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JUDGMENT
H. E JUSTICE FREDERICK MWITA WEREMA DELIVERED THE JUDGMENT
[1] The facts of this case are not in dispute. Nevertheless, for
comprehension, clarity and the record, we have deemed it fit to state them
in some detail.
[2] The applicant, Mr. Ernest Francis Mtingwi, is a citizen of the Republic
of Malawi. The Republic of Malawi is a Member State of the Southern African
Development Community (SADC), which is an economic regional block currently
composed of fourteen Members States. Its headquarters are in Gaborone, in
the Republic of Botswana. Its objectives are stated in Article 5 of the
Treaty of the SADC. They include trade cooperation through elimination of
tariffs and non tariff barriers, harmonization of trade policies, promotion
of free movement of capital and labour; goods and services; and free
movement of people within the region. The objectives target the
establishment of a regional economic community, which thus require human
resource in the implementation of these objectives.
[3] Article 14 of the Treaty establishes the respondent as the principal
executive institution of the Community. The Article confers responsibilities
and duties which include strategic planning and management of the programmes
of the Community. Thus, in order to execute these responsibilities and
duties, the respondent has powers to recruit staff under the terms and
conditions as determined by the Council of Ministers.
[4] Pursuant to these powers, in 2005 the respondent advertised for the post
of Senior Programme Manager, Customs Cooperation and Modernization. The 24th
of June 2005 was indicated in the advertisement as the closing date. The
successful candidate was to assume duties on 1st September 2005.
[5] The applicant responded to the advertisement and was called for an
interview in Gaborone on 2nd November 2005. He was successful. By a letter
dated 1st December 2005, the respondent offered him the employment. He was
advised that the letter, together with the SADC Administration Rules and
Procedures Handbook, constituted the contract of employment. He was further
advised that the respondent was anxious to have the position filled by 1st
January 2006, at the very latest.
[6] The applicant responded to the offer by signing on the letter of offer
and forwarding it together his own letter dated 20th February 2006, in which
he indicated that he had not received the original letter, which he
understood to have been sent by registered post. He further informed the
respondent that he was ready to report for duties on 6th March 2006 and
requested for an air ticket and financial assistance for his initial
settlement costs in Gaborone. In response to his request, a PTA ticket was
sent to him by the respondent showing his confirmed flights on 5th March
2005 from Lilongwe to Gaborone through Johannesburg. The other information
availed to him was about accommodation in Gaborone.
[7] There was no further communication between the parties until 5th April
2006 when the applicant sent an electronic mail to the respondent which read,
in part, as follows:
"I already informed you that I was preparing to report to the SADC
secretariat in Gaborone. I was SUDDENLY CHARGED WITH THE OFFENCE OF LYING
UNDER OATH IN A COURT OF LAW... I appeared in court on Tuesday 21st March
2006 where I pleaded not
guilty to the charge of perjury...I suggest that I come to Gaborone on
Sunday 16th April 2006 I then will report to the secretariat on Monday 17th
April 2006... "
[8] There was no response to this communication. The communication was
followed with another letter dated 21st April 2006, which referred to the
letter of offer dated 1st December 2005, and requested for permission to
report for duties on 7th May 2006.
[9] Meanwhile, by a letter dated 6th April 2006 the Government of the
Republic of Malawi wrote to the respondent. The letter read, in part, as
follows:
"We would like to formally withdraw Mr. Mtingwi's candidature for any
possible consideration for the position in question and the use of quota
points for Malawi.
I hope your good offices will take the initiative to reflect and abide by
Malawi's latest position in your decision... "
[10] By its letter dated 29th May 2006, the respondent notified the
applicant of its wish to abide by the decision of the government of the
Republic of Malawi and advised him that it could not employ him against the
will of the Government of the Republic of Malawi.
[11] The applicant was aggrieved by the respondent's decision and as a
result commenced the present proceedings, contending that the termination of
his employment was unlawful and unfair. The contention was based on the
following grounds:
(a) that the decision violates principles of natural justice because the
applicant was not accorded the opportunity to be heard and that no reasons
were given for the termination;
(b) that the respondent had no obligation to abide by the decision made by
the Government of the Republic of Malawi and that both that decision and
respondent's decision were illegal, arbitrary, capricious, unreasonable,
made in bad faith, and therefore ultra vires and void ab initio; and
(c) that the respondent's decision constitutes unfair industrial or labour
practices under the International Labour Organization (ILO), Termination of
Employment Convention, 1982.
[12] Upon these grounds, the applicant seeks the following orders or
declarations against the respondent:
(a) an order or declaration that the decision of the respondent terminating
the employment of the applicant was done in breach of the rules of natural
justice;
(b) an order or declaration that the respondent's impugned decision is
contrary to the applicants' legitimate expectation;
(c) an order that the respondent's decision is illegal, arbitrary,
capricious, unreasonable, made in bad faith and therefore ultra vires and
void ab initio;
(d) an order or declaration that the applicant is still the Senior Programme
Manager, Customs Cooperation and Modernisation of the Community;
(e) an order or declaration of reinstatement of the applicant in the post of
the Senior Programme Manager, Customs Cooperation and Modernisation or in
the alternative;
(f) punitive and/or exemplary damages for breach of contract or in the
alternative ;
(g) compensation covering non-taxable salary, gratuity, encashment of fringe
benefits plus emoluments which the applicant would have earned during the
four year contract period;
(h) further or any other relief as the Tribunal may deem fit and necessary;
and, finally
(i) costs.
[13] The respondent opposes this application. It denies any wrongdoing or
liability. It has instead made a counter claim relating to costs incurred by
it on account of the applicant's failure to report for duty, the PTA related
expenses, delay in the implementation of customs programmes and the costs
for the hiring of a new candidate to replace the applicant. The respondent
has invoked the principle of promissory estoppel on the basis that the
applicant breached his promise to report for duty which the respondent
relied on to its detriment.
[14] The applicant contests the counter claim arguing that he was prevented
from reporting for duty because of an unforeseen event. This event was a
criminal charge against him in Malawi. He argues that the unforeseen events
did not arise out of his negligence and that in any event he quickly
informed the respondent about the event. As a result, the respondent ought
to have made contingency plans to deal with unforeseen events and
emergencies. This is all about the counter claim.
[15] Other than the counter-claim, the respondent concedes that there was an
offer of employment which it made to the applicant. It, however, contends
that the offer was conditional on Rule 14.2.6 of the SADC Administration
Rules and Procedures Handbook as revised in 2000, among other conditions.
The Rule reads, in part, as follows:
"The appointment shall take effect from the date of arrival in the country
where the duty station is located, in the case of employees in regional
posts. For local staff, the appointment shall take effect from the date of
commencement of work."
[16] In essence, the respondent argues that for the contract to become
effective, the applicant's physical presence in Gaborone, where his working
station was located, was necessary. On the other hand, the applicant
contended that the respondent cannot rely on the Rule because the respondent
acquiesced in his late assumption of duties. In his view, his absence or
lack of physical presence at the duty station did not give the respondent
unfettered power to terminate his contract of employment.
[17] That is, to the extent we have demonstrated, the position of the
parties on this matter.
[18] We have considered all the circumstances of this case and are satisfied
that we have jurisdiction to entertain the matter in terms of Article 18 of
the Protocol and Rules of Procedures, which provides that:
"Subject to the provisions of Article 14 of this Protocol the Tribunal shall
have exclusive jurisdiction over all disputes between natural or legal
persons and the Community. Such disputes may be referred to the Tribunal
either by the natural or legal person concerned or by the competent
institution or organ of the Community. "
[19] Based on the above facts and submissions, we have identified the
following issues for determination:
(a) whether there was a contract of employment between the parties;
(b) whether the respondent unlawfully terminated the contract; and
(c) whether the remedies sought are available to the parties.
[20] We are of the considered opinion that we must first decide whether
there was a contract of employment between the parties because we are
mindful that the other issues may only arise if this issue is resolved in
the affirmative.
[21] Eminent jurists in the area of labour law have described a contract of
employment to include the following:
(a) an agreement in terms of which one person (the employee) works for
another (the employer) in exchange for remuneration;
(b) a mutual agreement in terms of which one person (the employee) for
remuneration, makes his personal services available to another person (employer),
in such a manner that the former occupies a subordinate position towards the
latter;
(c) a reciprocal contract in terms of which an employee places his services
at the disposal of another person or organization, as employer, at a
determined or determinable remuneration in such a way that the employer is
clothed with authority over the employee and exercises supervision regarding
the rendering of his services;[FN 1]
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[FN 1] SR Van Jaarsveld, JD Fourie & MP Oliver: (LexisNexis series);
PRINCIPLES AND PRACTISE OF LABOUR LAW (June 2007)
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[22] The common denominator of all these concepts is that there must be an
agreement by which the employee must make his services available to the
employer for a determined period and that the employer must provide
remuneration. The agreement to render services and to remunerate for the
services rendered is central to a contract of employment. We also observe
that control of an employee by an employer through supervision is a
requirement in a relationship between an employee and employer. These are
reciprocal obligations which are necessary in any effective contract of
employment. With this in mind, the question arises whether it can be
concluded in the present case that a contract of employment existed between
the applicant and the respondent.
[23] The applicant's case is that there was a contract of employment between
him and the respondent on the basis of the offer contained in the letter
dated 1st December 2005, which he accepted. The respondent contends that the
relationship between it and the applicant could be described as a promise by
the applicant or a pre-contract to conclude a future contract. We have
examined this letter and are satisfied that it sufficiently demonstrates an
offer and acceptance of employment, but subject to other future events such
as those contained in Rule 14.2.6 of the Handbook. In the circumstances, it
seems to us that this was a conditional contract of employment in terms of
which the applicant was to report at the duty station to make it effective.
[24] The applicant did not report for duty on the date he had himself
indicated and only notified the respondent on 5th April 2006 that he was
charged with a criminal case in Malawi which prevented him from reporting
for duty on 6th March 2006 as he had himself volunteered. We notice from the
communication that his appearance in court was on 21st March 2006. But the
applicant was not remanded or detained in custody in Malawi. We were not
shown any order restraining him from traveling outside the Republic of
Malawi. The applicant had the opportunity to travel to Gaborone which he did
not do. In our view this is inexcusable.
[25] The applicant's agent argued that the provisions in the Rule only apply
to reckon time of commencement of the contract. His view is that we should
not impose new terms on the contract or go beyond the spirit of its letter.
With due respect to learned Counsel, we do not agree with this contention
because it is inconsistent with the clear and unambiguous provisions of Rule
14.2.6.
[26] As a matter of law and practice, a contract of employment is not merely
signified by a communication of offer by an employer and acceptance by an
employee. Other reciprocal obligations by the parties must be demonstrated
to make such a contract effective as we have indicated earlier. The alleged
contract of employment in the present case did not take effect on account of
failure by the applicant to report at the duty station. We agree with the
respondent that the applicant was still a candidate as long as he did not
report at the duty station for commencement of duties. As a candidate,
therefore, he was neither an employee nor a staff member of the respondent.
Consequently, he was not entitled to the rights that accrue to employees or
staff of the respondent under the Treaty and other instruments made
thereunder. Naturally, conventional rights available to employees under
International Labour Organization, Termination of Employment Convention,
1982 cannot apply to a person who is not an employee, as was the applicant.
[27] We have considered the counter claim. The respondent has not
demonstrated any tangible loss on its part. The counter claim is not
supported by evidence and therefore it fails.
[28] Having answered the issue whether or not there was a contract of
employment between the parties in the negative, it is unnecessary to
consider the remaining issues. They do not arise.
[29] The application, therefore, fails and is hereby dismissed.
We make no order as to costs.
Delivered in open Court this 27th Day of May, 2008 at Windhoek in the
Republic of Namibia
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