5 February 2010

     
 

Case No. SADCT: 07/2009

 
     

Southern African Development Community Tribunal

     
     

Angelo Mondlane

 

v.

The Secretariat of the Southern African Development Company

     
     
 

Judgment

 
     
 

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BEFORE:

PRESIDENT: A. G. Pillay
JUDGES: Dr. R. Kambovo; I. J. Mtambo

   

PermaLink:

http://www.worldcourts.com/sadct/eng/decisions/2010.02.05_Mondlane_v_SADC_Secretariat.htm

   

Citation:

Mondlane v. SADC Secretariat, Judgment, Case No. SADCT: 07/2009 (SADC, Feb. 5, 2010)

Represented By:

APPLICANTS' AGENTS: A. Denk and Mrs. S. Nambinga
RESPONDENT'S AGENTS: Dr. T. Uate

 
     
 
 
 

JUDGMENT

DELIVERED BY THE PRESIDENT OF THE TRIBUNAL H.E. JUSTICE A.G. PILLAY.

[1] 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.

[2] 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 Mobilization;
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 main application.
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 date.
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 (T) 07/2009.

[3] 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.”

[4] 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 clause provides:

“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.”

[5] 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 satisfactory.

[6] 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.

[7] 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.

[8] 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.

[9] 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.”

[10] 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.

[11] 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 Applicant;
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 Applicant.

[12] 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.

[13] 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.

[14] 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 already.

[15] 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 proposed:
...
...
...
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).

[16] 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 Doc. AM14.
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 decisions:
(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).

[17] 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.

[18] 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.

[19] 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.

[20] 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.

[21] 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.

[22] 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.

[23] 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.

[24] 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.

[25] 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 the Respondent;
(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.

[26] 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.”

[27] 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.

[28] 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.

[29] 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.

 
 

H.E. Justice Ariranga Govindasamy Pillay
PRESIDENT

H. E. Justice Isaac Jamu Mtambo, SC
MEMBER

H.E. Justice Dr Rigoberto Kambovo
MEMBER

 
     

 

 

 

 

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