DELIVERED BY THE PRESIDENT OF THE TRIBUNAL H.E. JUSTICE A.G. PILLAY.
 The Applicant was employed by the Respondent in the position of Head of
Policy and Strategic Planning. The dispute between the parties is about the
terms and conditions of the contract of employment. The Applicant alleges
that the Respondent is in breach of the contract by, among other things, its
unlawful, improper and unjustifiable refusal to extend the Applicant’s
contract of employment, its discriminatory and unfair treatment of the
Applicant and by its unilateral imposition of unfair contractual terms.
 We think it pertinent to point out at the outset that on October 21,
2009 the Tribunal made an order restraining the Respondent from taking any
steps to the detriment of the Applicant as follows:
“1. Respondent is restrained and prohibited from advertising for possible
recruitment the position of Director: Policy, Planning and Resource
2. Respondent is restrained and prohibited from recruiting and filling the
position of Director: Policy, Planning and Resource Mobilization within the
SADC Secretariat and which is currently held by the Applicant;
3. Orders 1 and 2 shall prevail pending the hearing and determination of the
4. Respondent is compelled and directed to retain Applicant in its employ
after 31 December 2009 should the main application not be determined by that
5. The Tribunal awards no costs to the Applicant as there are no exceptional
circumstances shown.” – vide Angelo Mondlane v SADC Secretariat Case No SADC
 On or about November 11, 2005 the parties entered into a contract of
employment. The contract was contained in the letter of offer dated November
09, 2005 (Doc. AM1). The Applicant accepted the offer by appending his
signature thereto on November 11, 2005; he commenced work on January 01,
2006. The letter of offer, among other things, stipulated thus:
“This letter, together with the SADC Administration Rules and Procedures
Handbook, constitute your contract of employment.”
 Clause 15.3.5 of the Handbook concerns Regional Posts; there is no
dispute that the position occupied by the Applicant is one such post. The
“An employee in a Regional Post shall inform the Head of the Institution, in
writing, whether he/she wishes to be considered for a further term of office,
not less than six months before the expiration of his/her contract or
secondment. In the event that he/she wishes to be considered for a further
term, the Head of Institution shall inform the officer, in writing not less
than four months before the expiration of his/her contract, whether it is
the intention of the Institution to renew his/her contract.”
 It seems it is an established practice that an employee of the
Respondent who desires to renew his contract of employment is entitled to do
so for a second and final term of four years, if his performance has been
 In terms of the organizational structure the Applicant, at the time of
his appointment, was immediately below the Executive Secretary of the
Respondent (the Executive Secretary); in other words, he reported directly
to the Executive Secretary.
 During the period between 2006 and 2008, a Job Evaluation exercise was
carried out within the Respondent. The purpose of the exercise was, among
other things, to determine a new organizational structure of the Respondent,
and job specifications, descriptions and grading. The position held by the
applicant, following the exercise, became or changed to that of Director:
Policy, Planning and Resource Mobilization.
 During the course of the exercise, a skills audit of the Respondent’s
staff was also carried out with a view to assessing the suitability of the
existing staff for the new organizational structure.
 By a letter dated December 12, 2008 (Doc. AM 3), the Executive Secretary
informed the Applicant as follows:
“Dear Dr. Mondlane
Migration into new SADC Secretariat Structure
Following the result of the Skills Audit, I am pleased to inform you that
you have been appointed as Director: Policy and Planning – Personal to
Holder (the underlining is ours).
Your new job grade will be 3 (46,145 x 910 – 51,605) and your Salary will be
….. All other benefits and conditions of your contract remain unchanged.
This change is with effect from October 1st, 2008.”
 In or about February 2009, the SADC Council of Ministers (Council)
resolved to appoint the Applicant, to the position of acting Director of
Policy, Planning and Resource Mobilization, which it regarded as newly
created, following the Job Evaluation exercise above mentioned, up to
December 31, 2009. We shall elaborate on this issue later. It is observed at
this stage that this is the post to which the Applicant had already been
appointed in a substantive capacity through the letter dated December 12,
2008 (Doc. AM 3). It is noteworthy that this is the first time that this
position is being described as a newly created post. It is further observed
that the effect of the resolution was to have ended the Applicant’s contract
of employment on December 31, 2009, without the Applicant having been
accorded the right of renewal of his contract for a second and final period
of four years.
 It is in these circumstances that we should consider whether:
1. (a) the appointment of the Applicant by the Executive Secretary in
December 2008 (Doc. AM 3) was valid or was ultra vires the powers of Council
to determine the terms and conditions of the Respondent’s staff, as
contended by the Agent of the Respondent, and
(b) the resolution of Council in February 2009 appointing the Applicant as
acting Director of Policy, Planning and Resource Mobilization until 31
December 2009 for that “newly created position” (paragraph 5.8.3 (ii) of
Annex I) was valid or constitutes, as submitted by learned Counsel for the
Applicant, an unlawful and unjustified demotion;
2. the position of Director (Policy, Planning and Resource Mobilization) is
a newly created post or is it the same as that previously held by the
3. the contract of employment between the parties is that concluded on
November 11, 2005 or not;
4. the Applicant was ever appointed in an acting position; and
5. the Respondent is in breach of its contractual obligations towards the
 During the course of 2006-2008 a Job Evaluation exercise, as indicated
already, was carried out within the Respondent, the purpose of which, among
other matters, was the determination of a new organizational structure for
the Respondent, job specifications, descriptions and grading. In the course
of this exercise, a skills audit of the Respondent’s existing staff was also
undertaken, the purpose of which was to facilitate the migration of the
existing staff members into the new organizational structure. New posts were
created and there was also a change in the nomenclature of some of the
existing posts within the Respondent.
 Whereas in the old structure the Applicant held the post of Head of
Policy and Strategic Planning, in the new one he occupied that of Director
of Policy, Planning and Resource Mobilization. Doc. AM3 confirmed in its
heading that the Applicant’s post was a migration into the New SADC
Secretariat Structure and that, following the results of the skills audit,
the Applicant, who had achieved a 80% proficiency evaluation score had been
appointed as “Director of Policy and Planning, Personal to Holder”, as from
1 October 2008, with all other benefits and conditions of his original
contract of November 2005, (Doc. AM 1) remaining unchanged.
 In terms of the original contract of November 2005 (Doc. AM1), the SADC
Administration Rules and Procedures Handbook forms part of the contract of
employment concluded by the Applicant with the Respondent, as mentioned
 At this stage reference may be usefully made to the following facts:
1. At the meeting of Council in Lusaka, Zambia in November 2007, Council
reviewed the Job Evaluation exercise and decided that the functions of the
Strategic Advisor should be fused in a Unit under one of the Deputy
Executive Secretaries and that two new additional posts were to be created,
a second position of Deputy Executive Secretary and the creation of a
position of Director Human Resources (Doc. AM10).
The Report of the Executive Secretary on the Implementation of the Job
Evaluation (Doc. AM11) subsequently sets out the three new posts, with their
functions, skills and experience profile, namely Deputy Executive Secretary
(Regional Integration), Deputy Executive Secretary (Finance and
Administration) and Director (Human Resources and Administration). The
report also highlights the fact that the respondent will adhere to the quota
system and gender representation “before any recruitment of personnel in the
new structure” is made (paragraph 2.1.20 (a) and the emphasis is ours).
As for “the skills audit of the existing staff members to determine the
suitability of translating to new ranks and positions in the proposed
structure”, the Report in paragraph 2.1.25 states as follows:
“In the event that some positions within the organization are no longer
required, rendering current incumbents redundant, or the individual does not
have the requisite skills needed for the job the following alternatives are
Apply the Personal to Holder principle in the event that the staff member
occupies a position whose grade is lower than the grade the staff member
currently occupies” (the underlining is ours).
 We have deliberately mentioned this paragraph of the Report just to
show that it is not in any respect applicable to the Applicant, least of all
the Personal to Holder principle, so that we are at a loss to understand why
it was mentioned in Doc. AM3.
3. The SADC Troika considered Doc. AM11 at its meeting of February 2008 in
Pretoria, South Africa and approved, inter alia, the three new posts and the
skills audit of the existing staff members (Doc. AM12).
4. Council, at its meeting, in February 2008 in Lusaka, Zambia approved the
decisions of the Troika (Doc. AM13). In the Management Structure, there were
only three new posts, namely, Deputy Executive Secretary (Regional
Integration), Deputy Executive Secretary (Finance and Administration) and
Director (Human Resources and Administration).
5. Council at its meeting in August 2008, in Sandton, South Africa noted
that the SADC Treaty must be amended to accommodate the recruitment of a
second Deputy Executive Secretary and that, if that position were approved
by Summit, “this post would be advertised immediately, in line with the
quota system and ensuring gender balance”.
Council also mentioned that the Job Evaluation exercise had resulted in the
creation of new positions as well as the downgrading, upgrading and
standardization of nomenclature of other positions. “All staff would be
assessed through the skills audit to determine their suitability or
non-suitability vis-à-vis those positions on the new structure” as provided
for in the Implementations Plan approved by Council in February 2008 – vide
6. Council at its meeting, in closed session in February 2009 in Cape Town,
South Africa noted that the Director of Human Resources and Administration
was appointed and assumed duty in December 2008 and took the following
(a) it approved Doc. AM11 on the Implementation of the Job Evaluation
exercise and the outcome of the skills audit;
(b) the two acting Directors for “the newly created positions of Directors”,
among them the Applicant in respect of the position of Director (Policy,
Planning and Resource Mobilization) were appointed until 31 December 2009.
After that date, those new posts would be advertised and filled, in line
with the recruitment procedures, the quota system and gender representation,
just as the two new positions of Deputy Executive Secretary;
(c) the current Deputy Executive Secretary would be able, however, to apply
for one of the new positions of Deputy Executive Secretary (Annex I).
 It is quite clear that it is only in February 2009 that, for the first
time, the position of Director (Policy, Planning and Resource Mobilization)
is referred to as a “newly created position of Director” by Council. No
reason has been given for such a decision so that it is not possible for us
to understand and test the reasoning behind such a decision – vide also
Clement Kanyama v SADC Secretariat Case No SADC (T) 05/2009.
 We consider, however, that the position of Director (Policy, Planning
and Resource Mobilization) is not a new post but that it is a new rank or
position in the new organizational structure of the Respondent, as is made
clear by Doc. AM9 to 13, referred to above. Indeed, the Executive Secretary
himself expressly stated in Doc. AM3 that the Applicant only migrated from
the old structure into the new one and that his job content, profile and
responsibilities as former Head (Policy, and Strategic Planning Unit) remain
the same as Director (Policy, Planning and Resource Mobilization) following
the skills audit conducted to determine his suitability for the new rank or
position in the new organizational structure. That is why the post was
filled by the Applicant and not advertized as in the case of the two new
posts of Deputy Executive Secretary and the new post of Director of Human
Resources and Administration – vide also Clement Kanyama, cited above.
 The clinching argument to show beyond reasonable doubt that there has
only been at most only a change of nomenclature is that the Applicant was
offered by the Executive Secretary the post of Director (Policy, Planning
and Resource Mobilization) following the outcome of the skills audit at
which he had obtained an 80% proficiency evaluation score.
 If the Executive Secretary had certain reservations about the job
content and responsibilities of the new rank or position of Director (Policy,
Planning and Resource Mobilization) not being identical to those of Head (Policy
and Strategic Planning), he would surely not have appointed the Applicant.
After all, the Executive Secretary, with an array of consultants at his
disposal, was in a better position than us to compare Documents AM2 and AM9
and come to the conclusion, as he did, that there were no marked differences
in the functions, responsibilities and job profile, of the two positions.
 It is common ground between the parties that the quota system only
applies to newly-created jobs (Annex V, paragraphs 6.12.14 and 6.12.15),
since it would be unlawful to apply the quota system retrospectively to
existing staff, as rightly pointed out by Counsel on both sides. Since we
consider that the post of Director (Policy, Planning and Resource
Mobilization) is not a newly-created position, the quota system, as
indicated already, is not applicable to the present case.
 We consequently hold that the appointment of the Applicant by the
Executive Secretary was legally in order (Doc. AM3), the more so as his
Report on the Implementation of the Job Evaluation (Doc. AM 11) had been
approved by the Council, as indicated already. No doubt the Executive
Secretary could only appoint the Applicant under terms and conditions of
service determined by the Council (article 15(1) (f) of the SADC Treaty),
and that is precisely what he did, as demonstrated by the chronology of
events highlighted by us above.
 Since the Applicant has been appointed on the same terms and conditions
as his original contract, we are of the considered opinion that he is not
only entitled to a renewal of his contract of employment but also has a
reasonable and legitimate expectation that his contract would be renewed for
a second and final four-year period beginning from 1 January 2010, in the
light of his track record and his more than satisfactory performance.
 We consequently hold that the Applicant had never been appointed as
acting Director (Policy, Planning and Resource Mobilization) and that
Council’s purported resolution to appoint the Applicant as acting Director
until 31 December 2009 was not legally in order in the circumstances.
 We consequently declare that –
(a) the contract of employment (Doc. AM1) between the Applicant and the
Respondent is the one entered into on 11 November 2005, as amended by the
letter dated 12 December 2008 (Doc. AM3);
(b) there has been a breach of contract of employment of the Applicant by
(c) in terms of his contract of employment as well as the Respondent’s
policy and practice, the Applicant is not only entitled to a renewal of his
contract of employment for a further period of four years but also has a
reasonable and legitimate expectation that his contract would be renewed
with effect from 1 January 2010, in the light of his track record and his
more than satisfactory performance.
 With regard to the issue of costs, we shall first refer to Rule 78 of
the Rules of Procedures of SADC Tribunal (The Rules).
Rule 78 provides as follows:
“1. Each party to the proceedings shall pay its own legal costs.
2. The Tribunal may, in exceptional circumstances, order a party to the
proceedings to pay costs incurred by the other party.”
 In terms of Rule 78, each party bears its own costs except where there
are exceptional circumstances warranting the grant of costs, in the
interests of justice, against a party.
 We consider that there are exceptional circumstances on the particular
facts of the present case justifying the award of costs in favour of the
Applicant in the interests of justice. We have taken into account, in this
respect, especially the fact that the Applicant who is a top official of the
Respondent has had to suffer intolerable prejudice, trouble and annoyance
when he was first offered employment as Director in December 2008 and then
subsequently told in 2009, for no valid reason whatsoever, that he was in
fact appointed as acting Director and that his actingship would lapse on 31
December 2009, so that in effect he was demoted and he would not be eligible,
as he is entitled, to obtain a final four-year contract of employment with
the Respondent, in spite of having a reasonable and legitimate expectation
for such a renewal of his contract, in the light of his track record and his
more than satisfactory performance – see also Clement Kanyama, quoted above.
 For the reasons given, we consequently award costs to the Applicant
under Rule 78 (2) of the Rules. The costs are to be determined by the
Registrar in the case of disagreement between the parties.
Delivered in open court this 5th day of February 2010, at Windhoek in the
Republic of Namibia.