- January 30, 2023
- |Concise Law Reports (CLR), Legislation
Gertze v Minister of Finance Others NALCMD (30 January 2023)
The appellant was charged with two main counts and two alternative counts of misconduct on 18 February 2016. The first count was that the appellant during the period of 2014 – to January 2016 prepared and processed payment to a company named Yamotoko Enterprises without any source documents, alternatively that she used her position to promote the interest of a private enterprise which did not provide any service to the first respondent. The second count was that she, contrary to the prescribed code of conduct, by engaging in transactions that she had a personal or financial interest in. It was alleged that the payments made to Yamotoko Enterprises was paid into the account of Namibia Properties Maintenance Plan CC which she co-owned with her husband. In the alternative to this count, she was charged with fraudulently embezzling money of the first respondent by using her position in the Public Service.
The appellant denied the allegations against her. A disciplianry committee was established around 10 March 206 which was scheduled for 23 March 2016. On 21 March 2016, the appelllant in writing requested the services of a translator. On the date of inquiry, the acknowldged reciept ofan interpreter, but one could not be appointed for that hearing. Such an intepreter would be made during the next hearing. The chairperson read the charges and requested the appellant to plead thereto. She pleaded not guilty to all the charges. The chairperson then wanted to know from a certain Mr Iyambo whether he finalized the investigation. He indicated that the investigation was not completed and that he was still busy with it. The disciplinary enquiry was postponed sine die to allow the investigator to finalize his investigations.
The next hearing took place on 16 August 2016 at which hearing the representative of the appellant raised a point in limine that there was non-compliance with section 26(6) of the Public Service Act, in that the hearing commenced after the prescribed 21 days provided for in the said section. The chairperson’s response was as follow:
‘And again in terms of section 26(6) of the Public Service Act, you are again requesting the case to be dropped and again this cannot be dropped neither be nullified or discontinued as there is no basis for discontinued (sic) as well as nullification of this disciplinary inquiry.’
After this ruling the appellant and her representative abandoned the proceedings protesting against the fairness of the proceedings. The inquiry continued in the absence of the appellant in terms of section 26(8)(c), the inquiry received the evidence of the investigating officer and found the appellant guilty on the first main count and recommended her dismissal. The appellant appealed internaly and it was dismissed. The appellant was dismissed on 22 November 2017 and she thereafter referred a dispute to the Labiur Commissioner. The arbitrator found that the disciplinary hearing was subtantively and procedurally fair. It is against this award that the appellant appealed to the Labour Court.
TOMMASI J had to determine the issue of whether the arbitrator correctly concluded that no procedural irregularity took place during the internal discplinary hearing. To answer this question, it must be determined whether the disciplinary inquiry was “conducted” on 23 March 2016. If yes then there was no procedural irregularity but if not, then there would be non-compliance with section 26 (6) of the Public Service Act. The follow up question is whether such non-compliance renders the disciplinary inquiry held on 16 August 2016 invalid.
Section 26(6) essentially requires that a disciplinary inquiry be conducted within 21 days after the establishement of the discplinary committee. The court referred to Simataa v The Public Service Commission (A12-2003) [2013] NAHCMD 306 (30 October 2013) and Zephania M Tjihumino v The Permanent Secretary of the Ministry of Finance and others (Case No. LC3/2006, unreported judgment delivered on 2 November 2006). In Tjihumino, Mainga J stated that:
‘What is clear though is that the inquiry must commence within 21 days after the establishment of the disciplinary committee’
and
“It was the intention of the legislature that once the disciplinary committee has been established the inquiry shall take place/commence within 21 days and failure to commence the inquiry within that specified period renders the inquiry invalid and of no consequence”
In Simaata, Van Niekerk adopted a more flexible approach and stated that:
‘As far as compliance with section 26(6) itself is concerned, I am similarly of the view that the mere fact that the 21 day limit is exceeded does not in itself render the inquiry a nullity. For instance, is (sic) the limit is exceeded by a day or two it would cause greater inconvenience if the inquiry is considered invalid than if it were to be considered valid.’
Further in paragraph 51 the following is stated:
‘The question is, though, whether I can state that the judgment in Tjihumino is clearly wrong on the issue of whether non-compliance with the time limit in section 26(6) renders the inquiry a nullity. After careful consideration I do not think I can. I am therefore bound to follow it.’
Having discussed the legal principles, the court found that the hearing of 23 March 2023 fell within the 21 days period. The matter was postponed sine die and it was only conducted five months after the discplinary committee was established. It was held that:
- The disciplinary inquiry must be conducted within 21 days after the disciplinary committee is established. Although it is not required to be finalized within 21 days, it must at least commence within that period. Scheduling a disciplinary inquiry simply to postpone it sine die does not qualify as “conducting” an inquiry.
- Held further that the provision in terms of section 26(6) of the Public Service Actfor the disciplinary inquiry to be conducted within 21 days is peremptory and failure to comply therewith renders the inquiry a nullity.
As a result, the arbitrator’s award was set aside in its entirety and the inquiry on 16 August 2016 was declared a nullity. The first respondent was odered to reinstate the appellant in the position she occupied before her dismissal, and pay her the remuneration she would have been paid had she not been dismissed.