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[2015] ZALCJHB 418
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National Gambling Board v Manuel (JR1150/15) [2015] ZALCJHB 418 (1 December 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no:
JR 1150/15
Not Reportable
In the matter between:
NATIONAL GAMBLING
BOARD
Applicant
and
S
M
MANUEL
Respondent
Heard:
16 October 2015
Delivered:
01 December 2015
JUDGMENT
BOYCE, AJ
Introduction
[1]
The applicant has launched
an application in this Court for the following relief:
‘
1.
Reviewing and setting aside the applicant’s decision to appoint
the respondent
as a Stakeholder Manager on 21 August 2014.
2.
Setting aside the contract of employment concluded between the
applicant and
the respondent on 29 January 2015.
3.
Costs of the application, including the costs of two counsel, in the
event of
the application being opposed.’
[2]
The deponent to the
founding affidavit of the applicant is Caroline Kongwa who is the
Accounting Authority and Administrator of
the applicant, appointed as
such by the Minister of Trade and Industry.
[3]
The application before me
is predicated on the applicant’s averments that the
respondent’s appointment and subsequent
employment contract
were preceded by numerous irregularities pertaining to the
respondent’s appointment and fraudulent misrepresentations
by
him, which induced the applicant to conclude the employment contract
in question.
[4]
Although paragraph
3.4 of the respondent’s answering affidavit states that the
Labour Court does not have jurisdiction to
determine the applicant’s
application, this point was (wisely in my view) abandoned by the
respondent at the hearing of the
matter. The parties were,
accordingly,
ad idem
that this Court has the necessary jurisdiction to determine the
application and, if a case is made out, to grant the relief sought.
[5]
The abovementioned
irregularities and misrepresentations which preceded the respondent’s
appointment as the Stakeholder Manager
and the conclusion of the
contract of employment are clearly set out in the applicant’s
founding affidavit. The respondent’s
answering affidavit (which
responds to most of the allegations in the founding affidavit with
the statement: The contents of these
paragraphs are noted) states
very little besides raising a number of points
in
limine
. What I was,
consequently, left with
apropos
the alleged irregularities and misrepresentations was the following:
‘
1.
The respondent did not timeously or at all submit an application to
be appointed to
the post of Stakeholder Manager.
2.
Despite the respondent’s failure to apply for the post, the
acting Chief
Executive Officer (CEO) at the time, Miss Muzwayine,
prevailed upon the HR practitioner, Miss Ntshaba, and the
respondent’s
name was included in the shortlist for the post.
3.
The shortlist for the post recorded incorrectly that,
inter alia
,
the respondent had the following educational qualifications and
experience:
3.1
B Com Degree – UNISA (current);
3.2
Diploma in Senior Management Programme – University of
Pretoria;
3.3
13 years relevant experience.
4.
According to the respondent’s
Curriculum Vitae
(CV),
which was e-mailed to the applicant by Muzwayine, the respondent
falsely represented therein that he had been awarded a Diploma
in
“Senior Management Programme” by the University of
Pretoria.
5.
The respondent did not meet the following requirements for the post
which are
pertinently set out in the advertisement for the post:
5.1
AB Degree or equivalent from an accredited and reputable institution
(SAQA)”;
5.2
At least 5 years appropriate experience in management position and in
similar position.’
[6]
The respondent’s
answering affidavit states, in response to the applicant’s
averments that the respondent “fraudulently
represented”
in his CV that he had a Diploma in Senior Management Programme from
the University of Pretoria, that he did
not have five years
appropriate experience in a management position:
‘
The
contents of this paragraph is denied in that the issue of the Diploma
and the Certificate was clarified during the interview
and
furthermore the respondent will stand by the questions and answers
which were raised during the interview.’
[7]
The respondent’s
answering affidavit states, in response to the averment in paragraph
31 of the founding affidavit that paragraph
6.16 of the Recruitment
and Selection Policy provides for termination of an employment
contract where the employee fails to disclose
critical information or
where serious irregularities rendering the employee unfit for
appointment are revealed, that:
‘
The
contents of this paragraph is denied in that the respondent is not
aware of any critical information that he failed to disclose
and
which resulted in serious irregularities.’
[8]
In response to the
averment in the founding affidavit that the respondent’s
appointment and employment contract ought to be
reviewed and set
aside as a result of the “irregularities, improprieties and
illegalities”, the respondent states in
the answering
affidavit:
‘
1.
It is the duty of the applicant to do a proper diligence on the
appointment of its
employees;
2.
The applicant ought to have foreseen from the beginning especially
from the record
of the interview proceedings in that the allegations
as stated in this application are true and she ought not to have
concluded
a contract of employment with the respondent.’
[9]
Faced with numerous
allegations of material irregularities and misrepresentations
concerning his appointment and employment contract,
most of which
were unchallenged by the respondent, the respondent chose to raise
the following points
in
limine
:
‘
1.
Notice of motion is defective;
2.
Misjoinder;
3.
Locus standi
;
4.
Jurisdiction;
5.
Conflict of interest.’
[10]
As stated above, the
respondent abandoned the point
in
limine
pertaining to
“jurisdiction”. The remaining points
in
limine
should, in my
view, have also been abandoned as they were spurious and entirely
without merit. The said points
in
limine
are considered
seriatim below:
‘
1.
Notice of motion is defective: The erroneous reference, in the
founding affidavit,
to Rule 7A (1) (b) instead of Rule 7A (8) (b)
obviously does not render the notice of motion defective.
2.
Misjoinder: The “interviewing panel” which interviewed
applicants
for the post of Stakeholder Manager was comprised of
individuals employed by the applicant, and it is simply absurd to
contend
that the “interviewing panel” ought to have been
joined as a party in the application.
3.
Locus
standi
:
The respondent’s submission that the deponent to the
applicant’s founding affidavit (Caroline Kongwa) is “not
authorized to bring this application on behalf of the applicant”
is clearly without substance. Kongwa states in paragraph
1.2 of the
founding affidavit that she is “the Accounting Authority and
Administrator of the National Gambling Board (NGB)
appointed as such
by the Minster of Trade and Industry”, and this is,
significantly, admitted by the respondent in his answering
affidavit.
4.
Conflict
of interest: The fact that Kongwa signed the employment contract (in
her capacity as a co-administrator of the applicant
at the time) and
she is also the deponent to the founding affidavit (in her capacity
as the Accounting Authority and Administrator
of the applicant) does
not, by any stretch of the imagination, create a conflict of
interests. Kongwa acted in her capacity as
the Administrator of the
applicant when she signed the respondent’s employment contract
and when she deposed to the founding
affidavit, and she never
purported to act as the employer of the respondent, or as the
applicant itself in the present matter.
The point
in
limine
pertaining to “conflict of interest” was, consequently,
devoid of substance.’
[11]
Having regard to
the aforegoing, overwhelming evidence that the respondent’s
appointment as a Stakeholder Manager and the
conclusion of his
employment contract were preceded by material irregularities and
misrepresentations, it is plain that both his
appointment and
employment contract are illegal and fall to be set aside.
Section
77(3)
of the
Basic Conditions of Employment Act 75 of 1997
provides
that the Labour Court has concurrent jurisdiction with the civil
courts to hear and determine any matter concerning a
contract of
employment. The present application undoubtedly concerns a contract
of employment and this Court, accordingly, has
the necessary
jurisdiction to determine the matter. The Labour Court, moreover,
has, in addition to its other powers set out in
Section 158 of the
Labour Relations Act 66 of 1995 (the LRA), the power to “review
any decision taken or any act performed
by the State in its capacity
as employer, on such grounds as are permissible in law” (
vide
Section 158 (1) (h) of the LRA). The applicant, having been
established as a juristic person by the
National Gambling Act 33 of
1996
and having been retained as such in terms of
Section 64
of the
National Gambling Act No. 7 of 2004
, is considered to be an Organ of
State and its decisions or acts, in its capacity as an employer, may,
therefore, be reviewed on
grounds permissible in law in terms of
Section 158(1)(h)
of the LRA.
[12]
Besides the
abovementioned legislation, which clearly makes provision in certain
circumstances for the review and/or setting aside
of an appointment
and/or contract of employment, it is also significant that the
applicant’s Recruitment and Selection Policy
makes specific
provision for the termination of an employee’s employment
contract where there has been serious irregularities
or a failure to
disclose information. Paragraph 6.16 of the Recruitment and Selection
Policy aforementioned states,
inter
alia
:
‘
The
Board reserves the right to disqualify the candidate’s
application and/or terminate the employee’s services where
the
employee failed to disclose critical information to the Board or
where serious irregularities which render the candidate unfit
for
appointment are revealed.’
Costs
[13]
The applicant was
represented, at the application
in
casu
, by two counsel
and its notice of motion sought for the respondent to be ordered to
pay the costs of the application including
costs of two counsel only
(
my emphasis
)
in the event of opposition thereof. Despite being acutely aware that
his appointment and employment contract were preceded by
serious
irregularities, misrepresentations and having little more than a few
spurious points
in
limine
to raise in
order to attempt to oppose the relief sought by the applicant, the
respondent nevertheless opposed the application
which had been
launched by the applicant. This decision was ill-considered in the
extreme and there is no reason why costs should
not follow the
result.
[14]
In the premises, the
following order is made:
1.
The decision by the
applicant dated 21 August 2014 to appoint the respondent as a
Stakeholder Manager is reviewed and set aside;
2.
The contract of employment
concluded between the applicant and the respondent on 29 January 2015
is set aside;
3.
The respondent is ordered
to pay the costs of the application, including the costs consequent
upon the engagement of two counsel.
________________
Boyce, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant:
Advocate
DT Skosana SC and Advocate N Gwala
Instructed by:
The State Attorney
For the Respondent:
Advocate O Mabaso
Instructed
by:
Mthembu Sibiya attorneys