EThekwini Municipality Deputy City Manager for Human Capital, Kim Makhathini, is walking tall after finally winning her long legal battle with eThekwini Municipality over the validity of her Damelin qualification.

In 2023, the municipality asked its investigating arm, the City Integrity and Investigations Unit (CIIU), to probe the claims that she submitted fake qualifications to get a job as deputy manager for Human Capital in 2021.

Makhathini submitted a six-month human resources management diploma from Damelin, which she obtained in 1996, and was eventually employed; however, later a whistle-blower alerted the city that the qualification was fake and she committed fraud.

Despite Damelin confirming the authenticity of her qualification twice in 2016 and 2020, the institution contradicted its earlier information and informed the CIIU that it had never offered a short-course diploma in human resources management, saying the qualification was not SAQA accredited and, therefore, it did not have an NQF level or credit value.

As a result, the CIIU concluded that Makhathini had produced a fake qualification when she was offered the job in 2021, and was therefore guilty of fraud.

The CIIU findings prompted the city to appoint an independent investigator, Jabu Thobela-Mkhulusi, to probe Makhathini.

In her finding, Thobela-Mkhulusi found that there was no misconduct against Makhathini in her report on July 5, 2023, because Damelin never cooperated to verify the qualification.

However, in a supplementary report, she found that Makhathini had no qualification. She relied on a letter that was sent to her by the city after the expiry of her mandate on July 5, 2023. 

In its judgment on Thursday, the Labour Court dismissed the supplementary report and questioned why the independent investigator accepted the letter, which was received after the expiry of her mandate that ended on July 5, 2023.

The court said it was wrong for an independent investigator to rely on a letter from the legal department of Damelin, not from Andrew Gilchrist, institution’s official who had initially verified Makhathini’s qualification as correct twice.

The court stated that the independent investigator was supposed to verify the content with Gilchrist, who had confirmed the qualification as correct. Therefore, the court set aside the investigator’s findings.

“If the Damelin qualification was ‘not verified as correct’, why was Damelin, who was cooperating with the police investigation and MIE Smart Vetting Solutions, failing to cooperate with the independent investigator before the expiry of the prescribed 30 days? As much as there is no empowering provision which would have allowed the city council to reopen or extend time to file the supplementary report, the independent investigator never requested such extension and/or reopening and/or granting of a further period,” read the judgment.

The court was also scathing, arguing that what is even worse about the said letter apparently is that it sought to rectify the assertion of November 10, 2016, by Mr Gilchrist who had verified the qualification as correct.

“If anything, the letter constitutes inadmissible written hearsay evidence, since it was Mr Gilchrist who verified the Damelin qualification on November 10, 2016. I, therefore, conclude that the first respondent and its council acted arbitrarily and irrationally in receiving and accepting a supplementary report on July 11, 2023, after the expiry of the 30 days period prescribed in Section 5(4) of the Disciplinary Code.

“In the circumstances, it stands to reason, therefore, that any decision of the first respondent’s council and the first respondent based on the supplementary report of July 11, 2023, must fall, as it is a fruit of a poisonous tree.

“Accordingly, the following order is made: The decision of the council of the first respondent taken on August 24, 2023, to appoint a disciplinary panel and institute disciplinary proceedings against the applicant is reviewed and set aside,” concludes the judgment.

Makhathini’s attorney, Kathy James, welcomed the ruling.

“It is unfortunate that my client’s reputation was severely damaged as a result of this,” said James.

eThekwini Municipality is yet to comment on the judgment.

willem.phungula@inl.co.za

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