ROODEPOORT – The University of Venda has been instructed to reinstate prominent academic and Afrikaans poet, Prof. Fanie Olivier. This comes 28 months after the Principal of Univen, Prof Gessler Nkondo, dismissed him.

Prof Fanie Olivier's case served before the Council for Conciliation, Mediation and Arbitration (CCMA) and judgement was handed down two weeks ago. The Senior Commissioner of the CCMA, Prof Mzungulu Mthombeni ruled that the dismissal of Prof Olivier was "procedurally and substantively unfair" and ordered his reinstatement with retrospective effect.

The events leading to Prof Olivier's dismissal started six years ago with confrontations between himself, Prof Nkondo and the erstwhile Chairperson of the University's Council, Dr Barney Pityana. Prof Olivier, who at that stage represented the University's Senate on the University's Council, inquired about a credit card issued to Prof Nkondo. Prof Olivier disputed the claim that the credit card (with a R150 000 limit) had been authorised by the Council. He subsequently wrote to the bank as a member of Council to establish the real facts.

Council, however, decided not to pursue the matter of the credit card, but rather instituted a disciplinary inquiry against Olivier for writing to the bank. He was found guilty of purporting to act on behalf of the Council and removed from it.

Prof Olivier challenged this decision in the High Court in Thohoyandou, but before this case could be heard, the Council withdrew its decision. Within two weeks the Council reinstituted the inquiry and again Olivier was found guilty and suspended from the Council. Prof Nkondo then ruled (as on a previous occasion) that Prof Olivier was also to be removed from the University's Senate.

Olivier decided to once again challenge the ruling by taking the matter on review to the High Court. The court again decided in Prof Olivier's favour and severely criticised the Council, Nkondo and Pityana.

On August 14, 1998, Prof Olivier wrote an open letter to his colleagues via the university's internal e-mail network. The letter was in response to a letter by Sipho Seepe, then professor in the School of Education. In his letter Prof Olivier referred to aspects of governance that gave rise to concern. He referred to, amongst others, the university's new disciplinary code, which had been submitted to Government without Council ever seeing it.

Olivier was again charged by Nkondo, with Dr Pityana's consent. He was found guilty by a disciplinary committee appointed by Nkondo, who recommended his dismissal. Nkondo agreed and Olivier was summarily dismissed on December 8, 1999.

In terms of the university's disciplinary code, Olivier appealed to Council. According to the policy of Council, the fact of an appeal had always resulted in the implementation of a sentence being suspended. This was, however, not the case with Prof Olivier and he was dismissed with immediate effect.

Prof Olivier once more approached the High Court with a review application, asking the court to set the Principal's decision aside, pending the outcome of the appeal to Council. In March 2000 the High Court in Thohoyandou ruled that only Council, as employer, could dismiss Prof Olivier. The dismissal was set aside, and Prof Olivier was to be reinstated, pending the outcome of his appeal to Council.

The University refused to implement this order, first taking it on appeal to the Supreme Court in Bloemfontein (where the appeal lapsed) and then claiming that the High Court had no jurisdiction in this matter.

All the while, Prof Olivier was left without an income, waiting for his internal appeal to Council to be heard. Sixteen months after being dismissed by Nkondo, the internal appeal was finalised by Council on April 1, 2001. Only then did his employer, the Council, dismiss Olivier. He subsequently referred his dismissal to the CCMA for arbitration.

In his findings, the CCMA Commissioner, Prof Mthombeni, criticises the University's way of handling the matter. He was not convinced that Prof Olivier's e-mail letter, which led to his dismissal, was not justified. He referred to several instances that indicate that crucial decisions were taken without consultation with Senate. "I am satisfied that Senate, an important component of the University, was deprived the opportunity to debate these issues," he says in his findings.

The Commissioner also agreed with Olivier that the disciplinary process was not conducted in a fair and open manner and that the compilation of the members of the panel "gave rise to a reasonable suspicion of bias." This was also the case as far as the Appeal panel is concerned. Commissioner Mthombeni went further to say that the appeal process was not properly conducted and therefore "the appeal hearing did not take place."

At the time of going to press the University had not responded to the issue.