BY RAY HARTLE
Former Eastern Cape health head of department Dr Thobile Mbengashe, now a special advisor in the office of the premier (OTP), must face a disciplinary inquiry initiated by Premier Oscar Mabuyane over his alleged role in the R10.14m scooter ambulance fiasco, the chair of the inquiry has ruled.
Mbengashe challenged Mabuyane’s legal authority to institute misconduct charges when the hearing started on January 24, arguing that he could not be charged for his prior actions while health HoD.
But chair of the inquiry advocate Peter Kroon SC held that Mabuyane was Mbengashe’s employer both during his tenure as health HoD and now as OTP special advisor; the two men were joined in an employment contract, and the premier had not given up his right to discipline his employee.
Kroon made this finding despite accepting that Mbengashe was appointed under section 12A of the Public Service Act – a less wieldy recruitment process typically used by members of the executive to make political appointments in their office – and thus excluded from the definition of an employee in the legislation.
He found if Mabuyane sincerely held the view that a Special Investigating Unit report on the scooter ambulance procurement contained prima facie evidence of serious misconduct by Mbengashe, he had a legal duty to institute disciplinary proceedings.
Mbengashe started his tenure as health HoD on September 1 2013 and when his five-year appointment ended, he was contracted for a further five-year term, which would have run out in August 2023.
At the height of the Covid-19 pandemic in 2020, he and then health MEC Sindiswa Gomba were excoriated over a R10.14m tender that the department ostensibly awarded to Fabkomp (Pty) Ltd to deliver scooter ambulances to service the province.
Apart from procurement concerns, the scooters were lampooned for their apparent flimsiness and potential danger to patients given the province’s rugged and dusty rural tracks, and potholed urban roads.
Mbengashe wrote to Mabuyane on August 26 2020, requesting deployment to the OTP, and submitted to the premier his resignation from the top health job, effective from October 1 2020.
On October 7, he was appointed to a two-year term as a special advisor to Mabuyane, under section 12A.
In February 2021, Mabuyane sacked Gomba following an SIU recommendation that he take administrative action against her.
The SIU also recommended disciplinary action against Mbengashe for his alleged misconduct in respect of the scooter ambulance tender, which led to Mabuyane’s initiating the current inquiry on October 8 2021.
Relying on a PSA provision which specifically excludes section 12A appointees from the definition of “employee”, Mbengashe argued that Mabuyane thus had no jurisdiction or authority under section 16B of the PSA – to charge him in his current position as special advisor, for misconduct allegedly committed while health HoD.
Kroon accepted aspects of that argument. But, he found Mabuyane did not need the cover of section 16B to discipline Mbengashe, having retained his common law, if not his constitutional, right to discipline the former HoD in respect of the misconduct charges.
He said the prerogative to discipline an employee belonged solely to the employer and was essential to the employment contract entered into by the parties.
An employer had the same right to fair labour practices as an employee and one of its expressions was the right to discipline errant employees. The employer “does not lose the right to discipline an employee merely because that employee committed misconduct whilst engaged under another contract of employment”.
There was “no precedent” for the court divesting an employer of this right. Mbengashe arguably had implicitly acknowledged that it was only fair he be treated like other state employees, with the allegations against him “properly ventilated” in a disciplinary hearing.
If Mbengashe’s argument was to be accepted, it effectively meant there was “a pocket of public administration which was not subject to scrutiny through the lens of the constitution,” and which would result in misconduct being swept under the carpet. To accept this could result in an absurdity, if not an injustice, said Kroon.
Kroon said that while the charges related to serious misconduct, the gravity or otherwise of the charges were irrelevant to the jurisdictional issue.
“Either the premier has jurisdiction to discipline Dr Mbengashe or he does not, and the seriousness of the charges cannot give him jurisdiction where he would otherwise have none.”
The parties must produce a joint practice note on a way forward within 10 days of Monday’s ruling.
Approached for comment on Thursday, Mbengashe said it would be inappropriate for him to comment on a matter involving himself and other parties.