WINDHOEK – Government attorneys yesterday moved to have the case of permanent secretaries Joseph Iita and Erastus Negonga, who both hung onto their jobs by fingernails, nullified.
The fate of Iita and Negonga is unknown after they were relieved of their duties early this month.
Yesterday they formally dragged government to the Labour Court, in a bid to get re-instated in their coveted jobs.
Negonga – who also challenged government over his job in 2010 – is permanent secretary in the Ministry of Gender and Child Welfare.
Iita holds the same position in the Ministry of Agriculture, Water and Forestry.
Appearing on instructions of the Attorney General’s Office for the Secretary to Cabinet, the Prime Minister and the government, Nixon Marcus argued that the applicants’ contracts have expired. And in any event, Marcus said, the two men are due for retirement in five and six months, respectively, while the prescribed minimum period for an extension is one year.
This would make an extension of their contracts in violation of the relevant Act, he stressed, and submitted that the applicants did not establish a prima facie case and asked the court to dismiss the application.
In the main, Marcus argued that the Labour Court lacks jurisdiction to grant the applicants the interim relief they seek.
He said that the applicants do not have a dispute pending at the Labour Commissioner, which renders their application null and void.
Negonga and Iita were represented by Advocate Theo Frank instructed by Sisa Namandje.
Frank argued that the termination of the applicants’ contracts was done contrary to Section 10 A of the Labour Act of 1980 before it was amended, which states that the Cabinet must be the decision maker in the termination of a contract of a public official.
They argued that in this instance, it was not a Cabinet decision, but a decision by an employee of the Cabinet.
Negonga and Iita said they approached the Labour Court yesterday because they feel that they will not be afforded recourse by going the normal route.
They, however, indicated to Acting Judge Essi Schimming-Chase that they intend to lodge a review application regarding the termination of their contracts.
This affords them the right to approach the Labour Court for interim relief, their defence team argued.
They furthered argued that the Labour Court has the jurisdiction to grant the interim relief sought.
According to the filing notice, Negonga was never given notice that his contract will expire on March 20, 2015, while in the case of Iita there was no reply to a letter he sent to the Secretary of the Cabinet that he intends to serve another term. This was a follow-up letter to one he wrote in August 2014 indicating that will not seek another term.
According to the defence, where an applicant’s term is not to be extended he is entitled to a hearing to make representations as to why it should be extended.
This, they said, is part of the general principle of fairness.
“Further for a person holding a senior position, the process of terminating his contract, apart from being valid and fair, needs to be done with due regard to his reputation and with a degree of civility,” they noted.
Frank and Namandje submitted that the applicants established a prima facie right to the relief sought and continued that when it comes to irreparable harm and a balance of convenience it was proven that it favours the applicants.
In the result they submitted, the applicants have no alternative remedy to seek their re-instatement and their benefits with immediate effect.
According to Marcus, the Labour Act does not grant the Labour Court the power to hear a matter of unfair dismissal – which this, in essence, is.
This power is constituted to the Labour Commissioner, who has the power to order a reinstatement and or damages and an aggrieved party then has the opportunity to appeal to the Labour Court.
Should the Labour Court consent to hear the matter it would open the floodgates for aggrieved public officials to submit claims of unfair dismissals, which would make the Labour Court the court of first instance instead of an appeal court, he said.
According to Marcus, the applicants had the opportunity to approach the Labour Commissioner to have their dispute resolved quickly and cheaply.
He further said that they could also claim compensation for damages as they claim to have fallen on financial hardships if the take their dispute to the Labour Commissioner.
Judge Schimming-Chase reserved her judgment, but indicated that it will be delivered within the prescribed timeframe in the New Rules of the High Court if not sooner.