Why the newly-appointed acting prisons boss has been summoned by the Labour Court

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Makgothi Thobakgale
Makgothi Thobakgale
Photo: DCS
  • The Labour Court ordered Makgothi Thobakgale to appear before it on Friday. 
  • He faces charges of contempt of court. 
  • The correctional services department failed to reinstate the suspended KZN regional commissioner, despite two judgements to that effect. 

The Labour Court ordered newly-appointed acting prisons boss, Makgothi Thobakgale, to appear before it on Friday morning. 

He is instructed to make representations as to why the court should not find him guilty of being in contempt for failing to implement its findings that suspended KwaZulu-Natal regional commissioner, Mnikelwa Nxele, be reinstated. 

In the court order, dated 8 October 2021, issued by Acting Judge Narini Hiralall, and seen by News24, Thobakgale, who is the second respondent, is ordered to appear before "the Labour Court on the 15th day of October 2021 at 10:00 or soon thereafter to show cause why he should not be found guilty of contempt of court for failing to comply with the judgment and court order of 10 March 2020… and certified arbitration ward of 26 April 2021" in relation to Nxele's reinstatement. 

The court also gave Thobakgale until 12 October to submit a written affidavit to stipulate why the correctional services department had failed to adhere to the court's order. 

READ | Lamola appoints Makgothi Samuel Thobakgale as acting national commissioner of correctional services

In the absence of providing an explanation to the satisfaction of the court, or should he fail to appear in court, despite being properly served, Thobakgale was warned he would be found guilty of contempt and "may be incarcerated for such a period as the court deems appropriate" or he may be fined. 

Justice and Correctional Services Minister Ronald Lamola is cited as the first respondent. 

Nxele was placed on precautionary suspension in March 2020 and the suspension was later extended on 6 October 2020 after a report from the Special Investigating Unit (SIU) implicated him as being involved in a series of procurement irregularities. 

He, however, sought legal advice and challenged the suspension. 

The Labour Court judgment, dated 10 March 2020, and a certified arbitration award by advocate Kevin Perumal, dated 26 April 2021, declared the suspension invalid and unlawful. 

READ | Suspended KZN correctional services head returns

The correctional services department's application for leave to appeal against the judgment was dismissed, with costs, which entitled Nxele to return to work.

He could not do so, however, because the department successfully petitioned the Labour Appeal Court to appeal against the judgment. 

However, News24 understands the department's appeal has lapsed because it failed to lodge the appeal timeously, and also failed to file the appeal record within 60 days of the granting of the petition. 

Adding to the automatic lapsing of the appeal, the department also effectively abandoned the appeal due to its failure to file its heads of argument as directed by the Labour Appeal Court. The lapsing and/or abandonment of the department's appeal renders the Labour Court judgment binding. 

On 26 April 2021, Perumal issued an arbitration award, in which he found the suspension imposed on Nxele to constitute an unfair labour practice, and ordered the department that he return to work by no later than 3 May 2021.

KwaZulu-Natal regional commissioner of Correctiona
Mnikelwa Nxele. (Thuli Dlamini, Gallo Images, Sowetan, file)

The department was also ordered to pay Nxele the equivalent of three months' salary as a solatium for the impairment of his dignity as well as to pay his legal costs.

On 3 May 2021, the department instituted a review application and the Labour Court in Johannesburg issued an order staying the execution of the arbitration award, and interdicted Nxele from reporting for duty pending the finalisation of the review application. 

Nxele's application to rescind the stay and interdict orders was unsuccessful, but the department again failed to file the arbitration record within 60 days. It has now brought an application to reinstate the review application. 

Nxele's legal team, however, believed that until this application is decided by the Labour Court in favour of the department, there is no pending review application. 

Consequently, his legal team also believe that "the stay and interdict orders issued on 5 May 2021 on the basis of a pending review application fall away given that the review application no longer exists" - and their client ought then to be reinstated until the application to reinstate the review application is heard. 

Nxele was not willing to respond to News24 inquiries.

 He said he "preferred that the matter plays itself out in the court of law rather than in the media". 

Attempts to get a response from Thobakgale through the department's spokesperson, Singabakho Nxumalo, proved unfruitful as the latter had not yet responded to queries by the time of publishing. 

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