Why the Public Protector is appealing a Labour Court judgment

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Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Lefty Shivambu, Gallo Images
  • The Public Protector is appealing a Labour Court judgment against her intention to dismiss two officials.
  • In court papers, the Public Protector submitted that the Labour Court made a mistake.
  • The case relates to officials Ponatshego Mogaladi and Lesedi Sekele. 

Public Protector Busisiwe Mkhwebane is appealing a Labour Court judgment that ruled against her after she decided to dismiss two officials. 

In court papers dated 21 June, Mkhwebane submitted that the Labour Court erred in its judgment.

The case relates to executive manager Ponatshego Mogaladi and chief investigator Lesedi Sekele, who were suspended after allegations of gross negligence or recklessness, unprofessional conduct and gross dereliction of duty.

Mogaladi and Sekele were suspended in 2019 following their involvement in two investigations that were reviewed.

They faced disciplinary hearings in September 2020 and pleaded not guilty to the charges.

In April, the chairperson of the disciplinary committee recommended that Mogaladi be suspended for six months, without pay, and be given a final written warning.

It also recommended that Sekele be suspended for two months, without pay, with a final written warning.

Mkhwebane wrote to the pair on 7 May, attaching the disciplinary chairperson's findings.

In the letter, she said that she had decided not to implement the sanction and, instead, intended to dismiss the pair with immediate effect.

She also cited a breakdown in the pair's relationship with their employer.

READ | Employees fight Mkhwebane over immediate dismissal, but Public Protector claims she is right to act

Mkhwebane said the exceptional circumstances included that Mogaladi had been found guilty of not ensuring a report was completed before signing off on it.

She said Mogaladi also failed to comply with a court order, resulting in the Office of the Public Protector contravening the order.

Sekele was found guilty of not complying with a court order about a report successfully taken on review.

They had until 18 May to make representations as to why they should not be fired.

They approached the Labour Court on 14 May, challenging the intention to dismiss them.

Labour Court Judge Edwin Tlhotlhalemaje found the staffers' scepticism of Mkhwebane's intentions was not misplaced.

Tlhotlhalemaje found that Mkhwebane's argument that their sanctions could have been reduced, following their written representations, as requested, was "far-fetched and not supported by the content of her letter and its tone".

She was ordered to immediately implement and comply with the final sanctions the chairperson of the disciplinary hearing had imposed.

The main thrust of the Public Protector's appeal was that the respondents accepted the chairperson's ruling at face value and did not ask for it to be reviewed.

They also did not reply to the letter, which had asked for reasons why they should not be fired.

Mkhwebane also believes she has the right to apply a different sanction to the one recommended by the chairperson of the disciplinary hearing.

- Correction: The original version of this article stated that the two officials were sacked. This was not the case. The article has been changed to reflect this.

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