Defend Truth

Opinionista

How Mmamoloko Kubayi threw her toys out the cot after being stuck in a lift, and the court aftermath

mm

Marthinus van Staden is Associate Professor at the Wits University School of Law, where he teaches Jurisprudence and Labour Law. He obtained his doctorate in Labour Law from the University of Pretoria in 2018.

A Labour Court case involving Human Settlements Minister Mmamoloko Kubayi shines a scathing light on the actions of our elected officials and highlights how those who have been placed in positions of trust believe that they can act with impunity.

In a country where the lines between power and principle often blur, a recent ruling by the Labour Court offers a sharp reminder of the rule of law’s paramount importance.

Picture this: a senior official, holding an influential position within a critical government department, finds herself abruptly and unceremoniously dismissed. Why? Because of a minister’s impulse and an elevator’s malfunction.

Beyond the immediate drama of the situation, the case raises profound questions about due process, the abuse of authority, and the checks and balances that hold our elected officials accountable.

Dive into this intriguing story of how the Minister of Human Settlements, Mmamoloko ‘‘Nkhensani’’ Kubayi, made a swift decision to dismiss an employee and how this was challenged, spotlighting the pivotal role our legal system plays in preserving justice and fairness in the corridors of power.

In this case, the employee, Nelly Letsholonyane, served as the Deputy Director-General, Corporate Services, for the Department of Human Settlements. She was part of the Senior Management Service (SMS).

On the fated day, Minister Kubayi informed a WhatsApp group about being stuck in an elevator. Letsholonyane promptly took actions, communicating with various officials and the maintenance company to address the situation. Minutes later, a technician was en route to assist with getting the minister out of the elevator.

However, the following morning, clearly aggrieved by the ordeal, the minister summoned Letsholonyane and handed her a letter of intention to dismiss her. The letter cited gross negligence that put lives at risk, stemming from the elevator incident the previous evening. Letsholonyane was accused of not ensuring regular maintenance of the lifts, not having a timely response mechanism for emergencies, negligence in duty and not responding quickly enough to the incident.

Three choices offered

Letsholonyane refuted these allegations and suggested addressing them in a disciplinary hearing. However, the minister offered the applicant three choices: dismissal, suspension with a disciplinary hearing or early retirement. In response thereto, the employee opted for early retirement with conditions.

The minister responded by suspending her and proposing a meeting to be held. Letsholonyane attended the meeting on the said date, but Kubayi was absent. Later that day, Letsholonyane was informed of her dismissal via a phone call, followed by an official dismissal letter, which cited as reasons gross negligence and dishonesty.

Letsholonyane then urgently applied to the Labour Court regarding her dismissal. She sought a declaratory order that her summary dismissal breached her contract of employment and the SMS Handbook and was unlawful, that she be reinstated and that the minister be prohibited from terminating her employment without complying with the SMS Handbook. The employer, however, questioned if the court had jurisdiction to hear the matter and also questioned the urgency of the matter.

The court held that Letsholonyane did not rely on any remedy in terms of the Labour Relations Act 66 of 1995, and it was clear from the pleaded case that the application had been brought in terms of sections 77(3) and 77A(e) of the Basic Conditions of Employment Act 75 of 1997. The claim was based on contract and the court’s jurisdiction was accordingly engaged. Section 77(3) provides that “the Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.” Section 77A(e) provides that the Labour Court may make any appropriate order including an order for specific performance.

As to urgency, the court found that when political leaders allegedly breach legal provisions, courts should promptly intervene when prompted. If courts neglect this, it perpetuates lawlessness and empowers those in authority to act without restraint. Given Letsholonyane’s imminent retirement in three years, urgent action was necessary to ensure an effective remedy.

The court found that the minister had been obliged to institute a disciplinary hearing in terms of Chapter 7 of the SMS Handbook. She failed to do so. She denied Letsholonyane the opportunity to present her case on the merits and to make submissions in mitigation. She had pronounced on the guilt of the employee and the sanction to be imposed when these powers were specifically reserved for the chairperson of a disciplinary hearing. Kubayi’s conduct was unlawful.

The court ordered that Letsholonyane was to be reinstated and that the minister was prohibited from dismissing her without complying with the procedure set out in chapter 7 of the SMS Handbook. As this was a contractual dispute, and not a “labour” dispute, the costs followed the result and the employer was ordered to pay the costs of the employee.

From a legal perspective, the case is significant as it shows that labour remedies based on the employment contract in addition to the legislative remedies adopted in the LRA are feasible remedies. In other words, the employee relied on an unlawful dismissal remedy in terms of the contract of employment and not on the unfair dismissal remedy of the LRA. Ostensibly, the employee had an election to invoke either of these remedies.

Undermining the rule of law

The case, however, shines a scathing light on the actions of our elected officials and highlights how those who have been placed in positions of trust believe they can act with impunity. The SMS Handbook outlined the steps to be followed in cases of misconduct. Instead of following the established procedures, the minister took arbitrary actions, bypassing due process and undermining the rule of law. Kubayi’s actions disregarded the principle of legality, which requires public officials to act within the confines of the law.

The minister acted in multiple capacities – as the complainant, witness, initiator and referee. This conflicts with the principles of natural justice, particularly the rule against bias, which mandates that no one can be a judge in their own cause. She assumed powers that were not within her purview. The SMS Handbook designates specific roles, such as the initiator and chairperson, to handle disciplinary matters. Kubayi’s decision to pronounce a sanction overstepped her authority, making her actions ultra vires (beyond her powers).

From a rule of law perspective, the minister’s actions undermine the very foundations of justice, fairness, and legality. The rule of law mandates that decisions, especially those affecting individual rights, be made following established procedures and laws. The minister’s conduct, as described, falls short of these standards.

The costs incurred by both the employee and the employer will now be covered by the taxpayer, meaning that society at large will have to bear the costs of the minister’s unlawful conduct.

But the real cost isn’t merely monetary. It lies in the erosion of public trust, the undermining of institutional integrity and the potential disillusionment of future leaders who witness such episodes of impunity. DM

Gallery

Comments - Please in order to comment.

  • Dennis Bailey says:

    Episode is entirely consistent with the authoritarian fascism to which we have become accustomed in SA. Viva ANC\eff, viva.

  • bigbad jon says:

    So was she negligent in the maintenance of the lift or not? As someone that suffers from claustrophobia I’d say thats the important question. Being an ANC apparatchik she probably was.. Labour law details are boring.

  • Hermann Funk says:

    How many more of them are occupying these senior position and show similar behaviour? Unfortunately, Ramaphosa is too week to clean this Augean stable.

  • Johan Herholdt says:

    This happens when people are under the impression that they are kings or queens (or ndunas) instead of servants of voters and taxpayers.

Please peer review 3 community comments before your comment can be posted