Labour court reinstates ousted police union boss – Union says no

The Labour Court has reinstated Mpho Kwinika as president and member of the South African Policing Union (SAPU).

In the judgment, which was delivered on Thursday, Judge Andre van Niekerk also declared the decision to place Kwinika on special leave as unlawful and set it aside.

But the union says it is appealing the court judgment.

According to the judgment, on 7 July 2020, the union’s national office bearers decided to place Kwinika on special leave, without his consent.

Kwinika was subsequently recalled as president by the union’s national executive committee (NEC) two days later and, on 24 July, he was expelled from the union.

However, a member of the union, Thulani Hlungwani, took it upon himself to approach the Labour Court, challenging the union’s decision.

Judge Van Niekerk ruled in Hlungwani’s favour, saying: “I find that the applicant, in his capacity as a member of the union, has locus standi to change the union’s failure to comply with its own constitution.

He continued:The union’s decision to place Kwinika on special leave, to recall him and to expel him from the union were all taken in breach of the union’s constitution.

“It follows that the decisions were null and void and should be set aside, and that the applicant is entitled to seek to have Kwinika restored to his positions as a union member and as president of the union.”

He said the respondents should pay costs of the proceedings.

Kwinika’s troubles first started in March 2019 when he was approached by a contingent of police vehicles, while he was with his friends outside a block of flats in Pretoria.

Officers accused him and his friends of public disturbance in the neighbourhood.

This resulted in Kwinika being assaulted by police and arrested on charges of public disturbance, resisting arrest, assault of a police officer and drinking in public, reads the judgment.

He was released from custody at about 04:00 and was admitted to the hospital on the basis of the serious injuries sustained during the attack by the police.

Kwinika was criminally and departmentally charged for various crimes and for allegedly committing various forms of misconduct.

The criminal charges were withdrawn, while the disciplinary action is still pending.

A year later, on 9 July 2020, “without prior warning or notice”, the union wrote a letter to Kwinika, advising him that he would be placed on special leave with immediate effect.

“No reason was given for the decision, other than that it was taken to protect the interest of the organisation.”

Kwinika addressed a lengthy letter to the NEC, voicing his concerns about the matter.

He did not receive a response.

He was later sent a letter by the general-secretary, advising him that the NEC took a decision to recall him as president of the union, again, with immediate effect.

It was further agreed in a meeting of the NEC, on 24 July, that Kwinika brought the organisation into disrepute “which is causing division by his actions after his removal as the president of SAPU”.

The NEC agreed to also terminate his membership.

The legal services provided to him, in respect of the pending cases, was withdrawn with immediate effect.

In the Labour Court, Hlungwani, who is the applicant in the matter, argued that the decision to place Kwinika on special leave, recall him as president and dismiss him as a union member were decisions taken in breach of the union’s constitution.

However, following the Labour Court’s judgment in favour of Kwinika on Thursday, he was still denied access at the union’s premises.

In a letter seen by News24, addressed to SAPU, Hlungwani’s lawyer Shaheen Bhyat – who fought for Kwinika to be reinstated – said Kwinika went to the premises to perform “administrative tasks only to be met with antagonism by inter alia the general-secretary and other members of your client”.

Kwinika was apparently removed from the premises by security officers.

“Not only was our client treated disrespectfully and in a demeaning manner, the conduct of the general-secretary and other members of your client is in contempt of the judgment and court order,” reads the letter.

On Friday SAPU’s acting deputy general-secretary Peter Ntsime said: “We are appealing the court judgment. We think the judge was irrational and he erred in his findings and another court will have an alternative finding.”

He claimed that Kwinika was removed from their offices because “he gave instructions to junior members [and] said he was suspending the national office bearers”.

Ntsime said when Kwinika was arrested last year, the union supported him, but he was removed from his position because of his “conduct and trying to change the constitution of the union in his favour that he must be the lifetime president”.

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