THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
Case No: JR428/19
In the matter between:
MINISTER OF JUSTICE AND Applicant
CORRECTIONAL SERVICES
and
RV MABANGA First Respondent
POPCRU OBO MOREMI AND ANOTHER Second Respondent
Heard: 30 January 2025
Delivered: 29 April 2025
Summary : Application to review and set aside disciplinary ruling issued by
first respondent , in terms of section 158(1)(h) of the LRA . Ruling unreasonable
and irrational. Review application granted, and dispute referred back for
reconsideration.
JUDGMENT
DANIELS J
2
Introduction
[1] This matter relates to an application brought to review and set aside the
disciplinary ruling of the first respondent , who chaired a disciplinary hearing for
Ms. N thabiseng Moremi (“Moremi”) and Mr Sello Sebela (“Sebela”) .
[2] The decision of first respondent , the Deputy Director of the Department
of Correctional Services , was a decision of the Department and constituted a
decision of the State acting as employer .
Jurisdiction
[3] It is trite that this c ourt is vested with the jurisdiction to review decisions
or act ions performed by the State, as the employer, on any grounds
permissible in law, in accordance with section 158(1)(h) of the Labour Relations Act No. 66 of 1995 as amended.
1
Factual matrix
[4] The background to the dispute is as follows :
4.1 Moremi and Sebela are officials of the Department of
Correctional Services (the “Department”). The Department, believing
they committed acts of misconduct, charged them. A single disciplinary hearing was held, chaired by the first respondent.
1 See Hendricks v Overstrand Municipality & another (2015) 36 ILJ 163 (LAC) at para 29
where Murphy AJA (as he then was) stated: “In sum therefore, the Labour Court has the
power under s 158(1)(h) to review the decision taken by a presiding officer of a disciplinary
hearing on (i) the grounds listed in PAJA, provided the decision constitutes administrative
action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) in accordance with the requirements of the constitutional principle of
legality, such being grounds permissible in law.” It is trite that administrative action must be
lawful, reasonable, and procedurally fair. Legality permits the review of public power, including
executive action, on the grounds of irrationality and on the basis that the decision- maker did
not act in accordance with the empowering statute. Rationality requires that the exercise of
public power must not be arbitrary, but must be rationally related to the purpose for which the power was given.
3
4.2 They were charged with aiding in the escape from custody of Ms
Sibanda (“Sibanda”) upon her release from prison on or about 22 July
2016. Sibanda, a foreigner, who was in South Africa unlawfully , was
due for deportation. It was alleged that Moremi and Sebe la were
required to take her to Lindela Repatriation Centre (“Lindela”) pending
her deportation. Instead, they took Sibanda to the Department of Home
Affairs (Johannesburg). Alternatively, through this conduct, they were
grossly negligent.
4.3 In addition, Sebela was charged with aiding in the escape, from
custody , of Pretty Gwebu (“Gwebu”), Magrieta Mabena (“Mabena”) , and
Martha Masunda (“Masunda”) (hereafter “the three offenders”) . The
Department alleged that the three offenders were released, by Sebela,
at Home Affairs (Johannesburg) when they should have been taken to
Lindela.
4.4 The Director General of Home Affairs has issue d a notice
indicating the places where illegal foreigners may be detained, pending
deportation. The notice, published in the GN434 on 22 June 2015,
includes Lindela Holding Facility and “ any detention facilities and offices
under the management or managed on behalf of or in partnership with the Department of Home Affairs, as places of detention of illegal foreigners pending deportation ”. There was some debate at the
disciplinary hearing about the meaning and import of the words “and offices”. In my view, nothing turns on this given that the notice relates to
detention facilities.
4.5 At the hearing, the Department called three witnesses, and held
an inspection in loco at Home Affairs (Johannesburg).
4.6 The first witness, Ms Sithembile Hlengiwe Zibane testified that
she was the Head of the Correctional Centre (Female Section). She testified that foreigners fac ing deportation must be taken to Lindela,
4
where they will be held pending deportation. Sibanda should have been
taken there. Home Affairs (Johannesburg) is an administration centre,
and, unlike Lindela, has no holding facilities. Lindela is the holding facility of Home Affairs (Johannesburg). Though documents used at the
hearing refer to Home Affairs (Johannesburg) ; it is known in
Correctional Services that when someone must be taken to the holding
facilities, this relates to Lindela.
4.7 Mr Zanele Mabaso testified that he was employed as the Centre
Coordinator , Correctional Services, Johannesburg. According to him, a
letter of approval (which authoris ed the detention of Sibanda at Lindela)
was in her file.
4.8 Mr Thabiso Ndlovu testified that he was appointed to investigate
the alleged misconduct of Sebela and Moremi . Lindela informed him
that they had not received Sibanda and the other offenders. When
individuals are handed over to Home Affairs, there must be a “hand
over certificate”, which identifies the receiving official. Here, t he
certificate (in relation to Sibanda) did not indicate the receiving official.
4.9 During the inspection, officials from Home Affairs
(Johannesburg) informed the chairperson that they do not detai n
individuals at their offices because they do not have holding facilities.
4.10 The employees called four witnesses:
4.10.1 Ms Violet Sehloho (“Sehloho”) testified that s he was the
Divisional Head : Correctional Management Area . Sibanda was required
to be taken to Home Affairs (Johannesburg) for “further directions”
because there was no letter of approval (authorising her detention at Lindela). However, after questioning by the chairperson, she also
testified that the letter of approval was in the file. Sehloho stated that
5
she had instructed Moremi2 and Sebela3 to take Sibanda to the Home
Affairs offices in Johannesburg. In respect of the other offenders
(namely Gwebu, Mabena, and Masunda) , they should have been taken
to Lindela.4
4.10.2 Sebela testified that he was the driver of the vehicle which
transported Sibanda. His evidence about whether he had transported
the other offenders was less clear.
4.10.3 Moremi testified that she had completed the certificate of
placement before Sibanda was released from prison, which indicated
on the certificate that Sibanda would be placed to Lindela. She believed
that all the necessary documentation was present . She testified that
Sehloho instructed her to take Sibanda to Home Affairs (Johannesburg)
because Sibanda did not have a letter of approval . She handed over
Sibanda to the Immigration Officials of Home Affairs but did not explain
why the “Body Receipt” was not signed by the official that received
Sibanda.
4.10.4 Ms Magagula, a reintegration officer of the Department , testified
that officials of Correctional Services had been instructed to take offenders to the Home Affairs offices if those offenders have babies or
did not have the correct deportation documents .
4.11 The second respondent informed the chairperson that it intended
to call the Ho me Affairs official , into whose custody Sibanda had been
released, but decided not to do so.
[5] The chairperson found that Moremi and Sebela were not guilty of any of
charges. However, in his reasoning, he failed to deal with the charge of gross
negligence.
2 Transcript Vol 7 p 642
3 Transcript Vol 7 p 644
4 Transcript Vol 8 p 719
6
[6] It must be noted that this application was unopposed. Accordingly, I am
compelled to accept the factual allegations in the founding affidavit .
Grounds of review
[7] The grounds of review, articulated in the founding affidavit are:
7.1 The chairperson failed to have regard to the certificate of
placement which stated that Sibanda should be placed at Lindela.
7.2 The chairperson failed to have regard to evidence that
correctional services officials are aware that foreign nationals are held at Lindela pending deportation.
7.3 The chairperson failed to have regard to evidence that Moremi
delivered another foreign national to Lindela only a few days after sending Sibanda to Home Affairs.
7.4 The chairperson failed to have regard to evidence that the
inspection in loco confirmed that Home Affairs Johannesburg has no detention facilities and therefore does not receive offenders.
7.5 The chairperson failed to have regard to evidence that a warrant
for the release, and the notice of deportation, for Sibanda, were issued
on 2 October 2013, several years earlier.
7.6 The chairperson’s ruling that Moremi and Sebela were lawfully
instructed to deliver Sibanda to Home Affairs was irrational and unreasonable.
7.7 The chairperson failed to apply his mind to the evidence and
failed to consider the evidence of the Department that:
7
7.7.1 Moremi and Sebela failed to provide evidence identifying the
immigration officials within Home Affairs who allegedly received the
offenders;
7.7.2 Mabaso, on behalf of Home Affairs, confirmed that they do not
receive offenders at the Johannesburg offices because they have no holding facilities;
7.7.3 The offenders were not deported but disappeared and their
whereabouts are unknown; 7.7.4 Other officials who committed similar misconduct were
dismissed.
Analysis of the grounds of review
[8] As previously mentioned, the application is unopposed. I must therefore
accept the factual allegations in the founding affidavit as correct. In respect of the allegations in paras 7 .7.3 and 7 .7.4 above; the record was not helpful in
confirming the allegations. Nevertheless, the balance of the allegations is adequately supported by the record.
[9] Having perused the record, and considered the papers, I accept that
the ruling of the first respondent was irrational. For example, the chairperson
pays absolutely no attention to the failure of the employees to positively identify the officials of Home Affairs to whom the offenders were allegedly released, and their further failure to explain the absence of a completed hand over certificate for Sibanda. The outcome was not grounded in the evidence. The outcome was so disconnected from the evidence that it was, in my view,
arbitrary.
[10] I note that the chairperson made sweeping statements, but did not
attempt to resolve the numerous factual disputes. Furthermore, as previously
8
mentioned, the chairperson did not consider the alternative charge of gross
negligence or make any ruling in that regard.
[11] In the circumstances, in my view, the chairperson’s ruling is both
irrational and unreasonable, and falls to be reviewed and set aside.
Remedy
[12] It is trite that our courts are reluctant to assume a discretion entrusted
by statute to another tribunal , or functionary.
5
[13] I do not believe that it is appropriate, in this context, to substitute the
ruling of the chairperson. I say this despite having been provided with a “complete record” of the hearing. Though complete, the transcript does not
reflect all the testimony – from time to time the witnesses are unclear.
Second ly, issues , which ought to have been clarified by the chairperson, or the
parties, were not. Finally, I am unable to assess the demeanour of the witnesses based solely on the transcript.
[14] In the circumstances, it is proper and fair that the dispute be referred
back to the Department for the conduct of a further disciplinary hearing de
novo. This ought to be done before a different chairperson.
Conclusion
[15] In the circumstances, for the reasons set out above, I make the
following order:
15.1 The ruling issued by the first respondent, in his capacity as the
disciplinary chairperson, dated 29 January 2019, is reviewed and set
aside;
15.2 The dispute is referred back to the Department for rehearing
before a disciplinary chairperson other than the first respondent ,
5 Gauteng Gambling Board v Silverstar Development Ltd and others 2005 (4) SA 67 (SCA) at
paras 28 and 29
9
15.3 There is no order as to costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances :
For the Applicant :
Adv Matlejoane
Instructed by State Attorney