Mehlape v National Prosecuting Authority and Another (51509/2021) [2023] ZAGPPHC 53 (1 February 2023)

Mehlape v National Prosecuting Authority and Another (51509/2021) [2023] ZAGPPHC 53 (1 February 2023)

The court found that the first respondent failed to comply with the mandatory notification procedure under paragraph 13.2.1 of the Policy and Procedure on Employees Exiting the Department, as required by section 6(1)(b) of PAJA. The applicant only became aware of the administrative action on 27 August 2021 and instituted review proceedings within the prescribed period. The omission by the first respondent rendered the decision to record the note in the PERSAL system unlawful and procedurally unfair. The relief sought in prayer 1 was granted, setting aside the decision and requiring compliance with the notification procedure. The applicant was awarded costs, but not on the attorney and...

Citation
[2023] ZAGPPHC 53
Parties
Applicant: Mapula Sophie Mehlape; Respondent: National Prosecuting Authority; Respondent: Director of Public Prosecution, Limpopo Province
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 February 2023
Case Number
51509/2021
Procedural Posture
Review Application / Judgment
Outcome
Application granted in favour of the applicant; decision to record the note in the PERSAL system set aside; respondents ordered to comply with notification procedure and pay costs.
Judges
CP Wesley
Legal Topics
Promotion of Administrative Justice Act, Disciplinary Proceedings, Public Service Act, Procedural Fairness
Administrative Law Labour Law Promotion of Administrative Justice Act Disciplinary Proceedings Public Service Act Procedural Fairness

Case Brief

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Parties

Mapula Sophie Mehlape

Applicant

National Prosecuting Authority

Respondent

Director of Public Prosecution, Limpopo Province

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the first respondent's decision to record a note in the Government PERSAL system against the applicant's name, indicating resignation while disciplinary proceedings were pending, was lawful and procedurally fair.
  2. 2 Whether the first respondent complied with the mandatory procedure under paragraph 13.2.1 of the Policy and Procedure on Employees Exiting the Department.
  3. 3 Whether the application was brought within the time limits prescribed by section 7(1) of PAJA.

Ratio Decidendi

The court found that the first respondent failed to comply with the mandatory notification procedure under paragraph 13.2.1 of the Policy and Procedure on Employees Exiting the Department, as required by section 6(1)(b) of PAJA. The applicant only became aware of the administrative action on 27 August 2021 and instituted review proceedings within the prescribed period. The omission by the first respondent rendered the decision to record the note in the PERSAL system unlawful and procedurally unfair. The relief sought in prayer 1 was granted, setting aside the decision and requiring compliance with the notification procedure. The applicant was awarded costs, but not on the attorney and...

Court Disposition

Application granted in favour of the applicant; decision to record the note in the PERSAL system set aside; respondents ordered to comply with notification procedure and pay costs.

Orders

  • The decision taken by the first respondent to record a note in the Government PERSAL system against the applicant's name referencing PERSAL Code 90, 'Resignation: Departmental/Criminal Charges Pending', is reviewed and set aside.
  • If the first respondent persists with making the note, it shall within 10 days of the date of this judgment, in accordance with paragraph 13.2.1 of the Policy, notify the applicant that such a note will be made.