Nghiwete seeks leave to petition top court

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Nghiwete seeks leave to petition top court

Maria Amakali

Former Namibia Students Financial Assistance Fund CEO Hilya Nghiwete wants to be granted an opportunity to petition the Supreme Court after the High Court cancelled her reinstatement.

Nghiwete is currently seeking leave from the High Court so that she can appeal a judgement by Judge Herman Oosthuizen delivered in September. In September, he set aside Nghiwete’s reinstatement as ordered by an arbitrator.

Nonetheless, the court found that she was dismissed from her position as CEO without valid and fair reasons. A fair procedure was also not followed before her removal, the court had found. The court ordered NSFAF to pay her from the time of her dismissal until 15 July 2021.

Nghiwete was initially suspended on full pay in April 2018, and continued to receive a salary package of about N$185 000 a month for nearly two years until she was dismissed in February 2020. In her application, Nghiwete claims Oosthuizen erred to rescind the arbitrator’s order that she should return to work when he also ruled that there was no valid and fair reasons for her dismissal.

According to her lawyer Sisa Namandje, the order not to reinstate Nghiwete and to order the payment of remuneration to her only until 15 July 2021 is highly unfair, inappropriate and wholly unjustified. “The fact that there was no valid and fair reason to dismiss, the fact that the time period the applicant (Nghiwete) has not been at work was on account of the respondent’s illegality… all justify a reinstatement of the applicant,” submitted the lawyer. He said the court also erred by taking into account evidence from an unreliable witness, who indicated that the relationship between Nghiwete and her employer is irretrievably broken. Furthermore, the court failed to consider the fact that Nghiwete’s dismissal was null and void as one of the board members who voted for her removal had no voting rights. NSFAF lawyer Karin Klazen said the decision to dismiss Nghiwete was taken by a majority of voting board members, despite a non-voting member having taken part in the voting process. Thus, it does not invalidate the decision taken. “Crucially, the appellant approached the High Court by way of review proceedings to have the charges against her declared null and void, and not to review the legality of the board’s decision,” said Klazen. On the alleged broken relationship between NSFAF and Nghiwete, the lawyer said it was on Nghiwete’s own version that she did not trust the board.  “The applicant’s evidence in this respect was loaded with unfounded conspiracy theories and personal accusations,” said Klazen. She added that Nghiwete testified that the board is “unprofessional”, they have something against her, and they are all under the influence and are manipulated by the company secretary.

From Nghiwete’s testimony alone, it is clear that the employee/employer relationship has irretrievably broken down, said Klazen. So, she said, the court was right in its ruling to order against reinstatement, given the circumstances of the case, and no other court will come to a different conclusion.

Nghiwete has been in a legal battle with her former employer since 2019 when she approached the High Court, seeking a review and setting aside of the minister of higher education’s decision to appoint a new board that was chaired by Jerome Mutumba.  She argued that the board’s appointment by minister Itah Kandjii-Murangi was unlawful as it was done in terms of the NSFAF Amendment Act of 2014, as opposed to the NSFAF main Act, Act No. 26 of 2000.

The NSFAF Amendment Act was not yet gazetted, and as such was not in force then. She furthermore claimed that the minister did not follow the law when she appointed the new board. Thus, the board’s appointment was illegal, and any decision that may have been taken by it. Also, she wanted an order declaring the new board’s decision to suspend her and institute disciplinary proceedings against her as unlawful, as they were appointed illegally. The board instituted charges of maladministration, gross negligence, gross sabotage and causing harm to NSFAF’s interests, amongst many. In her founding affidavit, Nghiwete indicated that it was clear the new board wanted to get rid of her as soon as they were appointed.

“As soon as the old board of directors was replaced by the new unlawfully constituted and appointed board, they with immediate effect took steps to come up with bogus charges against me. Such charges have been changing over time,” she pleaded.

Fighting on … Ex-NSFAF boss Hilya Nghiwete.