A collective decision involving President Cyril Ramaphosa and two Cabinet ministers paved the way for sacked land affairs DG Petrus Mdu Shabane to return to office last week.
He resumed his duties at the Department of Rural Development and Land Affairs on 2 September 2019 following a controversial settlement deal that was triggered by a Presidential Minute issued on 26 February 2019.
This resulted in a deal signed between Shabane and former land affairs minster Maite Nkoane-Mashabane and former public service and administration minister Ayanda Dlodlo weeks later.
Astonishingly, the agreement, now effected, provides that all decisions relating to his December 2016 suspension, the guilty findings of a disciplinary hearing in July 2017 and the sanction of dismissal be “set aside” as “unlawful” and “invalid”.
In short, this is because the case against him was allegedly unlawfully initiated by the then-land affairs minister Gugile Nkwinti, and not the President.
This is where it gets curious, because Shabane had actually lost at the Labour Court when he unsuccessfully tried to argue that the minister lacked the authority to discipline him.
He arrived back at work last week in the comfort of knowing that government has committed to paying his legal fees for his defeat at the court while his appeal before the Labour Appeal Court remains pending.
In issuing the Presidential Minute directing the two ministers to settle the dispute, Ramaphosa became the second sitting president to intervene in Shabane’s suspension after former president Jacob Zuma, who provided a letter used in Shabane’s labour case in 2017.
The case against Shabane was not petty. It emanated from an investigation by the Special Investigating Unit (SIU) and involved breaches of the Public Finance Management Act in a contract to digitise deeds records, and hundreds of millions of rand in wasteful expenditure.
The department had signed a deal with Gijima AST in 2009 and then entered into additional ones, allegedly outside of due process, thereby escalating the overall costs.
Significantly, the department had made an over-payment of R50-million to Gijima, one on which Shabane had allegedly agreed to waive millions of rand in interest and allowed for the company to offset the over-payment against payment from the department.
The contract was later cancelled as a result of court action.
Shabane was found guilty of misconduct charges.
Shabane never participated in the disciplinary hearing – he had walked out – so no version of his is available and while he is back at work now, the jury is out on whether he still had a case to answer.
He initially went to the High Court to interdict the proceedings and the matter was struck from the roll due to a lack of urgency. Then he headed to the Labour Court, where he lost. Although he was granted leave to take his case to the Labour Appeal Court, the ruling noted that he had little prospect of success.
In a strongly-worded judgment, Labour Court Judge GN Moshoana stated that Shabane’s case was that of alleged unfair dismissal clothed as an unlawful decision and that it ought to have been referred to arbitration instead.
And, if it was accepted that the Labour Court had jurisdiction over the matter, a proper reading of section 12 of the Public Service Act indeed gives a minister the power to discipline and ultimately fire a DG.
The Zuma factor
A “worrying” issue, noted in the ruling, was how Shabane, upon having been suspended by Nkwinti, had run to Zuma to complain.
This prompted Zuma to write a letter in which he warned Nkwinti that he didn’t have the power to tackle Shabane and needed a Presidential Minute to do so.
On this little side-show, the Labour Court was particularly harsh as the president was not party to the court case and importantly, Zuma’s view on whether the president was the only one who could fire a DG was not supported in law, it found.
“It defies logic for a minister not to have powers to discipline a head that serves in a department under his or her control,” Judge Moshoane said.
“In terms of the Constitution, the President appoints ministers, assigns powers and functions to them. It is clearly not in line with the accountability principle for a minister responsible for a particular portfolio to keep a blind eye on non-compliance simply because the president is the only person to act.
“Any construction to exclude and limit the powers of the responsible minister is absurd,” the ruling went on to state.
In Shabane’s case, the then-president only became aware of the alleged non-compliance or misconduct when Shabane himself wrote to Zuma to complain about Nkwinti.
Shabane had told Zuma that Nkwinti had had ulterior motives for removing him and conceded in his letter that there may have been “mistakes” under his leadership, for which he should be held accountable.
But the judge noted there was no indication before the court that Zuma had in fact acted on that concession by Shabane.
It could easily be inferred that Shabane had used Zuma as a shield to avoid being disciplined.
Judge Moshoana also provided an extensive explanation for why he deviated from a different High Court judgment; that involving former Home Affairs DG Mkuseli Apleni, who had successfully challenged his suspension two years ago.
He held that, in Apleni’s case, the court had not considered all the relevant sections of the Public Service Act in ruling that only the President could discipline a DG.
While the debate around who may or may not fire a DG ought to have been settled in court – a perfect platform being Shabane’s appeal case – Ramaphosa’s Presidential Minute and the subsequent settlement deal now squashes that opportunity.
In doing so, there appears to have been a disregard for a valid ruling by the Labour Court in a manner that could arguably be viewed as those party to it having usurped the power of the court in this case.
The Presidency failed to acknowledge receipt of questions from Daily Maverick and did not respond to several emails and WhatsApp messages, and neither did Land Affairs. Shabane said he preferred for his employer, government, to respond.
Public Service and Administration Minister Senzo Mchunu, during a brief interview, told Daily Maverick that part of the rationale for the unusual settlement had been informed by legal opinion suggesting a diminished prospect of success and the outcome of the Apleni case.
He said delays in resolving the crucial issue of whether there was any merit to the allegations against Shabane may have had something to do with the May 2019 national elections.
This is because the settlement provided for the relevant minister to reconsider the case against him and reinstitute charges, if warranted.
“There may have been some level of disengagement on the issue during the switch-over from the fifth to the sixth administration,” Mchunu said.
Shabane’s current boss at Land Affairs, minister Thoko Didiza, is empowered to review the case and to determine what ought to happen next, Mchunu said.
But whether Didiza, now delegated by a Presidential Minute, can indeed still have Shabane charged is questionable in view of the time lapse and potential legal concerns around fair process.
The settlement was signed four months ago and it is unclear whether there was a deadline from that date within which Shabane had to be re-charged or cleared.
Amid the lingering rot of State Capture and promises of change by the New Dawn, did Shabane’s file simply just slip through the cracks for four months?
Shabane is not a middle-management state employee, he is the accounting officer and it can be reasonably assumed that a new minister will have arrived in office in May with the urgent task of getting down to business.
That task usually involves the DG and if, as is the case here, the DG was on suspension following a serious case of misconduct, a guilty finding and a dismissal in a hearing presided over by a senior advocate, it can reasonably be assumed that his file would have been drawn as a priority – even if just to clear Shabane of wrongdoing. DM
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