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[2018] ZALCCT 31
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MEC: Department of Health Western Cape v SAMA obo Kariem NO and Another (C150/17) [2018] ZALCCT 31 (19 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: C150/17
In
the matter between:
MEC:
DEPARTMENT OF
HEALTH:
Applicant
WESTERN
CAPE
and
SAMA
obo SAADIQ KARIEM,
NO
First
Respondent
SAMA
obo SRINVIVASAN
GOVENDER
Second
Respondent
Date
heard: 6 June 2018
Delivered:
19 September 2018
Summary:
Application to review decisions by an internal disciplinary
chairperson in terms of section 158(1)(h) of the LRA; Charge
of
sexual assault in circumstances in which the Complainant unable to
give informed consent.
JUDGMENT
RABKIN-NAICKER,
J
[1] This is an opposed application to
set aside certain decisions in terms of section 158(1)(h) of the LRA.
These were made by by
the first respondent (Dr Kariem) in his
capacity as the duly appointed presiding officer in the disciplinary
proceedings, which
were instituted in terms of the Disciplinary Code
and Procedures for the Public Service (the Code), read with the
Sexual Harassment
Policy of the Western Cape Government (the Policy).
[2]
Both parties before me agreed that the decisions were an exercise of
public power, in as much as they were made by Dr Kariem
on behalf of
his employer, an organ of state, in terms of a power arising from the
provisions of a statutory collective agreement.
[1]
Further, that the impugned decisions are reviewable under the
constitutional principle of legality, encompassing the requirements
of lawfulness and rationality.
[2]
In addition, that the applicant had standing to bring the review of
its own institution’s action.
[3]
[3]
It was submitted by Ms Norton on behalf of the applicant in
comprehensive heads of argument, that the impugned decisions also
constituted administrative action as defined in the Promotion of
Administrative Justice Act
[4]
(PAJA), inasmuch as they were an exercise of a statutory public power
which adversely affected the rights of, and had a direct
legal effect
on (a) the Complainant; and (b) members of the general public who
receive medical treatment at the Department’s
facilities.
[5]
As such, the impugned decisions are reviewable by this Court on all
the grounds set out in PAJA, which include unlawfulness,
irrationality
and unreasonableness.
The Charges against Dr. Govender
[4] I deal first with Charge 2 of
three charges of misconduct laid against the second respondent (Dr
Govender). On this charge he
pleaded not guilty. Charge 2 involved
the following:
That on 20 September 2016, he engaged in a sexual
act with the Complainant on the premises of the Department without
her consent,
and thus made himself guilty of an act of misconduct as
contained in Annexure A to the Code, read with the Policy i.e. of
sexual
assault.
The said Policy itemizes various types of sexual
harassment including:
“
7.3.4
Physical conduct of a sexual nature includes all unwelcome physical
conduct, ranging from touching to sexual assault and rape,
and
includes a strip search by or in the presence of the opposite sex.”
[5] Dr Kariem found Dr Govender not
guilty of this charge and the applicant asks the Court to review and
set aside this decision
which was handed down on 3 February 2017.
[6] In respect of the further two
charges, Dr Govender pleaded guilty, i.e.
that he engaged in a
sexual act with the complainant on the Department’s premises
(Charge 1); and that he medically treated
the complainant with
hospital supplies when she was not admitted as a patient (Charge 3).
[7] In respect of Charge 1, Dr Kariem
imposed the sanction of ‘Demotion to the fourth notch medical
specialist Grade One’,
and in respect of Charge 3, he imposed
the sanction of ‘Final written warning’. The applicant
seeks the review and
setting aside of both these sanctions.
Background to the Sexual Assault
Charge
[8] On 23 September 2016, the
Department received a complaint from the Complainant that on 20
September 2016, at the Department’s
Site B Clinic, Dr Govender
engaged in sexual intercourse with her without her consent, and while
she was under the influence of
a drug which he had administered to
her.
[9] Arising from the investigation
into the complaint, it was recommended that Dr Govender be charged
with the three counts of misconduct
referred to above. The
disciplinary hearing was held on 14 November 2016 and 19 December
2016. Two witnesses gave evidence for
the Department: (a) the
Complainant and (b) Professor Mark Blockman, a clinical
pharmacologist; and four witnesses testified for
Dr Govender: Dr
Govender himself; Dr Gerrit Verster, a psychiatrist; Dr Conrad
Derksen, a specialist anaesthetist; and (d) Dr Kate
Joyner, an
acquaintance of Dr Govender.
[10] In a report titled ‘Presiding
Officer’s Report into the Disciplinary Hearing of Dr Govender’
(the Report),
Dr Kariem provided a summary of the evidence and his
reasons for the impugned decisions. Dr Govender did not appeal
against any
aspect of Dr Kariem’s decisions.
[11] It was established on the
evidence before Dr Kariem that as of 20 November 2016 Dr Govender and
the complainant had known one
another for approximately five years,
as colleagues and friends, and had a brief sexual relationship
between March and June 2016.
[12] Dr Govender knew that the
Complainant had been suffering from post-traumatic stress disorder
and clinical depression since
an armed robbery in January 2016. He
knew that she had undergone psychiatric treatment and was using
anti-depressants and sleeping
tablets which had been prescribed for
her. He also knew that she suffered from hypertension.
[13] On 20 September 2016, Dr Govender
offered to give the Complainant a lift home. When she told him that
she was having a ‘down
day’, he told her about a drug
called Ketamine, which he said could be used as a ‘mood
lifter’. He offered to
administer Ketamine to her, and took her
to the Site B clinic (which was where his office was) and arranged
with the nursing manager
to use a room in the clinic which had a bed
in it. He administered a drip containing Ketamine to the Complainant
while she was
lying on the bed.
[14] It was common cause that in the
period which followed Dr Govender lay down next to the Complainant on
the bed and had sexual
intercourse with her. However, their
respective versions on how this came to happen differed. The
Complainant testified that the
sexual intercourse occurred while the
Ketamine drip was running and while she was experiencing
disassociation and physical lameness.
She could not recall consenting
to sexual intercourse.
[15] Dr Govender’s version was
that he had turned off the Ketamine drip shortly after it commenced,
that he asked and obtained
her permission for sexual intercourse
while she was ‘
conscious and oriented’
, and that
he started the drip running again only after the sexual intercourse.
[16] According to the Complainant, the
nursing manager (Sister Mshumpela) assisted with inserting the drip.
After doing so, and
while the drip was running, Sister Mshumpela
offered to switch on the heater, did so, and found a blanket for the
Complainant before
leaving the room. When she left the room, the
Complainant testified that she started feeling ‘
very weird.’
She had a feeling of something like a buzz in her head, ears and
eyes. She was experiencing ‘
a funny feeling’
. She
told Dr Govender. He turned the drip (which was running fast) down ‘a
bit’ and told her it must run for 30 minutes.
He then said that
he was going to fetch a blood pressure machine.
[17] While he was away, she testified
to the hearing, that it felt as if something was happening to her
body. She felt like getting
up but couldn’t move. She said she
didn’t know how long Dr Govender was away, but he returned with
a blood pressure
machine and tested her blood pressure, finding that
it was very high. He asked her if she had taken her blood pressure
tablet that
day, and she said that she had. He retested it a bit
later and it had come down.
[18] After the second time that he
tested her blood pressure, he asked her if he could lie down next to
her on the bed, as he had
had a very long day. She said he could. He
locked the door (which was already closed) and lay down next to her.
He asked her to
touch him on the chest and she put her hand on his
chest, feeling as if she was in a trance. She heard people talking
outside and
said ‘
there’s people’
. She was
having difficulty speaking, her tongue felt very thick, and her lips
felt like balloons. He offered to get her some water.
He unlocked the
door and fetched her some water. She took a sip, but her action in
drinking the water was delayed. He took some
vials out of his pockets
and put them on the desk. When she asked him what they were, he said
they were Phenergan and Hydrocortisone,
for possible allergic
reactions.
[19] According to her testimony, Dr
Govender took her blood pressure for a third time, and it had come
down further. He locked the
door again and got back onto the bed.
Then he began kissing her in the neck and on the breasts. She heard a
sound of packet and
asked him what it was. He said it was ‘lube’.
She asked ‘
condom?’
, and he said no, it wasn’t
necessary. When he tore the packet, he told her ‘
you don’t
have to do anything’
. He also said: ‘
You know, I
didn’t plan any of this’
. She answered: ‘
You
did’
.
[20] The Complainant testified that
she did not know how long the intercourse continued, and did not
recall whether she co-operated
or was able to move. She had a feeling
of being two people, one in the bed, the other looking down at her.
She had the feeling
that what was happening was ‘not right’.
Afterwards, she asked Dr Govender about the time, and he turned the
drip open
to finish it. When he opened the drip for the last bit to
run in, she felt as if she was going to die. She couldn’t
speak.
She felt spaced out. When the drip was finished he told her
she must get up. He handed her some paper towel and she wiped
herself.
[21] She stated that she struggled to
get up, feeling drunk and dizzy and falling around. Dr Govender
handed her pantyhose and panties
to her and said she must get
dressed. She struggled to put on her underwear and had to hold onto
him as she walked from the room
to his car. He took her home and she
went straight to bed.
[22] The Complainant stated that she
decided the next morning to report the incident, despite being aware
of the consequences for
both of them and their reputations. She
stated that she did so because of the way she felt as a woman being
in such a vulnerable
state: a person – a trusted friend –
having sex with her while she was on a drip.
[23] In his evidence to the
disciplinary hearing, Dr Govender did not dispute the Complainant’s
account of the sequence of
events in the room. In particular, he did
not deny that she had complained of feeling strange while the drip
was running, that
he had left the room to fetch a blood pressure
machine, and that he had tested her blood pressure and found that it
was high. He
also did not deny locking the door, bringing her water,
opening a packet of lubricant, or telling her that a condom was not
necessary,
before having intercourse with her.
[24] The essence of his testimony was
that he had turned the drip
off
after he found that her blood
pressure was high, and that it was while the drip was turned off that
they had sexual intercourse.
He also said that before having sexual
intercourse, he asked and obtained her permission. He contended that
when he turned the
drip off, it had been running for a very short
period, and that the complainant was ‘conscious and oriented’
when she
gave permission for sexual intercourse. The record reflects
that save for the issue of permission (which the Complainant could
not recall giving), none of these contentions was put to the
Complainant in cross-examination and she accordingly was not afforded
the opportunity to deal with them.
[25] It was highlighted on behalf of
the applicant that the record reveals that Dr Govender gave several
different versions on the
question of how long the drip had been
running before he (allegedly) turned it off, as set out below:
25.1 He said in his evidence in
chief that the drip had only been running for about 30 seconds when
he turned it off.
25.2 Under cross-examination, he
gave a different version, saying that he specifically turned the drip
off when he realized
that the Complainant’s blood pressure was
raised. He said that the drip had not been running ‘
for more
than I would guess a minute or two’
. He testified that: ‘
We
then checked her blood pressure and then stopped the drip because we
needed to wait for the blood pressure to go down’
.
25.3 When his different versions
were pointed out to him, he said the drip was running for 30 seconds,
then there was ‘
a further thirty seconds to a minute’
until he got the blood pressure machine and checked the blood
pressure.
[26] Thus on Dr Govender’s
version the period for which the drip was running began when the drip
was inserted, and encompassed:
the time during which the nursing
manager left the room; the time during which the Complainant began to
feel ‘weird’
and communicated this to Dr Govender; and
the time which it took him to fetch the blood pressure machine and
test her blood pressure.
[27] Professor Marc Blockman, (Prof
Blockman), a professor of clinical pharmacology in the Department of
Internal Medicine, and
consultant specialist at Groote Schuur
Hospital and the University of Cape Town, was called to the hearing
as an expert witness
by the applicant.
[28]
Prof Blockman testified about the properties and uses of Ketamine. He
said that he had administered it and taught about it.
He described it
as a drug used for analgesia and anesthesia which may be administered
orally or intravenously. He stated that when
it is administered
intravenously, it is absorbed straight into the bloodstream. It
causes sedation and disassociation from the
event.
[29] He testified that because it
causes disassociation, it may be used as an anesthetic to remove a
patient from what is happening
in order to reduce anxiety during a
painful procedure. It can also cause disorientation and
hallucinations.
[30] He conceded that there are some
studies showing its use in treating depression which is severely
resistant to treatment, to
try to break a cycle of ‘suicide
ideation’. Further that there is a ‘hint’ that
there may be some benefit
in such cases.
[31] Prof Blockman was asked to
consider the scenario of someone engaging in a sexual act with a
person who has undergone infusion
with Ketamine. On the question
whether such a person can give informed consent for a procedure or
for ‘
any act on their body’
, he replied as
follows:
‘
There
is only one question one has to ask. If you infuse Ketamine, I don’t
care what dose it is, would you take informed consent
after infusing
Ketamine?...The answer to that will be no’.
[32] Prof Blockman’s evidence on
this issue was not challenged or undermined in any way at the
hearing. In fact, two expert
witnesses called by Dr Govender
confirmed the pertinent aspects of Prof Blockman’s evidence.
[33] Dr Verster, a District
Psychiatrist and senior specialist in psychiatry who had never
administered Ketamine, agreed that Ketamine
has side-effects which
include hallucinations and hypertension.
[34] Dr Conrad Derksen, a specialist
anaesthetist, testified that based on his experience, a patient given
40mg of Ketamine over
thirty minutes should not experience loss of
consciousness or loss of memory, but Ketamine could cause
disassociation, disorientation,
dizziness, hallucinations, and
heightened blood pressure. Its effects depend on many variables,
including the dose, the speed of
administration and the patient.
[35] Several documents dealing with
the use and administration of Ketamine were introduced by Dr
Govender. One, a chapter which
he had co-authored, entitled ‘
How
to administer procedural sedation and analgesi,’
stated the
following in respect of Ketamine:
‘
Ketamine
is used for painful procedures, especially in children.
It
causes a state of disassociation with analgesic, sedative and
amnestic properties. Psychiatric side effects such as hallucinations
are more common in adults
…The
sympathetic nervous system stimulation can also cause tachycardia and
hypertension’.
[36] It must be noted that Dr Govender
also testified that he personally used ketamine for “depression
and anxiety”
stating that it was taken orally and was a very
low dose. He usually got access to it at the Khayelitsha clinic. The
transcribed
record reflects his evidence as follows:
’…
so
I would actually administer four mills to a patient. I would
sometimes just – if it was just for one to two mills left
at
the end of the ….(indistinct) you know, I would, I know it was
not legal, but I mean, it was just something that I found
beneficial.’
[37] In answer to a question from the
Chairperson, Dr Govender stated that:
‘
Look,
you know, we do know for a fact Ketemine can alter your perception,
you know, it can cause, what is called an emergency…(indistinct).
So it is possible that she – that while the drip was running,
you know, she dissociated and she had outer body experience
but the
point I am making is that the act that really took place, before she
reached that point…’
Dr Kariem’s findings on the
sexual assault charge
[38] In his findings, Dr Kariem
accepted that Dr Govender’s intention was to assist the
Complainant with her treatment resistant
depression. He did not
believe that at the outset Dr Govender had set out to sexually take
advantage of the Complainant.
[39] Dr Kariem accepted Dr Govender’s
evidence that Ketamine “
is appropriately used in the
treatment of treatment resistant depression”
and expressed
his own diagnosis of the complainant’s condition as follows:
‘
I
would regard the depression that the complainant suffered from as
falling into this category as she had doubled the dose of her
medication over the past year and was still suffering from
depression’.
[40] He concluded on this issue:
‘
Hence
it is my view that ketamine was in the first instance being
appropriately used for the correct clinical indication and that
the
defendant had the appropriate clinical experience to administer the
drug - it was noted that he had previously authored an
article on the
use of ketamine in a medical journal’.
[41] Dr Kariem further accepted that
the common effects of ketamine include:
‘
[d]issociative
symptoms, confusion, neurocognitive effects (including poor
co-ordination, concentration and restlessness), blurred
vision,
drowsiness, headaches, nausea, vomiting, transient mood elevation
(talkativeness and decreased inhibition), elevations
in blood
pressure and increased libido.’
[42] He noted that ‘
[i]n one
of the studies examined, the authors noted that 17% of patients had
significant dissociative symptoms i.e. feeling outside
of one’s
body or perceiving that time is moving more slowly or quickly than
normal’.
He also accepted that the complainant ‘
could
well have experienced some of the side effects of Ketamine as noted
above. She could well have experienced a dissociative
state. She
stated that she felt ‘weird’ and ‘similar to an
anesthetic, of being spaced out’ and also felt
as though there
were two people in the room, me and another me
.’
[43] He noted that the key issue to
decide was whether the sexual intercourse was consensual. He found
that ‘
on the balance of probability
it [is] not
clear in this case whether consent for sex was or was not granted
.’
The basis for this conclusion in his finding was as follows:
43.1 Dr Govender testified that once
the nurse had put up the drip it ran in for approximately sixty
seconds before he stopped the
drip and left the room to fetch the
blood pressure machine. The Complainant had also confirmed this.
43.2 That:‘
thus there could
not have been a significant amount of ketamine that had been infused.
It was while the drip was closed that sexual
intercourse had taken
place’
.
43.3 That the Complainant acknowledged
that ‘
she cannot recall refusing kissing and touching’
under cross-examination.
43.4 That the Complainant stated that
she ‘
cannot not recall having given consent (for sex)’
under cross-examination.
43.5 The complainant recalled granting
consent to ‘
kissing and touching’
.
[44] In his Report, Dr Kariem stated
that the aggravating factors which he considered in respect of the
sexual assault charge included
the following:
‘
1.
I take note of the employers’ notes in aggravation with respect
to sexual harassment. In my assessment this is not sexual
harassment
for the reasons outlined above.
2.
I take note of the sanction of dismissal in the case of Mr Bardien
who had sexual intercourse with a patient on state premises.
In this
specific case Mr Bardien clearly misused his power in return for
sexual favours with a patient on the premises of the workplace.
I
find that in this specific case there was no abuse of a power
relationship as the complainant was technically in a more senior
management position than the respondent.
3.
However, the seniority of position that the respondent holds and the
weight of the moral and ethical obligations that come with
being a
senior family physician are important considerations to take into
account in aggravation.
4.
The respondent was well aware of the effects of using ketamine and
the possible impact of the drug on the complainant.’
[45] Dr Kariem further stated that the
mitigating factors which he considered in respect of the sexual
assault charge included
the following:
‘
1.
This is a first offence in the 28 years that the respondent has
worked for the state.
2.
The respondent has shown remorse and acknowledges that his actions
were wrong. In mitigation he acknowledges that this was an
error in
judgment on his part.
3.
He is the primary breadwinner in the household and has been using his
credit and home loan to sustain his family since his lost
income thus
far from overtime has been in the region of R100 000.
4.
The respondent is familiar with the use of ketamine and points out
that he had authored an article on the procedural sedation
in the SA
Family Practice Manual. It is my view that ketamine was clinically
appropriate for use in the case of the respondent.
5.
In mitigation the respondent also notes that there has been an
amicable reconciliation between himself and the complainant that
took
place prior to the day of the last hearing which had been held on 19
December 2016. The chief director, Dr Perez, had been
informed of
this reconciliation.
6.
The respondent requests that the sanction given is a final written
warning.’
[46] Dr Kariem also found the
following to be ‘
pertinent considerations’:
‘
The
use of ketamine was clinically appropriate in this instance; and The
complainant had agreed to the use of ketamine [she should
also have
known that this was wrong whilst she was not registered as a patient
at Khayelitsha CHC]’.
[47] Dr Kariem concluded:
‘
However,
given the seniority of position that the respondent holds, the
ethical and moral issues involved, a final written warning
would not
be an appropriate sanction. On the other hand, I feel that dismissal
is too harsh a sanction in this case as pointed
out above with
reference to the LRA Code of Good Practice’.
[48] As noted above he imposed the
sanction of ‘
demotion to the fourth notch medical specialist
Grade One.’
[49] It was argued on behalf of the
applicant, and with respect, correctly so, that the sexual assault
decision was irrational and
unreasonable in that:
49.1 Prof Blockman’s
unchallenged evidence was that a person who has been infused with
Ketamine, in whatever dose, does
not have the capacity to give
informed consent to any act in respect of her body.
49.2 It was common cause that the
Complainant had undergone infusion with Ketamine before Dr Govender
had sexual intercourse with
her.
49.3 In finding that ‘
on the
balance of probability it [is] not clear whether consent for sex was
or was not granted’
, Dr Kariem –
49.3.1 failed to take the
aforementioned material evidence into consideration, or gave
insufficient consideration to it;
49.3.2 made a finding that was not
rationally connected to the aforementioned evidence; and
49.3.3
made a finding which was unreasonable, in
that no reasonable decision-maker could have reached it based on the
aforementioned evidence.
[50] The finding was also not
rationally connected to, or reasonable in the light of Dr Kariem’s
own conclusion that the Complainant
‘
could well have
experienced some of the side effects of ketamine’
and
‘
could have experienced a dissociative state’
.
[51] It was further submitted that in
finding that ‘
there could not have been a significant amount
of ketamine that had been infused’
, Dr Kariem disregarded
the following relevant evidence:
51.1 Prof Blockman’s evidence
that when Ketamine is administered intravenously, it ‘
gets
to the affected site straight away’
, and thus, unlike oral
administration, there is no delay in its absorption;
51.2 The evidence of the complainant
that Sister Mshumpela, after inserting the drip, and while it was
running, offered to switch
on the heater, did so, found and gave the
complainant a blanket, and was thanked by Dr Govender, all before she
left the room;
51.3 Dr Govender’s version that
it was only after (a) Sister Mshumpela had left the room, (b) the
complainant began to feel
‘weird’ and communicated this
to him; (c) he left the room to find a blood pressure machine; (d) he
returned and tested
the complainant’s blood pressure, that he
turned off the drip;
51.4 Dr Govender’s evidence that
the reason he turned off the drip was because the Complainant’s
blood pressure went
up after the administration of the drip,
indicating the effect of the Ketamine on her; and
51.5 The evidence of Ms Joyner, that
Dr Govender had told her that ‘
they then had sexual
intercourse
during the admission of ketamine’
.
[52] I further note Dr Karriem’s
acceptance of the alleged severity of the Complainant’s
depression was based entirely
on the evidence of Dr Govender with no
recourse to requesting an opinion from the Complainant’s own
psychiatrist.
[53] Dr Kariem’s finding that
‘
there was no abuse of a power relationship as the
complainant was technically in a more senior management position than
the respondent’
was irrational and unreasonable in light of
the following factors:
53.1 The context in which the sexual
intercourse took place, where Dr Govender, as a physician, was
purporting to administer medical
treatment to the Complainant, as a
patient;
53.2 The unequal power relationship
between a doctor and a patient;
53.3 Dr Govender’s own evidence
regarding the vulnerability of the complainant, including his
evidence that ‘
it was actually because I knew her history
that I was worried and concerned about her…I was aware of the
fact that she was
seeing a psychologist, the fact that she was seeing
a psychiatrist and the fact that she actually recently doubled the
doses of
anti-depressants’,
and
53.4 Dr Govender’s evidence that
at the end of June 2016 there was a transition from the romantic
relationship between him
and the complainant to a relationship in
which he played the role of Doctor.
[54] I am of the view that for at
least the reasons set out above, the sanction in respect of sexual
assault falls to be reviewed
and set aside on the grounds of
irrationality and unreasonableness.
[55]
The parties agreed in the proceedings before me that if the Court
should set aside the decision on the sexual assault charge
this was a
matter where the Court should substitute it, rather than remitting
the matter for decision anew. I agree, given that
the Court has all
the evidence before it and it is fair and practical for the Court to
substitute its own decision.
[6]
[56] In his finding Dr Karriem stated
that the policies of the department made clear that in cases of clear
sexual harassment a
sanction of dismissal is appropriate. The
evidence in this case, duly considered, was that the Complainant did
not have the capacity
to give informed consent to any act in respect
of her body due to the infusion of the Ketamine. In the Court’s
view the misconduct
by Dr Govender is aggravated by his professional
position and the high ethical standards which he is expected to
observe. His admission
of guilt to the two other serious charges only
serves to underscore that his conduct is of a nature that,
objectively considered,
breaches the trust in the employment
relationship. It is not necessary for me to deal with the sanctions
handed down for these
latter charges. This is because in the Court’s
view Dr Govender stands to be dismissed in respect of the sexual
assault charge.
Dr Govendar was represented by Counsel and attorney
instructed by the South African Medical Association. He defended the
finding
of his employer’s tribunal. No cost order is apposite
in this matter.
[57] In all the circumstances, I make
the following order:
Order
1. The decision of
the first respondent dated 3 February 2017, that the second
respondent was not guilty of the second charge against
him (that of
sexual assault) is reviewed and set aside and substituted as follows:
1.1 The second respondent is found
guilty in respect of the second charge against him (that of sexual
assault).
1.2 The penalty for the finding of
guilt shall be dismissal.
1.3 The date of dismissal shall be
determined by the applicant.
_________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances
Applicant:
Michelle Norton SC instructed by the State Attorney
Second
Respondent: Thando Ntshonkota instructed by Madiba Mosai Masitanyane
and Githiri Attorneys
[1]
Hendricks v Overstand
Municipality and Another
(2015) 36 ILJ 163 (LAC) at para 21.
[2]
Masetlha v President of the
Republic of South Arica and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) at para 81.
[3]
Khumalo and another v MEC
for Education, KwaZulu-Natal
2014 (5) SA 579 (CC).
[4]
Act 3 of
2000.
[5]
Hendricks supra
at para 20.
[6]
Ntshangase v MEC for Finance: Kwa-Zulu-Natal and Another (2009) 30
ILJ 2653 (SCA) at para 9