State capture affidavit ruling
• CCMA finds former Trillian staffer in contempt for failing to provide document handed to public protector
The former Trillian employee dubbed the Nenegate whistleblower has been dealt a blow ub the Commission for Conciliation, Mediation and Arbitration (CCMA) after it declared her in contempt for failing to provide her erstwhile employer with a copy of the affidavit she deposed to the public protector as part of the state-capture investigation.
Business Day has also learnt that the woman tried, via her attorneys, to strike a R2.3m settlement deal with Trillian, the conditions of which included ceasing all litigation between the two sides. The woman, who asked on Sunday that her identity be withheld, is locked in a constructive dismissal dispute with Trillian at the CCMA.
But her case has been placed on ice following a ruling that her lack of compliance with a subpoena compelling her to give Trillian the affidavit rendered her in contempt of the CCMA.
The matter has now been referred to the Labour Court for a finding, while “the applicant is barred from pursuing the case … until such time as she complies with the subpoena”, reads part of the March 3 ruling.
Legal counsel for the two sides fought over two issues: her refusal to supply the affidavit and Trillian’s contention that part of the documents she wanted to submit be excluded because of confidentiality.
Her counsel, advocate William Mokhari, said the subpoena was out of step with CCMA rules and procedures and bemoaned the fact that it had been served on January 16, days before the first arbitration hearing on January 23. He said his client had not been provided with sufficient time to respond.
He also cited provisions in the Public Protector Act barring anyone from publicly sharing information submitted to the public protector as part of an ongoing investigation. But Trillian’s lawyer, advocate Feroze Boda, invoked the legal framework set out in the Labour Relations Act, saying this legislation determined who could be subpoenaed. He also said there was provision in the Public Protector Act for exceptions on the framework established for information-sharing.
He said the former employee had not indicated that she was not in possession of the document and alleged that she had disseminated it to the media.
The company’s argument held sway, with the commissioner issuing the award on the subpoena in its favour.
On the second issue, however, Trillian failed to prevent the woman from submitting documents to support her case.
A day after the February 13 hearing, the woman’s attorneys sent Trillian’s attorneys, Stein Scop Attorneys Incorporated, a “without prejudice” letter initiating a truce and in which they spelt out the terms of a possible settlement. The letter is dated February 14 and has a Werksmans Attorneys letterhead.
In exchange for the R2.3m settlement, the former employee wants the Labour Court matter withdrawn, “… the proposed settlement agreement should be in full and final settlement of the … dispute and any other disputes between the parties, arising from the facts of the matter whether criminal, delict or employment law, and each party should pay its own costs”.
The woman refused to answer detailed questions on Sunday.
Trillian said: “As is public knowledge, the matters that your enquiry relates to are currently the subject of ongoing legal proceedings in the CCMA. As a result, we cannot offer any comment at this stage. We will be more than willing to engage with you once the matter has been resolved.”