Judge says Gugulethu Yako's appeal has no merit
- Suspended National Lotteries Commission (NLC) legal boss Gugulethu Yako has failed to appeal a high court ruling that she must face disciplinary action.
- Johannesburg Acting High Court Judge Johan Moorcroft described Yako's bid to set aside the ruling of her disciplinary hearing as a "delay tactic".
- He dismissed Yako's application to appeal and ordered that she pay the costs of the application.
Suspended National Lotteries Commission (NLC) legal boss Gugulethu Yako has failed in an application to appeal an earlier high court ruling that she must face disciplinary proceedings against her.
Read the refusal to grant leave to appeal here.
In March last year, Acting Judge Johan Moorcroft, sitting in the Gauteng High Court in Johannesburg, dismissed Yako's bid to halt the disciplinary process -- describing it as a "delay tactic". He ordered that she must pay punitive costs.
In that application Yako sought an order to set aside a ruling by the chairperson of the NLC's disciplinary inquiry, Mandla Mkhatshwa. Mkhatshwa's ruling refused an application for the postponement of the proceedings.
Yako further sought orders to set aside Mkhatshwa's appointment and the decision to charge her.
She wanted the hearing suspended pending a review to overturn the findings of the Special Investigation Unit (SIU) against her on the basis that she had not been afforded a hearing. But Moorcroft dismissed the application.
"It is impossible to avoid the inference that this application is a tactic to delay, rather than finalise the disciplinary proceedings in good time," the judge said.
Yako was suspended by the head of the NLC Jodi Scholtz in October 2023. She was charged in December and informed in January that advocate Mkhatshwa had been appointed to preside over the disciplinary hearing.
Moorcroft said the urgent application had been brought some six months after her suspension and "no explanation is provided for this delay".
He said there was no merit in any of Yako's complaints and that she had been on full pay and benefits since her suspension.
He also said she had admitted that various amounts were paid into her bank account but claimed they had been made by a "suitor who wished to impress her".
"It is argued that the [SIU] report is unlawful and the applicant was not afforded a hearing before the SIU made its recommendations," Moorcraft said.
However, he said, the purpose of the disciplinary hearing was to afford her an opportunity to present her case and answer to the charges.
"The purpose of the review application and this urgent application is to prevent the hearing from continuing. Nothing in the papers support an argument that her rights have been threatened," he said.
Moorcraft said that her right to have her side of the story be heard remains intact. "She is entitled to dispute the allegations and the evidence presented against her but she is not entitled to prevent the investigation of complaints or to prevent a disciplinary hearing from taking place," he said.
Yako was not happy with Moorcroft's ruling and sought leave to appeal against it to a higher court.
In Moorcroft's recent ruling (23 February) on this, he said the Superior Courts Act provided that leave to appeal may only be given where the judge (or judges) are of the opinion that an appeal would have reasonable prospects of success or there was some compelling reason why it should be heard.
"The requirement that leave must be obtained serves the purpose of a gatekeeper and ensures that valuable judicial resources are not wasted," he said.
Yako had claimed that only the board had the right to institute disciplinary proceedings against her, not Scholtz and therefore the proceedings were illegal.
Moorcroft, however, said the board had given its approval before the disciplinary proceedings commenced. This ground of appeal had no merit.
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Another ground cited by Yako was that Mkhatshwa had not been properly appointed in terms of the Constitution, but Moorcroft also found this had no merit.
"A court may intervene in incomplete disciplinary proceedings only in exceptional circumstances. This power is to be exercised with great caution and the court must be careful not to usurp the functions entrusted upon the disciplinary tribunal. In this matter, the proceedings were authorised and there are no exceptional circumstances," Moorcroft said.
On the issue of the punitive costs, Yako had argued that this was "arbitrary" and she should not have to pay any costs because the litigation involved her constitutional rights.
Moorcroft said he had made the cost order because of the "serious and scurrilous allegations" made against the respondents without any factual evidence in support of bad faith and ulterior motives. This justified the cost order which was "not made arbitrarily".
He dismissed Yako's application to appeal and ordered that she pay the costs of the application.
