Senior officials at the provincial Department of Transport and Public Works ignored advice from legal counsel to reverse a decision not to conduct a disciplinary hearing against the head of traffic, Farrel Payne, who’s facing sexual harassment charges.
This is according to an internal report seen by the Weekend Argus that questioned the head of department (HOD) Jacqueline Gooch’s decision not to press charges and institute a hearing into the allegations levelled against Payne.
Two years after a junior staff member wrote to the Western Cape government seeking justice against her alleged abuser, her family is still waiting for action.
Despite being on trial in the Cape Town Regional Court on charges of sexual assault, crimen injuria and sexual harassment, Payne remains in office with full pay while his accuser is on incapacity leave due to the toll the ordeal took on her mental health.
The complaints related to incidents that allegedly took place in June 2018, June 2019 and September 2020.
An internal report that recently emerged has shone the spotlight on how the department handled the complaints – reportedly having relied on ‘untested law’ in their decision to let Payne off the hook.
It showed that an internal investigation was launched by the department's Corporate Services Centre (CSC) within the Employee Relations directorate in October 2020.
A detailed report was produced in January 2021 and it noted that the complaint against Payne was “severe and could not be condoned by the employer who had a duty to protect its employees in terms of the sexual harassment policy”.
The report sought approval from the HOD to charge Payne with misconduct, appoint a presiding officer to chair a disciplinary hearing and sanction of a dismissal, if found guilty.
But Gooch reportedly sought further information before making a decision.
"After studying the aforementioned submission, I am concerned that the recommendations in the submission are out of kilter with the outcome of the investigation.
“Given the serious nature of the charges, I'm very cognisant that any disciplinary action will have negative consequences for both parties and so I am determined to ensure that any decision that I take will be done based on the evidence at hand and that such decision will be a fair one with an equal application of my duty of care to both parties,” the report noted.
The requested information was provided to plug the "gaps" identified by Gooch.
She was further advised that the fact that the complainant was “a single witness did not in itself negate her version unless the contrary was proven."
“The decision-maker only has to determine whether there is a prima facie case, not whether Payne is guilty," noted the report.
In June 2021, Gooch ruled there was no prima facie case and declined to prosecute.
Soon after, the department later sought senior legal counsel’s advice on whether or not Gooch was required to charge Payne and hold a disciplinary hearing.
According to the report, the department was advised that a "wrong" legal test was applied by Gooch and her decision should be reversed.
The counsel also advised that it must be left to the chairperson of the hearing to decide whether or not the complainant was a credible witness or not.
The shocking information came to light in the wake of questions being raised about alleged “double standards” being applied by the provincial government with regards to sexual harassment complaints.
Earlier this year, MEC for Community Safety, Albert Fritz was dismissed following an external investigation into allegations of sexual misconduct. Two of the four officials from Fritz’s office who were suspended, were dismissed.
Those close to the family said the matter had taken its toll on the alleged victim and her husband.
“It’s not been easy for the victim. It’s as if she’s been hit with a secondary victimisation. The government acted swiftly in dealing with complaints against Fritz., but her case is being treated differently even though it carries the same magnitude.
“The complainant’s health is not good,” said the source.
The complainant has suffered ill-health due to the alleged misconduct and had not been at work for two years.
Following Fritz’s dismissal, premier Alan Winde told a sitting of the provincial legislature that “if we are to deal with gender-based violence, we need to protect those that come forward.
“I will defend the victims to the absolute end,” he vowed.
However, the department is yet to heed senior counsel’s advice and Payne remains in office.
In addition to the criminal case, the matter was also taken to the Commission for Conciliation, Mediation and Arbitration (CCMA).
The department has declined to comment as "the matter is currently sub judice".
"The department will therefore not respond to questions from the media until the matter has been finalised,“ said spokesperson Jandre Bekker.
He said allegation of "this nature" were viewed in a serious light.
"The department, however, also has a duty of care to all its staff and will continue to act in a responsible manner that is fair to all involved," he said.
But Bekker would not say what steps were taken to protect the complainant.
He also refuted claims that the State attorney was representing Payne at the CCMA proceedings, as alleged by those following the cases.
Attempts to reach Winde for additional comment were not successful.