Opinion: Public outrage must never override due process

By Rebone Tau

The law cannot be applied according to public outrage. If we go that route, that means we will now be applying the law through the court of public opinion instead of following the laws of the country, which are guided by our constitution.

The recent debate around the suspension of Julius Mkhwanazi in the City of Ekurhuleni has inevitably brought comparisons with the case of Councillor Muzimuni Ngiba in eThekwini Municipality, who was incarcerated while still receiving a salary. While the two cases may appear similar at first glance, they are fundamentally different in law and in context.

That distinction matters.

Mkhwanazi is an employee of the City of Ekurhuleni. He is currently subject to an ongoing disciplinary process, and his suspension is precautionary. Ngiba, on the other hand, was a councillor deployed by a political party to represent it in council. The legal and institutional frameworks governing an employee and an elected councillor are therefore not identical.

We cannot simply look at both cases through the lens of public anger and conclude that the same remedy must apply. Once we deal with legal matters based on our emotions, we are likely to have a state that functions on emotions and not what the law says. We are all equal before the law until all investigations are concluded. Because if we don’t follow the law and due process, those who are dismissed based on courts of public opinion have the right to take up their matter on appeal.

In Mkhwanazi’s case, the City is required to follow its internal disciplinary procedures. His employment relationship is governed by the applicable Disciplinary Procedure Collective Agreement. The agreement provides that an employee placed on precautionary suspension remains on full remuneration for the duration of that suspension. This is not a matter of political generosity by the municipality. It is a matter of compliance with the applicable employment framework.

The courts have also distinguished between precautionary and punitive suspension. A precautionary suspension is not a finding of guilt. It is an administrative measure intended to protect the integrity of an investigation or disciplinary process while allegations are being considered. A punitive suspension, by contrast, follows a finding of misconduct and the imposition of an appropriate sanction after due process has been completed.

That distinction is critical.

There is understandably public frustration when an individual who has been arrested multiple times remains on the municipality’s payroll. Mkhwanazi has been arrested numerous times, and that fact will naturally raise questions in the public mind. But an arrest is not a conviction, and public officials and employees cannot simply be deprived of their rights because there is public pressure to do so. Indeed, one should also acknowledge that the City of Ekurhuleni did not simply sit on its hands. It acted and placed Mkhwanazi on precautionary suspension while the disciplinary process continues.

The same principle applies when considering the Ngiba matter.

An incarcerated councillor presents a completely different legal question from an employee who has been placed on precautionary suspension. It was not necessarily as simple as waking up one morning and declaring that a councillor must be removed from council or that his remuneration must immediately be terminated. A municipality must understand precisely what the law permits it to do, and, where necessary, obtain legal opinion before taking action that could expose it to litigation.

This is particularly important because municipalities do not operate above the law. They are bound by legislation, collective agreements, council rules, employment contracts and constitutional principles.

The Labour Relations Act provides a framework within which employers and employees can enter into binding collective agreements regulating conditions of employment. Where such an agreement applies, the municipality cannot simply ignore it because the public is angry about a particular employee. Again, this demonstrates why these cases should not be collapsed into one political argument.

There is a temptation in South African politics to believe that the law should move at the speed of public outrage. It cannot. We may dislike the fact that disciplinary processes take time. We may believe that someone should have been removed yesterday. We may even believe that the allegations against an individual are so serious that continued remuneration is morally unacceptable.

But the rule of law does not operate according to what we feel. If we want municipalities to respect the law when dealing with political opponents, we must also demand that they respect the law when dealing with people we dislike. The answer cannot be to bypass due process simply because a person has become politically unpopular.

The City of Ekurhuleni must therefore be allowed to complete its disciplinary process against Mkhwanazi. If the process establishes misconduct and a competent authority imposes a punitive sanction, the consequences will follow in accordance with the law. Until then, a precautionary suspension should not be confused with a finding of guilt.

The same standard must apply to councillors. Where a councillor’s circumstances require removal, suspension or the withholding of remuneration, the municipality must ensure that whatever action it takes is legally defensible.

Ultimately, we are all bound by the law as employees, councillors, political parties and municipalities alike. The law may sometimes feel painfully slow. It may frustrate us. It may even produce outcomes that we disagree with. But the alternative is far more dangerous: a system where due process is abandoned whenever public sentiment demands punishment.

Rebone Tau is a political commentator and author of The Rise and Fall of the ANCYL. She is a Research Fellow at the Institute for Pan-African Thought & Conversation (IPATC) at the University of Johannesburg. She writes in her personal capacity.