Mogothle v Premier of the Northwest Province and others

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MOGOTHLE v PREMIER OF THE NORTH WEST PROVINCE & ANOTHER336 [2009] 4 BLLR 331 (LC) VAN NIEKERK JABCDEFGHIJ(b) A suspension or transfer of this kind is a precautionary measure thatdoes not constitute a judgment, and must be on full pay.(c) If a member is suspended or transferred as a precautionary measure, theemployer must hold a disciplinary hearing within 60 days. The chair ofthe hearing must then decide on any further postponement.”[8] On 4 November 2008, an article appeared in the Mail and Guardian inwhich imputations of corruption were levelled against the applicant. Thearticle stated that the applicant, a member of Thathana Farms CC, was thebeneficiary of a State grant and had signed the operative contract in bothhis official capacity, as a representative of the donor, and in his capacityas a representative of Thathana, the recipient of the grant.[9] The applicant claims that the grant was made in the regular and ordinarycourse of a State subsidy scheme, and that he had nothing to do with thedecision to allocate the grant. He states that he was particularly concernedat the implications of a conflict of interest in the context of the implementationof the decision to allocate a grant to Thathana and, for this reason,over and above the procedures relevant to the application for a grant, on30 January 2008, he formally made full disclosure to the MEC of hisstatus and that of his family members as members of the close corporationseeking the grant. In his memorandum to the MEC, the applicant states:“I belief (sic) it is ethically and morally correct to obtain approval with regardto this corporation to avoid a conflict of interest and possible claims ofabuse of my position.”The MEC countersigned the memorandum on the same day thereby bothacknowledging the applicant’s disclosure and approving the grant. Inthese circumstances, the applicant avers that his signature of the relevantfunding agreement was a formal culmination of a process whose substantiveoutcome had already elsewhere been determined. The respondents donot dispute these full and candid averments, and I accept therefore that theapplicant made full disclosure to the MEC of his interest in the grant thatis the subject of the proposed investigation that forms the raison d’être ofthe applicant’s suspension.[10] On 10 November 2008, the MEC appointed Sekela Auditors to investigatethe allegations made in the article. At this point, the MEC selfevidentlyconsidered that there was no risk that the applicant might compromisethe investigation, because he took no steps to suspend him.[11] On 11 November 2008, the newspaper article was referred to the Legislaturefor debate, which took place on 13 November. The official minute ofthe debate is recorded in the following terms:“Deputy speaker summed up the recommendations that emanated from thedebate as follows:– That the Legislature must initiate an investigation into the allegationsunder discussion through its structures like the Provincial Public AccountsCommittee.– That the provincial Treasury must intervene and take over the administrationof this department while the investigation unfold or considerinvoking section 100 of the Constitution, Act 108 of 1996. And,– That the accounting officer and the MEC must be put on suspensionpending the outcome of the investigation.”
MOGOTHLE v PREMIER OF THE NORTH WEST PROVINCE & ANOTHERVAN NIEKERK J [2009] 4 BLLR 331 (LC) 337[12] On 17 November 2008, the MEC wrote a letter to the applicant in whichhe referred to the debate in the Legislature. He also confirmed the appointmentof Sekela Auditors to provide an audit report without delay.The letter makes specific reference to the SMS regarding a possible precautionarysuspension, and records that the MEC did not intend to invokethose provisions. He states the following:“In an effort to give the investigation process space and latitude to proceedwithout being hindered and also to allow the process to unfold without anyinferences of being jeopardised by your continued presence at work, it is mysincere request that you take leave of absence from your official duties witheffect from 18 November 2008 until such time as the investigation process iscompleted.”The applicant did not challenge this “leave of absence” on the basis thathe had been assured by the MEC that the investigation would be completedby month end, and that it had been agreed that he would return towork on 1 December 2008.[13] The Mail and Guardian article came up for discussion in the Legislaturefor a second time on 18 November 2008. This time the Legislatureadopted the following resolution:“(i) That the Provincial Legislature takes a responsibility and initiates aforensic investigation led by the auditor-general office into the allegationsand that the investigation initiated by MEC Serfontein should nolonger proceed, which must be conducted by the office of the auditorgeneral.(ii) That the House must recommend to the Premier to put the HOD of theDepartment of Agriculture, Conservation & Environment on extendedleave pending the outcome of the investigation.(iii) That if the investigation findings implicate the MEC in the allegedirregularities, which will in contravention with section 136 of the ConstitutionAct 108 of 1996. The Premier must do what is required of herin terms of the provisions of the Constitution of RSA (sic).”[14] On 19 November 2008, the deputy speaker of the Legislature wrote aletter to the MEC. In the letter, the deputy speaker stated the following:“Consistent with the constitutional responsibility of exercising oversight onthe Executive by the NWPL, the injunction which equally bestows the Legislaturewith powers to make decision which are peremptory and as such bindingon the Executive, in the foregoing instance likewise, we have thus takenthe following decision.”The letter proceeded to record the terms of the resolution adopted theprevious day, and concluded by recording the deputy speaker’s trust that“the contents herein are self-explanatory”.[15] After receiving notice of the resolution, the MEC terminated Sekela’smandate and waited for the auditor-general’s office to commence its investigation.On 1 December 2008, the applicant reported for duty. TheMEC told him that because Sekela’s mandate had been terminated, andbecause the auditor-general’s office had not yet commenced its investigation,he would require time to consider the matter and discuss it with theActing Premier. The MEC discussed the matter with the Acting PremierABCDEFGHIJ
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Mogothle v Premier of the Northwest Province and others

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