Enemy+of+the+state,+Mpumelelo+Mkhabela,+City+Press

City Press, Johannesburg, 09/12/2006 19:50 - (SA)
=‘Enemy of the state'=


 * MPUMELELO MKHABELA**

A top official has effectively been declared an enemy of the state after Essop Pahad, Minister in the Presidency, barred her from being ­employed by any state department following a bitter fight she had had with him and the presidency.

Pahad is accusing Thoko Mkhwanazi-Xaluva, who won a case of unfair dismissal against the presidency, of breaking a relationship of trust with all state departments.

In an affidavit, which is part of the efforts to challenge a ruling that orders her reinstatement, Pahad said: “This was not merely a breakdown of trust between Ms Xaluva and myself as the minister or Mr [Ken] Terry as head of HR [human resources]. It is a breakdown of trust in the employment relationship between Ms Xaluva and her employer, which is not confined to me or to Mr Terry or indeed to the Presidency – the employer is the state.”

Pahad said she made defamatory comments in the media about him and the presidency. This, according to Pahad, had “shattered the relationship of trust not merely between the employee and the presidency, but the relationship between the employee and the state as a whole”.

Mkhwanazi-Xaluva was twice suspended and twice dismissed by the presidency within a period of four years, during which her attempts to get her job back failed.

She won two arbitration rulings ordering her reinstatement as head of the Office of the Rights of the Child. The office is located in the presidency and reports to Pahad.

Following the arbitration orders, Mkhwanazi-Xaluva was paid a total of more than R1 million in back-dated salary payments. But the presidency refused to reinstate her.

In Pahad’s affidavit, filed in the Labour Court, he wants the court to dismiss the latest arbitration ruling. The ruling, by arbitrator Wycliffe T Mothuloe on July 18, accused the presidency of breaching the law to suspend and dismiss her.

It ordered her reinstatement within a month or that an alternative position be sought for her within government by November 18. Pahad says Mothuloe’s order on reinstatement overlooked the broken relationship of trust between her and the state as a whole.

The ruling stated that during the initial hearings, Pahad spoke in the “third person” and was “conservative” when asked about Brenda Kali, a consultant who was allegedly a “friend” of the minister. Kali had allegedly touted for work in the presidency but she was rejected by Mkhwanazi-Xaluva.

Mothuloe criticised the presidency for having “arrogated unto itself the position of judge in its own cause”. The ruling stated this “has never and will never be fair, proper and judicious in the open and democratic society”.

The remark relates to suppression by the presidency of a dissenting affidavit of senior official ­Crystal Theron during the first internal hearing against Mkhwanazi-Xaluva.

Theron, whose affidavit was discarded during the hearing, disagreed with Kali and another official, Jabu Moerane, who testified against Mkhwanazi-Xaluva.

The hearing in 2003 led to her first dismissal on allegations that she irregularly caused Kali’s consultancy to pay certain service providers in 2001.

Her internal appeal was rejected by the Director-General, Frank Chikane. In 2003 Imthiaz Sirkhot, an arbitrator of the Public Service Bargaining Council, found her dismissal to be unfair. He ordered her reinstatement and back-pay of R128 737.

The presidency refused to adhere to this and stated its intention to seek a court review, but failed to file papers. Mkhwanazi-Xaluva applied for the dismissal of the case and stated her intention to resume work. This triggered another round of wrangling.

In 2004 she was put back on the payroll and given a back-dated pay of R750 000, but was barred from the Union Buildings. In the meantime, the presidency proposed a R100 000 offer to leave her job “untainted”.

She was simultaneously threatened with new charges of damaging Pahad’s name in the media after she was quoted saying that the charges against her were “trumped up” and that she was being “ambushed”.

She rejected the offer and demanded R17 million. In February 2005 she was suspended (without having resumed work).

The presidency appointed Advocate John Myburgh to head an inquiry, which led to her dismissal over her alleged media statements. Mothuloe has since overturned the decision. Pahad now wants Mutholoe’s decision overturned too.

Pahad chose not to comment at this stage. Mkhwanazi-Xaluva said her lawyers were still preparing to contest Pahad’s affidavit. The case is likely to be heard next year.

Yesterday Mkhwanazi-Xaluva said: “It is rather strange that what started as a labour matter almost five years ago has now become political. Two independent arbitrators ruled that I never did anything wrong and that I must be reinstated, but the minister in the presidency insists, under oath, that I can never work for the state again.

“Just as I have defended my good name for the past four years, I intend to continue fighting for my reinstatement.”


 * From: http://www.news24.com/City_Press/News/0,,186-187_2042789,00.html**

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