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[2015] ZALCJHB 108
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Tshelane v Khoathane and Others (J353/2015) [2015] ZALCJHB 108 (25 February 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J353/2015
DATE:25 FEBRUARY 2015
In the matter between
GOODLUCK PHUMZILE
TSHELANE
................................................................................
Applicant
And
MMEG
KHOATHANE
.................................................................................................
First
respondent
N
SHAIK-PEREMANOV
..........................................................................................
Second
respondent
N J MXAKATO-DISEKO / J
KELLERMAN
...........................................................
Third
respondent
M M
MOKUENA
.......................................................................................................
Fourth
respondent
J KESHAW / Z
ZIBI
.....................................................................................................
Fifth
respondent
SOUTH AFRICAN NUCLEAR ENERGY
CORPORATION (SOC)
LTD
......................................................................................
Sixth
respondent
EX TEMPORE JUDGMENT
STEENKAMP, J:
The applicant, Mr Goodluck Phumzile
Tshelane, is the CEO of the sixth respondent, the South African
Nuclear Energy Corporation State-owned
Company Limited, known by the
acronym of NECSA, inappropriately, since the actual acronym would be
SANEC. Be that as it may, the
applicant brought an application to
this court on an urgent basis on less than 24 hours’ notice to
the respondents. The
first to fourth respondents are non-executive
directors and members of the Board of the sixth respondent, to which
I shall refer
as NECSA or “the Company”.
The CEO was suspended by the Board
pending a disciplinary inquiry setting out a number of serious
allegations of misconduct. The
allegations include, inter alia, the
misuse of a luxury company car, a Lexus, and using the money of the
company to fund a gala
dinner for the ANC in Mpumalanga. The relief
sought by the applicant was wide-ranging, and although the notice of
motion does
not reflect it in terms, it really, as Mr Laka
highlighted, goes to the suspension of the applicant and an attempt
to have that
suspension lifted.
The relief he seeks, or rather sought,
was to declare the meeting of the Board held on 27 January 2015
invalid; reviewing and setting
aside the decisions taken jointly by
the Social and Ethics Committee and/or the Finance and Investment
Committee; and declaring
that the Board of NECSA “and/or
together with its sub-committees” no longer legally exists for
failure to comply with
constitutive legal instruments.
The notice of motion purports to give
the respondents until 16:00 on 23 February 2015 to file an answering
affidavit; however, as
I have noted, the application was only served
on the respondents after that date, that is at about 12:41 yesterday,
24 February.
That gave the respondents extremely little time to file
any answering affidavit, but they did so this morning. Counsel
informed
me in chambers this morning that those papers would be
handed up and in those circumstances, the matter stood down until
11:30.
To the surprise of the Court, when the
matter was called at 11:30, Mr Laka informed me that the application
is withdrawn. That
left only the question of costs to be considered.
Mr Avvakoumides, for the respondents,
drew the attention of the Court to an e-mail dated 23 February from
his instructing attorneys
to the applicant’s attorneys, setting
out that they were instructed to act on behalf of at least the fourth
respondent, Ms
Midi M Mokoena. The e-mail further said, and I quote:
“Further be advised that we are
not in a position to deliver the answering affidavit within the
unreasonable timeframe stipulated
in the notice of motion and that we
shall deliver it to you by hand when we hand it up to court on the
morning of Wednesday, 25
February 2015.”
i.e. this morning. This morning, the
respondents’ attorneys and counsel did indeed hand up a notice
of opposition but on
behalf of all the respondents, including the
company, accompanied by an answering affidavit. The answering
affidavit is deposed
to by one Aukney Clifford Mabunda, who is the
Group Company Secretary and Head of Legal Services. He says in his
affidavit:
“I am duly authorised by all the
respondents to depose to this affidavit on their behalf. In respect
of the sixth respondent
[that is NECSA] I annex, as annexure ACM1,
e-mail communications amongst the first to sixth respondents
evidencing their consent
and my authority to depose to this affidavit
on behalf of them and the sixth respondent.”
He also included confirmatory
affidavits of the first and fourth respondents. Mr Laka, for the
applicant, objected that there was
no Board resolution attached to
the answering affidavit empowering Mr Mabunda to act on its behalf.
However, the e-mail correspondence
attached to the answering
affidavit sets out that the respondents did indeed, in the extremely
limited time available to them and
through what Mr Laka referred to
as a round robin process, exchange e-mails and did give the Company
Secretary the authority to
oppose the application and to depose to
the answering affidavit on its behalf.
Mr Avvakoumides correctly referred to
section 74 of the Companies Act that does make provision for a
process such as this one; and
in the circumstances of this case, and
given the extremely unreasonable time periods imposed by the
applicant on the respondents,
one can hardly blame the respondents
for being remiss in not having been able to convene a properly
constituted Board meeting and
passing a Board resolution, but rather
by resorting to the e-mail correspondence referred to.
Quite obviously, the applicant, who is
the CEO and who is supported by the Chairman, Mr Seekoe -- who refers
to himself as Ambassador
Seekoe -- were not part of that meeting, as
the applicant, the CEO, is supported by the Chairman in this
application. Be that
as it may, the respondents, constituting a
majority of the Board members, did properly authorise the Company
Secretary to act on
their behalf and on behalf of NECSA.
Given that the respondents have been
brought to court on extremely short notice in what turned out to be a
baseless application
that has been withdrawn at the last minute, I
have no hesitation, in law and fairness, ordering the applicant to
pay the respondents’
costs.
ORDER
Therefore, I simply record that the
application is withdrawn and I order the applicant to pay the
respondents’ costs, including
the costs of two counsel.
STEENKAMP J
APPEARANCES
APPLICANT: A P Laka SC
Instructed by: Ramphele Attorneys.
RESPONDENTS: G T Avvakoumides (with
him Ms N R Choeu)
Instructed by: Selebogo Inc.
Date of Hearing: 25 FEBRUARY 2015
Date of Judgment: 25 FEBRUARY 2015
CERTIFICATE OF VERACITY
I, the undersigned, hereby certify
that, in as far as it is audible, the aforegoing is a VERBATIM
transcription of the proceedings
as was ordered to be transcribed by
iAfrica Transcriptions and which had been recorded by Digital Court
Recording Services by means
of a digital recorder.
In the matter between :
GOODLUCK PHUMZILE TSHELANE
Applicant
And
NECSA BOARD OF DIRECTORS Respondents
CASE NO: J353/2015
RECORDED AT: JOHANNESBURG Court:
Labour Court
Court Nr: Stenographer:
DATE OF HEARING: 25 FEBRUARY 2015
ORDER TO TRANSCRIBE: Transcribe
soundtrack as ordered
RECEIVED BY TRANSCRIBER ON: 18 MARCH
2015
COMPLETED BY TRANSCRIBER ON: 20
MARCH 2015
TRANSCRIBER: A G VAN STADEN
NUMBER OF PAGES: 7
Number of CDs: Sound via Internet:
Yes
PLEASE NOTE
1. Court stenographer’s
annotations incomplete.
2. Where no clear annotations are
furnished, names are transcribed phonetically.
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