Former student fund CEO Hilya Nghiwete loses appeal over dismissal

A former student fund chief executive has lost a Supreme Court appeal about being dismissed from her position at the fund in 2020.

Hilya Nghiwete’s appeal against a judgement delivered in the Labour Court in September 2022 was dismissed in the Supreme Court on Friday.

Nghiwete and the Namibia Students Financial Assistance Fund (NSFAF) both appealed against the Labour Court’s judgement.

The Supreme Court dismissed Nghiwete’s appeal, but upheld the NSFAF’s appeal.

The court set aside the Labour Court’s finding that the NSFAF dismissed Nghiwete without a fair and valid reason and without following a fair procedure.

The Supreme Court also set aside the Labour Court’s order that the NSFAF had to pay to Nghiwete her monthly remuneration from February 2020, when she was dismissed, until 15 July 2021, which was when a labour arbitrator ruled that her dismissal had been unfair and ordered that the fund should reinstate her in the position of chief executive of the NSFAF.

Nghiwete continued to receive her monthly remuneration of about N$185 000 while she was suspended, and until the Labour Court gave its judgement in September 2022.

In the Labour Court, judge Herman Oosthuizen found that Nghiwete’s dismissal as chief executive of the fund, before the conclusion of a disciplinary hearing in which she was charged, was unfair and without a valid reason.

Oosthuizen also found that the employment relationship between the fund and Nghiwete had been non-existent since April 2018, when she was suspended as chief executive.

Given the nature of the soured relationship between Nghiwete and the NSFAF, the labour arbitrator’s order for her reinstatement was not reasonable, Oosthuizen found as well.

Appeal judge Elton Hoff, who wrote the Supreme Court’s judgement, concluded there was overwhelming evidence showing that the relationship of trust between Nghiwete and the fund had irretrievably broken down.

Nghiwete was the cause of the breakdown in the employment relationship, Hoff said.

The fund had shown it had a valid and fair reason to dismiss her, after Nghiwete frustrated the continuation and conclusion of a disciplinary hearing in which she was charged, Hoff also found.

Deputy chief justice Petrus Damaseb and acting judge of appeal Hannelie Prinsloo agreed with Hoff’s judgement.