- with readers working within the Oil & Gas industries
- within Insurance, Criminal Law and Law Department Performance topic(s)
- with Senior Company Executives, HR and Inhouse Counsel
Plea-bargain agreements form an integral part of our criminal justice system as they aide the amicable resolution of criminal cases. These agreements are not foreign in labour matters as employees can plead guilty to charges in exchange for a lenient sanction, short of dismissal.
Like in criminal proceedings, plea-bargain agreements must be subjected to scrutiny by the chairperson of the disciplinary hearing before they can be implemented.
But what happens if the chairperson at the disciplinary hearing accepts the plea of guilty but rejects the lenient sanction that the employer and the employee have agreed on, and dismisses the employee instead?
This was the issue before the Labour Appeal Court in SAPS v BF Mkonto and Others (PA8/24) [2026] ZALAC 2 (8 January 2026). Mr Mkonto, a sergeant in the Child Protection and Sexual Offences Unit at the South African Police Service, was charged with five charges of misconduct relating to his use and parking of a state motor vehicle at his private residence without authorisation. Mr Mkonto initially pleaded not guilty to the charge, but he later changed his plea following the conclusion of a plea-bargain agreement with the SAPS in exchange for a lenient sanction. The lenient sanction was a suspended dismissal valid for six months and a R500 fine.
SAPS presented the plea-bargain agreement to the chairperson and requested that he endorse it. While the chairperson accepted Mr Mkonto's plea of guilty, he rejected the proposed lenient sanction and imposed a sanction of dismissal anyway. The SAPS then dismissed Mr Mkonto.
Mr Mkonto challenged his dismissal, contending it was procedurally and substantively unfair. The SAPS contended that the chairperson of the disciplinary hearing was not bound by the plea-bargaining agreement because the SAPS Discipline Regulations enjoins the chairperson to pronounce on the verdict, having satisfied herself that the sanction was commensurate with the offence.
The arbitrator found that the chairperson was bound by the plea-bargain agreement and had no power to interfere with it and dismiss Mr Mkonto. Mr Mkonto's dismissal was procedurally and substantively unfair, and the SAPS was ordered to reinstate Mr Mkonto with full backpay.
The Labour Court upheld this award.
Was the chairperson bound by the plea-bargain agreement? What the Labour Appeal Court (LAC) had to say:
The LAC stated that in criminal matters, a judge may reject a plea-bargain agreement if the proposed sentence is either too lenient or too harsh. In essence, trial court judges are not bound by plea-bargain agreements and should they reject the agreement, the accused will revert to a plea of not guilty. The trial shall then commence de novo before a different presiding officer.
Similarly, the chairperson of a disciplinary hearing in this case was not bound by the plea-bargain agreement. This is because the SAPS' Disciplinary Regulations required the chairperson to decide on the sanction after considering mitigating and aggravating circumstances.
The LAC agreed with the argument of the SAPS that the chairperson was clothed with the persona of the employer and that her decision was that of the employer. Consequently, the finding in the award that the plea-bargain agreement was binding on the chairperson was unreasonable.
However, the LAC found that the chairperson's rejection of the lenient sanction set out in the plea-bargain agreement and imposition of a sanction she regarded as appropriate, without reverting to the disciplinary process, was inappropriate.
The disciplinary hearing was never finalised, as the plea-bargain agreement was concluded after the evidence of the SAPS' first witness. The LAC found that, in rejecting the lenient sanction, the chairperson effectively collapsed the plea-bargain agreement as she could not accept Mr Mkonto's plea and reject the agreed sanction. Without the plea-bargain agreement, the chairperson had no basis to impose dismissal as a sanction.
As a result of this, the chairperson failed to follow the principle of audi alteram, "a fundamental principle of natural justice that requires a fair hearing before an adverse decision is made."
The LAC noted that the procedural issue in this matter was a result of the absence of a prescribed procedure that employers should follow when the chairperson of a disciplinary enquiry has reservation about the lenient sanction proposed in a plea-bargain agreement.
The LAC laid down the following procedure to be followed by chairpersons who find themselves in a similar situation:
- First, the chairperson must inform the parties that they are disinclined to endorse the proposed lenient sanction and give reasons.
- Second, the parties must be allowed to review their positions
and consider their options, which may include the following:
- To reopen the plea bargain discussions to address the chairperson's concerns and propose another sanction.
- Alternatively, to terminate the plea-bargain agreement.
- Third, in the event the parties decide to terminate the plea-bargain agreement, the accused employee must be allowed to withdraw the plea of guilty.
- Finally, the disciplinary enquiry must commence de novo before a different chairperson, unless the accused employee has consented that the same chairperson may continue to preside over the disciplinary enquiry.
This guideline is, nonetheless, not cast in stone, and a degree of flexibility ought to be permitted as and when practical justice demands.
The arbitrator's finding that Mr Mkonto's dismissal was procedurally unfair was found to be reasonable.
Regarding the substantive fairness of Mr Mkonto's dismissal, the LAC found that the evidence showed that Mr Mkonto committed serious misconduct by using a state motor vehicle for private trips, clocked approximately 799 km, and parked the vehicle at his home without authorisation. Mr Mkonto also falsified his travel records.
Mr Mkonto argued that the SAPS had applied the sanction of dismissal inconsistently for this type of misconduct. The LAC rejected this argument because Mr Mkonto was also accused of dishonesty. Additionally, he committed the misconduct while acting as head of the unit. Furthermore, he showed no remorse for his conduct.
The LAC found that Mr Mkonto's misconduct displayed dishonesty. The court emphasised that a "high premium is placed on honesty and integrity within the SAPS and other national law enforcement agencies". Accordingly, the LAC found that the trust relationship between Mr Mkonto and SAPS had broken down, and this was evident from the nature of his offence.
In view of this, the LAC found that the Labour Court was incorrect in upholding the arbitrator's finding that the dismissal was substantively unfair.
Conclusion
The LAC upheld the finding that Mr Mkonto's dismissal was procedurally unfair and awarded him three months' compensation. However, the LAC set aside the finding that the dismissal was substantively unfair.
Employers, especially those in the public sector contemplating or concluding plea-bargain agreements with employees, should consider this decision. This case provides useful guidance to chairpersons of disciplinary hearings who are faced with plea-bargain agreements and have reservations about the proposed sanctions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
