Court tells Lottery legal manager to pay punitive costs

“It is impossible to avoid the inference that this application is a tactic to delay, rather than finalise the disciplinary proceedings in good time,” said acting Judge Johan Moorcroft

By Tania Broughton

28 March 2024

The new board and management of the National Lotteries Commission is taking action to end corruption at the institution. Illustration: Lisa Nelson

Gugulethu Yako, the suspended legal manager at the NLC who is facing charges of taking money from a grant beneficiary, has failed in an urgent court bid to stop disciplinary proceedings against her.

Johannesburg Acting High Court Judge Johan Moorcroft this week dismissed the application and ordered Yako to pay punitive costs, noting that: “It is impossible to avoid the inference that this application is a tactic to delay, rather than finalise the disciplinary proceedings in good time.”

Read the judgment here

Yako sought orders setting aside a decision to suspend her and institute disciplinary proceedings ahead of a review application in which she seeks to overturn the findings of the Special Investigation Unit (SIU) against her.

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 Mandla Mkhatshwa had been appointed to preside over the disciplinary hearing.

Judge Moorcroft said the urgent application had been brought some six months after her suspension and “no explanation is provided for this delay”.

Yako also challenged the appointment of Advocate Mkhatshwa, which the judge said had no merit. He had been appointed in compliance with the NLC supply chain management process and met the requirements.

Yako also complained that she had been suspended by Scholtz and not by the board.

But the chairperson of the board confirmed that it had approved this action.

“She has been on full pay and benefits since October 2023. Serious charges have been brought against her, namely that she benefited financially from a grant beneficiary of the NLC. This is strictly prohibited,” Judge Moorcroft said.

“She admits that various amounts were paid into her bank account but says these were payments made by a suitor who at the time wanted to impress upon her that he was in a financial position to care for her. They subsequently did enter into a relationship,” he said.

When the disciplinary hearing convened in February, Yoko had objected to its continuation because she was in the process of filing the review application to set aside the report of the SIU which formed the basis of her suspension.

“It is argued that the report is unlawful and the applicant was not afforded a hearing before the SIU made its recommendations,” Judge Moorcraft said.

However, he said, the very purpose of the disciplinary hearing was to afford her an opportunity to present her case and answer to the charges brought.

“The purpose of the review application and this urgent application is to prevent the hearing from continuing.”

He said Advocate Mkhatshwa had exercised his discretion when he ruled that the hearing must continue regardless and this discretion was not open to attack on any grounds or legality.

“Nothing in the papers support an argument that her rights have been threatened. Her audi alteram rights [her right to have her side of the story heard] are 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.

He dismissed the application with an order for punitive costs.