Usaasa board members to fight ‘unlawful’ dismissal in court

Members of the board of underserviced agency Usaasa, who were fired by telecommunications & postal services minister Siyabonga Cwele this week, have vowed to fight the decision to remove them, saying it was unlawful and unconstitutional.

The dismissed board members, led by former chairman Mawethu Cawe, have slammed a report by public protector Busisiwe Mkhwebane, which the minister used as the basis to fire them, saying they plan to take legal action against both her and the minister. They have also hit out at what they call “the false and frivolous media statements” issued this week by the agency’s suspended CEO, Lumko Mtimde.

In her report, Mkhwebane ordered that the suspended Mtimde be returned to full duties at Usaasa by no later than 4 September. She condemned the conduct of the former board and called on its individual members to pay personally for the costs associated with a disciplinary process against Mtimde.

Mtimde was suspended by the board in March, a move he described as “retaliation” by Cawe for reporting what he, Mtimde, called the board’s “unlawful actions”. Mtimde accused the board of acting unlawfully.

Mkhwebane found that the board’s decision to proceed with a disciplinary inquiry, despite being notified of the existence of a protected disclosure by Mtimde to national treasury, the auditor-general and the telecoms minister, violated the law and subjected him to “occupational detriment”.

But Cawe and the other dismissed board members have hit back, saying Mtimde was found guilty by the disciplinary committee of “serious misconduct of financial irregularities, dishonesty and insubordination”. They said in a statement late on Friday evening that the minister had pressured the board not to suspend Mtimde and not to discipline him.

“Despite the serious allegations levelled against the CEO, the minister decided to turn a blind eye. Not once has the minister sought to know the extent of the allegations and their investigation,” the statement, issued by Cawe, said. “All he was interested in was for the CEO to return to work and continue as if nothing has happened.”

‘Factually and legally incorrect’

The former board members said that on the second day of the leading of evidence in the disciplinary inquiry, the public protector entered the fray and wanted the hearing to be postponed. “When we told the public protector that she has no powers to stop the disciplinary inquiry that had already been sanctioned by the court, she unceremoniously slapped the board with an interim report finding the board guilty.

“When the board approached the court to challenge her process of investigation as unlawful and flawed, she slapped the board with a final report with findings which are factually and legally incorrect, and remedial action which are far-reaching and ultra vires.”

The former board members accused Cwele of firing them “with the hope to incapacitate the board from litigating and overturning the public protector’s report” so that Mtimde “should be returned to Usaasa unpunished”. They said they had resolved to go to court to challenge Mkhwebane’s report and had communicated this in writing to the minister before he dismissed them.

“This board is the victim of its stance to adopt a zero tolerance (approach) to corruption and maladministration, when it was simply responding to the call by the president for state institutions to root out corruption,” they said.
“There is something amiss in this whole saga which requires in-depth investigation. It must be found out why the minister wants a disgraced CEO, who has been found guilty of serious charges, to be returned to his post at Usaasa unpunished,” their statement said.

“It must be investigated as to why the public protector reinstated a CEO found guilty of serious financial mismanagement without any recourse proposed, effectively leaving allegations against the CEO to be swept under the carpet and the findings of the disciplinary chairperson to be ignored.”

The dismissed board members now intend to approach the high court to set aside Cwele’s decision to remove them and to stay the implementation of Mkhwebane’s report pending the finalisation of the review application.

“We have asked our lawyers to ask for a punitive costs order personally against the public protector in what appears to be a classic case of abuse of power and ulterior purpose.”  — © 2018 NewsCentral Media