18 August 2023
After three court rulings, each of which have been scathing about the conduct of Minister Mmamoloko Kubayi, the Deputy Director General for Human Settlement Nelly Lethsholonyana, fired for the “lift incident”, is back at her desk. Photo of Minister Kubayi from government website
Nelly Letsholonyane, the Department of Human settlements deputy director, who was fired by Minister Mmamoloko Kubayi after the minister got stuck in the lift for an hour, is back at work.
This, after the minister again came in for more judicial criticism for overstepping her powers and acting as “complainant, initiator and chairperson”, by unilaterally firing Letsholonyane in April this year, following the lift incident.
In May, Johannesburg Labour Court Acting Judge Molatelo Makhura said the minister’s conduct was unlawful and ordered that Nelly Lethsholonyane be immediately reinstated.
He then denied Kubayi’s application for leave to appeal, saying Letsholonyane had not been subjected to the prescribed disciplinary procedures.
He said an appeal has no prospects of success.
The minister has now petitioned the Labour Appeal Court for permission to appeal.
In the meantime, Letsholonayne – who has been sitting at home with no pay since April – applied to the Labour Court to enforce the reinstatement ruling, even though an appeal was pending.
In a judgment handed down on 8 August, Johannesburg Labour Court Judge Edwin Tlhotlhalemaje, ruled in her favour.
He said Lethshonyane had proved that exceptional circumstances existed to justify the reversing of the ordinary rule of suspension of the order, pending appeal.
“The applicant alleges that the exceptional circumstances arise from the judgment of (acting judge) Makhura to the extent that her dismissal was found to be in breach of her employment contract and the SMS [Senior Management Service] Handbook and was thus unlawful,” Judge Tlhotlhalemaje said.
“She is 62 years old, with 18 years service and has less than three years before she retires. She has been deprived of her salary … She contends that pending a series of anticipated appeals, she will, in the meantime, remain without an income until her retirement age. The consequences thereof are that any victory would be Pyrrhic, as she would no longer be in a position to be reinstated to her position.”
The judge said given that it was common cause that her services had been terminated in the manner described if Judge Makhura’s ruling was not enforced, “it would clearly amount to countenancing the unlawful conduct of the minister to continue unabated”.
“Without being bogged down with the merits or otherwise of the reasons for the dismissal, the respondent (the minister) clearly adopted a deplorable and gung-ho posture in dismissing the applicant, irrespective of the nature of the trauma the minister may have endured whilst stuck in the elevator,” he said.
“This court will be failing in its constitutional obligations in permitting such conduct to continue in that based on the facts, it represents the very antithesis of what is expected in a constitutional democracy,” he said, saying the minister ought to have known better.
“It is not common for an employer, let alone a cabinet minister, to summarily dismiss an employee without any due process being followed.”
Judge Tlhotlhalemaje ordered that the operation and execution of Judge Makhura’s order not be suspended pending the minister’s petition for leave to appeal, or any other applications or appeals.
He also ordered the minister to pay the costs of the application.
The lift incident occurred on 14 March this year following which Letsholonyane was called into the minister’s office and issued with a letter of intention to institute disciplinary proceedings against her for her “gross negligence” for “threatening the lives of employees”.
No hearing was ever held. Instead she was summarily dismissed by the Minister in April.
Letsholonyane declined to comment to GroundUp.
The Minister’s spokesperson Nozipo Zulu said Letsholonyane was back at work.