer, his appointment was not competent in law.
According to the judgment delivered on Monday, Barnes based his appeal on Section 64D of the South African Police Service Act 68 of 1995 (the Act) which requires the appointee to be a registered traffic officer in terms of the Road Traffic Act 29 of 1989.
Kgamanyane was not so registered and Barnes therefore argued his appointment was made in circumstances where the municipality had no power to do so under the principle of legality.
The law Barnes relied on reads in part: “When a municipal police service is established under section 64A, the municipal council in question shall appoint a fit and proper person as first executive head of the municipal police service.”
Section 64C deals with the appointment of subsequent metro police chiefs and says: “Subject to section 64D, a municipal council shall appoint a member of the municipal police service as the executive head thereof.”
This means in order to a be a member of the municipal police service, a person has to be a registered traffic officer.
It was submitted that, unless this was held to be a requirement for the first metro police chief, the words “fit and proper person”’ in Section 64D would have no clear meaning in law and would be incapable of being applied.
The SCA says it undertook an interpretation of Section 64D, whereby the appointment of the first metro police chief could not draw from members of the metropolitan police force since there were no members at that stage.
It was therefore distinguished from subsequent appointments.
“Section 64D requires the municipality to ‘appoint a fit and proper person’ as the first metro police chief.
“This is the single requirement. The words do not specify that any other criteria need be considered.
“Section 64C(1) provides the immediate context. It deals with appointments which follow that of the first metro police chief and requires the municipality to ‘appoint a member of the municipal police service’.
“It makes the provisions of s 64C(1) ‘subject to section 64D’. This means ineluctably that s64C(1) does not apply to appointments under Section 64D,” the SCA found.
The appeal court said the reason for that provision not applying to the first appointment is simply that at that time there would be no members of the municipal police service from which to appoint the first metro police chief.
“This was accepted by Mr Barnes in argument. As such, he accepted that s64C(1) did not apply to the appointment. He could thus not base his contention that Mr Kgamanyane had to be registered as a traffic officer on those provisions,” said the judgment. – Staff Reporter
