The CCMA uses dialogue based on conciliation and mediation to transform labour relations. Photo: Ashraf Hendricks
An employee of the Indian consulate in Durban who was fired earlier this year over suspicions that he was spying for China has won the first round of his battle with the government of the world’s largest democracy.
The Commission for Conciliation, Mediation and Arbitration (CCMA) last week condoned a late application by Simphiwe Mchunu — who was summarily dismissed in April after being detained and interrogated by consulate staff — for a conciliation hearing into the matter.
Mchunu was fired on 29 April, days after he was first detained and interrogated by consulate staff, allegedly over “security concerns” because his son works as a teacher in China.
Commissioner Jerald Vedan ordered that Mchunu be granted condonation despite an attempt by lawyers for the Indian consulate to argue that the CCMA did not have jurisdiction to hear the matter as staff of foreign governments had diplomatic immunity.
In his order Vedan said that although the consulate’s lawyer had “indicated that the CCMA does not have jurisdiction in the matter on the grounds of diplomatic immunity”, the matter had been set down as an application for condonation by Mchunu.
Vedan said he would deal with whether the CCMA had the authority to accept a referral which had been applied for 56 days later and that “the question of diplomatic immunity can be pursued at a later stage in the proceedings”.
He added that Mchunu had told the CCMA his main reasons for the late referral was “fear for his personal safety” after he was interrogated, had his car forcibly opened and searched and discovered a tracking device in his vehicle.
Mchunu then went into hiding in Port Elizabeth and only returned to Durban a month after the incident. He then fell ill and sought medical treatment from a traditional healer, after which he had approached the department of international relations and cooperation for intervention, before being referred to the CCMA.
Vedan said despite the “considerable” delay, he had been persuaded that Mchunu should be allowed the opportunity to bring his matter before the CCMA because he had provided explanations as to why he was “compelled to leave town”.
The reasons for lateness were “credible and satisfactory” and were “both reasonable and compelling” because Mchunu had “presented a prima facie case for pursuing his claim despite the delay”.
“I am of the opinion that the matter warrants further consideration,” Vedan said in the order.
Vedan said Mchunu had followed the procedural policy for handling disputes involving foreign diplomatic entities, which was contained in guidelines provided by the department’s directorate for diplomatic immunities and privileges.
This stated that Mchunu should initially refer the dispute to the CCMA without having to provide proof that he had served notice of intention to do so to the consulate or embassy.
The consulate’s legal team had argued that it was necessary for him to do so and that he should have followed a channel through the Indian government, rather than taking the matter to a South African forum.
The consulate team said Indian law, and not South Africa’s labour relations regime, should apply in Mchunu’s case because the services he provided were for the benefit of the government of India.
It has also argued that the matter was “too sensitive” to be ventilated at any South African forum because the detail concerned the workings of the Indian consulate and that the investigation into Mchunu was ongoing and was confidential.
Vedan said Mchunu was now “unemployed after 26 years of service and is the sole provider for his family,” and that this significantly outweighed any prejudice the government of India might suffer by the matter being heard.
“The applicant, being 52 years old, faces considerable challenges in securing new employment and providing for his family under the current circumstances,” Vedan said.
He said Mchunu had argued in papers that he had a strong prospect of success in the matter because the consulate staff had not provided any evidence before firing him and this also weighed in favour of the hearing going ahead.
Mchunu has also laid criminal charges against the consulate staff members who detained and interrogated him on its premises in Durban’s Kingsmead precinct on 26 April, and for the theft of his cell phone, which has not been returned.
He has also approached the department for intervention, submitting a detailed memorandum in which he claimed the real reason he was fired was he had uncovered corruption by consular staff — including the abuse of allowances during the Brazil, Russia, India, China, South Africa (Brics) summit in Johannesburg last August.
Mchunu also claimed that consulate staff had treated black South Africans who worked there in a racist manner, and that other local employees had been fired summarily and without any benefits that were legally due to them.
The department and the consulate general of India have not commented on the matter thus far.