By Lehlohonolo Lehana.
Human settlements minister Mmamoloko Kubayi has been ordered by the labour court to immediately reinstate the deputy director of corporate services who was unlawfully dismissed after the minister got stuck in a lift at the department offices.
Kubayi, issued her department’s deputy director general (DDG), Nelly Letsholonyane, with a letter of intent for dismissal over “alleged gross negligence that threatened the lives of employees”.
She said Letsholonyane had “failed to ensure regular maintenance of the building and lifts”. The minister further alleged that as DGG, Letsholonyane failed to “mitigate the risk of such an incident” and also failed to ensure service providers respond timeously.
Johannesburg Labour Court acting judge Molatelo Makhura ruled that Kubayi’s conduct was “unlawful”. “Such conduct should not be condoned by courts of law. This court cannot and should not turn a blind eye to injustice and lawlessness. The impact that such decisions have on employees is unimaginable,” he said.
Judge Makhura said her dismissal was unlawful because the Minister did not comply with the provisions of the Senior Management Service Handbook (SMS Handbook).
He said Letsholonyane had been employed by the department since 2005 and was three-years from retirement when she was fired. He said the day after the lift incident, Letsholonyane was given a letter by the Minister containing the allegations of misconduct. These included that as head of the branch and manager responsible to ensure regular maintenance of the building and/or the lifts, she had failed to avert the risk, that she ought to have known that people were still working in the building and she had failed to timeously respond.
Letsholonyane submitted a written explanation, denying any misconduct, and indicated that the matter should be dealt with at a disciplinary hearing.
However, on 3 April the Minister gave her three options: to be dismissed, face a hearing, or take early retirement. Letsholonyane “under protest” opted for early retirement.
Whilst driving home on 20 April, she received a call from the Minister that she was dismissed with immediate effect, which was then confirmed in a letter.
Letsholonyane, in her argument in the Labour Court, had argued that the Minister had acted as the victim, witness, initiator and referee “and this was not acceptable”.
On whether the matter was urgent, Judge Makhura said that when political heads are alleged to have subverted the rule of law, or undermined provisions in valid agreements and “unleash lawlessness on the people they are supposed to lead, the courts of law should hasten, when called upon to intervene, on good cause”.
“Failure by the courts in that situation would lead to the perpetuation of the lawlessness and embolden those in power to continue acting with impunity.”
He said the matter had nothing to do with the merits but whether the minister had complied with the provisions in the SMS Handbook.
The Minister, he said, had rejected Letsholonyane’s conditional acceptance of early retirement and then, six days later, decided to summarily dismiss her without a disciplinary hearing, as is required by the Handbook.
He ordered that Letsholonyane be reinstated immediately. He further ordered that the minister, or her delegate, be prohibited from dismissing Letsholonyane without complying with the procedures in the Handbook.
Meanwhile Kubayi, is leading a South African delegation to the Second United Nations Habitat (UN-Habitat) Assembly, which is currently underway in Nairobi, Kenya.
The UN-Habitat Assembly is the highest global decision-making body on sustainable urbanization and human settlements, which convenes every four years.
The Assembly, which kicks-off from 5 to 9 June 2023, takes place every four years, and is expected to bring together representatives from 193 Member States.
Held under the theme, “A sustainable urban future through inclusive and effective multilateralism: achieving the Sustainable Development Goals in times of global crises”, the gathering is open to all UN Member States and determines the global strategic direction on human settlements and sustainable urbanization.
The department said South Africa’s participation in the Assembly is significant in that it seeks to, amongst others, obtain support for the Global Action Plan Framework on Informal Settlements and Slums launched in the country in October 2022.
With inputs from GroundUP.