Outcome of Public Access application still to be decided
The jury is still out on giving the media and public access to the disciplinary hearing of the suspended Chief Financial Officer of KwaDukuza municipality, Shamir Rajkoomar.
KwaDukuza Municipality (KDM) has opposed the access application that was filed last Friday to allow the disciplinary hearing of suspended municipal CFO Shamir Rajcoomar to be open to the media and the public.
This comes after lawyers representing Radio Life and Style, freelance journalist Penny Fourie, Kwadukuza Residents Forum (KDRF), iLembe Civic Action Movement (ICAM), and Shamir Rajcoomar wrote to the chair asking for the process to be transparent.
Heads of Argument for the Access Application were heard on Wednesday and only concluded after five hours.
The chairperson of the disciplinary hearing, Advocate Ndumiso Xulu, adjourned the proceedings for further deliberation. Before reaching his decision, he stated that he needed a few days to carefully consider the points.
Before the heads of argument were heard, the senior counsel for Rajkoomar, Advocate Saleem Khan, objected to KDM’s newly appointed counsel, Advocate Sandile Khuboni.
Khan stated that Advocate Khuboni, who was part of KDM’s legal team, Zuma and Partners, was appointed to investigate the matter against Rajcoomar. However, Khan pointed out that Khuboni was conflicted as he could be called as a potential witness.
Advocate Khuboni was only briefed on Tuesday after KDM’s lead counsel on brief, Advocate Sanelisiwe Lushaba, withdrew from the case on Sunday night. No reason was given for her withdrawal.
In his point of argument, Advocate Khan said numerous precedents support access to a hearing of this nature.
In 2016, Media24, along with Times Media Group and M&G Media, brought an application to allow reporters to access the disciplinary hearings of Department of Public Works officials fingered by the Special Investigation Unit over their role in the building of President Jacob Zuma's Nkandla homestead.
The Court ruled that the disciplinary hearings should be open to the media and said that it is the right of the public to know and the right of the media to know.
Advocate Khan quoted KwaZulu-Natal High Court Judge Piet Koen, who ruled on the Media 24 matter that “justice must not only be done but be seen to be done.”
Kahan further argued that all parties seeking access to this application are associated with reporting to the public.
“The media plays a critical role as the "eyes and ears" of the public.”
He also referred to Section 16 of the Constitution, which addresses freedom of the press and other media.
KDM has opposed the application because the hearings are more akin to private arbitration. They also argued that the safety of their witnesses would be at risk and that the hearings might not be fair to the employees if the media were present.
However, on that point, Advocate Khan said that in numerous court hearings, there has been media coverage with witnesses taking the stand.
Judge Koen, in his deliberation of the Media 24 case heard in the Pietermaritzburg High Court, said:
“The public interest is heightened by the fact that the disciplinary proceedings concern the alleged wrongful expenditure of public funds by public servants acting in the public sphere. The employees are not simply ordinary employees in a private context, possibly wasting the funds of their private employer, but state employees, whose salaries are paid by the taxpayer.”
It was pointed out that transparency is crucial in matters of high public interest.
But the presiding officer questioned whether this was a public-interest story. And had it received the proper coverage for a matter of high public interest?
The North Coast community is impacted by this story, Khan contended, even though it has not yet been covered in the regional press.
Khan said an open and transparent process will assist the public in making up its mind on the case.
Rajcoomar was placed under precautionary suspension last month and faces disciplinary action for alleged misconduct.
The matter, dating back to 2018, relates to irregular, fruitless, and wasteful expenditures linked to bank charges. It is understood that no loss, theft, or misappropriation of council money was incurred.
The power of the presiding officer to deliberate on the access application was challenged in an opposing affidavit presented by KDM municipal manager, Nhlanhla Mdakane.
Khan argued that this was not just an ordinary disciplinary inquiry as it dealt with the chief financial officer, who holds the second-highest position in the municipality.
An additional point of concern was that KDM failed to submit the charge sheet to the chair, and it was questioned how he could rule on an access application and its relevance to the public if he was not aware of the allegations levied against Rajcoomar.
The disciplinary hearing has been set for September 15.
The final decision on the access application will be made in the coming days.