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[2020] ZALCJHB 34
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Gauteng Tourism Authority v Nchabeleng and Others (JR2493/18) [2020] ZALCJHB 34 (14 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 2493/18
In the matter between:
GAUTENG
TOURISM AUTHORITY
Applicant
and
KOMANE
NCHABELENG
First Respondent
FEZILE
NGQOBE
Second
Respondent
KHEHLA
MTHEMBU
Third Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Fourth Respondent
Heard: 14
November 2019
Delivered:14
February 2020
JUDGMENT
TLHOTLHALEMAJE,
J
[1] The
applicant seeks a declaratory order that;
1.1
The second and third respondents acted
ultra vires
in
recommending and approving the splitting of the position of Company
Secretary as well as the offer of employment to the first
respondent
as Manager: Legal Support.
1.2
The Chairperson of the Board of Directors lacked the authority to
authorise
the splitting of the position of Company Legal Secretary
and to offer the first respondent the position of Manager: Legal
Support;
1.3
The offer of employment to the first respondent as Manager: Legal
Support was
unlawful and therefore null and void
ab initio
,
and thus such a decision be reviewed and set aside.
1.4
The probationary period of the first respondent as a Company
Secretary came
to an end in September 2017 by agreement between
the parties as well as envisaged in the Performance Management Policy
of
the applicant;
1.5
The fourth respondent (CCMA) not to set down the matter and/or
continue with
arbitration proceedings until the determination of the
current application.
[2]
The second respondent filed a notice to abide by the Court’s
decision
having also withdrawn his initial opposition to the
application. The third respondent had also withdrawn his opposition
to the
application and filed a notice to abide.
[3] The
background to this dispute as can be gleaned and summarised from the
applicant’s
founding affidavit is as follows.
3.1
The
applicant is a listed public entity body in Schedule 3 of the Public
Finance Management Act
[1]
. The
first respondent (Nchabeleng) was offered a contract of employment on
12 September 2016 as Company Secretary of
the applicant. He
had accepted the offer on 14 September 2016 and commenced
his duties on 1 October 2016. The
contract of employment
made provision for a three months’ probation period, and for
Nchabeleng to report to the applicant’s
Chief Executive Officer
and the Board.
3.2
On 17 October 2016, the applicant entered into a further
contract
of employment with Nchabeleng, which confirmed
inter
alia
, the three months’ probation period, and the
termination of the contract of employment at the applicant’s
discretion
if Nchabeleng’s work was not satisfactory at the end
of that probation period.
3.3
On 14 March 2017, some two months after the expiry of the
probation
period, the third respondent (Khehla Mthembu), who is the
erstwhile Chairman of the Board; the Deputy Chairman, (Dr Lulama
Zitha),
and the Chief Executive Officer (Sipho Ngwenya), conducted a
probation evaluation for Nchabeleng, after which he was allocated an
overall score of 47%. The accompanying general comments made by the
panel were not complimentary of Nchabeleng’s performance.
It
was noted
inter alia
that his learning potential was low; that
he may not be motivated going forward; he struggled with particular
complex and challenging
tasks associated with the position he
occupied, which might have long term impact as he took longer to
complete tasks; and that
his administration skills and competencies
did not meet the requirements of the position.
3.4
On 30 May 2017, Nchabeleng’s probation period was
accordingly
extended for another three months, effective from
1 June 2017 to 31 August 2017. This was as a
result of the
poor performance outcome of his probation assessment.
The panel further took a decision that a monthly probation assessment
would
be conducted over the extended three months by the second
respondent (Mr Fezile Ngqobe), who was the Executive in the CEO’s
office. Ngqobe was further delegated to develop a performance
contract with Nchabeleng. The Chairperson of the Board was also to
assess Nchabeleng based on Ngqobe’s report. Flowing from the
extension, a three months’ probation contract was then
signed
with Nchabeleng, which had specific deliverables and target dates.
3.5
On 18 September 2017, Ngqobe assessed Nchabeleng and
prepared a report
on 28 September 2017 which he forwarded
to the Chairman of the Board and the CEO. In the report it was
indicated that
Nchabeleng was asked to rate himself on the various
aspects of the job as per the performance contract, and was further
requested
to produce evidence in that regard. Having rated himself,
Nchabeleng subsequently met with Ngqobe, and the two of them agreed
and
noted that some deliverables were achieved, whilst others were
not. It was noted and agreed that Nchabeleng could not deliver on
tasks such as developing the applicant’s legal framework
policy, contract administration policy and charter by deadlines
set
for June and July 2017.
3.6
Ngqobe in his report agreed that Nchabeleng was lacking on the
administrative
support of the Board relating to minute taking and
other related matters pertaining to the Board administration. Ngqobe
further
agreed with Nchabeleng that there would be no extension of
the probation period, and that despite Nchabeleng lacking in certain
areas, he should be given an opportunity to grow within the legal
support function. In order to achieve that goal, Ngqobe with
Nchabeleng agreed that the current position of Company Secretary was
to be split into two functions,
viz
, Board Secretariat and
Legal Manager. HR was to be then directed to conduct a job evaluation
of the two positions as per the legislature
and relevant policies and
provide a report in that regard. Ngqobe accordingly forwarded these
recommendations to the Chairperson
of the Board, and further
recommended that Nchabeleng be appointed as Manager: Legal Support,
and to sign a new contract of employment
as well as performance
contract.
3.7
The recommendations were approved by the Chairperson of the Board on
29 September 2017.
A new Board of Directors was
subsequently appointed in October 2017. At a Board meeting held
on 31 October 2017,
the new Board took a resolution that
the submissions on the appointment of the Board Secretary should be
deferred to the Social
Ethics & Governance Committee, and noted
that the Company Secretary was moved to another position, and that a
Ms Motsileng
should provide secretariat support to the Board and its
committees.
3.8
The Board on 29 November 2017 discussed the performance of
Nchabeleng
as Company Secretary, and flowing therefrom, a performance
enquiry was held on 15 May 2018. The enquiry was
recommended
by a firm of attorneys (Solomon Holmes). The outcome of
the enquiry through its Chairperson (Adv. W Hutchinson), was
effectively
to confirm the agreement between Nchabeleng and Ngqobe to
split the position of Company Secretary into two, and to offer the
position
of Manager: Legal Support, to Nchabeleng, with his
commencement date being 1 October 2017.
3.9
The new Board subsequently sought and obtained legal opinion on the
issue of
Company Secretary as well as the approval of the
recommendations by the old Board. Legal opinion was obtained from
Counsel on 3 July 2018
and such an opinion was presented at
a special Board meeting of 13 July 2018. Flowing from that
legal opinion, the Board
took a resolution to issue a letter
informing Nchabeleng that it would not give effect to the decision of
the erstwhile Chairperson
of the Board to split the position of
Company Secretary into two, and to offer him the position of Manager:
Legal Secretary, without
following recruitment processes.
3.10
Upon receipt of the letter, Nchabeleng referred a dispute to the CCMA
on 8 August 2018
alleging that his unfair dismissal that
took place on 30 July 2018
[4] In
his answering affidavit, Nchabeleng raised various preliminary
points, including that;
4.1
The application was defective in that it was late in view of the
recommendations
of the Chairperson of the Board having been made on
13 October 2017. The application was however only brought
on 20 November 2018,
and no reasons for the delay were
furnished.
4.2
The Court lacks jurisdiction to determine the dispute since the
recommendations
sought to be reviewed and set aside was approved by
the Board which had the power to do so.
4.3
The review
sought is governed by the Promotion of Administrative Justice Act,
[2]
and ought to have been
brought under Rule 53 of the Uniform Rules of Court
[5] In
respect of the merits of the application, Nchabeleng contended that;
5.1
Despite the recommendations to split the position of Company
Secretary into
two, he was never appointed as Manager: Legal Support,
and was never presented with such an offer.
5.2
His probation period came to an end on the last day of August 2017,
and
his contract of employment as Company Secretary was terminated on
31 July 2018 in terms of a letter he had received on
30 July 2018. The termination of his contract as Company
Secretary was the subject of the referral of his dispute to
the CCMA.
5.3
He denied having signed a probation agreement or having failed to
perform as
alleged by the applicant.
5.4
In February 2018, and following a performance enquiry, the Board
had resolved
to disapprove the recommendation to split the position
of Company Secretary into two, and therefore the recommendations by
the
Chairperson of the Board to split the position of Company
Secretary had no consequence having been reviewed and set aside by
the
new Board.
[6]
In the replying affidavit, the applicant conceded that Nchabeleng
could
not have been appointed to a position that did not exist, and
that the new Board never approved his appointment to the non-existing
position of Manager; Legal Support. It nonetheless contended that the
reason for this application was also the agreement reached
between
Nchabeleng and Ngqobe during the performance enquiry of May 2018,
which created the position of Manager: Legal Support
with effect from
1 October 2017.
[7]
It needs to be said at the onset that there are several worrying
features
about this application which on the common cause facts,
raises questions about the practical effect of the order sought by
the
applicant. The fact that Nchabeleng did not oppose orders sought
under sub-paragraphs 1.1 – 1.3 of the Notice of Motion does
not
imply that they ought to be automatically granted. It is in this
regard that I do not even consider it necessary to determine
the
preliminary points raised by or on behalf of Nchabeleng.
[8]
A significant portion of the parties’ submissions and averments
pertained to issues surrounding Nchabeleng’s alleged poor
performance, and to the extent that those issues are matters to
be
ventilated at arbitration, it is not necessary for this Court to be
burdened with them.
[9]
In my view, central to the determination of this application is
whether
the decision to split the position of Company Secretary into
two was given effect for the purposes of this review application. In
this regard, it becomes irrelevant in my view, as to whether it was
Ngqobe and/or Mthembu that had taken the decision to split
the
position. Equally irrelevant is the agreement entered into between
Nchabeleng and Ngqobe to split the position of Company Secretary
and
to offer him the position of Manager: Legal Support, which agreement
was confirmed in the performance enquiry report of Adv.
Hutchinson.
That agreement was in a form of recommendations which the old Board
had to consider, and had a non-binding effect.
[10]
In any event, from the applicant’s own averments, it is
apparent that Ngqobe’s
role was merely to make recommendations
flowing from the performance assessment, and it was Mthembu as the
Chairperson of the Board
that had approved
the
recommendations on 29 September 2017. Ngqobe’s role
therefore to the extent that he was delegated to performance
assess
Nchabeleng and his recommendations in that regard cannot be equated
to a decision subject to a review.
[11]
A second consideration is that on the applicant’s own version,
and flowing from the
performance enquiry and Adv. Hutchinson’s
report, the new Board took a resolution to issue a letter on
30 July 2018
informing Nchabeleng that the resolution of
the old Board to split the position of Company Secretary was unlawful
and would not
be given effect to. In effect the new Board overturned
the resolution/decision of the old Board to split the position into
two
and to offer Nchabeleng the non-existing position of Manager;
Legal Support. The decision equally nullified any agreement between
Nchabeleng and Ngqobe as rubber-stamped by Adv. Hutchinson. In effect
the decision taken by Mthembu whether as an individual or
as part of
the Board of Directors is for all intents and purposes, a nullity.
[12]
Nchabeleng has not challenged the new Board’s resolution not to
implement the split
in the position of Company Secretary and to
appoint him in the non-existing position of Manager: Legal Support,
nor has he indicated
any inclination to do so in view of the
substance of his case before the CCMA. Furthermore, his case before
the CCMA is to challenge
the fairness of his dismissal as Company
Secretary, and I did not understand his case, before the CCMA that he
had laid claim to
the position of Manager: Legal Support.
[13]
It was correctly pointed out on Nchabeleng’s behalf that what
the applicant seeks
to do is to review its own decision. It is
ordinarily permissible for the applicant to do so especially in
circumstances where
the impugned decisions may be considered unlawful
or where it is in conflict with statutory requirements. It is however
doubted
that any purpose would be served with such an approach, in
circumstances where the very same decision sought to be reviewed, was
not in any event implemented nor given effect to by a new Board as in
this case, or where Nchabeleng has not challenged the resolution
or
decision of the new Board not to implement the recommendations of
Ngqobe as approved by Mthembu, or where there is no discernible
prejudice, or threat of prejudice to the applicant
as a consequence of the impugned decision.
[14]
Any doubts about lack of any threats of prejudice to the applicant as
a consequence of
Mthembu’s approval of Ngqobe’s
recommendations are put to rest by Nchabeleng’s own version
that he was never
offered, nor did he take up the non-existing
position of Manager: Legal Support. This is notwithstanding the
Hutchinson’s
report of May 2018 that there was an
agreement that he would be offered such a position with effect from
1 October 2017.
[15]
In summary, the impugned decision or approval of Mthembu of the
recommendations to split
the position of Company Secretary into two,
and to offer Nchabeleng a non-existing position has effectively been
superseded by
the subsequent decision of the new Board not to
implement it. Even if it was argued that the original decision is
still standing,
that decision is of little or no relevance at all to
the resolution of a dispute between the parties that is currently
before the
CCMA.
[16]
It follows that any order to declare that Ngqobe and Mthembu acted
ultra vires
in recommending and approving the splitting of the
position of Company Secretary and further to offer the position of
Manager:
Legal Support to Nchabeleng, is clearly academic on the
basis that on the facts before the Court, it is apparent that Ngqobe
did
not take any decision that can be said to be subject to a review
by this Court and furthermore, the decision of Mthembu is effectively
a nullity following from the resolution of the new Board not to
approve and implement it. Equally so, the question as to when
Nchabeleng’s probationary period as Company Secretary came to
an end is an issue to be ventilated before the CCMA. In any
event, on
his own version, his probationary period came to an end at the end of
August 2017.
[17]
It follows in the light of the above conclusions that the application
ought to be dismissed,
and there is no reason either in law or
fairness, why Nchabeleng should not be entitled to the costs of this
application.
[18] Accordingly,
the following order is made;
Order:
1. The applicant’s
application is dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. SB Nhlapo, instructed by the
State Attorney.
For
the First Respondent: Adv. KG Mapotse, instructed by PJ Mathebula
Attorneys
[1]
Act
1 of 1999
[2]
Act
3 of 2000