Marcus v Minister of Correctional Services and others (ECJ 2004/033) [2004] ZAECHC 33; (2005) 26 ILJ 745 (SE); [2005] 2 BLLR 215 (SE) (16 September 2004)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ NO : 033/2004

PARTIES:

RICHARD ELLIOT MARCUS Applicant

and

MINISTER OF CORRECTIONAL SERVICES First Respondent

NATIONAL

COMMISSIONER OF DEPARTMENT

OF CORRECTIONAL SERVICES Second Respondent

ACTING

PROVINCIAL COMMISSIONER OF

DEPARTMENT OF CORRECTIONAL SERVICES Third Respondent

REFERENCE NUMBERS -

Registrar: 2550/04

Magistrate:

Supreme Court of Appeal/Constitutional Court:

DATE HEARD: 14 SEPTEMBER 2004

DATE DELIVERED: 16 SEPTEMBER 2004

JUDGE(S):

JANSEN J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): NJ MULLINS

for the accused/respondent(s): G GOOSEN

Instructing attorneys:

Applicant(s)/Appellant(s): BROWN BRAUDE & VLOK

Respondent(s):

STATE ATTORNEYS

CASE INFORMATION -

Nature of proceedings : Application

IN THE

HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

Not Reportable

Case No.: 2550/04

Date delivered: 16 September 2004

In the matter between:

RICHARD ELLIOT MARCUS Applicant

MINISTER OF CORRECTIONAL SERVICES First Respondent

JUDGMENT

JANSEN, J:

The applicant is currently employed by the Department of Correctional Services as the Area Commissioner of the St Albans Management Area. On 20 August 2004 he was suspended from duty. He approached this Court as a matter of urgency on 26 August 2004 for an order to review and set aside the decision to suspend the applicant and was granted a provisional order whereby he was immediately reinstated in his position. The respondents anticipated the return day and the matter was argued before me on 14 September 2004. It was submitted on behalf of the respondents that the rule be discharged. The applicant argued that the rule be confirmed.

On 17 August 2004 a letter was directed to the applicant by one M E Malatsi, who holds the position of Director Departmental Investigations Unit. He informed the applicant that “… allegations of maladministration and cover of misconduct (sic) of certain officials were made against (him)”. The applicant was further informed that these allegations would be the subject of further investigation against him. Paragraph 3 of this letter reads as follows:

“3. In my capacity as the Director DIU, I hereby intend to suspend you on the following grounds:

In view of the nature of the allegations against you and the position you hold, you can not be trusted.

Your continued presence in this office may have a bearing on the investigation process.”

The applicant was further informed that the investigation may lead to disciplinary proceedings or criminal charges against him. The applicant was then requested to submit “… written response as to why (he) should not be suspended from active duties”. The applicant responded immediately. He drew the attention of Malatsi to the fact that his letter was vague and that the allegations of maladministration/misconduct is unclear and that he could not comment on hypothetical issues as he did not know what he had supposedly done wrong. He requested Malatsi to supply him with a detailed explanation of the nature of the alleged conduct to enable him to respond reasonably and fully to Malatsi’s letter. Malatsi responded on 20 August 2004. In terms of this letter Malatsi considered the contents of the applicant’s response and informed him that in view of the position the applicant holds as the accounting officer of the St Albans Management Area and the seriousness of the allegations against him, his presence at work would have an influence on the investigation process. Malatsi further informed the applicant that “… details on the said allegations cannot be furnished to (him) at this stage as that would compromise the whole investigation” (sic). The applicant was further in the same letter informed that Malatsi had decided to suspend him in terms of the Department’s Suspension Policy, which he apparently annexed to his letter with effect from 20 August 2004 until further notice. The applicant was further informed that his suspension was considered necessary in the Department’s interest for purposes of the completion of the investigation in which the applicant was implicated and “… possible further action that may emanate from the investigation”.

Paragraph 3 of the Suspension Policy stipulates that suspension may be considered as a temporary measure in the interest of good administration subject to the proviso that the reason for the suspension is fair and justifiable and that the principles set out in the document are adhered to. Paragraph 4.4 provides that the employee may be suspended from duty if reasonable suspicion exists that an employee has been involved in very serious misconduct. Paragraph 4.5 provides that an employee may only be suspended if his presence in the work situation is undesirable for one or more of the reasons mentioned. It appears from Malatsi’s letter dated 20 August 2004 that the only reason of the four mentioned in paragraph 4.5 that may be applicable is 4.5.2 which reads: “his presence at work may prejudice any investigation”.

The high water mark of the respondent’s case to justify the applicant’s suspension is found in paragraph 5.4 of Malatsi’s opposing affidavit. It reads as follows:

“At the time that the Applicant was suspended the Department of Correctional Services was simply not in a position to prefer disciplinary charges against the Applicant. The very purpose of the Applicant’s suspension was to facilitate the conduct of a full and proper investigation the purpose of which would have been to determine whether or not there existed a prima facie case justifying the conduct of a disciplinary enquiry.” (The deponent’s underlining)

Nowhere in a 24 page affidavit did Malatsi make an allegation that the applicant’s presence at work may prejudice any investigation.

The contrary appears to be true. Paragraph 11.5 of Malatsi’s affidavit reads as follows:

“I might at this stage point out that the investigation into the allegations involving misconduct and maladministration is well advanced. If the Applicant’s suspension is in fact reinstated (sic) I anticipate that the Department will in all likelihood require no more than a further week to finalise its investigations.”

This affidavit was dated 8 September 2004. The applicant was reinstated in his position on 26 August 2004. The fact that the investigation into the allegations is “well advanced” is indicative of the fact that the applicant’s presence in his position at St Albans did not prejudice the investigation. On this ground alone the applicant must succeed.

I have referred above to the fact that an employee may in terms of the Suspension Policy only be suspended if a reasonable suspicion exists that an employee has been involved in very serious misconduct. I have also referred to the fact that the applicant had been given opportunity to make representations why he should not be suspended. He required information regarding the allegations of misconduct. It is common cause that no such information had been given to the applicant at the time by Malatsi and it is also common cause that not even in his opposing affidavit did Malatsi give any particulars about the allegations of the applicant being involved in very serious misconduct. In fact, no where in his opposing affidavit did Malatsi refer to very serious misconduct. He only referred to serious misconduct. Be that as it may, the applicant was never afforded a proper opportunity to make representations why he should not be suspended. Had the nature of the allegations been given to the applicant he could have dealt with it and he could then have made submissions as to whether on the ground of those allegations the respondents were entitled to act in terms of paragraph 4.4 of the Suspension Policy. The fact that the applicant had not been given details about the alleged misconduct, which affected his ability to made meaningful representations why he should not be suspended, resulted in a conclusion that the audi alteram partem rule, which is specifically referred to in paragraph 5.2 of the Suspension Policy, had not been complied with.

Paragraph 5 of the Suspension Policy, which deals with the procedure to be followed, requires that alternatives to suspension must be considered. A specific alternative which is mentioned is the temporary transfer of the employee to another post in the management area. It was conceded by Malatsi that the letters directed by him to the applicant do not refer to alternatives to the applicant’s suspension. In his opposing affidavit he, however, said that “… given the importance of the applicant’s position, the fact that he acts as the accounting officer in relation to the Departmental activities administered by him and the seriousness of the allegations directed at the applicant (he) did not consider any such alternatives to be appropriate”. I have already referred above to the fact that the only reason that might have been applicable for suspension was the possibility that the applicant’s presence at work might prejudice the investigation into the allegations of misconduct. That being the case, I fail to see why a temporary transfer could not have been appropriate. The applicant’s position and the seriousness of the allegations directed against him can never lead to a conclusion that a temporary transfer cannot be appropriate. Malatsi did not, in my view, apply his mind to the issue.

In the result, the rule nisi issued on 26 August 2004 is confirmed with costs.

_____

J C H JANSEN

JUDGE OF THE HIGH COURT