A SENIOR Department of Forestry, Fisheries and Environment official this week faced another disciplinary hearing for his role in the alleged unlawful removal of abalone worth R7.5 million seven years ago.
Thembalethu Vico, the department's director for fisheries protection vessels, is now attending his second disciplinary hearing after the first one cleared him in January 2020.
Vico was charged with 14 counts of serious misconduct after abalone valued at R7.5m was released while he was accompanied by the department’s erstwhile officials, former deputy director-general Siphokazi Ndudane and Nazima Parker, formerly its acting chief director responsible for financial management.
The three tonnes of dried abalone were released to members of the police’s crime intelligence at the department’s stores at Paarden Eiland, Cape Town.
Vico was later cleared by Advocate Matthews Mojapelo of all 14 charges against him.
The department challenged Mojapelo’s ruling at the Labour Court in Braamfontein, Johannesburg and the disciplinary hearing decision was reviewed and set aside.
The Labour Court remitted the disciplinary proceedings against Vico to the department to proceed de novo (afresh) before another chairperson who shall be permitted to rely on the record of evidence before Mojapelo together with any additional evidence presented by the parties.
Early last month, Vico filed an urgent application seeking an order interdicting and restraining the department and director-general Nomfundo Tshabalala from proceeding with a disciplinary hearing, which was scheduled to start on Monday, May 27, or on any future date, on the same facts.
Alternatively, Vico sought an order reviewing and setting aside the department and Tshabalala’s decision to institute disciplinary proceedings against him.
However, Labour Court Acting Judge Tapiwa Gandidze dismissed Vico’s urgent application, finding that he failed to satisfy all or any of the requirements for a final interdict.
”He has not demonstrated exceptional circumstances warranting this court’s interference with the disciplinary hearing scheduled to commence on May 27, 2024,” reads the judgment.
After Mojapelo’s ruling clearing Vico, the department appointed Advocate Simon Shaba, whose mandate was terminated before he could hand down a ruling.
The Labour Court found that a terminated hearing cannot have the effect that an employee has been found not guilty as Vico submitted.
”In the absence of an outcome by Advocate Shaba SC on the applicant’s (Vico’s) guilt or otherwise, it cannot be said that the fresh hearing before Advocate Nazeer Cassim SC (or any other chairperson) will be the third hearing,” Acting Judge Gandidze stated.
The National Union of Public Service and Allied Workers (Nupsaw), which represents Vico, said he did not bring the urgent application to prevent accountability but because the matter was heard three times before and the presiding officers did not find him guilty.
According to Nupsaw, Vico was found not guilty of all charges and one of the presiding officers even pronounced that he doubted that there ever was theft or fraud as alleged by the department.
”As is the case in South African law, if after the state closes its case, the presiding officer cannot hand down a guilty verdict; a verdict of not guilty should be given. We were shocked by the court judgment and we [are] still studying it to determine a way forward,” the union said.
The Nupsaw member felt the department’s actions were “very unfair and abusive” hence he approached the Labour Court for an interdict, which was refused on legal technical grounds.
loyiso.sidimba@inl.co.za