Suspended managing director of the National Petroleum Corporation of Namibia Immanuel Mulunga approached the labour division of the Windhoek High Court to review and set aside two charges he faces in a disciplinary hearing. 

The notice of motion states that he will apply that the charge sheet of a disciplinary hearing, dated 24 May 2023, is corrected, reviewed and set aside or alternatively declared against the provisions in the employee relations policy of Namcor.

Further, he is asking the Labour Court to declare that any further steps taken by the company as a result of the charge sheet are a nullity.

In an affidavit, Mulunga claims the policy provides that any disciplinary action by Namcor should be disposed of within 90 days from the time the breach was officially brought to the attention of Namcor. 

According to Mulunga, the disciplinary action against him was not instituted within a reasonable period of the necessary facts becoming available to the board of directors of Namcor. 

Secondly, the investigation into the charges was not conducted by the initiator of the charges as dictated by the policy, but by a third party, a law firm in South Africa, Cliffe Dekker Hoffmeyer.    

He said in terms of the policy, the initiator is the only person or persona that may lawfully investigate the intended charges to be instituted on the basis of any alleged misconduct by an employee of Namcor. 

The charges Mulunga face are fraud (withholding information from the board of directors of Namcor) that he had the intention of instructing the finance department to transfer US$6.7 million to Sungara Energies from the account of a Namcor Exploration and Production (Namcor E&P), subsidiary of Namcor, while he had the duty to do so. 

The second charge is that he breached the conditions of his employment, causing a serious breach of trust between him and the board. 

There is a third charge that states he breached confidentiality by leaking a WhatsApp communication to the media. Mulunga stated the ground for undue delay in processing the disciplinary action is against the policy, as all the necessary facts have been made available to the board already on 24 May. 

However, he denies this date and submits that the alleged breach was already brought to the attention of the board on 17 August last year. 

In fact, he said, the investigation into the alleged breach that gave rise to the charges was completed by 13 September last year. 

Regarding the ground that the investigation was not conducted by the initiator of the charges, he submitted that the charge sheet must be set aside in its entirety, as the investigation was conducted by a third party, which is against the Namcor policy. 

In fact, he said, the initiator of the charges, law firm Kangueehi and Kavendjii, confirmed that they were appointed in terms of a legal services agreement as the initiator of the proceedings against him. 

Further, he said, there is no dispute about the fact that they outsourced the investigation to Cliffe Dekker Hoffmeyer. 

The breaches by Namcor, first, the failure to institute disciplinary proceedings timeously – and second, the outsourcing of the investigation, make the charges ultra vires, and null and void, Mulunga claims. 

Further, he said, these failures constitute a material breach, which cannot allow Namcor to institute any further actions against him. 

In any event, he stated, he was charged by the wrong entity, as he authorised payment from the Namcor E&P bank account and not that of the holding company. As such, he said, Namcor E&P should have charged him. 

He is asking the court to set aside the charges in its entirety and to restrict the board from instituting further charges against him.

 The matter is set for 21 August before High Court Judge Eileen Rakow.

Mulunga is represented by Jermaine Muchali. - rrouth@nepc.com.na