The dismissed CEO of the Namibia Students Financial Assistance Fund (NASFAF), Hilya Nghiwete, has filed an urgent application with the Windhoek High Court to interdict the Fund’s board from implementing its decision to fire her pending the finalisation of a labour complaint she lodged with the Labour Commissioner and ordering that the status quo remains in respect of her employment contract prior to the decision to fire her.
Nghiwete was suspended on 16 April 2018 and she had remained on suspension with full pay and full benefits until she was eventually fired on 7 February this year.
The application was opposed by the Fund and was heard before Windhoek High Court acting Judge Kobus Miller yesterday.
According to Sisa Namandje, who represented Nghiwete, the decision to terminate her contract is tantamount to cruelty and inhumane treatment.
“In addition, particularly when it comes to the abrupt and cruel removal of a functionary in a senior position, such as the applicant, it is required that such removal not only be done in a fair and most valid manner, but her termination of employment should have been handled with a human face and with proper care to avoid stigmatisation and reputational damage,” stated Namandje.
He went on to say that the Fund’s board, without charges, without any fair process carried, without valid and fair reason, and without a requisite inquiry or hearing by an independent chairperson terminated his client’s services. This, he said, is in contravention of the Fund’s disciplinary code.
According to Namandje, the decision to fire Nghiwete was taken where an ongoing disciplinary hearing was abandoned by the Fund, and as a result, the chairperson of the disciplinary hearing was denied an opportunity “due to the strongman stratagem of the Fund” to make an informed decision for her absence from the hearing, which was followed up with a press release meant to stigmatise his client.
He argued that the termination was also carried out in circumstances where the High Court is due to hear a review application against the minister of higher education to constitute, nominate and appoint the current board that took disciplinary action against Nghiwete.
He further claimed the matter is of utmost urgency, as Nghiwete will not be able to honour her monthly financial commitments to the tune of N$53 000 if she is not employed. The Fund, through its legal heavyweight Geoffrey Dicks, instructed by Karin Klazen of ENS Africa, dismissed this as rubbish.
According to them, the matter is not urgent, as Nghiwete has a substantial remedy in due course as she instituted a labour complaint with the Labour Commissioner.
They argued that the position Nghiwete finds herself in is of her own making.
According to Dicks, the Fund bent over backwards to accommodate Nghiwete and finalise the disciplinary hearing, but she thwarted them in every possible way.
He further told the court that it seems as if Nghiwete has been advised that an employee can frustrate a disciplinary hearing with impunity and thereby delay the same extended periods whilst receiving a monthly salary. The first respondent (Fund) denies that the balance of convenience favours the applicant, saying she finds herself in this position as a result of her own conduct and refusal to cooperate with reasonable requests of the first respondent. “The balance of convenience, in fact, favours the first respondent – and even more so – the public, particularly the students who receive financial assistance, and, of course, the Namibian taxpayer who has been financing the applicant’s salary during the two years of her suspension and the repeated postponements of the disciplinary hearing with the concomitant costs thereto,” Dicks said.
They asked the judge to dismiss the application with costs. Judge Miller indicated he will deliver judgment on 25 March.
– rrouth@nepc.com.na