The cost of the legal battle has been estimated to be between one and R40 million. File photo
Eight years and millions of rands later the KwaZulu-Natal government seems intent on dragging out its “unwinnable” legal battle against a top state official whose employment contract was unfairly terminated in 2016.
Last week Labour Court Acting Judge Dunstan Farrell delivered a written judgment outlining why the Office of the Premier’s (OTP) bid to oust former deputy director-general Arumugam “Roger” Govender, was unlawful.
Since 2016, the OTP has been fighting a number of rulings in favour of Govender, whose employment contract was terminated in 2016.
At the centre of the legal dispute between Govender and the OTP was the interpretation of his employment contract, which the General Service Bargaining Council (GSBC) found was “that of a permanent” nature while the OTP insists it was a five-year fixed employment contract which expired in 2016.
Govender was the OTP’s permanent Chief Operations Officer (COO) when he was transferred to the provincial public works department in 2011 as Head of Department (HOD).
HODs were normally employed on a fixed five-year contract. However, in Govender’s case the GSBC found that there was no proof that he signed the five-year contract.
In its ruling, the GSBC found that Govender took the public works HOD position with the understanding that he would be returned as the OTP COO in the event of him being replaced as HOD.
“The letter of appointment doesn’t specify that the employment of the applicant (Govender) is for a fixed period of five years. In addition, he was not supplied with a revised letter of appointment reflecting a fixed term of appointment.”
Following the OTP’s refusal to implement the GSBC’s ruling – which apart from instructing the OTP to reinstate Govender also ordered that he should be back paid to the tune of R9.4 million – the OTP then made an application to the Labour court for the GSBC ruling to be set aside.
However, Judge Farrell found that the OTP ‘s case was unwinnable.
“From the very outset of the first arbitration of the unfair dismissal dispute of the first respondent (Govender) it is clear that the applicant (OTP) had no prospects of success,” Judge Farrell said.
He rejected as “disingenuous” the OTP’s argument that there has not been any expectation that Govender would be returned after the expiry of his Public Works “five-year” contract.
“The first respondent was not employed in terms of a fixed term contract of employment, and to simply try and conjure up some other reason for the termination of the contract of employment, be it that there was no legitimate expectation of a renewal of the contract or that the contract was terminated for operational reasons, is simply disingenuous,” he said.
Farrell also ordered the OTP to pay the former Public Works HOD’s legal fees.
While the OTP said it had “noted” the Labour Court ruling, it made it clear that it intended to appeal the judgment.
“[The OTP] is of the view that neither the Arbitration Award, nor the Labour Court Judgment, are sustainable in law.
In the premises, and specifically considering the fact that public funds are involved, an application for Leave to Appeal is in the process of being prepared for filing and service as soon as possible,” KZN provincial government State Law Advisor, Heinz Kuhn, said.
When in 2023 the OTP failed to implement the GSBC ruling, Govender initiated processes to have the OTP assets attached. However, the process was put on hold pending the outcome of the OTP Labour Court application – which last week was dismissed with costs.
Govender, who at one point was the provincial transport department’s Chief Financial Officer and a senior official at the eThekwini Municipality, spent several years as a civil servant.
In his ruling, Farrell characterised the OTP’s attitude towards Govender as amounting to betrayal.
The premature termination of a long serving and clearly very skilled and experienced civil servant was simply unacceptable, he said.
“The first respondent (Govender) had a few years before retirement to continue contributing positively to the administration of this province,” he said.
Issues such as the one involving Govender and the OTP were usually handled by the provincial government Director General, Nonhlanhla Mkhize.
However, Farrel made a point of instructing that the judgment be personally served on the Premier of KwaZulu-Natal.
According to DA KwaZulu-Natal Legislature MPL Tim Brauteseth, the OTP has already spent R40 million on the case against Govender.
But Kuhn said the OTP’s legal fees was far less than Brauteseth’s calculation.
“The Office of the Premier is represented by the State Attorney, and as such the Office of the Premier is only responsible for the costs associated with the briefing of Counsel appearing on its behalf. To date, such costs have not exceeded R 1 million,” he said.