As the Department of Correctional Services (DCS) mulls over an urgent request to resolve a labour issue with a senior government official to avoid a further waste of taxpayers’ money, an aspect of the dispute will be heard in court this week.
The Labour Court is set to hear an application on Thursday by the DCS to set aside a writ of execution and notice of attachment granted to Mzukisi Ndara by the court in January in respect of money owed to him.
In April 2022, Ndara filed an urgent application with the court after he was served with a letter of dismissal which cited, among other things, an alleged breakdown in the working relationship between him and Deputy Minister of Justice and Correctional Services, Phathekile Holomisa.
A judgment handed down by Justice Hilary Rabkin-Naicker on April 29 dismissed with costs the “unlawful” termination and further ordered the department to pay back a salary shortfall of over R254 000 that was “unlawfully” deducted from Ndara within 10 days.
Judge Rabkin-Naicker found that Ndara, who had served government since 2004, was not afforded an opportunity to be heard on the termination of his employment contract.
The five-year contract, scheduled to expire in 2024, had a clause which stipulated that should any of the parties wish to terminate it before the expiry date, they could only do so after consultation and agreement with the other party.
The following month Ndara received his monthly salary but the department failed to pay the R254 468.44 as ordered by the court.
On January 31 the court issued a writ of execution for the sum of R254 468.44 plus interest, following a letter of demand that was served on the DCS and its lawyers in mid-December.
Now the department has asked the court to set aside the writ of execution as it was allegedly issued “erroneously” by the registrar of the court.
The Labour Appeal Court has yet to set a date for the hearing of the application for condonation and reinstatement of the earlier application.
This followed an alleged failure by the State to file the record of appeal by the stipulated time frame, after they were granted the leave to appeal against the April 2022 judgment.
Two weeks ago, the Organisation for Undoing Tax Abuse (Outa) wrote to Holomisa urging him to seek an intervention that might be “prudent for all parties concerned”, or to follow an arbitration process to resolve the matter to “reduce the unnecessary waste of time and taxpayers’ resources”.
“When the dismissal of officials appears to have circumvented due process and appears to have ulterior motives, as opposed to applicable legally permissible reasons for removal from office, we do become very concerned,” wrote Outa CEO Wayne Duvenage.
He added: “We hold a firm view that it would be in your interest as a ministry and your department, to find a solution to this matter outside of court, as opposed to a lawfare strategy that we believe is a waste of taxpayers’ money.”
Duvenage also pointed out that the department was using “the public purse ” against an individual who was highly qualified and had “served the government with devotion for close to two decades”.
Ndara was barred from continuing with his job from June 2022 and had not received a salary since then.
In his application against his termination he noted adverse financial distress he and his family would suffer and an impact on his health.
Department spokesperson Singabakho Nxumalo declined to comment as the matter was “currently before the court”.
Weekend Argus