Johannes v Director General of Department of Justice and Constitutional Development and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Van Niekerk J
• Judgment Date: 21 April 2023
• Citation: 2023 JDR 2613 (LC)
• Hearing Date: 13 April 2023
• Docket Number: JR 998/19
• Court: Labour Court

Van Niekerk J:

2023 JDR 2613 p2

Van Niekerk J

[1]

The applicant is an employee of the department of justice and constitutional development. In 2014, he chaired a disciplinary hearing into allegations of theft against the third respondent (Mokatsane). The applicant initially issued a report in which he found Mokatsane not guilty. He avers that on reflection, and before the outcome of the enquiry had been conveyed to Mokatsane, he reconsidered his decision and issued an amended report in terms of which Mokatsane was found guilty. It is not in dispute that Mokatsane was requested to submit mitigating factors, after which he was dismissed. Some two and a half years later, the initiation of a forensic investigation, Mokatsane was reinstated on account of what was viewed as a flawed disciplinary process. The same investigation recommended that the applicant be disciplined for his role in the process.

[2]

The applicant seeks in terms of section 158 (1)(h) of the LRA to review and set aside a decision made by the first respondent, specifically, a decision to reinstate Mokatsane. The applicant also seeks to review findings and recommendations made in the forensic report issued by the office of the first respondent, and ‘holding the quasi-judicial decision made by the presiding officer to be procedurally fair and binding until lawfully set aside’. (As I have indicated, the applicant is the presiding officer in respect of which this relief is sought.) The respondents oppose the application, and have filed a counter-review seeking a declaratory that the applicant became functus officio upon the release of the disciplinary hearing report dated 10 July 2014 (in which the applicant found Mokatsane not guilty), that the implementation of the sanction contained in the 1 August 2014 report (the second report in which the applicant found Mokatsane guilty) and the third respondent’s dismissal is lawful, that the disciplinary hearing report dated 10 July 2014 is valid and binding, that the report dated 1 August 2014 is unlawful and has no force and effect, and that the third respondent’s reinstatement is lawful, valid and in compliance with the disciplinary hearing report of 10 July 2014.

[3]

At the hearing, there was no appearance on behalf of the respondent parties and the court heard submissions only by the applicant.

2023 JDR 2613 p3

Van Niekerk J

[4]

The material facts can be gleaned from the founding and answering affidavits. Mokatsane, was employed by the department as a maintenance officer in the magistrate’s office, Viljoenskroon. On 7 March 2014, he was called to a disciplinary hearing on five charges of misconduct, including theft and absenteeism. The applicant was the presiding officer at the disciplinary hearing. The applicant was appointed in terms of the disciplinary code and procedure for the public service, a collective agreement that...