Spy agency wins case against staff member who was paid double salary

The Namibia Central Intelligence Service (NCIS) has won a Supreme Court appeal against a judgement in which the NCIS was ordered to reinstate a staff member who was dismissed after he received a second salary.

The total amount he received from the government for two and a half years amounts to nearly N$800 000.

Former NCIS staff member Immanuel Shivute’s receipt and use of his salary from the education ministry, where he was previously employed for 30 months while he was employed by the NCIS as chief training officer, calls into question his integrity and the confidence and trust that a national intelligence service could have in him, appeal judge Dave Smuts said in a judgement delivered in the Supreme Court on Tuesday.

“This conduct indeed in my view involves a level of deceit and dishonesty,” Smuts remarked.

He also noted that the Supreme Court has previously indicated that where an employee’s conduct involved misrepresentation or deception, it would not be fair to compel an employer to retain an employee in whom it has justifiably lost confidence.

With Smuts’ judgement, the Supreme Court ruled in favour of an appeal the NCIS and president Hage Geingob filed against a High Court judgement in which Shivute’s dismissal by the NCIS was declared unfair and unlawful in September 2022.

The High Court also ordered that Shivute should be reinstated in the position he held in the NCIS, or in a comparable position.
The NCIS discharged Shivute in May 2018, after a disciplinary hearing in which a committee found he had conducted himself in a “disgraceful, improper and unbecoming manner” by knowingly continuing to receive a salary from the education ministry while he was employed by the NCIS.

Shivute faced criminal charges after the Anti-Corruption Commission also investigated the double salary payments received by him, but those charges against him were withdrawn in July 2018.

After his dismissal, Shivute lodged an appeal to the president in terms of the NCIS’ regulations. Geingob declined the appeal in April 2021.

Shivute then challenged his discharge in the Windhoek High Court, where a judge ruled in his favour in September 2022.

In the Supreme Court’s judgement, Smuts said that since the Labour Act did not apply to Shivute’s employment in the NCIS, the High Court could not order that he had to be reinstated to his position in the intelligence service.

In his appeal to the president and his application in the High Court, Shivute complained that he was not allowed to be represented by a legal practitioner during his disciplinary hearing.

However, the NCIS regulations, which say a staff member may be represented “by another person” at a disciplinary hearing, do not exclude representation by a legal practitioner, Smuts said. That means the notice in which Shivute was informed he may not be represented by a lawyer was beyond the powers of the NCIS regulation on representation, Smuts also said.

Considering the disciplinary proceedings as a whole, though, the notice informing Shivute that he could not be represented by a lawyer did not result in the hearing being unfair, Smuts found.

He noted that Shivute, who was not represented by another person during the hearing, was given a chance to be heard – which is at the heart of procedural fairness – and he exercised that right.

Shivute did not dispute the factual allegation that he received a salary from the education ministry as well while he was employed by the NCIS, and he kept and used the salary wrongly paid to him, explaining to the disciplinary committee that “as a normal human being, anyone who receives money in their bank account will make use of it”, Smuts recorded as well.

He concluded that the disciplinary committee’s finding that Shivute was guilty and the recommendation that he should be discharged “would seem to be eminently reasonable on the facts of this matter”.

Acting appeal judges Hosea Angula and Esi Schimming-Chase agreed with Smuts’ judgement.

The president and the NCIS were represented by legal counsel Dennis Khama.

Shivute was represented by Vanessa Kauta.

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