Court declares DIS Deputy DG suspension unlawful
Mpho Mokwape | Monday June 10, 2024 08:02
Justice Busang who said he had a hard time understang why Kgotlhane was placed on suspension explained that there was no explanation for the indefinite suspension, and why it has been in existence for the period of close to two years.
“In my view, there is no explanation for the indefinite suspension, and why it has been in existence for the period of close to two years. The applicant’s right to a fair disciplinary process as enshrined in section 39 (1) has been violated and I have no hesitation in granting the orders sought in the notice of motion,” said Busang.
Kgotlhane who was once at the helm of the spy unit as its acting DG was interdicted and suspended by the DIS from duty on or around August 1, 2022 by a letter and the letter stated that he was under investigations relating to possible corruption allegedly committed by him concerning two companies being A.R. Electronics and Vlatacom.
In January 27, 2023 he filed an application after being interdicted and suspended from duty by the DIS DG, Peter Magosi.
In the application he sought the following orders that the suspension or interdiction from duty for an indefinite or unspecified period be declared unlawful and of no force and effect.
Further that a reasonable period for his suspension has lapsed and be set aside and lastly that respondents being DIS, Magosi and Attorney General, bear the costs of the application.
In the judgment issued on Monday, Justice Busang ordered that the suspension or interdiction of Kgotlhane from duty for an indefinite or unspecified period was unlawful and of no force and effect.
He also set aside the suspension citing that a reasonable period for the suspension or interdiction has elapsed.
According to his reasons for the orders, Busang explained that Kgotlhane and the court are in the dark about the nature of the investigations, their status if any, the identity of the investigating officer, what has been done or not done, and why the Directorate on Corruption and Economic Crime has not approached the applicant about the allegations of corruption against him.
“In the meantime, the applicant is constrained to make important decisions about his career life, whilst the DIS and its DG pursue the untenable position of the legality of their conduct without explanation. That position has no basis in law and fact and I reject it,” he said.
The judge said the fact that the employee is on full salary during suspension does not affect his rights to know of the progress and status of the disciplinary process and investigations against him, especially if the decision to suspend was made by a public officer.
He emphasised that the privilege of the assumption of public office go hand in hand with decision maker’s duty to account for his actions.
“In my judgment the applicant has met all the minimum requirements for the granting of a declaratory order in terms of the notice of motion. The submission that the application is a disguised review is in my view untenable.
Justice Busang pointed out that he did not agree with the suggestion made by the respondents that public officers have no remedy outside administrative review in respect of suits in relation to their contracts of employment.
He explained that remedies for breach of a contract of employment and declaration of rights arising from the contract of employment are available to public officers. I know of no law that requires that challenges of the administrative decisions can only be done through review proceedings and no authority was cited in support of the submission.
On Kgotlhane praying for the setting aside of the interdiction on account of the lapse of a reasonable time, the judge mentioned that the court exercised a value judgment in determining what is reasonable or otherwise.
He said the lapse of a period of six months may be an unreasonable or reasonable depending on the circumstances of each case and the court’s value judgment is guided by the employer’s explanation for the delay to take action.
“Where the employer does not give the explanation for the delay the court is entitled to take the view that none exists. The employee enjoys the statutory right to prompt and fairness of the disciplinary process which right kicks in from the moment that the circumstances giving rise to the allegations of misconduct are brought to the attention of the employer,” he said.