Durban - Having won a legal battle to stay in his position as head of the Medium B section of Westville Prison, and not be moved to Pietermaritzburg Prison, Mfanafuthi Elijah Nxumalo on Thursday returned to the Durban Labour Court.
This time it was to stop the Minister of Correctional Services and the regional commissioner in KwaZulu-Natal from subjecting him to, and starting, a disciplinary hearing.
The suspended head is facing a charge of misconduct for secretly recording, transcribing and distributing a conversation he had with the regional commissioner, Mnikelwa Nxele, and other department officials.
Nxumalo contends that he had only shown the recording to his lawyer for legal advice, and that this recording was a “protected disclosure” as defined in the Protected Disclosures Act.
On Thursday, his legal counsel, advocate David Crampton, instructed by attorney Brett Purdon, argued that the proposed disciplinary hearing was illegal.
He said the department contravened this Act, which provides that no employee may be subjected to any occupational detriment by his employer because he had made a protected disclosure.
However, in opposing this application, the minister and regional commissioner’s legal counsel, advocates Marumo Moerane SC, and Zuleka Rasool, had argued that the recording was an invasion of privacy and a criminal act.
They also said the transcript should not be admitted as evidence in these proceedings.
They argued that the department did not say whether it intended to use the transcript as evidence in the proposed disciplinary hearing.
The department is calling for the application to be dismissed.
In February 2013, the Durban Labour Court granted an order in Nxumalo’s favour to stop Nxele from transferring him to Pietermaritzburg.
He believed the bid to move him was manipulated by disgraced former provincial prisons boss, Russell Ngubo, who was jailed, at Westville Prison, after being convicted in 2005 for the murder of an IFP leader.
In court papers, Nxumalo had said that Ngubo, because of his political connections, demanded certain privileges and status, which were not his due, and after he spurned these requests, Ngubo told him his transfer was already arranged.
Nxumalo later learnt of his transfer at a senior management meeting.
He believed there was collusion between Nxele and Ngubo and that the Protected Disclosures Act should prevent him from facing the hearing as he had recorded a meeting between himself and Nxele.
He said this cellphone recording amounted to a protected disclosure, saying it was proof that his transfer was “orchestrated” by a prisoner and amounted to unfair labour practice.
Following the 2013 interdict, Nxumalo then learnt of the misconduct charge, which led to the recent application.
Moerane on Thursday argued that the recording disrespected the privacy of the discussions and amounted to a breach of trust “that has a chilling effect on the encouragement of open discussions on matters of employee grievances”.
He said the recording of such discussions was “akin to a trap”, where the employee can get valuable information to support his case, which was obtained without the knowledge or approval of the employer.
“There can be no doubt that (Nxumalo) was aware he was acting unlawfully, hence he made the recording clandestinely,” Moerane said.
He argued that without establishing the admissibility of the recording, Nxumalo could not rely on the transcript as protected information.
He said if Judge Hamilton Cele admitted the transcript of the recording as evidence, then it did not fall within the ambit of the Act.
Crampton had argued that Nxele was a public official and that the constitution requires transparency from its public officials. He said the respondents were required to be open, upfront and honest.
“The constitution does not require that they should be entitled to hide behind extravagant notions of privacy,” he said.
Crampton also argued the transcript was a “piece of the puzzle”, showing a politically well-connected prisoner could call the shots and get Nxumalo transferred, so that must be considered in context of the history of this application.
The judge called for a certificate of authenticity of the transcript and said following this submission, he would hand down judgment.
Daily News