Court battle over Sizwe Kupelo benefits

Drawn-out saga relates to pay reduction for Bhisho spin doctor

The Eastern Cape health department has instituted legal proceedings against its spokesperson, Sizwe Kupelo, after scrapping benefits he had been enjoying for performing the duties of a spin doctor for various health MECS between 2009 and 2019, with the department launching a bid to rescind its earlier decision.

The termination of the benefits resulted in a hefty salary cut.

The department in December 2023 filed an application in the Bhisho high court to review and set aside its decision made in 2009 by former superintendentgeneral Phumzile Zitumane, who tabled a counter-offer for Kupelo when he was reportedly on the verge of leaving the department for the provincial roads and public works department.

The counter-offer had the terminated benefits attached to it.

In its court papers, the department slated the counteroffer, which was in line with its retention strategy.

The department said in court papers that though Kupelo may have acted as or performed the role of a spokesperson for the MECS, he was never formally seconded to the office of the MEC.

In his answering affidavit, Kupelo said he was not seconded because he was already part of the MEC’S office.

“I was already employed and performed my duties under the office of the MEC, a fact confirmed even on my payslip,” he said.

The department said in its papers that the decision had to be revisited because a lot had happened between 2009 and 2023.

In her founding affidavit, integrated human resources management general manager Bukela Caga said that during the tenure of former health MEC Sindiswa Gomba in 2019, the department indicated that it would terminate Kupelo’s role playing allowance, as Gomba had already appointed her own spokesperson, Judy Mpetsheningoloyi.

Kupelo, a deputy director for communications appointed by the department in 2002, challenged the move.

In its papers, the department described the 2009 counter-offer as wrong and unlawful.

It cited the last salary notch of level 12 (from first notch of the scale), R3,110 role playing allowance and a subsidised vehicle, but Kupelo defended the salary scale saying he was moved from level 11 to 12 after the department recognised his outstanding performance.

“The continuation of paying a role playing allowance to an employee who does not form part of the MEC’S core staff amounts to irregular expenditure and PFMA [ Public Finance Management Act] makes it obligatory and mandatory to avoid such expenditures,” the department said.

The Dispatch understands that Kupelo’s salary was initially slashed by R6,400 a month and now it is R7,000 a month.

In his affidavit, Kupelo said the department had failed to rectify its errors as per a Public Service Commission (PSC) report.

Caga apparently terminated the benefits without consulting Kupelo, who later took the matter to the PSC.

The PSC found the department to have contravened Section 34 (a) of the Labour Relations Act, which prohibits an employer from making pay deductions without the employee’s consent.

“This issue [the benefits attached to the counter-offer] has endured for 14 years without the applicant [the department] taking it on review,” Kupelo said.

“It cannot be legally correct that the applicant ignores the report of the PSC and internal audit and elects to bring this matter on review 14 years later.”

Kupelo maintained that he should be entitled to the terminated benefits because he had continued performing duties in the office of the MEC. Health MEC Nomakhosazana Meth’s spokesperson, Mkhululi Ndamase, declined to comment, saying the matter was sub-judice.

In 2022, the Public Health and Social Development Sectoral Bargaining Council found that Kupelo was subjected to “occupational detriment”.

Kupelo had claimed to be a whistleblower on wrongdoing within the department and became a target.

Nehawu representative Ernest Elefu said they were prepared to fight tooth and nail.

Kupelo referred questions to his legal representative, advocate Luzuko Tshingana, who declined to comment on the merits of the case.

Tshingana confirmed they were opposing the matter.

“We will fight to the bitter [end], hence the decision to defend the matter and our client has instructed us to request the court to impose a personal [costs] order to deter senior public officials from bringing frivolous matters to court considering that the department has already incurred R3.7bn in HR and medico-legal litigations,” he said.

Kupelo last week handed himself over to the Hawks in a matric certificate fraud case and was released on R30,000 bail.