The protracted saga of suspended CEO Hilya Nghiwete and the Namibia Students Financial Assistance Fund is heading to the Supreme Court.
The High Court on Friday granted her leave to petition Namibia’s apex court over the cancellation of her reinstatement.
“The leave to appeal to the Supreme Court is granted. I believe the said court might come to a different conclusion in this matter,” said judge Herman Oosthuizen.
Oosthuizen made the order after Nghiwete last year filed an application seeking leave to appeal his September 2022 judgement.
In that verdict, Oosthuizen set aside Nghiwete’s reinstatement as ordered by an arbitrator. However, the court found that she was dismissed from her position as CEO without a valid and fair reason, and without fair procedures having been followed.
The court ordered NSFAF to pay her from the time of her dismissal until 15 July 2021.
Nghiwete was suspended on full pay in April 2018, and continued to receive a salary package of about N$185 000 a month for nearly two years until she was dismissed in February 2020.
In her application, Nghiwete claims Oosthuizen erred to rescind the arbitrator’s order that she should return to work when he also ruled that there was no valid and fair reason for her dismissal.
During submissions, her lawyer Sisa Namandje argued that the order not to reinstate Nghiwete and to order payment of remuneration to her only until 15 July 2021 is highly unfair, inappropriate and wholly unjustified. He said the court also erred by taking into account evidence from an unreliable witness, who indicated that the relationship between Nghiwete and her employer was irretrievably broken down.
Furthermore, the court failed to consider the fact that Nghiwete’s dismissal was null and void, as one of the board members who voted had no voting rights.
NSFAF lawyer Karin Klazen said the decision to dismiss Nghiwete was taken by a majority of voting board members, despite a non-voting member having taken part in the voting process.
Thus, it does not invalidate the decision taken.
“Crucially, the appellant approached the High Court by way of review proceedings to have the charges against her declared null and void, and not to review the legality of the board’s decision,” submitted Klazen.
On the alleged broken relationship between NSFAF and Nghiwete, Klazen said it was on her own version that she did not trust the board.
“The applicant’s evidence in this respect was loaded with unfounded conspiracy theories and personal accusations,” she continued.
Klazen claims Nghiwete testified that the board is “unprofessional”, they have something against her, and they are all under the influence and are manipulated by the company secretary.
From Nghiwete’s testimony alone, it is clear that the employee/employer relationship has irretrievably broken down, said Klazen. So, the court was right in its ruling to order against reinstatement, given the circumstances of the case, and no other court will come to a different conclusion.
Nghiwete has been in a legal battle with her former employer since 2019 when she approached the High Court to seek a review and setting aside of the minister of higher education’s decision to appoint a new board which was chaired by Jerome Mutumba.
At the time, she argued that the board’s appointment by Minister of Higher Education Itah Kandjii-Murangi was unlawful as it was done in terms of the NSFAF Amendment Act of 2014 as opposed to the NSFAF main Act, Act. No. 26 of 2000. The NSFAF Amendment Act was not yet gazetted, and as such was not in force.
She claimed that the minister did not follow the law when she appointed the new board. Thus, the board’s appointment was illegal, and any decision that may have been taken by it.
Furthermore, she wanted an order declaring the new board’s decision to suspend her and institute disciplinary proceedings against her as unlawful, as they were appointed illegally.
The board instituted charges of maladministration, gross negligence, gross sabotage and causing harm to NSFAF’s interests, amongst others.
In her founding affidavit, Nghiwete indicated that it was clear the new board wanted to get rid of her as soon as they were appointed.