Opinion: Public outrage must never override due process

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.

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.

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.

An incarcerated councillor presents a completely different legal question from an employee who has been placed on precautionary suspension.