SIU is misrepresenting the Nyathi problem

The DA welcomes the fact that the Special Investigating Unit (SIU) has responded to our concerns over the re-instatement of Miseria Nyathi as SIU Head of Business Support and the mishandling of the unit by acting head Adv. Nomvula Mokhatla.  Previously the only responses have come from the National Education, Health and Allied Workers Union (NEHAWU), which underlined their unhealthy and inappropriate interest in the matter.

The DA has previously questioned the re-instatement of Nyathi, whose dismissal was upheld by the Labour Court. We have also questioned Adv. Mokhatla's actions in this regard and her subsequent attempts to push out certain members of the SIU.

However, in attempting to address the concerns we have raised, two issues stand out:

• Mr Ndala, the SIU's spokesperson, clearly does not read our statements properly (this is the second time he has misrepresented what we have said; the first having been in respect of a statement by Dianne Kohler Barnard MP).
• The SIU appears to regard it as "meddling" when a Member of Parliament, to which the SIU is accountable, raises issues of concern regarding clearly inappropriate practices taking place there.

The DA has never said, as alleged by Ndala, that there was a disciplinary hearing pending at the time of Nyathi's reinstatement. We have said that she was dismissed for not taking a polygraph test, which was a material condition of her contract of employment, amidst allegations of improper conduct, including fraudulent claims for allowances.

Nyathi's case was referred to the Labour Court, where Judge A C Basson made a finding that her dismissal for failing to take the test amounts to a repudiation of her contract of employment, and therefore her dismissal was lawful. We do have to wonder why she refused to take the test if she had nothing to hide. However, what Ndala fails to answer is why, in the face of a lawful termination of her employment, she was reinstated following a settlement by the SIU, which they were told was imprudent and unlawful? He fails to answer why, in addition to reinstating her, the SIU paid out her salary for the nine-month period during which she was lawfully dismissed, or why her performance appraisal for the previous year will be used to calculate her performance bonus.

He also claims that the lawyer's advice was based on the premise that Nyathi was found guilty of fraud. It was not. The advice was based on the fact that the Labour Court had held that her dismissal for repudiating her contract was lawful, that there was evidence of fraud at the time, which they specifically said was not necessarily relevant for the purposes of the Labour Court or CCMA processes, but highly relevant to her continued employment at the SIU.  

We know that Nyathi was not charged, found guilty or dismissed for fraud.  The question is, why not?  She was facing allegations in respect of false claims for allowances that she had claimed.  There was, we believe, solid evidence of fraudulent claims, which must still be in the possession of the SIU.  The question that requires an answer is whether the SIU will now put these charges to her so that they can be tested, and if  not, why not?

Statement issued by Debbie Schafer MP, DA Shadow Deputy Minister of Justice and Constitutional Development, August 30 2012

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