Dumani v Nair and Another

• Jurisdiction: South Africa
• Judge: Mpati P, Cloete JA, Heher JA, Cachalia JA and Theron JA
• Judgment Date: 30 November 2012
• Citation: 2013 (2) SA 274 (SCA)
• Docket Number: 144/2012 [2012] ZASCA 196
• Hearing Date: 23 November 2012
• Counsel: P Daubermann (attorney) for the appellant. No appearance for the first respondent. SK Hassim SC (with N Gaisa) for second respondent.
• Court: Supreme Court of Appeal

Theron JA (Mpati P, Cloete JA, Heher JA and Cachalia JA concurring):

[1] This appeal is against the dismissal of an application, in terms of s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), for J

Theron JA (Mpati P, Cloete JA, Heher JA and Cachalia JA concurring)

A the review and setting-aside of the appellant's conviction, at a disciplinary hearing, on three counts of misconduct.

[2] The appellant is Mr Collen Mzingisi Dumani (Dumani), a magistrate, currently on suspension, who was appointed as acting head of the B Graaff-Reinet Magistrates' Court with effect from 1 November 2008. The first respondent, Mr Desmond Nair (the presiding officer), is the chief magistrate of Pretoria, who presided over an inquiry into misconduct charges brought against Dumani by the second respondent, the Magistrates' Commission.

C [3] On 5 March 2009 the Magistrates' Commission charged Dumani with four counts of misconduct in terms of regulation 26(4)(a) of the Regulations for Judicial Officers in the Lower Courts issued under the Magistrates Act 90 of 1993. All the complainants were employed in various capacities at the Graaff-Reinet Magistrates' Court where D Dumani had been stationed. The first charge related to an incident that occurred during December 2008, when Dumani allegedly stroked the cheek of Ms Salome Hartney (Hartney), who was employed as an administrative clerk at the court. The second charge related to Dumani allegedly stroking the cheek of a security officer, Ms Marilyn Slavers (Slavers), with the back of his hand. In respect of the third charge, it was E alleged that Dumani had touched the back of the neck of Ms Regina Karolus (Karolus), a cleaner at the court. The complainant in the final charge was Ms Edwina Ele (Ele), a senior administrative clerk, and it was alleged that Dumani had put his hand between her breasts.

[4] During March 2009 the Magistrates' Commission appointed the F presiding officer to hold a disciplinary enquiry into the misconduct charges. On 19 March 2010, and after hearing evidence, the presiding officer found Dumani guilty of three counts of misconduct and acquitted him on count two relating to the complaint by Slavers. On 24 May 2010 the presiding officer recommended to the Magistrates' Commission, in G terms of subreg 26(17)(b) of the Regulations, that Dumani be removed from office as a magistrate as contemplated in s 13 of the Magistrates Act. On 14 June 2010 Dumani made written representations to the Magistrates' Commission, requesting it to overturn the convictions, not to recommend to parliament that he be removed from office and not to H impose any sanction on him. By letter dated 1 September 2010 Dumani was advised that the Magistrates' Commission had resolved to accept the recommendation that he be removed from office on grounds of misconduct in terms of s 13(4)(a)(i) of the Magistrates Act. The Commission informed Dumani that its recommendation had been forwarded to the I Minister of Justice and Constitutional Development.

[5] Dumani instituted proceedings in the Eastern Cape High Court (Grahamstown) to review and set aside the findings of the presiding officer. The high court (Chetty J, Pickering J concurring) dismissed the application. Dumani now appeals with the leave of this court. The grounds of review relied upon are that: (a) the presiding officer J committed a material error of fact (this is dealt with in the judgment of

Theron JA (Mpati P, Cloete JA, Heher JA and Cachalia JA concurring)

Cloete JA in which I concur); (b) the presiding officer acted arbitrarily; A and (c) the presiding officer's decision is so unreasonable that no reasonable person could have reached it.

[6] The enquiry into the misconduct charges was held in Graaff-Reinet. The complainants and Mrs Rene Viljoen (Viljoen), the court manager, testified on behalf of the Magistrates' Commission. Dumani testified in B his own defence. The presiding officer called Mr Mzimkulu Walter Claassen (Claassen), a senior clerk at the court, as a witness.

[7] Hartney testified that she had, during the first week of December 2008, been requested to go to Dumani's office to assist him with his C computer. While they were alone and she was sitting in front of the computer, Dumani, who was standing next to her, stroked her cheek with his hand. It was her testimony that she, in response, then requested him not to touch her. According to her, Dumani then apologised. When she had completed her task at the computer, she stood up and he once again touched her cheek. She voiced her displeasure and he again apologised D and requested that she not disclose the details of the incident to anyone. The following day she reported the incident to Viljoen, but asked Viljoen not to take the matter further and said that she, Hartney, would only take the matter further if it happened again.

[8] Slavers, a security officer at the court, testified that she had, on E 16 January 2009, been sitting at the security scanner at the entrance to the court. Dumani, upon returning from lunch, greeted her by name, touched her cheek, proceeded past the security scanner and entered the building. She mentioned it to her colleague but the latter had not observed the incident. Karolus, a cleaner, testified that she had been emptying the waste-paper basket in Dumani's office on 29 January 2009, F when he inappropriately touched the back of her head, in 'soft motions'.

[9] Ele, a senior administrative clerk, testified that she usually worked in the regional court, but when the court was not in session, she assisted in the cash hall or with administration. On a Friday, 30 January 2009, she G received a telephone call from Dumani requesting that she come to his office. She asked if she could see him after two o'clock as it was close to lunch time, and he agreed. Thereafter, and shortly before lunchtime (one o'clock), Dumani approached her in the cash hall. After attending to his query she went towards the door, as it was already lunchtime, with Dumani following closely behind her. She turned back to fetch her H cellular telephone which she had left on her desk, and as she turned Dumani put his hand between her breasts. She entered the cash hall and asked Hartney whether Dumani was 'sexually hyperactive' and reported to Hartney that he had touched her breasts. Ele then went outside where she met Karolus and Slavers and told them about the incident. It was I then that the complainants shared amongst themselves their respective experiences with Dumani. It was also then that the complainants decided to take the matter further. Reports were subsequently made to Viljoen. The complainants were referred to Ms Diane Bertram, a social worker in the Department of Social Services, for counselling, which they underwent. J

Theron JA (Mpati P, Cloete JA, Heher JA and Cachalia JA concurring)

A [10] Viljoen, the court manager, confirmed that Hartney had, during December 2008, reported the incident with Dumani to her. Viljoen said that in January 2009 she was advised of the incidents of inappropriate conduct involving Dumani and the other three complainants. She testified in cross-examination that most of the court's business was B conducted in Afrikaans and certain members of the court staff (who did not include her) had not been in favour of Dumani's appointment because he could not speak Afrikaans.

[11] Dumani testified in his own defence. He was 58 years old at the time and had, prior to his appointment as magistrate, been in practice as C an attorney. He took up his post as acting head of the court in Graaff-Reinet with effect from 1 November 2008 and was to have been on probation for a period of about six months. He denied having inappropriately touched the complainants and said he believed they had concocted these charges against him as they were dissatisfied because a black man had been appointed as head of office over Afrikaans-speaking D people and he could not speak Afrikaans. He added it was his strong belief that the motive of the complainants was to undermine transformation.

[12] Dumani testified that Hartney had been disrespectful towards him. He said that she had on two occasions reprimanded him for being late for E work. On another occasion she had come into his office while he had been dealing with a member of the public sitting there, and demanded that he immediately attend to a particular file that she was carrying. When he refused to do so immediately, she pushed the file against his chest and the contents thereof fell onto the floor. It was his evidence that F Karolus only cleaned his office in December and not again, so that he subsequently had...