The Department of Agriculture, Forestry and Fisheries (DAFF) has instructed its legal team to launch an application in the Labour Court to review and set aside the findings of a disciplinary hearing which cleared a high-ranking official accused of being involved in the multimillion-rand theft of perlemoen.
Thembalethu Vico, the former acting chief director of monitoring, control and surveillance, was found not guilty of 14 charges relating to loss of abalone worth millions of rand. Accused of the theft of the pricey mollusc, the chairperson of the disciplinary hearing questioned whether there had been any theft at all.
According to the charge sheet, three tons of abalone belonging to the department was removed or released from its store house in Paarden Eiland, resulting in Vico facing allegations of misconduct relating to its removal.
He was accused of acting in concert with his colleagues – acting director-general, Siphokazi Ndudane and then-chief financial officer Nazima Parker – in releasing the abalone to crime intelligence officers for use in undercover operations, in circumstances which contravened policy prescripts regulating the handling of confiscated abalone, resulting in a loss of an estimated R7m.
According to the evidence presented, the police's application for three tons of abalone was not supported by the department's relevant official, as there were issues regarding their operation plan, as well as the large quantity that was requested. Ndudane had, on the day of the removal of the abalone, given the keys to the storeroom to Vico, who had that night – January 8, 2018 – issued the abalone to the police, who signed acknowledgement of receipt.
Abalone worth R3.6bn
The official who declined the request had, upon returning from leave, met with the police and director of public prosecutions (DPP) to investigate what had happened to the abalone. The DPP withdrew the authorisation of the abalone after being alerted that there had been non-compliance with DAFF requirements, stating that the abalone was to be returned to the department at once.
When this was done, it was alleged that it was of a poor quality and that it was not the same abalone issued to the police.
Two subsequent verifications produced different results – the original packing list weight was 3 189.30kg, but the verified weight in March that year was 3 073.50kg, a difference of 115.80kg.
In addition, his alleged failure to report the theft of abalone worth R3.6m from the Office of the Commissioner for Aquaculture Development in Gansbaai in 2017, as well as R14.9m in 2018, resulted in the charges against him.
The chairperson ruled in Vico's favour, saying he had acted under the authority of the acting director-general (DG), questioning how the intention to steal could have been established in that instance.
"It is very difficult to see how the crime of theft can be committed by handing over the item that it is alleged to have been stolen to the police," the judgment reads.
Quality of abalone in question
According to the ruling, 155 boxes of abalone left the store and 155 were returned, with the only dispute pertaining to the quality of the abalone.
The chairperson found that Vico had removed the abalone and handed it over, pursuant to an instruction by Ndudane, saying it was difficult to conclude that Vico, a more junior employee, would have the authority to incite Ndudane and Parker as was alleged. Vico was also found not guilty of failing to report the Gansbaai incidents, as there was no evidence that he even knew about it, the chairperson ruled.
Last year, News24 reported that Fisheries Minister Senzeni Zokwana had tried to get the Western Cape High Court to order the department's DG to stop the disciplinary proceedings against Vico, Ndudane and Parker.
He cited the need to protect classified documents when he tried to get the court to order the department's DG Mzamo Mlengana to stop the proceedings.
Zokwana's advocate Porchia Long said the minister had tried to resolve the matter with Mlengana, as he believed that the hearings could affect investigations by the Hawks, the National Prosecuting Authority and the Public Protector, which he felt were better placed to probe the allegations.
Mlengana was appointed in 2016 and suspended in 2017. According to court papers, while he was on suspension, whistleblowers made certain protected disclosures to Zokwana. The Gauteng High Court ruled that the minister had no power to suspend him, and Mlengana returned to his post last year. He then instituted disciplinary proceedings against Vico, Ndudane and Parker.
'Thank God that truth prevailed'
Mlengana ostensibly disregarded Zokwana's instructions to halt the disciplinary proceedings on the grounds that classified documents had to be declassified. The matter had been withdrawn when the Public Service Commission intervened and was to facilitate the matter, "to avoid a court battle in a public space", the minister's spokesperson said at the time.
Vico on Friday told News24 he could "only thank God that truth prevailed".
Department spokesperson Reggie Ngcobo, however, said it had "noted the outcome of the chairperson of the disciplinary hearing with "concerns" and had instructed its legal team to launch an application to review and set aside the finding of the Labour Court.
Vico said he would "rather not comment on this, at least for now".
"Unfortunately millions of taxpayers' money are spent in processes that people would not even begin to initiate if they were to pay from their own personal purse," he said.
"I think, as senior government officials, we must always use taxpayers money with greater care and prudence, resist temptation of wanting to use the public purse in bullying and bulldozing our powerless juniors."
Ndudane and Parker had told the Daily Dispatch that they would use the outcome of Vico's hearing in challenging their own dismissals.
According to the department, Ndudane's disciplinary process was finalised on November 29 last year, with a sanction of dismissal.
In December, the Sunday Times reported that she had been hired as the head of the Eastern Cape Rural Development and Agrarian Reform department, five days after being found guilty in departmental proceedings. Parker was dismissed on February 26.
Ndudane on Sunday told News24 at the time of her appointment to her position in the Eastern Cape, she had not been dismissed by the department, nor had there been a disciplinary hearing against her.
She on November 1 had tendered her resignation to DAFF, citing that the relationship between her and the department "is no more viable" for her and had "broken down due to victimization and abuse of power" over a period of 15 months "under the disguise of 'discipline'".
Mlengana, her supervisor, had accepted and recommended her resignation on November 12, Ndudane said.
According to her, the director general then five days before her exit "decides to convene a 'disciplinary hearing' in my absence".
She was appointed to her position in the Eastern Cape on November 27.
"On November 29 - via email sent [at] 15:54, merely minutes before my notice expires - I receive a dismissal letter of which I responded requesting the report of the chairperson and his reasons for such. I immediately challenged the dismissal through the bargaining council. I am challenging my dismissal both on procedural and merit grounds."
A General Public Service Sector Bargaining Council outcome certificate indicated that by January 20, the matter remained unresolved.
"Unlike me and Parker, Vico's hearing was conducted in his presence, and it is logic that had I been present in my hearing and presented facts, the outcome would have been same as that of Vico. Same goes for Parker," Ndudane said.