The Labour Court ruling does not imply that Mamodupi Mohlala has been reinstated as Department of Communications (DOC) director general, says a statement issued by communications minister Siphiwe Nyanda's office.
In an apparent contradiction to the agreement that was reached and made an order of the court yesterday, the statement says the Ministry of Communications welcomes the ruling and: “It is therefore important to note that the agreement does not imply the immediate reinstatement of the former DG to her old position but to allow for what she initially requested from the President to take effect.”
However, the agreement that was reached out of court, before receiving the court's approval, states that Mohlala “....continues to enjoy the rights and benefits of her contract of employment contained in Annexure 'A' of the application, but subject to what is stated herein”.
Back at work
Mohlala says this clause of the agreement refers to her employment contract (Annexure A) and that means she is DOC director general.
Nyanda's spokesman Tiyani Rikhotso says: “The agreement means that she (Mohlala) cannot just go into work tomorrow and start working as the DG”.
But Mohlala contends that since the agreement, which Nyanda's statement also confirms, that she has stopped her labour court action and he, in turn, withdraws her dismissal notice, this means she is the DOC's chief public servant again.
“We go back to the status quo that existed before the dismissal notice was served,” she says.
As part of the agreement, Mohlala will be on leave for 30 days until 27 September during which possibilities for her employment within another part of the public sector will be sought.
According to her, if no satisfactory position is found, then she resumes her normal duties at the DOC.
Legal strategy
Nyanda suddenly dismissed Mohlala on 23 July saying the reason was a breakdown in trust between the two.
Mohlala countered by filing an urgent interdict claiming her dismissal was unlawful and that she either be reinstated or be transferred to another public sector post of equivalent stature.
As part of her legal strategy and right, Mohlala also wrote to President Jacob Zuma's office and he tasked public service and administration minister Richard Baloyi to intervene in the matter.
The first Labour Court hearing was on 30 July when a temporary agreement was reached allowing Nyanda to file an answering affidavit on 17 August and for another hearing on 26 August.
However, Nyanda failed to file his defense of Mohlala's dismissal.
Rikhotso would not comment on why the affidavit was not filed, saying: “It is not in our nature to comment on court proceedings, especially in a case that is sub judice”. However, he also says: “The matter (on the failure to file) is now irrelevant as an agreement was reached”.
Nyanda's statement also implies that the position of director general remains vacant with Harold Wesso in an acting capacity and that it was beginning its search for Mohlala's permanent replacement.
The statement says: “As Ministry we welcome the agreement as it paves a way for the filling of the position as soon as possible by a suitable and relevant person with the necessary expertise”.
Mohlala, however, states that this cannot be as she is still the director general.
Legal corner
“The agreement states that I have to take leave and fill in the requisite leave forms. Therefore I am still an employee of the DOC,” she says.
Mohlala also dismissed the part of Nyanda's statement that says the only reason for her dismissal notice being withdrawn is to make her a public servant again so that she may be transferred to another part of the public service.
Commenting on the agreement and Nyanda's statement, Lindiwe Mazibuko, Democratic Alliance national spokesperson, says the minister has “painted himself into a legal corner”.
She says that by going public with the statement, Nyanda “... has again demonstrated his misunderstanding of his powers as a cabinet member”.
Mazibuko goes on to say that it is clear that Nyanda cannot replace Mohlala as she is still the DOC's director general.
The court order can be viewed here.
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