Johannesburg - Nelly Letsholonyane, the woman who was fired after her boss, the Minister of Human Settlements Mmamoloko “Nkhensani” Kubayi, was stuck in a lift has won her wrongful termination case against the department, with costs.
The judge lambasted the minister for acting as victim, prosecutor and executioner. Letsholonyane was with the department for 18 years when she was dismissed after the lift saga.
Judge Edwin Tlhotlhalemaje ruled that the respondents, the minister of the human settlements and the acting director-general, pay the costs of the application.
In his ruling, Tlhotlhalemaje said the department implored the court to consider the success of an appeal.
The judge in turn said: “The court need not say more on this issue in the light of its conclusions on these requisites having been met. Central to the contentions before Makhura AJ (a case against SAPS where a woman’s appointment was withdrawn) was whether this court had jurisdiction.
“Whether the respondents have prospects of success on appeal in that regard is an issue which this court ought to recede into the background, in the light of the pending petition before the judge president. In any event, a determination on the prospects of success would not have had any bearing on the conclusions I have already reached.
“I am further satisfied that the applicant has demonstrated exceptional circumstances, and had further on a balance of probabilities, demonstrated that she will suffer irreparable harm if the relief sought in this application is not granted. It cannot be said that the respondents will suffer any irreparable harm.” the judge said.
The judge went on to say: “Without being bogged down with the merits or otherwise of the reasons for dismissal, the respondents clearly adopted a deplorable and gung-ho posture in dismissing the applicant, irrespective of the nature of the trauma the Minister may have endured whilst stuck in the elevator. Clearly the minister had acted as a ‘victim’, prosecutor, and executioner in summarily dismissing the applicant.
“This court will be failing in its constitutional obligations in permitting such conduct to continue in that based on the facts, it represents the very antithesis of what is expected in a constitutional democracy. Surely the respondents in their positions ought to have known better.”
The minister posted a message on a WhatsApp group to say that she was stuck in an elevator at the premises of the Department of Human Settlements. It appears that the Minister was stuck in the malfunctioning lift for about an hour before she was rescued.
On March 15, the minister had summoned Letsholonyane to her office and issued her with a letter of intention to summarily dismiss her for negligence. The court also noted that the applicant had opted for early retirement but had made certain proposals since that option had financial implications for her. The applicant was placed on precautionary suspension and on April 20, she received a call from the minister who informed her that she was dismissed with immediate effect and that a letter in that regard would follow.
The court heard that Letsholonyane relies on a loss of salary since her dismissal and a further period as a consequence of anticipated leaves to appeal. The respondents on the other hand contended that the department stands to suffer far more harm than the applicant in the event that she came back to work, and that her presence will cause disruption which cannot be undone.
The respondents further submit that the applicant’s reinstatement will entail that she be placed on paid suspension, and that the department would be unable to recoup such payments should she not succeed on appeal.