Court orders municipality to reinstate Gardee suspect

Ekurhuleni municipality has been ordered to reinstate Sipho Mkhatshwa, one of the men accused of kidnapping and killing Hillary Gardee.

Mkhatshwa, who worked as an integrated development plan (IDP) facilitator at the municipality, was fired in 2022 while in custody for allegedly taking part in the murder of Gardee, who was kidnapped in Mbombela, Mpumalanga, on April 29 2022. Her body was found days later next to a pine plantation 40km outside Mbombela.

Mkhatshwa was arrested on May 6 2022 and was fired by his employer 12 days later while in jail. He challenged his dismissal after the murder case was provisionally withdrawn against him and the other three accused in April last year as the state was unable trace three key witnesses. 

This week, the local government bargaining council — through commissioner Amos Mthimunye — found that the municipality’s decision to fire Mkhatshwa was unfair and that it did not consider Mkhatshwa’s explanation for his absence from work.

Ekurhuleni was ordered to reinstate Mkhatshwa and backdate his salary of R40,732 from May 2023 to March this year, which amounts to R448,052. Mthimunye ordered the city to comply with this order by no later than the end of March, failing which could result in the salary accumulating an 11.25% interest. 

Ekurhuleni municipality spokesperson Zweli Dlamini said the municipal legal team was studying the judgment and the municipality would be advised on a path of action. 

According to evidence submitted before Mthimunye, when the municipality fired Mkhatshwa, it cited a breach of trust and wanted to dissociate its image from the applicant because the criminal case against him was high profile and had gained significant media traction. 

“It was clear that the respondent [Ekurhuleni] rushed to dismiss the applicant. The applicant’s contention that the respondent acted on baseless, propagated and false allegations is probable,” said Mthimunye. 

“It is probable as contended by the applicant that the respondent was under pressure because the criminal allegations levelled against the applicant were widely publicised in the media both domestically and abroad. Therefore, the respondent had to act in order to be seen that it does not in any way support the wrongful criminal acts allegedly committed by the applicant and his co-accused persons.”

While in custody, Mkhatshwa was served with notice by his employer requiring him to show why his services should not be terminated. The notice required Mkhatshwa to respond no later than May 18 2022.

Through his lawyer, he submitted his response at about 5pm on the requested date. However, according to the evidence before Mthimunye, the employer claimed the submission was made beyond the prescribed work hours of 4.30pm and dismissed him on the same day without considering his explanation of absence from work. 

Mthimunye said this procedure was not fair as the letter from Ekurhuleni did not specify the exact time of day Mkhatshwa should respond.

“Evidence presented by both parties demonstrates that the respondent [municipality] never considered an alternative to dismiss the applicant but rather had only an option to dismiss. Therefore, it is evidently clear that the respondent did not accommodate the applicant but rather worsened his situation by dismissing him,”