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2024
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[2024] ZAFSHC 337
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African National Congress, Office of the Chief Whip: Free State v Notsi and Others (2072/2024) [2024] ZAFSHC 337 (21 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/
Not
reportable
Case
number:
2072/2024
In
the matter between:
AFRICAN
NATIONAL CONGRESS, OFFICE
OF
THE CHIEF WHIP: FREE STATE
APPLICANT
And
KENALEMANG
KELEBOHILE NOTSI
FIRST
RESPONDENT
COMMISSION
FOR CONCILIATION, MEDITATION
AND
ARBITRATION
SECOND
RESPONDENT
THEMBENI
SKULLY NGXANGISA
THIRD
RESPONDENT
Coram:
Loubser J
Heard:
25 July 2024
Delivered:
21
October 2024
Summary:
Appointment as personal assistant of the
Chief
Whip of the African National Congress: Free State without the
required recruitment, selection and appointment process –
status of the employment contract
ORDER
1.
The employment contract between the 1
st
Respondent and the Applicant is declared unlawful and is hereby set
aside.
2.
The 1
st
Respondent is ordered to pay the costs of the application on the
party and party scale, including the fees of counsel on scale
B.
JUDGMENT
LOUBSER
J
[1]
This is an application instituted by the
present Chief Whip of the African National Congress: Free State, for
the following relief:
Firstly, that the employment contract between
the 1
st
Respondent and the Applicant be declared unlawful and set aside.
Secondly, that the proceedings of the 2
nd
Respondent be stayed pending the finalization of this application,
and lastly an order for costs of suit, but only if the application
is
opposed. No orders are sought against the 2
nd
and 3
rd
Respondents. The application is consequently only directed against
the 1
st
Respondent and the contract of employment she entered into with the
Applicant.
[2]
The application was initially opposed by
the 1
st
Respondent, but it is common cause that she filed her answering
affidavit seven work days late, with the result that she launched
a
condonation application for such late filing. The condonation
application was heard simultaneously with the main application
by
this court. Counsel appearing for the 1
st
Respondent immediately submitted at the hearing that there was no
merit in the condonation application. I have no doubt that this
submitted was correctly made, mainly because the 1
st
Respondent had failed to provide any reasonable and acceptable
explanation for the late filing. In addition, the 1
st
Respondent failed to provide persuasive grounds upon which it can be
said that she enjoyed prospects of success in the main application.
In the premises, her counsel agreed that the condonation application
should be dismissed, and it was so ordered by the Court.
[3]
It followed that there was no answering
affidavit before the Court when the main application was heard. The
Court had to rely on
only the founding affidavit of the Applicant and
the annexures thereto in order to decide whether the relief sought
should be granted.
[4]
It appears from the founding affidavit that
the 3
rd
Respondent was the predecessor of the present Chief Whip. It was him
who had appointed the 1
st
Respondent as his personal assistant during his tenure as the Chief
Whip, and who had signed the fixed term of employment contract
with
the 1
st
Respondent on 25 April 2023. In this contract, the fixed period of
employment is indicated as 15 April 2023 to 15 August 2024.
[5]
At this juncture I pause to refer to the
2019/2024 ANC Free State Caucus policy document attached by the
Applicant to her founding
affidavit. Section 5.2 thereof deals with
staff matters, and section 5.2(i) specifically with the employment of
staff. It reads
as follows: “A primary condition of employment
of staff is that all appointments, without exception, are linked to
the term
of office of the Legislature, unless an appointment is
specified to be linked to the term of office of a specific political
office
bearer. All contacts are therefore contractual appointments.”
In section 5.2(j) it is stipulated that a copy of each employment
contract, duly signed by both designated responsible Whip and the
staff member appointed, must be forwarded to the Secretary to
the
Legislature for safe-keeping.
[6]
In her founding affidavit, the Applicant
explains that all appointments must be linked to the term of office
of the Legislature.
Such appointments take place after the employee
has undergone a recruitment, selection and appointment process. This
process would
involve a number of stages, for instance a structured
interview and reference checks to verify factual information.
However, employees
who are exempt from such recruitment and selection
process, are those employed by a constituent member on condition that
their
employment is linked to the constituent member’s term of
office. This usually happens when a constituent member elects to
appoint his own personal assistant. The Applicant further indicates
that the Chief Whip is a constituent member.
[7]
The Applicant points out that if an
employee had successfully undergone the proper appointment process,
the consequent contract
of employment must be kept by the Secretary
to the Legislature, and the steps followed in the appointment process
will be stored
in the Human Resources data base of the Legislature.
Despite a diligent search, she could not find the contract of
employment nor
any indication in the said database that a proper
appointment process had been followed for the appointment of the 1
st
Respondent. The 3
rd
Respondent failed to provide her with any information relating to the
appointment in issue.
[8]
In her answering affidavit, which was not
allowed by the Court in the condonation application, the 1
st
Respondent alleged that she indeed went through the recruitment,
selection and appointment process. She annexed her curriculum
vitae
to the answering affidavit, and alleged that it was one of the
documents she had submitted in the appointment process. There
is no
indication at all on this document that it was used in the
appointment process. As pointed out by the Applicant, there is
also
no indication in the data base that the process was followed prior to
the 1
st
Respondent’s appointment. The result hereof is that, even if
the answering affidavit was before the Court, it would not have
assisted the 1
st
Respondent. Her version of the events would have been rejected as
untenable in view of the lack of any documentary or electronic
confirmation.
[9]
The Applicant says if the 1
st
Respondent was appointed by the 3
rd
Respondent himself, her employment would be linked to the term of
office of the 3
rd
Respondent. He had already terminated his position long ago. At the
hearing of the application, it was revealed by counsel for
the
Applicant that the 3
rd
Respondent had vacated his post during July 2023. The Applicant says
that if the 1
st
Respondent’s employment was linked to the term of office of the
Legislature, then that term had come to an end on 29 May
2024 in any
event, when a new administration became elected. When the employment
of the 1
st
Respondent was terminated in the circumstances, the 1
st
Respondent approached the 2
nd
Respondent claiming an unfair dismissal. The Applicant says that the
proceedings before the 2
nd
Respondent is presently stayed pending the outcome of the present
application in the High Court. The 1
st
Respondent’s contract of employment became revealed for the
first time in the proceedings before the 2
nd
Respondent, the Applicant says. She annexed a copy of the employment
contract to her founding affidavit.
[10]
In the contract of employment, the term of
employment is stipulated to be the period from 15 April 2023 to 15
August 2024, as mentioned
earlier. Clause 1.4 of the contract,
however, reads as follows: “Employee expressly agrees that
their (sic) term of employment
is linked to that of the 6
th
Administration.” As already indicated, the term of the
Legislature, or then the Administration, came to an end on 29 May
2024. The 1
st
Respondent’s appointment until 15 August 2024 therefore makes
no sense.
[11]
At least it is clear from the terms of the
contract that the employment was linked to the term of office of the
Legislature. This
is expressly so stated in the contract, which the
1
st
Respondent has duly signed. As we have seen, such an appointment
could only have been made if the 1
st
Respondent had undergone the required recruitment, selection and
appointment process, including a structured interview and a
verification
process. As we have further seen, there is no trace or
indication that the 1
st
Respondent has indeed been successfully subjected to such a process.
It follows that the employment contract is unlawful and that
it
should be set aside.
[12]
As for costs, I find no reason to deviate
from the general rule that costs should follow the result.
[13]
The
following
order is made:
1.
The employment contract between the 1
st
Respondent and the Applicant is declared unlawful and is hereby set
aside.
2.
The 1
st
Respondent is ordered to pay the costs of the application on the
party and party scale, including the fees of counsel on scale
B.
P.J. LOUBSER, J
For
the Applicant:
Adv.
Z. Nyezi
Instructed
by:
Rampai
Attorneys, Bloemfontein
For
the First Respondent:
Adv.
C. J. Hendriks
Instructed
by:
MB
Mogotsi Attorneys, Welkom
c/o
Kruger Venter Attorneys, Bloemfontein