Axed National Student Financial Aid Scheme (NSFAS) CEO Andile Nongogo has brought an urgent application before the Labour Court in Braamfontein to challenge the board’s unilateral termination of his contract without conducting a disciplinary process.
Last Tuesday, the NSFAS board fired Nongogo with immediate effect on the grounds of a breach of policies and trust.
This follows allegations of corruption and weaknesses related to the fund’s new direct payment system.
NSFAS board chairperson Ernest Khosa previously told the media that an investigation found that Nongogo actively participated in the evaluation of the bids and the appointment of four direct payment service providers.
In his court papers filed on Monday, Nongogo said his employment was terminated in breach of the contract, and he sought reinstatement.
“Reinstatement is the only remedy that would ensure that the material provisions of my employment contract are honoured,” he said.
He said the breach of his employment contract was an affront to the rule of law and offended public policy.
“This, in turn, impugns legal certainty. Unlawfulness of this nature should not be countenanced,” said Nongogo.
“The unlawfulness becomes even more egregious when considering that the decision was taken by a board of a public entity.”
Board has no authority to terminate contract
In terms of his employment contract, he said, the board had no authority to summarily terminate his contract.
He added that the contract could only be terminated in specific circumstances that were not applicable and in the instance of alleged misconduct after a disciplinary hearing had been held.
He said the disciplinary hearing contemplated in the contract is as prescribed in the disciplinary code or the disciplinary policy. This entails an impartial chairperson and the reasonable opportunity to prepare, among others.
“Not written representations or lip service to the principle of audi alteram partem,” he said, referring to his right of reply to the allegations against him.
He continued: “I state upfront that this is not a matter where I approach the above honourable court alleging that I have a right to a disciplinary hearing in the ordinary course.
“Quite the contrary, I aver that my employment contract entrenches my right to a disciplinary hearing in the true sense of the word.”
He said the manner in which the board approached the matter and made the decision to summarily terminate his employment was at odds with his contractual rights.
Nongogo said that the court application was not about his guilt or innocence of the allegations made against him.
“This must be tested in a disciplinary hearing in due course. Instead, it is about whether the board breached my employment contract when it decided to unilaterally and summarily terminate my employment in the circumstances where it had not held a disciplinary hearing to test the many, what I would assert to be unfounded allegations against me”.
Nongogo said he approached the court urgently to seek redress.
“Since the termination is in breach of my employment contract and a repudiation of the terms thereof by the board, I am left with an election to accept the repudiation and cancel the contract or seek specific performance.”
