KZN prisons boss wins latest fight for his job but still can’t clock in

Suspended KwaZulu-Natal prisons boss Mnikelwa Nxele has secured yet another court victory in his long-running battle with his bosses to keep his job.

But while the Durban labour court has set aside his precautionary suspension, imposed by acting commissioner Makgothi Thobakgale at the end of February this year, he is still barred from work because the commissioner has lodged an intention to appeal the ruling.

Nxele claims to be a “whistle-blower” who made protected disclosures to the public service commission (PSC) against former prison commissioner Arthur Fraser in 2018.

Fraser, who controversially granted former President Jacob Zuma medical parole last year, was replaced by Thobakgale in September last year, when his contract expired.

Nxele and Fraser have been involved in a running battle for years — which has seen Nxele being suspended and fired several times, resulting in numerous court skirmishes.

Both men were implicated in wrongdoing at the Zondo commission of inquiry into state capture — Fraser for allegedly running illegal counterintelligence operations during his tenure at the SSA and Nxele for allegedly taking bribes of R57,500 a month from a correctional services service provider.

Case law sets out a clear principle that whistle-blowing employees cannot be  “persecuted” through what could be a biased, internal disciplinary hearing as a result of them having made a protected disclosure.

These matters have to be heard by an independent arbitrator, either at a bargaining council or the CCMA.

With Fraser out the way, in the most recent case Nxele turned his attention to Thobakgale. 

It is not unreasonable for Nxele to believe that his conduct is neither impartial nor independent — or that Thobakgale’s conduct is in keeping with that of his predecessors.

—  Judge, Kelsey Allen-Yaman

And acting Durban labour court judge, Kelsey Allen-Yaman, has now ruled that Nxele’s “subjective belief” that the most recent action taken against him by Thobakgale was linked to the protected disclosure he made in 2018 and was “the continuation of a pattern of victimisation”,  was reasonable.

Because of this, she granted an interdict stopping the holding of an internal disciplinary hearing against him, and ordered that it be converted into an inquiry to be heard by an independent arbitrator of the General Public Sectoral Bargaining Council.

Nxele was suspended and first subjected to disciplinary proceedings after he made the submissions to the PSC.

This was found to have been a “protected disclosure”.

In 2020 Nxele was again suspended and charged with misconduct. The matter was heard by an arbitrator.

Among the allegations were that he had obtained money from undisclosed sources that he had not declared in terms of the public service regulations.

It was alleged that he blew millions at casinos, bought properties and that he had corruptly influenced the awards of tenders to certain companies.

The arbitrator found him not guilty on all charges, except for one, in that he had failed to declare the purchase of one property.

In February this year, he was given a written warning and the arbitrator ordered his suspension be lifted and directed him to return to work.

But Thobakgale kicked back.

He personally wrote to Nxele telling him that he was taking the arbitrator’s decision on review and, as such, he was still suspended and must not return to work.

A defiant Nxele, however, went back to work on February 14, only to find the premises surrounded by armed guards.

That same month, Thobakgale attempted to get an interdict against Nxele to stop him from returning, but this was dismissed.

A day before, Nxele was informed that he was being placed on “precautionary suspension”. 

In May he was served with a charge sheet and notified that he had to attend a disciplinary hearing in Pretoria.

Allen-Yaman, in her judgment, said the new charges related to the events of February 14, when Nxele had tried to report for work, and correspondence he had with the minister of justice and correctional services, in which he made certain allegations against Thobakgale.

Regarding Nxele’s continued suspension, the judge ruled that it was unlawful because a disciplinary hearing had not been convened within the prescribed 60 days.

Turning to Nxele’s bid to have the new hearing heard by an independent arbitrator, she said he had asserted that he had been persecuted by various national commissioners since 2016.

Thobakgale, he claimed, was “pursuing the agenda” of keeping him away from work.

The holding of an internal disciplinary inquiry, he said, would be a contravention of the Protected Disclosures Act (PDA).

In response, Thobakgale said Nxele was trying to “escape the consequences of his nefarious conduct”.

He said there was no link between the present charges and the protected disclosures Nxele had previously made.

The judge said, however, that on the objective facts, there was a link.

Thobakgale had only taken up office in September last year, having previously been in the department of public works.

His actions since then, “cast doubt upon his partiality in the matter”.

This was evident from him personally requesting Nxele not to go back to work — when he had never worked with him and could not have any personal knowledge of any facts which could lead him to conclude that his presence would undermine the safety of anyone else, or state property.

He had deployed the National Emergency Response Team to prevent him from entering the premises and then attempted to get an interdict against him.

“It is not unreasonable for Nxele to believe that his conduct is neither impartial nor independent — or that Thobakgale’s conduct is in keeping with that of his predecessors,” she said, ruling that the intended disciplinary hearing was in contravention of the PDA.

Allen-Yaman said while the general principle in labour matters was that costs would not be awarded to any party in the interests of employment relationships, she said Nxele ought never have been forced to go to court to enforce his rights.

She directed the commissioner to pay his costs.