WRITTEN DECISION: EXPEDITIOUS PROCEDURE ~ MEETING PROCEEDINGS: ALLEGED MISCONDUCT: 0527128-1 MAJOR GENERAL JA VEAREY CASE NUMBER: HQ DR 05/2020 PARTICULARS OF PROCEEDINGS AND REPRESENTATION 1. The Expeditious Procedure Meeting Proceedings were held on the 23° of April 2021, the 4" and 21" May 2021 at Cape Town 2 Lieutenant General LE Ntshinga (myself) dealt with the proceedings in my capacity, as the duly appointed Functionary, as designated by the National Commissioner of the South Aican Police Service (SAPS) in terms of Regulation 9(1) of the South Attican Police Service Disciplinary Regulations of 2016 (Regulations) 3, The charged employee, No. 0527128-1 Major General JA Vearey was present al the Meeting and represented by Lieutenant General PA Jacobs, a “fellow employee" from Division: Inspectorate. 4, Messr Patrick Rolani, Johnson and Mari Mani from the Trade Union POPCRU Were also in atlendance at the meeting — on aifferent dates, and | had alowed them to sitin atthe proceedings in the capacity of observers. ISSUE IN DISPUTE 5. As the duly appointed Functionary, | must determine whether the employee, Major General Vearey, has committed misconduct on the date and place as. described inthe notice of Expeditious Process, dated 22 April 2021, which was. issued under my hand. In deciding whether the employee has committed misconduct or not, I must have heard the employee's version, pitt against the: allegations of misconduct brought against the employee and decide on the: verdict, as contemplated in Regulation 9(2)(4) ofthe Ragulations. BACKGROUND TO THE DIPUTE 6, Section 40 of the SAPS Act, 1995, Act No 68 of 1995, read with the SAPS Discipline Regulations of 2016, empower the National Commissioner of the: South African Police Service, as Employer, to institute Discipinary Processes.10 1" against an employee of the SAPS, if the employer holds a reasonable ‘suspicion that the employee concerned had committed an act of misconduct, For the purpose ofthe Expeditious Procedure Meeting the nature of misconduct ‘ought tobe the misconduct contemplated Regulation 5(4) of the Regulations. In the present case, the employer held a suspicion that the employee had contravened the provisions of Regulation 5 (4)(X) of the Regulation, by ‘committing an act of misconduct which is described or set out inthe Notice of the Expadtious Process dated 22 April 2021, At the time of the commission ofthe alleged misconduct, the employee was stationed at the Provincial Commissioner: Western Cape, serving in the capacity of the Deputy Provincial Commissioner responsitie for Crime Detectior. ‘The employer had conducted an investigation into the alleged misconduct by the employee. Upon finalization of the investigation process, the National ‘Commissioner of the SAPS had invoked the provisions of Regulation 91) of the Regulations, by appointing Lieutenant General LE Ntshinga, the Designated Person (myself), to deal with the matter against the employee, by way of Expeditious Process. ‘The frst Meeting was convened on Friday, the 23° April 2021 at Cape Town, ‘The Meeting was postponed tothe 4" May 2021 atthe request ofthe employee, 80 a8 to allow the employee, more ime to prepare hs own defense. On the 4° ‘May 2021, the employee had raised complaints relating to the orocess which hhad led to him being subjected to the Expediious Process, and Ihad adjourned the proceedings until the 21 May 2021 to consider the issues complained of, ‘The employee had responded to the allegations of misconduct on May, 21% 2021 CONDUCT OF THE PROCEEDINGS 2 2 4 Regulatcn 9(1) of the Regulations requires that an oficial be designated by the National Commissioner to deal with the matter by way of conducting the Expeditous Procedure. The person concemed must be an employee of the SAPS. The person concemed may not hold the rank beow that of a Brigadier Once appointed, the person concerned assumes the powers of the employer. Regulation 9(2)(a) requires the designated person to consider the information (hat includes reports, statements and any other evidence, if its avaiable) at higher dspossl, and satisfy himsoltherse¥ that the allegations against the ‘employee fall within the ambit of Regulation 5(4) ofthe Regulations. If the person concerned is not satisfied that the allegations of misconduct by the employee is not the act referred to in Regulation (4) ofthe Regulations, he ‘or she must refer the matter back to the office ofthe Appointing Authority and LEY18 16 W. 18 19 recommerd that the matier be deat with, through a normal disciplinary hearing In accordance with Regulation 9(2)(b). Should the person concerned be satisfed that the alleged misconduct by the employee is the misconduct described in Regulation 54) of the Regulations, helshe must instruct the employee to appear before him/her at the Expeditious Process Meeting When the charged employee appear before hinvher, the person concerned ‘must inforn the empioyee of the allegations of misconduct levelled against himiher in acordance with Regulation 9(2)(c). ‘The employee must be given an opportunity to defend himseliherself against the allegations of misconduet brought. Meaning that the employee must be afforded an opportunity to make representation to tne allegations (theemployee ‘must not be denied of his/her right to be heard) eguiation 9 provides that ine employee chargea win misconduct n terms ot Reguiation 9(2) must appear at a Meeting, and not at a disciplinary hearing, ‘The provisions of Regulation 11 of the Regulations regulate the hokling of the rormal disciplinary hearing, which is not the case inthe matter before me. Atthe Meeting, no witnesses will be called by ether of the two partes. For that reason, there shall be no evidence to be led. ‘Atthe Meeting there will no be Points in Limine taken by either of the two parties (the employer and employee), as there is no impartial chairperson to rule on the issues raised SHARGE 20. The employee was charged with the contravention of the provisions of Reguiation 5(4)(x) of the Regulations, in that, on the date and at the place specified or mentioned in the notice of Expeditious Process, the employee had brought the name of the employer into disrepute. The full particulars of the charged are described in the Notice. EMPLOYER'S VERSION 2 ‘As per the documentary evidence at my disposal, the following allegations were. ‘made aganst the employee: (On or about the 16% February 2021, Major General Vearey, the employee, was. inthe employ of the SAPS, Between the 7 December 2020 and the 25 February 2021, General Ki Sitole was the National Commissioner of the SAPS, and to this day he stilis‘The employee was holding the rank of Major General (equivalent o the position (of Chief Director in the Public Service Administration), and he stil is; ‘The employee was stationed at the Provincial Commissioner: Western Cape, serving in the capacity of the Deputy Provincial Commissioner for Crime Detection; The employer nad insttuted disciptnary process aganst Lieutenant General ‘Jacobs and the five (6) other employees of the SAPS. The matter related to the procurement of the COVID-19 Personal Protective Equipment (PEs) at the Division: Crime Inteligence; Lieutenant General Jacobs was the Divisional Commissioner responsible at the aforesaid Division, at the time; ‘The matter against Lieutenant General Jacobs and the five (5) others was investigated by Lieutenant General Vuma (current Deputy National ‘Commissioner for Support Services in the SAPS); Upon the finalization ofthe investigation process in that matter, the National ‘Commissioner of the SAPS had appointed Lieutenant General Ledwaba (who was serving as the Provincial Commissioner of Limpopo, atthe time), to deal with the Crime Inteligence case, by way of conducting Expediious Process in terms of Regulation 9 ofthe Regulations; Major General Vearey, the employee before me, had appeared on behalf of Lieutenant General Jacobs at the Expeditious Proceedings, which were being presided over by Lieutenant General Ledwaba; The matter against Lieutenant General Jacobs had received an extensive ‘coverage from a Media House called: ‘The Dally Maverick’ Between the 7® December 2020 and the 25% February 2021, the employee had ‘a Facebook Account, which isa part ofthe ‘Social Media Network’: ‘The employes had @ "Public" Facebook Account, under the User Name: “Jeremy Vearey’ ‘The employee's second name Is Jeremy and his last name (sumame) is Vearey; ‘The employee's face (which he had used as his Profile Picture) can be seen next to the name “Jeremy Vearey’, Inthe year 2017, the SAPS had crested a “Rule" called: National Instruction § ‘of 2017, and during the period 7% December 2020 ~ 25% February 2021, the Rule in question was stil ffl force and effect; ‘+ The Rule applied to employees of the SAPS, including the employee: Since it came into being, all SAPS employees were aware of the aforesaid Rule, land were reasonably expected to have been familiar with the provisions ofthe National Instructon § of 2017; Paragraph 19 (10)(e)(v) of the National Instruction 5 of 2017 instructs that, “employees of the SAPS may not engage in Online Publication of communication on Social Media, which could bring the Service (SAPS) into disrepute” “The aforesaid provisions ofthe National Instruction § of 2017 further provides that, “Every employee is accountable for statementsand comments made by him or her and must give careful consideration to what he or she posts andperceptions that may be created by his or her posts. The content ofthe posting ‘must not be illegal of disrespectfu" ‘On the 7® December 2020, the employee had posted, via his Facebook Online ‘Account, picture of the National Commissioner of the SAPS; together with the message which reads; "GOOD MORNING AND HOW IS THE MINO TODAY? Lighting up the shadows. A linked media report from the DAILY MAVERICK CO ZA "Deep Dive: Sitole vs Jacobs, ‘Again, the employee had, on the 12 December 2120, posted, va his Favebook Online Account. a picture of Lieutenant General Jacobs with the following ‘comment: “ONCE MORE UNTO THE BRIDGE" and added quotation, "I is not enough to hate your enemy. You have to urderstand how the two of you bring each other to deep completion” UNDERWORLD. Don Delillo. 1998; ‘Again, on the 23 December 2020, the employee had posted, va his Facebook (Online Account, @ picture of Lieutenant General Jacobs, with the following ‘comments; “TIME NO LONGER THAN ROPE’, "We won against all their money and power before. And this one we shall win, again, no matter the: ‘sacrifice or cost, ‘Again, on the 4 January 2021, the employee tad ‘Online Account, the message, “TIME LONGER THAN ROPE" — and linked it to a media report by the Daily Maverick, “SAPS IN CRISIS: JACOBS. vs SITOLE: Legal ping-pong as nati ‘Again, on the 16 January 2021, the employee had posted, via his Facebook Online Account, a comment or message, “THE AGE OF BLACKER THAN THOU POLICE POLITICS, OR THE POT OTHERING THE KETTLE BRONZE?" — Read, think and decide. The postis placed with a picture ofthe. National Commissioner of the SAPS; ‘Again, on the 17 January 2021, the employee had posted, via his Facebook Online Account, the message, AN ACUTE CASE OF FOOT-IN-MOUTH DISEASE”, a pictur of the National Commissioner can be seen inthis posting; ‘Again, on the 24 January 2021, the employee had posted, via his Facebook ‘Online Account, a message, "THE YEAR OF DECEIVING DANGEROUSLY", a picture of the National Commissioner can be seen in this posting; ‘Again, on the 25! February 2021, the employee had posted, via his Facebook Online Account, a comment or message, ‘News 24. COM. Crime inteligence: Peter Jacobs heads to cour to hat disciplinary action aml... the employee had commented on this withthe folowing words: “MOER HULLE! “FUCK THEM" ‘The employee's Online Postings was seen by many people; AColin Arendse was inspired by the messages posted Online by the employee: Two Senior Officers, Lieutenant Generals Ledwaba and Vura, whom the: "National Commissioner had relied upon in dealirg withthe case of an alleged misconduct against Lieutenant General Jaccbs, became aware of the ‘messages Posted Online, via the Facebook Account of the employee, and ‘according to them, the acts of the employee had made them fee! intimidated, threatened and unsafe; and‘+ The conduct of the employee, was meant to degrade the Nalional Commissioner andlor disrespect the authority of the leadership of the SAPS, ‘thus bringing the employer into disrepute EMPLOYEE'S VERSION 2 The empleyee had elected to defend himself against the allegations of misconduct brought against him, and mentioned the following on record ‘= He cannot respond to anything as there Is ne misconduct as dictated ty the Regulations; The act does not qualify an act of disrepute; ‘The elements of the charge must conform to the specifics, which inter-alia Includes the location (not on or about), date and time (on or about), and the employer's charge sheet does not meet such; ‘+ The location determination of the employee cannot be determined. The Social Media will how time and, this has nat been indicated inthe employer's charge sheet; + The charge itself is seen as not qualifying for any misconduct; ‘+ The test devs not meet a qualfication for misconduct + The allegations levelled against Major General Vearey do not qualify for an Expeditious Process; ‘The images of the act as alleged were not presented at the initial stages, but ‘were subsequently tendered: ‘= Major General Scheepers was not objective in his decision, because even the ‘words which are cited as negative were used, as seen in the Afrikaans Dictionary; +The digital news article were publicly available and were not altered + The words were qualifed as they were not abusing anyone and dif not constitute misconduct ‘+ Those words were not disrespecting +The matterof Lieutenant General Vuma feeling unsafe cannot be attributed to ‘Major General Vearey, as he was not mentioned on the case that was reported; ‘© General Goss did post messages, but did not put his name on; * The National Commissioner Is nowhere ‘flected or mentioned in the statement, especially when itis clear that all the other persons who featured in the pictures were not interviewed ‘+ Lieutenant Generals Ledwaba and Vuma are part ofthe leadership; ‘+ The posts were not in any way aimed at defaming the image of the National ‘Commissioner or anyone; ‘The meaning of the terms (words) therein, especially ~ the word, ‘MOER’ has negatively interpreted ‘+The version on the words lke; ‘FUCK’ you has been quoted out of contest and Major General Scheepers took a narrow view: 4Ew‘The employee had presented a bundle of documents under fle name, ‘Authority to Write Maj Gen VEAREY' — 2021-06-04 @ 13:50; 25 pages. = 2021-05-04 @ 13:50, 15 pages; “The employee had presented a bundle of documents under fie name, PRISON LANGUAGE BOOK BY: MAJ GEN VEAREY ~ 2021-05-04 @ 13:50; Lieutenant General Ledwaba has also directed his anger tothe wrong persons; and (On the basis thereof, the employee deny the charge against him, ANALY’ 2 24. 26. | have heard the response of the employee to the allegations of misconduct against him, and | am of the view that the employee is refusing to take responsibilty for his own actions. The facts at my disposal indicate that the employee had used modem technology, in the commission of the alleged misconduct. To this very moment, it remains unknown to the employer, as to hat i t that had prompted the employee to engage in the acts of the alleged ‘misconduct in the manner that he did, not once, but repeatedly. The facts at my disposal indicates that the employee had used his Facebook Account, on different occasions, between the 7” December 2020 and the 25" February 2021, to communicate those messages and images. This, the employee had ‘done not once, but eight (8) times. Surely, this specific acts, allegedly by the ‘employee could not have been done accidentally, Circumstantial evidence in this regard points to one definite possibilty; namely the acts were carried out by the doer, deliberately and on purpose and it was well calculated move. The acts of the employee, at all imes material to the case, point to gross-il- discipline on the part of the employee, Whit defending himself against the allegations of misconduct atthe Meeting, the employee had contended that, ‘the words used in his postings were not ‘abusing anyone and did not constitute misconduct’. have considered the view lof the employee, in this regard, and | must disagree with the employee, in that, the words used by the employee in one of his postings were derogatory, degrading and insulting. It is probable that, any reasonably thinking human being, who has not lost the ablity to diflrentiate right from wrong would be offended by the acts of the employee, if he or she became aware of the incident) Inthe SAPS, the employer has created the Workplace Rule - called the "SAPS. Disciplinary ‘Regulations, 2016". The employer utilizes its Rule Book to dispense discipine in the workplace, including to determine whether an act of ‘misconduct has been committed oF not - by the employee This should be understood by any employee to mean thatthe duty to decide as to which acts 4&p26. 27. 28. 28. 30, Eo constitute misconduct and which not, resors under the jurisdiction of the empioyer. only. Whilst pulting-forward his own version at the Meeting, the employee had ‘advanced no vaiid andior reasonable explanation as to why did he display the Images ofthe National Commissioner on his Facebook Account. The employee does not deny commiting the acts (posting messages and images via his Facebook Account). The failure on the part ofthe employee to present a valid reason at the Meeting, for having carried out those acts point to a culture of Impunity on the part of the employee. The conduct of the employee was Lunprofessional, unethical, disrespectul, inexcusable and unacceptable, ‘The employee had submitted before me that, the posts were not in any way aimed at defaming the image of the National Commissioner or anyone. | have Considered this specific version by the employee, and | truly believe that the ‘employee is not being frank with me. | am satisfied that there was no just or {900d cause for the employee to use the images of the National Commissioner, ‘and make the negative “emarks in his posts, in the manner that he did, atthe time. Itis of cardinal imgortance for the employee to recognize that he was the rightful owner” of the Facebook Account in question, and as the User of the ‘Account in question, it was open for him use it in any manner he wished, but that did not include posting messages and images that are derogatory, insulting and offensive to others, The actions of the employee on those instances were ‘aimed making the Naticnal Commissioner and those in the leadership of the ‘SAPS a ‘laughing stock in the community’, and that, in my considered view is tantamount to bringing the name of the SAPS, as employer, into disrepute. In an attemptto evade responsbilty, the employee had tried to play with words like; MOER and FUCK’ by giving them meanings which could “suit” him. The ‘acts of the employee were desperate, to say the least. {At the time of the commission ofthe acts, the employee was serving as the Deputy Provincial Commissioner in the Westem Cape. The employee had been serving in a position of ust, power, privilege and responsibilty, at the time of the commission ofthe aleged misconduct. ‘The acts committed, allegedly by the employee, had great potential to inspire ‘others, both within and outside the SAPS, to rise and resist the authority of the [National Commissioner and of those who are in the leadership of the SAPS. ‘This factor alone, has got potential to collapse levels of discipline in the SAPS, ifit ig left unchecked. | have noted, with great concern that the employee had, in the commission of the alleged misconduct, used words, such as “MOER HULLE™ which iterally translated means “Hit Them!” Surely this statement has got potential to cause the situation within the SAPS to become toxic and chaotic. Words read, spoken and heard have got potential to inspire other human beings to make or do something lea22 33. 34, 36, | have taken into consideration, the documentary evidence dated 2021-06-04, ‘hich was presented to me by the employee, for the purpose of reaching a verdict. The information described in this paragraph does not serve to exonerate the employee of the employee of the alleged offence. The information at my disposal indicates that the employee had represented Lieutenant General Jacobs at the disciplinary hearing. While itis acknowledged that the employee had been doing so atthe instance of the charged employee (Geutenant General Jacobs), it, however, remains strange as to why did the employee elect to cause the SAPS internal disciplinary process, which were meant to be dealt with by the employer, internally, publi, by posting the information Onine via his Facebook Account, for public consumption. As a result of those ects, allegedly by the employee, many people beoame aware of the situation within the SAPS, including the manner in which the National Commissioner of the SAPS is being disrespected by his subordinate, the employes I is common cause that the employee is being represented by Lieutenant General Jacobs at these proceedings. As matters stand, both Lieutenant General Jacobs and Major General Vearey do take turns in representing each other at disciplinary hearings within the SAPS. While I do acknowledge that everyone has cot a the right to representation at any legal proceedings, as guaranteed by tne Constitution ofthe Republic of South Africa, | must however, point out that, that right is not absolute. tis worth mentoning that atthe time he appeared on behalf of the employee at these proceedings, Lieutenant General Jacobs was serving in the SAPS as the Divisional Commissioner for Division: Inspectorate. The SAPS Disciptinary Regulations, 2016, recognizes the National, Provincial and Divisional Commissioners as the custodians of the Regulations. These Commissioners, have got the power, under the Regulations, to sanction or authorise dsciptinary processes against an employee, including the power to appoint Functionaries in terms of Regulation 6 (3), Regulation 9(1) and Regulation 11 (1) and (2). ‘Above them all, these Commissioners have got the power, under the Reguiations, to confirm the dismissal of an employee trom the SAPS orto vary ‘a sanction of dismissal on account of misconduct. | reasonably suspect thatthe ‘conduct of Liewtenant General Jacobs is not consistent with the very same Regulations that he is, by law required to uphold and apply. It remains to be seen how Lieutenant General Jacobs is going to be dealing with disciplinary ‘matters involving the employees resorting under his area of jurisdiction, inthe future. REASONS LEADING TO FINDING 38 Itis notin dispute thatthe employee, on of about the 16 February 2021, was Using a Facebook Account under the name “Jeremy Vearey” ser37. 38 30 40. a 42, 43. 46, 47. ‘The employee had posted, Online, some messages and images and, caused ‘same to be circulated or communicated, via the Social Media Network ‘Among the messages or comments and images posted by the employee on several occasions, were the images or pictures of the current National ‘Commissioner ofthe South Aftican Police Service, Goneral Stole ‘The employee was in the employee of the SAPS at the time of the commission of those acts of alleged misconduct. Itis prebable that, in many of his postings, the employee did make a comment ‘on the works of the SAPS, including the disciplinary matter against Lieutenant. General Jacobs, which was being dealt with the employer, at the time. The: employee was not authorized by his employer to communicate on matters of the SAPS or the works of the SAPS, when he carried cut those acts. It probabie thatthe acts ofthe employee, at ll times material to those specific acts (posting of messages on his Facebook Accoun!) were deliberate and, ssoughtto incite others to violence against the National Commissioner and those: in the leadership positions within the SAPS. This view, is being supported by: the use of the words, "MOOR HULEY’, allegedly by the employee. By conducting himself in the manner that he did, 2s clearly shown in the: messages posted via his Facebook Account, the employee had openly: remonstrated against the decision of the National Commissioner to maintain discipine within the SAPS, given that atthe time of the commission of those: acts of misconduct, the employee was aware of the fact that a decision to. subject Lieutenant General Jacobs and the five (5) orhers to the disciplinary: process was taken by the National Commissioner himself Between the 7® December 2020 and the 25" February 2021, the employee had posted, via his Facebook Account, eight (8) times, messages and images about ‘the Nalonal Commissioner and the SAPS. In one of his postings, made on the 25% February 2021, the employee had used words "FUCK THEM The conten! of those messages were derogatory, offensive, insulting and disrespectul to the National Commissioner and those inthe leadership within the SAPS, ‘The employee was aware or was reasonably expectec to have been aware of the provisions of the SAPS National Instruction 5 of 2017, regarding the use of Online Social Media Platform, The employee is denying the charge for the sake of conying it, since he had utforvard nothing substantive 10 support his claim that he denies the allegations, Reguialion § 4(x) of the Regulation recognizes the acts of the employees as. misconduct Itis probable thatthe employee has commited the act of misconduct described in the Notice ofthe Expeditious Process,EINDING 48, In respect of charge | | find the employee; GUILTY. ‘SACTIONING PROCEEDINDS 49, The employes is hereby given an opportunity to present to me, in writing, his mitigating factors, that, | should take into consideration when considering an appropriate sanction. 50, The information referred to in paragraph 49 above (mitigating factors) ‘should reach me, via email (LiziwoNtshinga@amailcom or [email protected]), no later than Thursday, the 27° May 2021 at 10:00. LIEUTENANT GENERAL cena pai Jo9' 05 OF