The City of Johannesburg wants the Labour Appeal Court to set aside an earlier judgment declaring that the City, together with Mayor Herman Mashaba, had unlawfully suspended City ombudsman Sdu’ Gumede.
Mashaba suspended Gumede on full pay in May to allow for an investigation to take place, following findings in the Auditor-General’s report that there were irregularities in the appointment of an information communication technology (ICT) service provider for the ombudsman’s office.
City officials said Gumede had failed to disclose that he had links to the company, Yeo Technologies, creating a potential conflict of interest.
Appealing his suspension, Gumede said he had been involved with one of the directors of Yeo Technologies in another company, but when he took over as ombudsman in November 2014, the company had been inactive and was in the process of being deregistered.
Therefore, he added, he did not disclose this.
In its response to Gumede’s appeal, the court ruled that there was no evidence that he had derived any benefit from the appointment of the service provider.
A subsequent probe, conducted by the City, revealed that a critical folder, containing information on the awarding of the contracts related to these ICT services, had been electronically removed from the municipality’s shared drive.
The City then decided to act against Gumede.
“The applicants thought it prudent – in the interest of preserving the integrity of the investigation and any subsequent disciplinary process that may have ensued – to place the first respondent on a precautionary suspension,” said Isaac Mogashoa, the City’s head of legal and contracts, in an affidavit filed before the court.
Gumede was also accused by the City of managing the contract with Yeo Technologies inadequately.
“Despite the level of services being so poor, no breach of contract was triggered and no penalties were levelled in terms of the agreement,” it said.
Furthermore, it appeared that despite knowing that the contract with Yeo Technologies was expiring in June 2016, Gumede continued to utilise its services thereafter, while failing to extend the company’s contract in writing – resulting in irregular expenditure of R622 440.
It was for these reasons that Gumede was accused of being guilty of misconduct, Mogashoa said.
Interpretation of the case was flawed
On September 7, the Labour Appeal Court ruled that Gumede’s suspension was procedurally unfair as he was suspended “not for the reasons recorded in the notice of intention to suspend” – which were for misconduct – but rather, for two additional reasons, one of them including the disappearance of the folder and destruction of evidence.
The court ruled that there was a contradiction between a letter that was given to Gumede in April this year, informing him of the intention to suspend him, and the letter he received in May about his official suspension.
Gumede contested the legality of the suspension, not its fairness.
The court ruled that it had jurisdiction to determine the matter based on the legal nature of Gumede’s appeal.
It rejected the City’s argument that there were other platforms available to Gumede, such as the Commission for Conciliation, Mediation and Arbitration.
On September 13, the court dismissed the City’s leave to appeal the ruling, stating that the City “raised no grounds that differed from the grounds raised at the hearing”.
The court said those issues were addressed in the reasons for its judgment on the suspension, delivered on September 7.
On September 22, Gumede’s lawyers wrote to the City, requesting that its officials make arrangements for him to return to work in light of the court ruling.
He also wanted clarity on the status of the disciplinary case against him, following the City’s decision to change legal representatives.
The City said it would apply its mind regarding whether Gumede should return to work. The disciplinary hearing was postponed pending further advice.
In the affidavit to the Labour Appeal Court, Mogashoa said the court’s finding that the suspension was illegal was based on a “selective and unjustifiable interpretation of the pleadings”.
He said the court’s interpretation of the case was flawed in two ways.
Firstly, it “failed to read certain parts of the letter in context; and secondly, it failed to note that at no stage did the City suggest that the first respondent was being suspended for reasons unrelated to misconduct”.
“Had the court read the pleadings in the context of the affidavit as a whole, it would have been apparent that what is being referred to in this paragraph is that the first and second applicants have not reached a conclusion whether or not the first respondent is guilty of the charges of misconduct,” said Mogashoa.
In other words, Mogashoa said, Gumede was not being suspended for being guilty of misconduct.