Sheriff attaches five Correctional Services vehicles worth over R1.3m to pay unfairly treated ex-employee

The Sherriff has attached five vehicles belonging to the Department of Correctional Services (DCS) for failing to pay former acting Eastern Cape correctional services commissioner Noziphiwo Dumbela nearly R1 million in compensation for unfair labour practice.

The action came after the department ignored a General Public Service Sector Bargaining Council’s 23 April 2021 ruling to pay Dumbela R930 438 after it overlooked her for provincial commissioner post and hired Mr Phiko Mbambo without advertising the position.

Several acting stints

Dumbela acted in the position for a year while the department was looking for a permanent candidate.

She also previously acted in the post several times before on irregular basis while she was the deputy commissioner.

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For the past three years, the department has not paid in line with the arbitration award but has now hired lawyers at a cost to taxpayers to fight the ruling and has managed to delay the seizure of the two trucks, a bakkie, a water tanker and a bus.

It is challenging the arbitration through the labour court.

The vehicles eyed by the Sheriff belong to Nelson Mandela Metro’s St Alban’s Prison in Gqeberha. The New Law Court Sheriff’s inventory, seen by The Citizen, evaluated the movable assets as follows:

1. Hino truck- R500 000
2. UD Water tanker- R350 000
3. Isuzu truck- R250 000
4. Busmark bus- R200 000
5. Nissan Bakkie- R30 000

As it was left unpaid, the money owed to Dumbela has been generating 15.5% interest on a monthly basis and if the arbitration ruling is upheld by the labour court, the department could find itself paying around R2 million.

Not shortlisted for interviews

Dumbela was the full-time deputy commissioner of seven years running the province’s 45 prisons with more than 20 000 inmates.

She was acting commissioner when the department advertised the commissioner position on 20 April 2018.

Because she had ambitions to rise to the top post, she applied.

But to her surprise, she was never shortlisted for interviews despite having acted for 12 months in the advertised position and possessing 37 years of service in the department at the time.

The department appointed Advocate Patrick Mashibini on 1 April 2019 as the permanent commissioner. But Mashibini left the position vacant when the department decided to horizontally promote him to a position at its head office in Pretoria only 22 days into his new job.

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Without re-advertising the vacancy, the department then filled the vacuum left by Mashibini with Mbambo who was initially scored by the interviewing panel in second place that elected Mashibini as its preferred candidate.

In June 2019, Dumbela dragged the department to the council reporting it for unfair labour practice for not advertising the position arguing it denied her an opportunity to apply again.

The department argued that she did not have an honours’ degree to fill the post which was at Deputy Director-General level and required a candidate with a minimum qualification of an NQF Level 8 (Honours degree).

Joined the department in 1981

Dumbela argued to the council that she was well experienced and competent enough to fill the position having joined the department in 1981 and having been at senior management level since 2003.

The council found that Mbambo, who eventually got the job ahead of Dumbela, did not have an honours degree either but held a NQF Level 6 National Diploma in Human Resources Management from Technikon SA, another NQF Level 6 Diploma in Project Management from Potchefstroom Business School and an Advanced Diploma in Management from Southern Business School, ranked at NQF Level 7.  

The council also heard that Dumbela had more experience than Mbambo who only started working for the department in 1999 and that black women were underrepresented at the senior management level within the department.

Unfair labour practice

In the arbitration award, seen by The Citizen, arbitrator William Richard Pretorius ruled that the conduct of the Department of Correctional Services, regarding the appointment of Mbambo, without advertising the said post when it became vacant constituted an unfair labour practice towards Dumbela, relating to promotion as envisaged in Section 186(2)(a) of the Labour Relations Act.

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The money accumulated interest

Despite Pretorius having ordered the department to pay Dumbela the amount within 60 days of being notified of the award in April 2021, the department ignored it for the past three years.

The writ of execution to seize the movable property has been halted as the department has now approached the courts to remove the old file from the archives to challenge the arbitration award at the labour court.

The Citizen is in possession of the court application.

The matter is still underway awaiting a decision.

DCS spokesperson Logan Meistry would not be drawn into discussion on the matter simply saying: “The matter in question is pending before court.”

Mbambo later left the position after he was also promoted to the head office.

The position was never advertised again but an official – Lucky Mthethwa from the head office – was deployed to act in the position for three years until he was recently absorbed permanently.

Dumbela has since retired from the Department of Correctional Services.

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