Fired for getting stuck in lift: No prospect of success but minister fights on

Minister Mmamoloko Kubayi has lost her bid for leave to appeal a Johannesburg Labour Court ruling that she must reinstate a deputy director she fired. Illustration: Lisa Nelson

• Minister of Human Settlements Mmamoloko Kubayi has been denied leave to appeal a Labour Court ruling that she must reinstate a deputy director.
• She had dismissed Nelly Letsholonyane after being stuck in a lift for over an hour.
• The judge ruled there was no prospect of success on appeal and said “the minister has undoubtedly given herself powers she does not have”.
• But the minister says she will now petition the Labour Court of Appeal to hear the matter.

The Minister of Human Settlements Mmamoloko Kubayi has lost her bid for leave to appeal a Johannesburg Labour Court ruling that she must reinstate a deputy director she fired after Kubayi was stuck in a lift for more than an hour. But the minister is not backing down, and she says she will now petition the Labour Appeal Court to hear the matter.

GroundUp reported in May on a judgment in which Acting Judge Molatelo Makhura said Minister Kubayi’s conduct in firing Nelly Letsholonyane was “unlawful”.

The lift incident had occurred on 14 March 2023. Letsholonyane was called into the minister’s office the following day and issued with a letter of intention to institute disciplinary proceedings against her for her “gross negligence”, for “threatening the lives of employees”.

Subsequently, she was given the option of either being dismissed, facing a disciplinary hearing, or taking early retirement.

Lethsholonyane, who was three years off retirement, opted for early retirement “under protest”.

But in April she was summarily dismissed.

Judge Makhura noted that the minister had not followed the procedures in the Senior Management Service Handbook, which prescribed that a disciplinary hearing must be held.

He ordered that Letsholonyane be immediately reinstated.

Minister Kubayi sought leave to appeal the ruling. But Acting Judge Makhura has ruled that she has no prospect of success.

He said the minister had raised six points, of which five were directed at the finding that the decision to fire Letsholonyane was unlawful.

The minister had submitted that there was no requirement in the Senior Management Service (SMS) Handbook to hold a formal disciplinary hearing, and that the representations Lesholonyane had made were part of the disciplinary process.

“The argument that the process of written representations constituted a disciplinary process is based on a fundamental misconception of the SMS Handbook and the facts of the matter.

“After the representations, the minister decided to place the applicant on suspension. This triggered the requirement that a disciplinary hearing must be held within 60 days.”

Judge Makhura said the power to dismiss rested with the chairperson of the disciplinary hearing and “the minister has undoubtedly given herself powers she does not have”, and acted as a complainant, initiator and chairperson.

He said an appeal has no prospects of success and ordered the minister to pay the costs of the application.

Letsholonyane told GroundUp that she had now been sitting at home for three months with no pay, draining her resources to continue the legal battle.

She said she had not been contacted by anyone from the department since the application for leave to appeal was dismissed.

Approached for comment, the minister’s spokesperson, Nozipho Zulu, said she would petition the Labour Appeal Court.

“The matter is sub judice … We will have to wait for its finality in court,” she said.

Previously, the minister denied that Lesholonyane was dismissed because of the lift incident and stated that she had been facing other charges of misconduct.

But the Public Servants Association, in a statement, said this was not true.

Donate using SnapScan.