Johannesburg - The Department of Public Works and Infrastructure has been dragged to court over alleged unfair labour practices and victimisation of whistle-blowers who exposed alleged irregular appointments and abuse of power by Minister of Employment and Labour Thulas Nxesi.
The employees told the Labour Court in Johannesburg they had been targeted for blowing the whistle on Nxesi’s shenanigans. This was after allegations that Nxesi, who was minister of Public Works and the chairperson of the SACP between 2011 and 2017, allegedly appointed SACP comrades to positions without due procedures.
It was also reported that Nxesi appointed and promoted to senior managerial positions women he allegedly had sexual relations with. Nxesi is also accused of hiring Clive Mtshisa as the Department of Public Works’s deputy director-general of corporate services, which came with a minimum annual package of R1.5 million, in order to manage the deployment of SACP members.
The whistle-blowers, who were part of the selection panel, said they reported the matter to the Public Service Commission (PSC), which informed Nxesi of the complaints. This, according to the whistle-blowers, led to their victimisation which saw them being charged as well.
The whistle-blowers were charged with misconduct for the appointments of SACP comrades. They said they were taken to a disciplinary hearing in 2019, but it had been shuttled back and forth with the withdrawal and reinstatement of charges.
The whistle-blowers said the disciplinary proceedings were brought for ulterior motives of harassing, discouraging, censoring, intimidating, and silencing them in relation to the allegations made against Nxesi and other senior officials.
They said this was one of the reasons the department refused that the matter should proceed before an arbitrator at the General Public Sectoral Bargaining Council. In the application, the employees, who are led by chief director Thembi Hlatshwayo, said the continuation of the matter as an internal disciplinary inquiry had become an occupational detriment, given the protected disclosures they had made.
The employees said the inquiry internally harboured ill intent and was unconstitutional without the protected disclosures being determined by the bargaining council.
In her affidavit, Hlatshwayo said being subjected to an internal inquiry was an occupational detriment as they had previously made protected disclosures. Hlatshwayo said they were willing to undergo any disciplinary process provided that it be the one as envisaged in terms of Section 188A(11) of the Labour Relations Act 66 of 1995, to avoid them being subjected to an occupational detriment.
Hlatshwayo said they had been discriminated against by Public Works for refusing to implement illegal and irregular instructions and thus being subjected to an occupational detriment.
“Candidates suitably qualified for the appointments were overlooked or not shortlisted or even appointed as a result of nepotism, cronyism, and favouritism. The department has thus made irregular appointments which will need to be set aside as the subsequent appointments are unconstitutional,” said Hlatshwayo.
She said: “As a result, irregular, unlawful, and unconstitutional appointments are being made to withstand scrutiny simply because they were sanctioned by Minister Nxesi. Thus his obligation to follow the prescripts of the law is being concealed?”
Hlatshwayo said they made a follow-up on the protected disclosures on December 22, 2022, and were still waiting on the department to revert to them. She said that on January 23 they also raised, through their legal representative, advocate MacGregor Kufa, that they had made protected disclosures and it would be unlawful for them to be subjected to an occupational detriment.
She said their legal representatives also made an application that the internal inquiry be converted as envisaged in terms of Section 188A(11) of the LRA as they had made protected disclosures. She said advocate Beatrice Matlejoane, who chairs the disciplinary hearing, refused to consider their concerns.
“She then abrogated powers she did not have and then even ignored the copy of the protected disclosures that were handed to her and she adamantly stated that she was proceeding with the inquiry.”
In his affidavit on behalf of the department, acting director-general Mokoditloa Moemi denied that the employees were targeted, saying Nxesi noted an unprecedented number of appointments that were made between 2017 and 2018.
Moemi said Nxesi requested the Department of Public Service and Administration to review the appointments and determine whether they had been made in compliance with public service transcripts. He said both departments appointed the PSC to look into the matter. Moemi said the PSC made serious findings of non-compliance with public service prescripts in the appointments.
Moemi said the commission recommended that the Nxesi facilitated the correct steps in the form of disciplinary action against members involved in such irregular appointments, mainly the selection panel. He said the findings included Mtshisa and director-general Sam Vukela.
He said it was not clear when the alleged protection disclosure was made, saying the department denied there was such a disclosure.
“In the event the court finds that there was a disclosure done by the applicant, we contend that such an urgent application should have been made in 2019 when the applicants were charged with misconduct,” he said.