Court dismisses attempt to dodge inquiry

The high court in Kimberley has thwarted attempts by a health department official to prevent a disciplinary inquiry from proceeding by running to the courts to avoid facing allegations that he helped a law firm in its claims against the department.

The court dismissed the application by Eastern Cape health department legal adviser Elphas Ndhlovu as “ill-conceived” and he will now have to face accusations that he worked with a law firm to defraud the department.

This is a victory for the department’s efforts to tighten governance over the handling of medico-legal claims. For years, it has struggled to defend itself against a high number of claims, with 15,148 being lodged against provincial health departments in 2021/22.

The Eastern Cape was hit hardest, with 4,443 claims against its health department, followed by Gauteng (3,783) and KwaZulu-Natal (2,915).

This prompted the national health department to establish a medico-legal task team in 2017 to investigate the management of the department’s claims. The focus was on law firms, since the department attempted to discover why it was losing so many of the cases.

The task team started investigating Ndhlovu in 2020.

Ndhlovu argued the investigation was unlawful because the task team had not adhered to the chain of command. The task team, however, maintained its authorisation arose from the acting head of Ndhlovu’s own regional department, which was confirmed by the internal labour relations officials.

Ndhlovu was placed on precautionary suspension in 2021 and told to attend a disciplinary inquiry later that year. He was provided with all the documents the task team intended to use against him at the inquiry.

But Ndhlovu’s lawyers argued the disciplinary inquiry was unlawful because they were challenging it in court.

Ndhlovu argued in court he had no alternative remedy to challenge the inquiry and was thus forced to approach the court. “I will suffer prejudice in the sense that I will be subjected to an unlawful disciplinary hearing,” he said, adding that the report itself was unlawful and the inquiry, relying on the report, would also be unlawful.

In response, the department argued it had the full authority to hold disciplinary inquiries into its employees.

Ndhlovu had not been prejudiced by any unfair labour practice and his application to stop the inquiry was premature.

The department said whatever finding the report made was not conclusive proof of the allegations against him, and an inquiry would afford him an opportunity to respond to the allegations, challenge witnesses named in the report and counter the evidence presented.

Department officials also noted they provided Ndhlovu with two opportunities to respond to allegations but he had refused to co-operate.

Ndhlovu made various attacks against the department’s task team and its investigation. In assessing these attacks, Violet Phatshoane, the judge president of Kimberley high court, ruled there was no basis for any of his arguments and dismissed them as “couched in a slipshod manner and repetitive”.

Phatshoane said Ndhlovu had other forms of “adequate redress” in labour law, rather than court, for a process that had not even properly taken place. Ndhlovu “cannot seek, through this [court] application, to contest the allegations that he may have to possibly face during his disciplinary hearing”, she said.

The case was dismissed with costs.