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A LABOUR arbitrator’s order that the dismissed chief executive officer of the Namibia Students Financial Assistance Fund (NSFAF), Hilya Nghiwete, should be reinstated in her former position at the fund has been reversed by a judge of the High Court.

Judge Herman Oosthuizen upheld an appeal by the fund against labour arbitrator Memory Sinfwa’s order for Nghiwete’s reinstatement as NSFAF chief executive in a judgement delivered on Friday.

However, Oosthuizen found that Nghiwete’s dismissal as chief executive officer of the fund in February 2020, before the conclusion of a disciplinary hearing in which she was charged, was unfair and without a valid reason. Oosthuizen ordered that the fund must pay Nghiwete the monthly salary she would have received from the time of her dismissal until mid-July 2021, which was when Sinfwa’s arbitration ruling was made.

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.

On Sinfwa’s order for Nghiwete’s reinstatement, Oosthuizen found that the employment relationship and trust between the fund and Nghiwete had broken down. He noted that Nghiwete had made it clear she did not trust the fund’s board, while senior employees of the fund testified during the arbitration hearing that they had problems with Nghiwete’s management style, did not trust her and that her reinstatement would not be in the best interest of the fund.

The employment relationship between the fund and Nghiwete has been non-existent since April 2018, when she was suspended as chief executive, Oosthuizen stated. He added that given the nature of the soured relationship between Nghiwete and the NSFAF, the arbitrator’s order for her reinstatement was not reasonable.

Following her suspension, Nghiwete was charged in a disciplinary hearing which, after several postponements, was scheduled to take place in early January 2020. She faced charges ranging from maladministration and conflict of interest to insubordination and financial mismanagement.

However, the hearing scheduled in January 2020 was postponed again after a psychologist booked Nghiwete off for three months in December 2019.

After her disciplinary hearing did not proceed, the NSFAF board decided in February 2020 to dismiss Nghiwete from her position as CEO.

That decision of the board was wrong, Oosthuizen stated in his judgement.

He said the basic requirement of fairness toward Nghiwete required that the fund should have informed the chairperson of the disciplinary hearing of its opposition to a further postponement of the hearing. It would then have been up to the chairperson to decide whether to postpone the hearing or to refuse a postponement, the judge remarked.

Nghiwete’s dismissal “was invalid and unfair”, Oosthuizen stated. “The procedure that followed was likewise unfair.”

He added: “The board of the fund was wrong to dismiss [Nghiwete] without due process.”

Senior counsel Andrew Corbett and Karin Klazen represented the fund in the appeal against Sinfwa’s arbitration award. Nghiwete was represented by Sisa Namandje.