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[2010] ZALCJHB 343
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Makiwane v Minister of Social Development and Another (J972/10) [2010] ZALCJHB 343 (24 May 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE NO: J 972/10
In
the matter between:
FEZILE
EDWARD MAKIWANE
Applicant
and
MINISTER
OF SOCIAL DEVELOPMENT
1
ST
Respondent
THE
SOUTH AFRICAN SOCIAL SECURITY
AGENCY
2
ND
Respondent
JUDGMENT
LAGRANGE, J
1.
The Applicant is seeking an order preventing the First Respondent
(‘the Minister’) from appointing a permanent Chief
Executive Officer of the Second Respondent (‘the Agency’),
pending the outcome of review proceedings setting aside
his own
suspension as CEO of the Agency by the Minister; his subsequent
alleged constructive dismissal on 28 January 2010, and
the
institution of disciplinary proceedings against him by the Minister
in terms of which the Minister expressly terminated his
employment
with the Agency.
2.
The Applicant was employed on a three year contract by the former
Minister of Social Development, Dr Z Skweyiya on 15 May 2005
as the
CEO of the Agency. This was subsequently extended by a further two
years, which would in the ordinary course of events have
ended on 14
May 2010. In terms of the contract, clause 5(2) provided that
“
5.1
The Employer shall in writing confer with the Employer
at
least two months prior to the expiry of the term contemplated in
clause 1
(
supra
)
whether
she/he proposes to retain
the Employee in service for any extended period not exceeding five
years (60 calendar months),
or not
.
If the Employee is so
informed of such intention to retain him/her in service for an
extended term
, she/he shall in writing inform the Employer,
within one calendar month from the date of that communication, of
her/his acceptance
or not of such extended employment.
5.2
In the event that agreement is reached
that the Employee shall
enter into a further Contract on termination or completion of her/his
Contract, the continued service of
the Employee will be recognized
under the new Contract, so as to avoid any break of service and any
accrued or
pro rata
entitlement will be carried forward into
the new Contract.
5.3
Should the Employer not renew the Contract period beyond the initial
period as stated in Clause 1 above, the Employee shall
be entitled to
the pension and other benefits linked to the specific section of the
Act which is utilized.”
(emphasis
added)
3.
In terms of the above provisions, the Applicant was entitled to
receive the communication about the Minister’s intentions
on or
about 15 March 2010.
4.
Minister Skweyiya was replaced by the current Minister, Mrs B Molewa,
in May 2009. On 13 July 2009 the Applicant was placed
on
‘special leave’ following allegations made by the new
Minister that he had committed misconduct in relation to certain
reconstruction and development funds. There is a dispute whether the
Applicant was coerced to accept his placement on ‘special
leave’, but the resolution of that dispute is a matter for the
intended review proceedings.
5.
Initially the period of ‘special leave’ was supposed to
be four months, but when the Applicant indicated his intention
to
return to work in mid-November 2009, the Minister extended the period
indefinitely pending the outcome of investigations being
carried out
by a Special Investigation Unit (‘SIU’).
6.
In mid-December 2009, the Applicant was asked to respond to a
so-called “Penultimate Report”, which concerned property
acquisitions. The report had been completed more than a year earlier
and several months before the commencement of the Applicant’s
‘special leave’. The Applicant responded to the report in
writing but received no feedback from the Minister to his
response.
7.
The Applicant says that by the end of January 2009 he was ‘at
his wits end’ as he had been suspended for six and
a half
months, had responded to allegations against him and still was not
being allowed to return to work, despite what he believed
to be the
absence of any good reason to prolong his ‘special leave’.
The Applicant then resigned on 28 January 2010,
but claims he did so
in circumstances where the employer had made his position
intolerable.
8.
The Minister failed to respond to him directly. Instead he was
advised of a disciplinary enquiry to take place on 17 February
2010.
From newspaper reports he gathered that the Minister had not accepted
his resignation on the basis that his contract required
him to serve
three months notice. The Applicant adopted the view that since he had
already been constructively dismissed, any subsequent
disciplinary
enquiry was pointless and he need not attend.
9.
He was later advised on 8 April 2010, that he had been found guilty
on all charges against him and the Minister had decided to
implement
the presiding officer’s recommendation to dismiss him.
10.
On 21 April 2010,the Applicant’s attorneys wrote to the
Minister demanding the withdrawal of his suspension; the reversal
of
the Minister’s decision to dismiss him on 8 April 2010 and to
reinstate him, and to give effect to her obligation to confer
with
him in terms of clause 5.1 of his employment contract. The Minister
requested an extension of time to respond until 14 May
2010, and the
Applicant agreed to this but on the condition that the Minister would
not appoint a new CEO until she had resolved
her position
vis-à-vis
the undertakings he sought from her. She was required
to furnish her acceptance of the condition by 5 May 2010.
11.
The Applicant brought the application on an urgent basis because he
fears the failure of the Minister to give undertakings about
not
appointing another CEO means this might happen at any time and, if it
did, his right to confer with the Minister on the possible
extension
of his contract would be rendered nugatory.
12.
In the Respondent’s answering papers, the Minister asserts that
she has the right to appoint a new CEO at any time, though
she also
makes it clear that such a process ‘must follow a transparent
process’ which entails advertisements, short-listing
and
interviews.
13.
I have a difficulty with the Applicant’s claim from the
perspective of urgency. It seems to me on a proper construction
of
the provisions of clause 5 of the Applicant’s contract of
employment, that the Applicant’s right to be advised of
the
Minister’s intentions arose on or about 15 March 2010. He only
sought to assert that right by way of an urgent interdict
on 14 May
2010, after raising it in mid-April 2010. In my view the Applicant
ought to have asserted his right of conferring at
the appropriate
time and brought matters to a head then.
14.
Even if I am incorrect in finding that the matter should have been
dealt with on an urgent basis much earlier, and if
it might
still be competent to consider his application on an urgent basis now
based on a fear that a new CEO’s appointment
could be
imminent, the fact that there is as yet no evidence that the
recruitment process has commenced would make it difficult
to consider
the application on an urgent basis.
15.
In view of my findings on urgency it is unnecessary for me to
consider the merits of the substantive claims made about the alleged
unlawfulness of the Minister’s actions since July 2009
Order
16.
In the circumstances,
a.
The application is dismissed for lack of urgency, and
b.
The Applicant must pay the Respondents’ costs.
ROBERT
LAGRANGE
JUDGE
LABOUR
COURT
Date
of Hearing: 21 May 2010
Date
of Judgment: 24 May 2010
Appearances
For
the Applicant:
T
Bruinders, SC
Instructed
by Webber Wentzel Bowens
For
the Respondent:
D
Ntsebetza, SC assisted by W R Mokhare
Instructed
by Maseremule Inc.