Axed National Student Financial Aid Scheme (NSFAS) CEO Andile Nongogo has won leave to appeal the judgment dismissing his urgent Labour Court case challenging the board’s unilateral termination of his contract without a disciplinary process.
In the ruling on Tuesday, acting judge Maletsatsi Mahalelo said she considered the test for leave to appeal and noted that Nongogo’s application raised “issues of interpretation of sections in the employment contract that are novel”.
“I have thus concluded that there are reasonable prospects on appeal,” Mahalelo ruled.
In the judgment handed down on January 6, Mahalelo dismissed Nongogo’s urgent application for declaratory relief pertaining to the termination of his employment contract as well as his reinstatement to the position of CEO of NSFAS.
The judge then also dismissed with costs his application to strike out certain paragraphs of the respondents’ answering affidavit.
Nongogo subsequently applied for leave to appeal against the whole of that judgment and order.
Ground of appeal raised
Mahalelo said the application was filed timeously, and the NSFAS board (the respondents) participated in the proceedings, opposing the application.
The applicant and the respondents filed written submissions and argued the matter in open court.
“Several grounds of appeal were raised in support of this application. It is unnecessary to list them in this judgment,” the judge said.
“Suffice to mention that the respondents submitted that those grounds are meritless and should be rejected by the court.”
She noted that leave to appeal may only be granted where a judge or judges are of the opinion that the appeal “would” not have reasonable prospects of success, including some compelling reasons why the appeal should be heard and the existence of conflicting judgments on the matter under consideration.
“It has been confirmed that the use of the words “only” and “would” implies that the threshold is set too high to a point where this court must only give leave in instances where a definitive prospect exists that the appeal would succeed.”
Conflict between contract and disciplinary code
In the ruling under appeal, Mahalelo found that whereas the NSFAS disciplinary policy governed, formalised, and standardised the disciplinary process for all employees to ensure they were treated fairly and consistently, there seemed to be a conflict between Nongogo’s employment contract and the disciplinary code.
Mahalelo noted that the disciplinary code stated that “all line managers have a responsibility to investigate allegations of misconduct before disciplinary action is taken and to advise the employee accused of misconduct as a courtesy”.
Said the Mahalelo: “The CEO does not have a line manager. To allege anything else would be to read into what is not stated in the disciplinary policy.”
She referred to the clause in the employment contract stating that the outcome of an investigation must be referred to human resources, which must engage with NSFAS management to make the final decision on whether disciplinary charges will be initiated.
“In my view, the CEO could not possibly be investigated by the human resources department, which reports to him,” said Mahalelo.
Legal representation
She noted that the disciplinary policy provided that the employee may be represented by a union representative or a fellow employee and excluded external legal representation or personal representation.
Nongogo, said Mahalelo, acknowledged that he was permitted to have legal representation, which indicated that he was not subject to the disciplinary policy.
Said Mahalelo: “One can hardly envisage how the CEO could be represented by a fellow employee, considering the seniority of his position.
“It goes without saying that the CEO could not have been represented by a union representative .
It would be highly irregular that the human resources manager would submit a report to the CEO about the CEO sanction.
“The simple text of the disciplinary policy and the applicant’s contract of employment, in my view, show that the applicant was never intended to be the subject of the disciplinary policy.”
