NSFAF prevails in Nghiwete saga

NSFAF prevails in Nghiwete saga

The protracted saga of suspended CEO Hilya Nghiwete and the Namibia Students Financial Assistance Fund has finally been put to bed.

This is after the Supreme Court ruled in favour of the fund.

In a ruling by a full bench of the Supreme Court on Friday, Judge Elton Hoff, who wrote the concurring judgement, found that the High Court erred when it ordered the fund to backpay Nghiwete’s monthly salary to 8 February 2020.

Nghiwete was 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. After Windhoek High Court Judge Herman Oosthuizen set aside her reinstatement as ordered by the labour commissioner, she lodged an application for leave to appeal to the Supreme Court. The fund simultaneously lodged a counter-appeal against the order to backpay her and the High Court’s finding that her dismissal was unfair.

The appeal judges, however, found that the breakdown in the relationship between Nghiwete and the NSFAF board provided a valid and fair reason for her dismissal and rendered the dismissal substantively fair. They found that evidence presented during the arbitration proceedings described the relationship as unbearable, acrimonious, disruptive, and uncooperative with no trust in the leadership of Nghiwete, who herself stated that the animosity and hatred towards her by the board were “acutely raw.”

Further, the judges found, that the relationship of trust and confidence between the parties had irretrievably broken down on substantially the conduct of Nghiwete in the circumstances of this case, which made the continuation of the employment relationship impossible. Another issue, the judges found, was the unavailability of a medical certificate to determine Nghiwete’s ability to attend the disciplinary hearing. The judges found that NSFAF acted reasonably when they demanded to be provided with a medical report or for Nghiwete to be subjected to an examination by a psychiatrist of its choice since it was important to establish whether the applicant was genuinely incapacitated and that the medical certificate was not employed as a delaying tactic. Consequently, Judge Hoff, Deputy Chief Justice Petrus Damaseb, and Acting Judge Hannelie Prinsloo dismissed Nghiwete’s appeal and upheld the cross-appeal by NSFAF.

Nghiwete was represented by Sisa Namandje and NSFAF by Andrew Corbett, assisted by Karin Klazen. 

-rrouth@nepc.com.na

(Nghiwete)

Caption: Unsuccessful… Former NSFAF CEO Hilya Nghiwete.

Photo: Nampa