Minister of Education, Transkei v Mgole

• Jurisdiction: South Africa
• Judge: Goldin JA, Dumbutshena JA and Davies AJA
• Judgment Date: 06 May 1993
• Docket Number: 911/92
• Court: Transkei Appellate Division
• Hearing Date: 06 May 1993
• Citation: 1994 (1) SA 612 (TkA)

B Goldin JA:

This is an appeal against a decision of the General Division setting aside as invalid a decision of appellant dismissing respondent as an employee of the Department of Education.

Respondent was employed by the department from 1954 onwards. He held a variety of positions, mainly as a teacher. In 1975 he was appointed principal of the Maluti Training School. On 25 October 1988 he was C detained by the Commercial Branch of the Transkei Police. On the same day he was suspended without pay by the appellant. There were several postponements of his trial. The respondent's attorney complained to the Attorney-General about it 'and as a result the charges against him were provisionally withdrawn' on 12 March 1990.

The department then decided to hold a disciplinary inquiry in accordance D with the provisions of the Education Act 26 of 1983 (Tk) ('the Act'). The allegations against him were the same allegations which were the subject of the charges in the magistrate's court and which had been withdrawn by the Attorney-General. Delays followed before the disciplinary inquiry was set down for hearing before the magistrate at Maluti and two assessors on 27 September 1990. Respondent attended with his attorney and his witnesses to present his defence but the proceedings had to be postponed because the E assessors did not turn up. The magistrate thereupon wrote to the Director-General of the Department of Education to confirm that the inquiry would be held on 9 November 1990 and insisted that the department ensured the presence of the assessors.

The inquiry was eventually held and respondent was found not guilty and F discharged in respect 'of all accusations against him'. Appellant says that the department could not adduce evidence because all relevant documents were in possession of the prosecutor. Whether or not this is a convincing explanation, it is relevant that no disciplinary inquiry was held other than that which resulted in appellant being found not guilty.

Respondent was then tried in March 1991 before a regional magistrate on 26 G counts, as well as many alternatives, relating to losses and theft, and failure to comply with financial regulations of the Department of Education. The trial lasted four days and he was acquitted of counts 2-26 at the end of the case for the State. He was, however, convicted of contravening reg 190(1) as read with reg 64(1) of the regulations promulgated by appellant in Proc 11 of 1 August 1986. The offence was H based on an allegation that respondent wrongfully utilised school funds for the purchase of school uniforms. In sentencing the...