A Special Investigating Unit (SIU) project manager, who “plea-bargained” after she was charged with fraud and dishonesty, has won her legal battle with the unit’s national head who argued that the disciplinary process was irregular.
In a recent judgment, Durban Labour Court Judge David Gush ruled in favour of SIU Durban assistant project manager Bonnita Muller, and ordered that the unit was prohibited from bringing disciplinary proceedings against her.
He also ordered that the unit pay Muller’s legal costs.
The interdict application was brought last year after the unit’s head, Vas Soni, challenged a settlement that his acting predecessor, Nomvula Mokhatla, made with Muller as a result of the disciplinary charges.
Muller was charged with being absent from work without submitting leave forms, failing to submit time sheets and not complying with the unit’s systems and procedures.
After she was served with the notice to attend a disciplinary hearing, Muller made a “without prejudice” offer to settle the dispute.
She offered to plead guilty to a lesser charge of misconduct on condition that the unit would agree to a R5 000 fine, a temporary three-month demotion with a reduction of pay and her being barred from promotion for the next two years.
She also agreed to withdraw a grievance she had lodged against Mokhatla.
Mokhatla agreed to the plea-bargain deal on September 30 last year; however, Soni was appointed as head of the unit in October.
After his appointment, he instructed the unit’s corporate lawyer to inform Muller that the agreement Mokhatla had made with her was “invalid, unlawful and irregular” and disciplinary procedures would be brought against her for the same offences.
The disciplinary hearing was set down for November and Muller went to court and obtained an urgent interdict to prevent the inquiry from being held.
In court papers, Soni said the matter had been raised with him by the SIU’s integrity unit head, Brian Chitwa, who had said the process was “incorrect”.
Soni said he did not know whether Muller was guilty or not, but the matter had to follow the proper disciplinary process.
The unit required that its staff were “fit and proper persons” and whether Muller was “fit” for her post had to be determined in a hearing.
Judge Gush said, unlike Soni, Mokhatla had been aware of the circumstances involved in the matter and had applied her mind before she had agreed to the plea arrangement.
“It is difficult to comprehend on what basis it can be alleged that the acting head acted unlawfully or irregularly. I am not of the view that her actions constituted interference with the disciplinary proceedings.”
He said unless it could be proved that Mokhatla’s decision had been unlawful, it remained valid and no disciplinary action could be brought against Muller.
The judge also said it was “inconceivable” that an employee could not plead guilty to a lesser charge for a lesser penalty.