The acting head of the Special Investigating Unit (SIU) snubbed two legal opinions advising her against the controversial reinstatement of the unit’s business support head, Miseria Nyathi, who was fired last year.

Nyathi, dismissed in August last year after refusing to undergo a lie detector test in breach of her contract, was reinstated last month.

The tug of war over her dismissal was seen to reflect a larger clash over Willie Hofmeyr’s leadership. Nyathi was strongly backed by the National Education, Health and Allied Workers’ Union (Nehawu), which accused Hofmeyr of backing white managers.

Hofmeyr was replaced as the unit’s head in November by former Judge Willem Heath, who held the position for two weeks before resigning.

The current acting SIU head is Nomvula Mokhatla.
The SIU said Nyathi’s reinstatement was part of a settlement with the unit reached during a meeting at the Commission for Conciliation, Mediation and Arbitration (CCMA) on May 16, which included that Nyathi be reinstated on May 17, the SIU pay her nine months’ back pay, she would resume work on June 1 and her 2011 performance appraisal would be used to assess her performance this year.

However, the Mail & Guardian has seen a memorandum, dated May 16 and compiled by SIU advocates Tim Bruinders and Karensa Millard, advising Mokhatla against reinstating Nyathi.

‘Imprudent and unlawful’

The memo says: “During a discussion with our attorney, also attended by Bobby Walser (internal SIU lawyer) at the CCMA offices in Pretoria, we advised that the settlement was imprudent and unlawful and we recommended against settlement of the dispute with Nyathi.

“We were requested by our attorney to record our advice and to do so urgently so that he could convey it to the acting head of the SIU before or at the same time that the settlement was finalised.”

The memo noted that Mokhatla “has obtained another opinion by other lawyers. We are informed that the advice by those lawyers broadly supports the advice given by us.”

Nyathi was suspended from the SIU in April last year, following allegations of misconduct concerning her sharing of “privileged” information with Nehawu members in the unit. She was also accused of filing irregular claims, allegedly amounting to R60 000, for a special overtime allowance.

She was dismissed in August last year after refusing to undergo a lie detector test, which the Labour Court ruled was a material breach of contract.

Referring to the Labour Court ruling, the lawyers said that “it goes without saying that the judgment binds the SIU and its acting head. Reinstatement does not only undo all of this, but it is in breach of the wording and purpose of her employment contract”.

Advice

Finding that the original dismissal was “substantially fair, based on the court finding and evidence that would be led by the unit”, the memo continues: “We advise against settlement, as we understand it has been proposed and agreed to by the acting head and Nyathi.”

The SIU’s decision to reinstate Nyathi, the memo says, “appears to be irregular” because the Public Finance Management Act “requires the SIU not to engage in irregular, fruitless or wasteful expenditure”.

The agreed terms of Nyathi’s return to work amounted to “expenditure that is made in vain and can be avoided … by successfully opposing the unfair dismissal CCMA claim”.

Bruinders and Millard reminded Mokhatla that, as the unit’s accounting officer, she was obliged in terms of section 85(1)(a) of the Act “to report her decision to reinstate Nyathi to treasury and the auditor general”. She consequently lays ­herself open to an adverse finding by the auditor general.

After the M&G reported on Nyathi’s reinstatement last month, the SIU said: “The allegation that the amount paid to Nyathi on her ­reinstatement would constitute wasteful expenditure … has been referred to the auditor general.”

The SIU also referred to Nyathi’s alleged abuse of expense claims between December 2009 and March 2010, saying: “Quite apart from the settlements terms, we dissociate ourselves from any inferences, imputations or aspersions that amount to labelling Nyathi as a corrupt official.
“We must make it very clear that Nyathi was never charged with any misconduct, let alone being convicted of any.”

Evidence of fraud

The memo notes that although Nyathi’s court application and the CCMA arbitration were conducted “on the basis that she was dismissed for breach of a material term … at the time she was dismissed”, the SIU had evidence against her of fraud.

That evidence might not have been relevant to the court or the arbitration, but it was relevant to her continued employment at the SIU.

“Fraud is not only a dismissible offence, but renders her unfit and improper for employment in the SIU.”

In response to questions to the SIU, the unit said: “Mokhatla did not ignore any advice. She considered all legal advice, including representations from Nyathi and her legal representatives.

“Mokhatla’s decision to reinstate Nyathi was taken with great caution and in consideration of all the facts.”

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