By: Kelvin Chiringa
Sport, youth and national service minister Agnes Tjongarero is now set to be dragged before the Windhoek High Court over her decision to disregard a recommendation of the commission to renew the contract of chief administrator Fredy Mwiya.
The minister stands accused of failing to understand where her powers begin and end and where the commission’s start.
According to the Sports Act, 23 (1), the minister has the power to appoint a person as chief administrator but is subject to a recommendation by the commission.
The commission, on 26 March 2022, recommended Mwiya’s contract renewal for another five years (from 1 April 2022 to 31 March 2027) as per the provisions of Section 9 (3) (a) of the Sports Act.
“The NSC board, on its special meeting, held on Saturday, 26 March 2022 (held) online, unanimously resolved to: recommend to the line minister to consider re-appointing the NSC Chief Administrator, Mr Simataa. F. Mwiya for another five-year contract renewal effective 1 April 2022 to 31 March 2027.”
“The condition of service is to be held in line within the State-Owned Enterprises Directives on remuneration dated 18 April 2018 at 90 percentiles,” reads the letter penned by board chairperson Joel Matheus and secretary Bernadine Nengonya.
Available documentary evidence shows that Tjongarero has, in the meantime, disregarded the commission’s recommendation and directed that the position must rather be advertised.
She also instructed that Mwiya has the window open for him to apply as well.
But the commission has expressed that the minister’s directive is a violation of the Sports Act as it undermines its power.
Based on her interpretation of the Act and refusal to re-appoint Mwiya, a legal challenge is now expected in the Windhoek High Court this Friday at 09:00 am.
In a letter dated 29 March 2022, the minister said, “your recommendation is well received and acknowledged. However, it is in the best interest of the nation that the above-mentioned position be advertised for all interested Namibians to enjoy a fair chance in applying; thus, the incumbent is free to apply for the position.”
“It is against this background that I write to you to extend my heartfelt gratitude to the incumbent CA for an exceptional job done for the institution’s growth and services rendered to the sports sector. Subsequent to the above-mentioned communique, be so kind and provide my office with a copy of the notelet if and when the advertisement is placed in print and electronic media.”
However, documents further disclose that the directive created friction on both parties as the commission stood its ground and refused to carry it out.
Instead, in its letter dated 19 April 2022, the commission said it had considered many aspects before recommending Mwiya.
The commission said it considered the evaluation assessment and report conducted by Pink Tech, a consultancy company, a comprehensive evidence file containing the factual elements of Mwiya’s achievements and the terms and conditions of his contract of employment.
The board told the minister that it applied its fiduciary duties and jurisdiction in the matter thoroughly before arriving at the resolution to renew his mandate.
It also told Tjongarero that as far as they were concerned, Mwiya had “performed exceptionally well.”
“According to the contract of employment of the Chief Administrator, it is clear, and from the reference of the performance policy and the NSC, the determination of his contract of employment is rested on the performance evaluation by the sitting board of directors and their recommendations as they are the direct supervisor of the incumbent,” the commission said.
Again, a 21 April 2022 letter copied to finance minister Iipumbu Shiimi and Attorney General Festus Mbandeka shows that the minister was adamant that the position be made vacant.
She further asked for it to be advertised “immediately as the time is not on our side”.
Legal Argument Against Tjongarero
Lawyers from Ndaitwah Legal Practitioner (NLP) have told Tjongarero that she has violated section 23(1) of the Sports Act.
The Act reads: The minister must appoint a person as Chief Administrator of the Commission on the recommendation of the commission.
“The decision taken by your office in your letter dated 29 March 2022 was reiterated in your letter dated 21 April 2022, despite the Namibia Sports Commission’s letter dated 19 April 2022, wherein it was, inter alia, expressly explained that the terms of Section 23 (1) of the Act, your office “must” act on the recommendation of the commission in appointing the Chief Administrator.”
“The word “must” does not afford your office a discretion. Authority of this point is found in the Supreme Court Judgement between William S Torbitt and others versus The International University of Management, where it was found that the use of the term “must” is mandatory and peremptory and not permissive or directory….”
The lawyers added that in light of the Sports Act, the authority and the various communication between Tjongarero and the Namibia Sports Commission, she acted ultra vires.
A review application in the High Court of Namibia will now seek several orders.
(a) An order in terms whereof the minister’s decision against Mwiya’s recommendation to be reviewed and set aside,
(b) An order in terms of which the minister is directed to act in terms of Section 23(1) of the Sports Act.
Speaking to The Villager Thursday afternoon, Tjongarero said, “Yes, I have been served with papers.”
A Ministry In Disarray
The sports ministry is currently in disarray as the minister is reportedly not seeing eye to eye with Mwiya whom she has had heated arguments in meetings.
This has been disclosed by sources close to affairs inside her ministry.
“I didn’t know there was a bad relationship. I really didn’t know that (I said) that I want somebody else instead of him. And now that we are having court cases and papers, the reason I said let us advertise is because there is an investigation going on. If you were in my position, what could have you done?”
“Will you extend the terms of office for another five years while knowing there are things going on? I said let’s just advertise, let everybody apply, including himself. The ministry is stable as usual,” she said.
Tjongarero is said to be looking for someone who can play second fiddle to her alleged plans to dismantle the commission and absorb it within the Olympic committee.
“This was created by the husband,” the source said.
There is a strong feeling inside the commission that Tjongarero is victimising Mwiya with the sole intention to “advance the legacy of the family-founded organisation”.
The committee has been frowned upon as not representative of the black majority, while Mwiya is also said to have gone to the extent of roping in a lawyer to “stop her plans”.
The minister has denied the accusations.
“Come on, come on, come on, come on! Really. Come on! Whatever is coming up with this nonsense, that is nonsense at all (sic). How can the commission be absorbed into the Olympic Committee?
However, things came to a head this week when Tjongarero relieved the entire board of the commission of their duties with immediate effect.
She carried this out on account of what she called “deliberate insubordination and ignoring directives from the appointing authority, as well as a directive from the office of the Attorney General”.
The board consists of Joel Matheus, Erica Beukes, Alna Similo, Karen Mubonenwa, Thomas Mbeeli, Dr Marius Johannes, Nicklaus Ngumono and Linda Chicalu.
“Afcon will be affected now. Botswana won’t trust us as there are fights in sport. She was to look for stadium issues. How can CAF bring Afcon here if stability is not there in (the) country? She does not see that,” one of the staffers at the ministry has told this publication, choosing to remain anonymous.