The Department of Human of Human Settlements has been ordered to pay an “unfairly dismissed” senior director R2 million.
The General Public Service Sector Bargaining Council declared the department’s termination of Joseph Leshabane’s employment “substantively and procedurally unfair”. It ordered the department pay him compensation equivalent to 12 months of his salary — R2-million.
The decision was handed down by arbitrator Mohau Ntaopane on March 10. It underscores critical failures in due process and evidence in the high-profile dismissal case. When former human settlements minister Mmamoloko Kubayi began her tenure, she embarked on a shake-up of the department.
Terminated after almost 20 years
Leshabane was a seasoned public servant with nearly two decades in senior roles. He was informed in December 2021 that his fixed-term contract as Deputy Director-General (DDG) would not be renewed.
The then newly appointed Kubayi had alleged irregularities in his 2021 contract extension. Leshabane, who had served under prior administrations since 2005, argued the dismissal violated labour protections and contractual terms.
The department claimed Leshabane’s 2021 contract extension—approved by former Minister Lindiwe Sisulu—was invalid. The argument was it skipped recruitment processes, Cabinet approval, and his salary was unlawfully inflated.
Department argued the appointment was null and void
The department cited a 2022 Labour Court judgment the appointment of Funani Matlatsi under similar circumstances.
However, Leshabane’s legal team countered that his lateral transfer and extensions, backed by ministerial consent, required no fresh Cabinet approval. They accused the department of flouting procedural fairness by failing to meaningfully engage him before termination.
Ntaopane dismantled the department’s case, noting a lack of evidence to prove the contract was irregular. “No authoritative support was provided to substantiate claims that DDG contract extensions require Cabinet approval,” he stated, highlighting that the executive protocol cited by the department was merely “advisory”.
Compared apples with oranges
He further criticised the department’s reliance on the Matlatsi case, stressing that Leshabane’s circumstances differed due to his prior Cabinet-approved appointments and lateral transfers.
On procedural grounds, Ntaopane lambasted the department’s dismissal process. A mere 20-minute virtual meeting with Kubayi and a WhatsApp-delivered legal opinion fell short of fair engagement. “Informing the applicant of irregularities without meaningful dialogue or adherence to corrective protocols rendered the dismissal procedurally unjust,” he wrote.
He continued: “The audi alteram partem exercise conducted by the respondent was insufficient… Informing the applicant of the irregularity and notifying him of non-renewal did not constitute meaningful engagement.”
Failed to substantiate its own argument
He said the ministry “conceded he could not provide any authoritative support for his understanding that DDG extensions require Cabinet approval… This lack of evidence underscores the respondent’s failure to justify their stance.”
Ntaopane said the department’s “witnesses were ill-prepared, contradicted their case, and defended indefensible propositions… The validity of a contract does not negate an arbitrator’s duty to assess fairness under labour law.”
While Leshabane sought three years’ salary under his contract’s termination clause, Ntaopane capped compensation at 12 months, aligning with the Labour Relations Act’s limits. He dismissed the department’s claim that Leshabane’s salary was inflated, noting it was “determined based on his profile and qualifications” without proven malfeasance.
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