National Lotteries Commissionv Mafonjo and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Sethene AJ
• Judgment Date: 23 June 2023
• Citation: 2023 JDR 2615 (LC)
• Hearing Date: 25 May 2023
• Docket Number: JR 48/2020

Sethene AJ:

Introduction

“The employee is dismissed from her employment with the NLC which sanction is suspended for a period of ten (10) years on condition that she is not found guilty of any act of misconduct similar to the ones which she was charged and found guilty of.”

[1]

The is a classic incongruent ruling on sanction issued in favour of the First Respondent, Ms Boitumelo Rachel Mafonjo (Ms Mafonjo) upon being found guilty of two charges of gross dishonesty (charges 1 and 2) and two charges of breach of contractual obligation (charges 3 and 4) by the chairperson of the internal hearing, the Second Respondent, Advocate H.O.R Modisa SC (“the Chairperson”).

[2]

Had elementary legal research [1] been conducted, it would have dawned on the chairperson that it is trite law [2] that any misconduct peppered with gross

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Sethene AJ

dishonesty ought to have elbowed out Ms Mafonjo from the employ of the National Lotteries Commission (“the Applicant”). Lest we forget, chairpersons of internal hearings perform administrative action and in that capacity they have to ensure that their decisions are legally sound so as to avoid burdening this court with employment disputes that in fairness ought to have been finalised at the hearing stage.

[3]

Aggrieved by the ruling on sanction of the chairperson, the applicant has approached this court seeking an order setting aside the said ruling on the basis that it suffers from material reviewable defect and pleading that it ought to be substituted by an order summarily dismissing Ms Mafonjo.

[4]

This application is duly opposed by Ms Mafonjo who raises two points in limine such as the commissioning of the founding affidavit and that there is no application for condonation of the late filing of this review application in terms of section 158(1)(h) of the Labour Relations Act 66 of 1995, (“the LRA”), as amended. Further, Ms Mafonjo states that the chairperson did not commit any irregularity as the sanction is an alternative to dismissal. In sum, Ms Mafonjo prays that this review application must be dismissed with costs. The chairperson filed a notice to abide.

Salient background facts

[5]

Ms Mafonjo commenced her employment relationship with the applicant as a temporary employee rendering service of a cleaner on 1 March 2003. On or around 1 November 2003, she was permanently employed as Junior Grant Officer. At the time she was charged with misconduct in 11 November 2018, she held the position of Client Liaison Officer in Mafikeng, North West.

[6]

Following the disciplinary hearing chaired by the chairperson, on 25 April 2019, Ms Mafonjo was found guilty on the following charges:

“Charge 1: Gross Dishonesty

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1.1.

You are charged with gross dishonesty in that during the period between March 2018 to August 2018, you misused the employer’s property for personal and/or another person’s gain by amongst others, extracting confidential beneficiary information from the Grant Management Systems, for personal and/or another person’s gain, while in the main you knew or ought to have known that it was wrongful of him to do so.

Charge 2: Gross Dishonesty

1.2.

You are charged with gross dishonesty in that during the period between March 2018 to August 2018, you published or caused to be published confidential information relating to the employer and its beneficiaries to a Third Party while acting outside the official functions in the NLC and in contravention of Clause 6.10, read together with section 2F(1)(c)(d) of the Lotteries Amendment Act.

Charge 3: Breach of contractual obligation

1.3.

You are charged with breach of contractual obligation in that during the period between March 2018 to August 2018, you failed and/or neglected to report unlawful activities aimed at defrauding the NLC and/or its beneficiaries while it was required of you to do so therefore you contract (sic) is in contravention of section 2F (3) of the Lotteries Amendment Act.

Charge 4: Breach of contractual obligation

1.4.

You are charged with breach of contractual obligation in that during the period between March 2018 to August 2018, you failed and/or neglected to declare your financial interest to the employer in contravention of clause 15.2 of your employment contract.”

[7]

Upon receipt of written submissions on aggravating and mitigating circumstances by the applicant and Ms Mafonjo respectively, the chairperson

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issued his ruling on sanction on 13 December 2019. In his ruling on sanction, the chairperson stated that it was common cause that Ms Mafonjo is a first offender, a single parent with two children aged twenty-seven (27) years and nineteen (19) years and the latter was studying accounting at the tertiary institution and Ms Mafonjo does not meet the requirements for funding by NAFSAS. Further, the chairperson held that the acts of misconduct were instigated and/or initiated by Mr Thabiso Matemane and a certain Mr Mthimunye. The chairperson further held that that the fact that Ms Mafonjo, although belatedly, reported the relevant information to the ethics officials of the applicant and further testified against Mr Matemane, “the disciplinary proceedings of the NLC must weigh very heavily in favour of the employee”. The chairperson went on to say that there is no evidence that Ms Mafonjo financially benefitted from the misconduct or that the “NLC suffered financial loss flowing from the employee’s acts of misconduct”. In sum, the chairperson held that all these reasons were exceptional circumstances. In the result, the chairperson stated as follows at paragraph 11:

“[11]

In the circumstances, I am of the view that the sanction of dismissal is not an appropriate sanction by virtue of the fact that there exist exceptional circumstances to deviate from the imposition of such sanction. I therefore impose the following sanction:

(i)

The employee is dismissed from the employment with the NLC which sanction is suspended for a period of ten (10) years on condition that she is not found guilty of any act of misconduct similar to the ones which she was found guilty of.”

[8]

This suspended dismissal, which is foreign in labour law but prevalent in criminal law, in particular in the sentencing stage, is the one the applicant seeks this court to review and set it aside and duly substitute it with the order summarily dismissing Ms Mafonjo.

Grounds for review

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[9]

The applicant pegs its grounds for review on the following pertinent points:

9.1

that the said ruling is irrational and unreasonable given the severity of the misconduct committed by Ms Mafonjo;

9.2

the impact of the misconduct on the feasibility of the subsistence of the working...