The courthouse is not your safehouse

Madonsela was charged with various allegations of fraud, corruption and falsifying documents, through collusion with several attorneys, in relation to attorneys’ audits and the irregular issuing of Certificates of Good Standing and Fidelity Fund Certificates, in exchange for money. Madonsela made quite a name for herself. Her misguided career decisions ultimately, and unsurprisingly, led to her finding herself on the sore end of a disciplinary hearing.

From here, she chose to do away with the trifles of rationality in favour of an ill-advised mode of course correction – a valiant, though transparent and ultimately fruitless, attempt at frustrating the disciplinary process into submission.

Madonsela alleged that the LPC breached a settlement agreement in terms of which it would drop the disciplinary charges against her if she participated in its investigation into the matter. This was not far from the truth, just not close enough to be the truth. In reality, the LPC agreed that if she could provide meaningful and useful information, then they would request an outcome short of dismissal. However, Madonsela did not sufficiently participate in the LPC’s investigation. It was at this point that she called foul, and attempted to have the disciplinary proceedings stayed by casting doubt regarding the impartiality of the chairperson, alleging that the hearing was in breach of her employment contract and deploring her employer’s supposed withholding of evidence which she required to argue her case. The LPC did not relent and the dispute proceeded to open court.

And so it goes, from sampling the sweet taste of honey to kicking the hornets’ nest, Madonsela steadfastly marched her way to the Courthouse in an attempt to bring her disciplinary hearing to a grinding halt. The matter was heard before Judge Tlhotlhalemaje who was, to say the least, not pleased with her.

The Court fumed at Madonsela’s ill-conceived efforts to at ensuring that her disciplinary hearing could not leave the starting gates, and wasted no time in finding against her. The Court confirmed that there is an extraordinarily high threshold for judicial intervention in ongoing disciplinary proceedings. Unfortunately for Madonsela, her dislike for getting fired simply did not suffice. The Court stated: 

“… this court should not be regarded as the first port of call and the court must equally guard against the abuse of its own processes by employees whose primary objectives are not noble but merely intended to frustrate internal disciplinary processes in order to escape from having to answer to allegations of serious misconduct”

In the end, Madonsela’s misguided election to poke the bear, predictably, ended in her getting mauled. The Judge scathed that her grounds for the application were: “ludicrous” in reference to the alleged breach of settlement; “an utter red herring” in relation to the hearing apparently being in breach of her employment contract; and that he “does not deem it necessary to say much” regarding the LPC’s ostensible confiscation of evidence that she wished to adduce in the disciplinary proceedings.

The matter was dismissed and she was ordered to pay costs.

Conclusion

Employers, rest easy: The court is acutely alive to employee antics, as laid bare in this matter, and, if you have truly been strung along by an employee seeking to abuse the judicial systems and processes, you need only remain civil, and argue your case before astute presiding officers who have seen it all before.

Employees, take note: The judiciary will not easily assist you in cluttering or frustrating disciplinary processes. You would be best advised to rather allow your disciplinary hearing to unfold, give the process your all and then, if still dissatisfied, take the matter to the CCMA. If you are in the right, your rights will prevail, if you are in the wrong, your wrongs will be uncovered. Until then, the Court is not your sanctuary from the law.