NSC, ex-employee in contract tussle
… Hamalua unimpressed by termination
THE Namibia Sports Commission last week battled it out in Windhoek High Court with its former head of finance and administration over its decision not to extend the ex-employee's contract for another five years.
Junias Thomas Hamalua is suing his former employer, its board of directors and chief administrator, the sports ministerandthefinanceminister, citing the decision to reject the recommendation and approval to extend his employment contract is unlawful and invalid.
In his affidavit, Hamalua said his direct supervisor and chief administrator Freddy Mwiya recommended to the board to extend his contract for another five years before his contract came to an end on 31 March 2023.
He said before the recommendation a performance review was done, and he was graded a score of 70.4%.
He further said the temporary board of directors for the Commission was unlawfully appointed, as the law requires that if their term should be extended, only the minister of finance has the power to do so, and not the sports minister.
Thus, any decisions they have made during their short tenure is invalid. “Assuming the board had powers to decide, the board did not give me the opportunity required… it follows on that basis that their decision is unreasonable and unfair, particularly given the fact that the fourth respondent has already informed me that he had determined and approved the extension of my contract of employment,” he said.
He said the board took the decision in a round-robin resolution.
Consequently, Hamalua wants the court to review and declare that the appointment of a temporary board on 9 February 2023 and its extension on 1 January 2023 is unlawful.
He also wants the decision taken during the round-robin resolution on 28 February 2023 set aside.
He wants the court to declare that it is only Mwiya who has the right and power to determine whether or not his employment contract must be extended.
Since Mwiya has already approved his contract extension, it must be declared binding, he argued.His lawyer, Sisa Namandje, argued that temporary appointment of the board with effect from 13 June 2022 was in itself unlawful.
“This is because the vacancy did not arise during the currency of the preceding board of directors – and in any event, there was no pressing need or urgent circumstances to appoint a temporary board of directors as required,” he said.
He further said the extensions of the temporary board beyond the first period of six months made by the sports minister was unlawful.
Namandje argued that despite Hamalua's performance having been rated high, the board, through a round-robin resolution, in a rush decided to set aside such a decision.
“There appears not to have been a fair and reasonable opportunity for board members to carefully consider such a far-reaching decision. On this basis alone, the decision was unlawful,” he said.
Meanwhile, board member Turky Tiisa Shifotoka-Ndashiiva said the temporary board was appointed on 1 July 2022 until 31 December 2022 after the sports minister had relieved the entire substantive board on allegations of maladministration and misappropriation of resources.
He said based on a report * from the ministerial verification committee, a recommendation was made to investigate the procedure Hamalua used to open an account for petty cash with his name and others, as well as the transferring of funds between April and December 2021.
The committee also recommended that investigations be carried out into a falsified document of Old Mutual, which states that Hamalua resigned on 31 July 2018.
“The applicant [Hamalua] did not resign, and the main reason for the action was for the applicant to access his pension,” said Shifotoka-Ndashiiva.
This, he said, was amongst a myriad of financial irregularities and lack of accountability at the Commission that they uncovered,resultinginacriminal case on corrupt practices at the Commission. This case is still under investigation.
Shifotoka-Ndashiiva explained that on 28 January 2023, the board noted that Hamalua's contract was coming to an end, and a decision was taken not to renew it.
Instructions were given to Mwiya for the position to be advertised.
On 17 February 2023, Mwiya submitted a performance analysis document, where he recommended Hamalua's contract be extended. The board on 28 February 2023 informed Mwiya of their decision to reject his recommendation.
He then informed Hamalua of the board's decision on 1 March 2023. He said this resulted in HamaluasuingtheCommission, and his application was struck from the court's roll on 13 April 2023.
On28April2023,heinstituted the current application.
The Commission's lawyer, Marius Boonzaier, said Hamalua had no right to a renewal of his contract after it expired by efflux of time, and the board had the power to set aside any decision by Mwiya.
As such, the board did not act unlawfully when it declined to renew Hamalua's contract for five years.
Judge Herman Oosthuizen postponed the matter to 16 August for judgment.