Tjihumino wins case

SENIOR Finance Ministry official Maru Tjihumino last week won a major victory against disciplinary charges that have been pending against him for the past year.

The victory came Tjihumino’s way in the Labour Court in Windhoek, when Judge Sylvester Mainga ruled that misconduct charges that were laid against Tjihumino on September 5 last year have lapsed and are now invalid, and that the Finance Ministry and Public Service Commission may not continue to press those charges against Tjihumino. Tjihumino is a Director in the Ministry of Finance.He was Director of Expenditure and Financial Management, and also designated as Accountant General in the Ministry, when the Permanent Secretary in the Ministry, Calle Schlettwein, notified him on August 23 last year that he was being suspended from his posts.Tjihumino was also the chairperson of the Government Institutions Pension Fund’s board of trustees at the time.He has since been stripped of that post as well, and was removed as a GIPF trustee in February this year.The Ministry reversed his suspension on March 3 this year, but shifted him to another post, as Director of Administration.Disciplinary charges remained pending against him at the Finance Ministry, though.Among the charges levelled against Tjihumino is that he is alleged to have conducted himself in a “disgraceful, improper or unbecoming manner” by involving himself in financial dealings with Global Vision Trust and Circle Investments that caused “embarrassment to the Government”.Tjihumino is further alleged to have “demanded or caused” Global Vision Trust’s Brett Jolly to pay him a commission, fee or reward of 500 British pounds which he was not entitled to.Global Vision Trust is said to have vied for a loan from GIPF for the Swakopmund Waterfront development.Circle Investments is a local black empowerment company that was also seeking to enter the waterfront venture.The Ministry also charged that Tjihumino operated a private agency, Namibia Horizon Transport, while in the employ of the public service without approval from the Prime Minister.A section of the Public Service Act that states that a disciplinary inquiry “shall be conducted within 21 days” after the establishment of a disciplinary committee that has to hear the inquiry proved to be the pivotal determining factor in Tjihumino’s challenge against the disciplinary charges.Tjihumino was charged with misconduct in terms of the Act on September 5 last year.On September 21, he appeared for the first time before the disciplinary committee that had been establish to deal with his case.One of the members of the committee was absent, however, and the matter was postponed provisionally to October 13.On October 7, the chairperson of the committee informed Tjihumino that the inquiry scheduled for October 13 and 14 had been postponed until further notice.In the Labour Court, Tjihumino’s legal counsel, Deon Obbes, argued that due to the absence of one of the disciplinary committee’s members, the meeting of September 21 could not be considered to have been a proper meeting in terms of the Act.He also argued that the Act had further not been complied with because the disciplinary inquiry did not start within 21 days after the establishment of the disciplinary committee.Judge Mainga ruled in Obbes’s favour on both points.He commented that the part of the Act that sets the 21-day time limit and other time frames provided for in the Act “must be strictly complied with”.There could be no doubt that Parliament “intended that the inquiries on suspensions and misconducts should be dealt with expeditiously to mitigate the stigma involved with the suspension,” and that where reasonably possible an inquiry had to be disposed of within the set 21-day time limit, Judge Mainga stated in his judgement.It was however not the intention of Parliament to require that such an inquiry had to be finalised within the 21-day period, he added.Depending on the circumstances, a further postponement of the inquiry was possible, he said.”What is clear though is that the inquiry must commence within 21 days after the establishment of the disciplinary committee,” he added.In Tjihumino’s case that did not happen, the Judge found.”The provisions concerning the commencement of the enquiry within 21 days after the establishment of the disciplinary committee are peremptory and failure to comply with the provisions renders the inquiry a nullity,” Judge Mainga stated.Due to the absence of one of the committee’s members at its first supposed sitting on September 21, that meeting was also a nullity, he added in his judgement.Judge Mainga ordered the Finance Ministry’s Permanent Secretary, the chairperson of the disciplinary committee, the Public Service Commission (PSC), the Prime Minister, the Finance Minister and the chairperson of the PSC – all of them were the respondents in the case that Tjihumino had lodged with the Labour Court – to pay the costs of Tjihumino’s court application.Tjihumino is a Director in the Ministry of Finance.He was Director of Expenditure and Financial Management, and also designated as Accountant General in the Ministry, when the Permanent Secretary in the Ministry, Calle Schlettwein, notified him on August 23 last year that he was being suspended from his posts.Tjihumino was also the chairperson of the Government Institutions Pension Fund’s board of trustees at the time.He has since been stripped of that post as well, and was removed as a GIPF trustee in February this year.The Ministry reversed his suspension on March 3 this year, but shifted him to another post, as Director of Administration.Disciplinary charges remained pending against him at the Finance Ministry, though. Among the charges levelled against Tjihumino is that he is alleged to have conducted himself in a “disgraceful, improper or unbecoming manner” by involving himself in financial dealings with Global Vision Trust and Circle Investments that caused “embarrassment to the Government”.Tjihumino is further alleged to have “demanded or caused” Global Vision Trust’s Brett Jolly to pay him a commission, fee or reward of 500 British pounds which he was not entitled to.Global Vision Trust is said to have vied for a loan from GIPF for the Swakopmund Waterfront development.Circle Investments is a local black empowerment company that was also seeking to enter the waterfront venture.The Ministry also charged that Tjihumino operated a private agency, Namibia Horizon Transport, while in the employ of the public service without approval from the Prime Minister.A section of the Public Service Act that states that a disciplinary inquiry “shall be conducted within 21 days” after the establishment of a disciplinary committee that has to hear the inquiry proved to be the pivotal determining factor in Tjihumino’s challenge against the disciplinary charges.Tjihumino was charged with misconduct in terms of the Act on September 5 last year.On September 21, he appeared for the first time before the disciplinary committee that had been establish to deal with his case.One of the members of the committee was absent, however, and the matter was postponed provisionally to October 13.On October 7, the chairperson of the committee informed Tjihumino that the inquiry scheduled for October 13 and 14 had been postponed until further notice.In the Labour Court, Tjihumino’s legal counsel, Deon Obbes, argued that due to the absence of one of the disciplinary committee’s members, the meeting of September 21 could not be considered to have been a proper meeting in terms of the Act.He also argued that the Act had further not been complied with because the disciplinary inquiry did not start within 21 days after the establishment of the disciplinary committee.Judge Mainga ruled in Obbes’s favour on both points.He commented that the part of the Act that sets the 21-day time limit and other time frames provided for in the Act “must be strictly complied with”.There could be no doubt that Parliament “intended that the inquiries on suspensions and misconducts should be dealt with expeditiously to mitigate the stigma involved with the suspension,” and that where reasonably possible an inquiry had to be disposed of within the set 21-day time limit, Judge Mainga stated in his judgement.It was however not the intention of Parliament to require that such an inquiry had to be finalised within the 21-day period, he added.Depending on the circumstances, a further postponement of the inquiry was possible, he said.”What is clear though is that the inquiry must commence within 21 days after the establishment of the disciplinary committee,” he added.In Tjihumino’s case that did not happen, the Judge found.”The provisions concerning the commencement of the enquiry within 21 days after the establishment of the disciplinary committee are peremptory and failure to comply with the provisions renders the inquiry a nullity,” Judge Mainga stated.Due to the absence of one of the committee’s members at its first supposed sitting on September 21, that meeting was also a nullity, he added in his judgement.Judge Mainga ordered the Finance Ministry’s Permanent Secretary, the chairperson of the disciplinary committee, the Public Service Commission (PSC), the Prime Minister, the Finance Minister and the chairperson of the PSC – all of them were the respondents in the case that Tjihumino had lodged with the Labour Court – to pay the costs of Tjihumino’s court application.