Having reached an out-of-court settlement with her employer the Hibiscus Coast Municipality, convicted drug dealer Sheryl Cwele is back on full pay.
But a top Durban lawyer says Cwele could lose her salary if the municipality can show that she has created problems for it and harmed its good name.
Mike Maeso, a partner at law firm Shepstone & Wylie, said the council had the discretion to institute disciplinary action against her for bringing the municipality into disrepute.
Cwele, who was suspended from her post of director of health at the municipality in May, is appealing her conviction for drug dealing.
“In law the moment you appeal the conviction the sentence then gets suspended or set aside until such time that the process is finalised. This can happen if she is able to argue that criminal charges have less to do with her employment,” he said.
Maeso said if the municipality were to take steps against her it would have to prove what the council had suffered. Or it would have to prove that she had created problems for the municipality.
“In that case, the municipality may decide not to continue with the relationship it has with the employee. This may happen if the municipality conducts an inquiry to establish if she has brought the municipality into disrepute.
“It’s a very difficult position for the municipality. Here you have a very senior employee found guilty by a court of law and the trick now is to determine what impact that has had on the day-to-day functioning of the council,” he said.
“It seems illogical to have such a person in the employ,” he said.
Maeso said any employer would determine whether the person was guilty in terms of their employment and guilty in a criminal case.
Cwele is asserting that the municipality based its charges of misconduct on her conviction in the High Court in May, which she is appealing, saying it would be “improper” to act until the final word from the Supreme Court of Appeal.
Cwele was convicted and sentenced to 12 years’ imprisonment with co-accused Frank Nabolisa for recruiting South Coast women to smuggle drugs from South American countries.
Cwele and Nabolisa have been granted leave to appeal. The municipality then suspended Cwele as director of health services and started disciplinary proceedings.
Last month the municipality suspended her salary. Cwele filed papers with the Durban Labour Court challenging the suspension of her salary. This week she and the municipality settled out of court.
Municipal manager S’bu Mkhize said that after conducting a “cost benefit analysis”, the municipality resolved to settle out of court.
He said they agreed to pay her salary pending the outcome of the disciplinary proceedings.
Cwele will lose her salary if the municipality’s disciplinary committee finds her guilty, an outcome she has indicated she would appeal.
The municipality is now paying the salaries of two directors of health services after Thembi Khawula, the municipality’s erstwhile manager of cultural services, was appointed to act in Cwele’s absence.
Mkhize said this week that the first leg of proceedings in Cwele’s independent disciplinary hearing was complete and a ruling made.
“Both Cwele and the municipality now have to submit papers to the chairman of the disciplinary committee on mitigating or aggravating circumstances, to allow for a final decision.
“Once the chairman makes his decision, it is final,” he said referring to Cwele’s comments in court papers that she would appeal the outcome of the disciplinary hearing if it rules against her.
Should she lose the appeal, Cwele will also lose her house. The National Prosecuting Authority (NPA) told the court in May that it would lodge an application for Cwele’s assets to be forfeited if her appeal bid failed.
The NPA’s Asset Forfeiture Unit (AFU) would argue that Cwele used the proceeds of crime to purchase her house.
However, Cwele’s lawyer, Mvuseni Ngubane, hit back on Friday saying he was not aware of any action by the AFU to attach her client’s property regardless of whether she loses the appeal. - Nathi Olifant