Cibane and Another v Premier of the Province of Kwazulu-Natal and Others (7655/2020P) [2023] ZAKZPHC 27; (2023) 44 ILJ 1114 (KZP) (10 March 2023)

Cibane and Another v Premier of the Province of Kwazulu-Natal and Others (7655/2020P) [2023] ZAKZPHC 27; (2023) 44 ILJ 1114 (KZP) (10 March 2023)

The court found that the applicants' suspension was precautionary and did not require prior opportunity for representations. The disciplinary proceedings and criminal charges against the applicants are pending in other forums, and the relief sought in this application is substantially the same as that sought in those proceedings, thus lis pendens applies. The forensic report compiled by Fourth Respondent was not administrative action and is not reviewable under PAJA; it was a contractual investigation for the department. Applicants will have full opportunity to challenge the findings in the disciplinary and criminal proceedings. The application to strike out by Fourth Respondent was...

Citation
[2023] ZAKZPHC 27
Parties
Applicant: Ziphathe Mboneni Cibane; Applicant: Nonhlanhla Pamela Hlongwa; Respondent: Premier of the Province of Kwazulu-Natal; Respondent: Director General of the Office of the Premier of the Province of Kwazulu-Natal; Respondent: MEC for Finance Kwazulu-Natal; Respondent: Integrity Forensic Solutions; Respondent: Deputy Director General of the Kwazulu-Natal Treasury (Head of Investigation); Respondent: Advocate Joe Nxusani SC N.O.
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
10 March 2023
Case Number
7655/2020P
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, including costs of senior counsel where employed. Application to strike out by Fourth Respondent granted; Applicants jointly and severally ordered to pay Fourth Respondent's costs.
Judges
P C Bezuidenhout
Legal Topics
Precautionary Suspension, Audi Alterem Partem, Disciplinary Proceedings, Forensic Investigation, Lis Pendens, Application to Strike Out
Labour Law Administrative Law Precautionary Suspension Audi Alterem Partem Disciplinary Proceedings Forensic Investigation Lis Pendens Application to Strike Out

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Parties

Ziphathe Mboneni Cibane

Applicant

Nonhlanhla Pamela Hlongwa

Applicant

Premier of the Province of Kwazulu-Natal

Respondent

Director General of the Office of the Premier of the Province of Kwazulu-Natal

Respondent

MEC for Finance Kwazulu-Natal

Respondent

Integrity Forensic Solutions

Respondent

Deputy Director General of the Kwazulu-Natal Treasury (Head of Investigation)

Respondent

Advocate Joe Nxusani SC N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the suspension of the applicants was unlawful due to lack of procedural fairness and failure to apply the audi alterem partem principle.
  2. 2 Whether the disciplinary proceedings had to be instituted within sixty days as per the Disciplinary Code.
  3. 3 Whether the findings in the forensic report compiled by Fourth Respondent are reviewable under PAJA or legality review.

Ratio Decidendi

The court found that the applicants' suspension was precautionary and did not require prior opportunity for representations. The disciplinary proceedings and criminal charges against the applicants are pending in other forums, and the relief sought in this application is substantially the same as that sought in those proceedings, thus lis pendens applies. The forensic report compiled by Fourth Respondent was not administrative action and is not reviewable under PAJA; it was a contractual investigation for the department. Applicants will have full opportunity to challenge the findings in the disciplinary and criminal proceedings. The application to strike out by Fourth Respondent was...

Court Disposition

Application dismissed with costs, including costs of senior counsel where employed. Application to strike out by Fourth Respondent granted; Applicants jointly and severally ordered to pay Fourth Respondent's costs.

Orders

  • The application by Applicants is dismissed with costs, including costs of senior counsel where so employed.
  • An order is granted in terms of the Notice of Motion of Fourth Respondent’s Application in terms of Rule 6(15), and Applicants are jointly and severally ordered to pay Fourth Respondent’s costs.