Nishee Devi Khan, 54, was granted medical boarding by the Durban Labour Court in June 2015.
But Khan’s legal representative, Rashia Reddy of Jay Reddy Attorneys, said it had been “extremely difficult” to get the MEC to acknowledge the order and secure his court attendance.
She made the application in November for Dlungwane to be held in contempt of court, because of his continuous failure to implement the 2015 court ruling.
In the application, she also asked that if Dlungwane failed to explain his non-compliance with the order or did not appear in court, he should be fined or incarcerated.
The interim order was granted in the Labour Court, and the case was set down to be heard on February 8.
However, it did not proceed because Dlungwane had not been available to receive the November judgment.
In a letter sent on February 14 to the State’s legal representative handling the MEC’s matter, Reddy wrote: “The matter on February 8 was adjourned to accommodate the MEC, not before we made several attempts to serve the order personally to him.
“The MEC’s conduct is unacceptable and extremely concerning in the light that your office advised he would be available to accept personal service on February 14 and 15.”
Reddy said it was not the first time the MEC had dodged service of the order.
“This is an attempt to delay the matter, an extreme abuse of power and an injustice to our client,” said Reddy.
In court documents, Khan, who worked as a senior teacher at a school in the south of KZN, said she was “pushed to self-destruction and suicide” due to her experiences there.
Khan, an English teacher, joined in 2002, but over time, became a victim of racism at the predominantly Afrikaans school.
Her intimidation and harassment by fellow teachers and management heightened after she spoke out about how a democratically elected African head prefect was replaced by an Afrikaner pupil.
She was also vilified for speaking against the school having a bar on its premises.
Once, in 2006, the constant harassment and intimidation caused Khan to collapse at the school, and she was admitted to hospital.
She was diagnosed with severe depression, and her doctor recommended alternative employment.
In January 2007, Khan reported for duty at the department’s regional office but was sent home.
She requested redeployment thereafter, but this was not granted, and she was “left to languish” at home.
A state medic, Dr Agambaram, recommended she be redeployed or work in an office. In 2009, a Professor Nair rebuked the department for inaction on the matter. He said the “severity” of her condition was related to work issues.
She applied for medical boarding in 2009, but it was refused, as was her review application in 2010.
Instead of being redeployed, Khan said she was ignored, and substantial amounts of money were deducted from her salary in spite of the sick notes she submitted.
Her salary was stopped in 2014.
She made an application to the Labour Court to be declared medically unfit and entitled to boarding.
The department filed a notice to oppose the application, but failed to follow through or appear in court, and the order was granted in June 2015.
Nearly nine months later, the department applied to have that decision rescinded, but withdrew the application in October 2016.
In responding court documents, the department’s director of legal services, Ntokozo Maphumulo, said it withdrew the rescission application in the “spirit of compassion”.
Maphumulo said the department never disputed Khan’s depression, but the treatment she received did not meet international standards.
This prolonged her period of incapacity. That was one of the reasons it did not support her boarding application.
She could not be deployed to its offices because there was no available position on her salary grade, and her salary was deducted because she failed to provide sick leave forms for her absent days.
On the MEC being in contempt of court, Maphumulo said it needed to be proved Dlungwane deliberately disregarded the order.
Instead, Maphumulo said, the department had complied “substantially” with the order.