The former head of Waterval Prison in KwaZulu-Natal, who was fired for failing to report a fight between two inmates that left one of them dead, and for refusing to attend a meeting with the regional commissioner of the prison service, has lost his legal fight to be either reinstated or compensated.
Martin Mgaga turned to the Labour Appeal Court in Durban, after the Labour Court turned down his application to get his job back.
He resorted to the Labour Court after his dismissal was found to be fair on arbitration. But the Labour Appeal Court also turned down his appeal.
He started working for the Department of Justice and Constitutional Services in 1985. At the time of his dismissal, he held the post of head of Waterval Prison.
It was during this time that two inmates were involved in a fight, one of whom was stabbed and taken to hospital. Days later, the inmate died from his injuries.
In cases of assaults between inmates, the head of the prison, in this case, Mgaga, is required to report the incident to the area commissioner within an hour of the incident taking place and at the very least, telephonically.
The area commissioner was Mgaga’s immediate head. The court was told that he had reported the incident only four days later and that the report lacked clarity.
He was ordered to redo the report and an acceptable report was then filed.
Mgaga was placed on suspension and a departmental investigation was instituted.
While on suspension, he was told to attend a meeting with the regional commissioner. The meeting was to take place in Pietermaritzburg, about 300km from Waterval Prison.
Mgaga was told about the meeting several hours earlier. His response was that he would not attend the meeting, and, in any event, he was suspended, so could not do so. He also added that he had not been given sufficient notice of the meeting.
Three hours after being told of the meeting and saying he would not attend, he went to the prison to sign the register. He was required to do so under the terms of his suspension. When he got to the prison and after signing the register, he met the area commissioner who, once again, informed him of the meeting and handed him a letter to say that his suspension had been lifted for the day.
On receiving the letter, Mgaga’s reaction was that the letter was inadequate as he would attend the meeting only if his suspension was lifted altogether and not just for the day.
He was subsequently subjected to two separate disciplinary inquiries –one related to the non-reporting of the assault and the other to insubordination for his refusal to attend the meeting.
He was found guilty on each of the misconduct charges and fired.
In fighting his axing, Mgaga argued that the employees were engaged on fixed-term contracts and that they had signed what it referred to as “separation agreements” under which their employment would be terminated by mutual consent.
He thus denied the existence of a dismissal.
Judge Basheer Waglay said Mgaga was found to have committed two serious wrongs. Failing to report an assault between inmates within an hour was a serious misconduct.
“There can be little doubt that the employer considered an assault between inmates as something extremely serious …Assault within a prison environment and between inmates must constitute a dangerous incident, not only to those involved in the assault, but to other prisoners.”
The judge, in concluding that the axing was fair, said Mgaga, as the head of the prison, clearly did not appreciate the seriousness of the situation.
Pretoria News