Minister of Justice, Transkei v Gemi

• Jurisdiction: South Africa
• Judge: Goldin JA, Dumbutshena JA and Davies AJA
• Judgment Date: 04 August 1993
• Docket Number: 598/92
• Court: Transkei Appellate Division
• Hearing Date: 04 August 1993
• Citation: 1994 (3) SA 28 (TkA)

H Goldin JA:

This is an appeal against the confirmation on 17 December 1992 of a rule nisi issued on 15 May 1992 calling on appellant to show cause why an order in the following terms should not be made:

'4.1

That the transfer of applicant by respondent from the Attorney-General's office, Umtata, to the magistrate's office, Mount Frere, be declared invalid and be set aside.

4.2

I That respondent and/or any of its subordinates be restrained and interdicted from giving effect to the transfer mentioned above.

4.3

That respondent pay the costs of this application.'

It was further agreed between the parties and made an order of Court that, pending the outcome of the application, the applicant would report for J duty at the magistrate's office, Umtata.

Goldin JA

A Pickering AJ (as he then was) 'set out in some detail the long and troubled history of this matter' in a reported judgment (Gemi v Minister of Justice, Transkei 1993 (2) SA 276 (Tk).

Appellant had been employed at the office of the Attorney-General, Umtata, as an assistant administrative clerk for several years. There was friction between him and his immediate superior, Mr Reebein, the Deputy B Attorney-General, since 1990 when Mr Reebein assumed his position in the department. The exact reasons for the strained relations and complaints concerning each other are the subject of conflicting allegations. Mr Reebein complained about respondent's inefficiency and failure to apply his time and attention to his duties. Respondent denied his allegations C and blamed Reebein's attitude towards him for the situation.

On 24 February 1992 respondent applied to the Attorney-General to be transferred from Umtata to Butterworth as follows:

'I herewith submit my application in connection with the above matter for your consideration, recommendation and transmission to the head of the D department please.

I am requesting to be placed in the Butterworth magistrate's or regional magistrate's courts office, the reason thereof being the following:

As the breadwinner at home, am often required to attend to my ailing/sickly immediate members of my family either physically or by giving whatever assistance that is needed to take one to a physician. By immediate members of my family I mean my wife and children who have lately E been the victims of ill health. It was from about the close of last year that my attention at home was ever so needed and the distance between my work-place and home has become a real concern.

I hope, Sir, that you and my department will appreciate the fact that one's family is unarguably valuable to him and that therefore if any F suitable vacant post exists in that district your assistance in having me placed there will be highly valued. I appreciate the fact that vacant posts are not always readily available, but hope that should an opportunity present itself it will be utilised to solve my problem.'

After respondent wrote this letter, Mr Reebein officially complained about G his allegations concerning the shortcomings in respondent's performance of his duties. He concluded by saying

'that it is now in the interests of this office that steps be taken to transfer Mr Gemi to another office outside the Attorney-General's office. If this is not done we are going to be embarrassed by his dereliction of duty.'

H This recommendation by Mr Reebein was not reported to respondent.

Shortly thereafter the Director-General of the Ministry of Justice and the Attorney-General read a report in a newspaper article that respondent had established a school in Butterworth, known as the 'S M Gemi Memorial Night School' of which respondent was described as its managing director. This I was considered by the Attorney-General and Mr Tantsi, Deputy-General in the Department of Justice, as the direct cause of respondent's dereliction of duty. Again respondent was not told about this conclusion or given an opportunity to explain the position or the effect of it on his work.

An inquiry in terms of s 18 of the Public Service Act 43 of 1978 (Tk) was J ordered by the Department of Justice into the complaints against the

Goldin JA

A respondent's standard of work and his involvement with the night school. This Act provides for the procedure for holding such an inquiry, which includes a right by an accused to be heard and the punishment which can be imposed if he is found guilty of misconduct. It is relevant that in...