AXED National Student Financial Aid Scheme (NSFAS) CEO, Andile Nongogo, failed in his urgent bid to the Johannesburg Labour Court to be reinstated.
His contract was terminated in October last year following an investigation conducted by Werksmans Attorneys and advocate Tembeka Ngcukaitobi.
Nongogo alleges that he was fired without having undergone a disciplinary process which is why he challenged his unilateral dismissal.
The NSFAS board fired Nongogo with immediate effect on the grounds of a breach of policies and trust.
Since his axing, there have been accusations and counter-accusations between Nongogo and board chairperson Ernest Khosa, following a damning forensic report which recently implicated Nongogo in alleged corruption, fraud and illegal tender dealing
He entered into a fixed-term contract with NSFAS in November 2020 and the contract was supposed to run until November 2025.
In August last year he received a letter from NSFAS board placing him on special leave on allegations of possible conflict of interest in the appointment of service providers for the direct payment of allowances to students.
The board appointed Werksmans Attorneys and Ngcukaitobi to investigate the allegations.
In light of the adverse findings, the board fired Nongogo in October.
In his court papers, Nongogo said his employment was terminated in breach of his contract, and as a result, he wants to be reinstated to his position.
“Reinstatement is the only remedy that would ensure that the material provisions of my employment contract are honoured,” he said.
Nongogo indicated that this lack of regard for the rules was in breach of his employment contract and “an affront to the rule of law and public policy”.
“This, in turn, impugns legal certainty. Unlawfulness of this nature should not be countenanced,” said Nongogo.
“The unlawfulness becomes even more egregious when considering that the decision was taken by a board of a public entity.”
“This, in turn, impugns legal certainty. Unlawfulness of this nature should not be countenanced,” said Nongogo.
It was argued on his behalf that the board cannot dismiss him unilaterally without holding a disciplinary hearing – a right which is enshrined in his contract.
It was further said that he would have no substantial recourse if the court did not urgently intervene in the matter as his reputation as a chartered accountant will be tarnished beyond repair.
Nongogo is of the opinion that the harm that has ensued to him and his family will be exacerbated as the matter has been widely publicised.
He said it is a matter of urgency that this court declare the termination of his contract of employment and summary dismissal unlawful and invalid.
In interpreting Nongogo’s contract, Acting Judge MB Mahalelo said the text of the Disciplinary Policy and the applicant’s contract show that he was never intended to be a subject of the disciplinary policy.
The CEO cannot be disciplined by management. He may only be disciplined by the board, as the powers to appoint and dismiss him lies solely with the board. The judge said this on its own goes to show that the procedures set out in the Disciplinary Policy do not make any provision for a disciplinary process in relation to a CEO.
The plain reading of the contract of employment also makes it clear that the Disciplinary Code is not specifically incorporated into the applicant’s contract of employment.
In any event, the judge said, even if it is to be accepted that the Disciplinary Policy and Code are applicable to the applicant’s contract of employment, the Disciplinary Policy does not make a formal disciplinary hearing compulsory.
“The applicant has therefore failed to make out a case,” the judge said in dismissing this application.
Pretoria News
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