Advocate Mashabane's bid to halt disciplinary hearing over ICT procurement delays fails

Justice and Constitutional Development Director-General Advocate Doctor Mashabane has lost his bid to halt the disciplinary action against him following his suspension for bungling the procurement of ICT infrastructure for the Madlanga Judicial Commission of Inquiry.

The delay in procuring the infrastructure led to the start of the commission in September last year being postponed.

A few days before its scheduled start on September 1 last year, the commission issued a public statement stating that it would not commence with the public hearings as had been scheduled due to the Department of Justice and Constitutional Development failing to finalise the procurement of ICT infrastructure.

After his suspension, Mashabane later raised concerns about the extent of escalating concerns about impartiality, particularly as Justice and Constitutional Development Minister Mmamoloko Kubayi would likely be a key witness in any disciplinary hearing while also overseeing the process.

His lawyers urged President Cyril Ramaphosa to delegate the matter to a neutral minister to ensure fairness, impartiality, and objectivity, and also emphasised that he had a problematic working relationship with Kubayi.

Ramaphosa acceded to Mashabane’s request and appointed Transport Minister Barbara Creecy to assist Kubayi with the further handling of the matter.

Mashabane also stated that the president recognised the validity of the concerns he had raised about bias and conflict where it came to Kubayi; he withdrew the delegation previously granted to her as a result of such appreciation and instead appointed Creecy.

In addition, as far as he was concerned, this meant that Creecy needed to initiate the disciplinary proceedings afresh. He believed that in order to institute the disciplinary proceedings afresh, the appointment of the functionaries in the disciplinary proceedings against him, which stemmed from the first delegation to Kubayi, had to be completely withdrawn and that Creecy had to make completely new appointments, de novo (from the beginning), in terms of the delegation to her (Creecy).

Ramaphosa said the re-delegation was a step that he took out of an abundance of caution, and to ensure that there could not be any questions of independence, impartiality, and fairness.

“I was also aware that Kubayi may be a witness in the disciplinary hearing, and I wanted to ensure that she does not end up in an awkward position of being the main witness and the initiator,” he explained.

In December 2025, Mashabane referred an unfair labour practice dispute to the General Public Service Sector Bargaining Council, contending that the department was acting unlawfully by refusing to allow him to return to work post the lapsing of his suspension, which occurred when the 60-day time period had expired. Creecy disagreed with his interpretation.

Professor Taki Madima SC was appointed chairperson of the disciplinary hearing, and later extended Mashabane’s period of suspension until the conclusion of the disciplinary hearing. He also set dates for the continuation of the hearing as being February 2 to 4 and February 11 to 13.

Mashabane then approached the Labour Court in Braamfontein, Johannesburg, seeking declaratory and interdictory relief to address the profound unfairness and unlawfulness of the disciplinary process instituted against him by Creecy, acting on delegation by the president.

“I seek an order declaring the ongoing disciplinary process invalid and unlawful due to the failure of Creecy to implement the president's delegation to her, following the withdrawal of the delegation issued to Kubayi,” he told the court.

Mashabane also sought an order setting aside the ruling of Madima in December 2025, which found that he was authorised to preside over the disciplinary process, and declaring that the extension of and/ or follow-up suspension issued by Madima was of no legal force and thus invalid.

“This is an application to set aside a two-pronged ruling made by the chairperson of the hearing,” Madima.

“The first deals with authority to act, the second with the extension of my 'purported' suspension. It is brought in terms of section 158(1)(h) of the Labour Relations Act,” he further stated.

However, last Wednesday, the Labour Court ruled that it was hearing the application as one of urgency but dismissed it for want of jurisdiction and ordered Mashabane to pay Creecy’s costs.

Mashabane’s legal team had not responded to requests for comment by Thursday afternoon.

loyiso.sidimba@inl.co.za