The bargaining council in Pretoria ordered National Prosecuting Authority boss Advocate Shamila Batohi last week to pay an employee who was dismissed through “witch-hunt” charges almost a R1-million within 14 days.
Adv Phumeza Futshane, who was a chief public prosecutor in Johannesburg, was dismissed in February 2022 for allegedly posting “hate speech messages” on a WhatsApp group she created called JHB EXCO Group, which had NPA officials in Gauteng as members.
One of the alleged hate speech charges that Futshane was DCed for was warning one of her colleagues to be “careful of snakes” who are out to “eat him”. Futshane is the wife of Adv Andrew Chauke, the NPA head in Johannesburg, who we reported last week that he has written to justice minister Mmamoloko Kubayi, asking for protection from Batohi.
In his letter to Kubayi,Chauke wrote that Batohi was trying to purge him from the NPA for “political reasons” in order to “appease and satisfy a particular group within society”.
The bargaining council ruled that an IT expert confirmed that most of the messages that Futshane posted in the group were forwarded messages that were already in the public domain.
The bargaining council ruled that although Futshane’s dismissal was substantively fair, it was “procedurally unfair”.
The chairperson of the disciplinary hearing refused to postpone her hearing as per her request and also did not allow her to cross-examine witnesses.
The bargaining council ruled that the chairperson’s action “amounted to procedural unfairness, and it tainted the substantive unfairness of the dismissal”.
The bargaining council also found that Batohi “simply dug out” old allegations against Futshane on which she was previously cleared by her predecessor, Adv Shaun Abrahams.
“That is not permissible because it means an employer is free to charge an employee with allegations on which the employee was cleared years ago simply because an interest group had complained.
“I find this as unfair as it militates against the principle of fair labour practice between an employer and employee.
“I also find that the argument of res judicata (legal precedent of a higher court) does not apply, but it does not mean that an employer is justified if you disagree with your predecessor’s approach in the absence of new evidence to reinstitute the same charges,” the bargaining council’s JJ Samuels stated in his ruling.
The bargaining council -ordered Batohi to pay Futshane R 999,999.96 within 14 days and not later than February 4, 2025.
NPA spokesperson, Advocate Mthunzi Mhaga, confirmed that they are aware of the award from the bargaining council.
“We only just received the arbitration decision, which found that her dismissal was substantively fair, but that it involved an element of procedural unfairness on an aspect relating to cross-examination.
“The NPA is exploring options in this regard,” Mhaga said.
