Pending criminal case costs applicant top court position in the Eastern Cape

The failure to disclose a pending criminal case when asked to do so during a job application can have dire consequences, as an applicant who applied for the position of a court manager discovered.

Siphephelo Luthuli applied for two posts in the Eastern Cape as court manager. He was recommended as he was deemed the best candidate. He denied on his application form that he had a criminal record or any pending cases against him.

But it was later discovered that there was a pending case relating to alleged driving under the influence of alcohol. The Office of the Chief Justice (OCJ) then withdrew its recommendation that Luthuli get the job.

Luthuli took the matter on review before an arbitrator, who ruled in his favour and found that the OCJ was guilty of unlawful labour practice. The OCJ was ordered to compensate him by paying him R61,000, but the office took the matter on review to the Gqeberha Labour Court.

The court was told that in 2019, the OCJ advertised two positions for court managers at the Bhisho and Mthatha High Courts. Luthuli applied, and he was required to indicate if he had ever been convicted of a criminal offence or whether any cases were pending, and his response was “no”.

The OCJ, however, subsequently established that he was arrested in respect of a case of driving a vehicle while under the influence of alcohol. Luthuli conceded that he knew about the matter but relied on the fact that the matter was not enrolled by the prosecutor's office. According to the police, the matter was still under investigation.

The panel that interviewed him considered the matter and felt he had to disclose that the matter was still pending. As a result, they withdrew their recommendation for his appointment.

The arbitrator found this to be irrational, arbitrary, and capricious and ordered that the OCJ compensate Luthuli. The arbitrator found that the definition of “pending case” or “pending” was not informed by an objective definition either provided for in legislation or policy.

He also found that, as there was no final decision yet in the criminal case, there was no pending case, and thus, there was no misrepresentation by Luthuli on his application form.

The labour court, meanwhile, said “it boggles this court’s mind” that the arbitrator could find, on the evidence before him, that the OCJ’s decision to revoke the recommendation that Luthuli be appointed was capricious and irrational and amounted to an unfair labour practice.

The judge said it seems that the arbitrator does not understand what it means to be capricious and irrational. The labour court ruled in favour of the OCJ and said it was within its rights to revoke its recommendation that Luthuli should be appointed as court manager.

Cape Times