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JUDGMENT
DELIVERED BY THE PRESIDENT OF THE TRIBUNAL H.E. JUSTICE ARIRANGA G. PILLAY
[1] The Applicant was appointed as Assistant Secretary General/Coordinator
of Parliamentary Leadership Centre by the Respondent on a contract of
determinable duration which ran from 5 September 2005 to 4 September 2009
(Doc. BK5). The Applicant had also, pursuant to clause 22 of Doc. BK5, an
option to renew her contract, subject to satisfactory performance on her
part. In June 2007 the Applicant was confirmed in her post which was
upgraded and became the deputy to the then Secretary General of the
Respondent (Doc. BK7). The Applicant was summarily dismissed on 1 August
2008.
[2] The Applicant claims that her contract of employment with the Respondent
was unlawfully and unprocedurally terminated by the Respondent and is
consequently seeking reinstatement and/or damages.
[3] In an earlier ruling delivered in February 2010, the Tribunal dismissed
the preliminary objections taken by the Respondent and held that it has
jurisdiction to consider the claim of the Applicant – vide Bookie Monica
Kethusegile-Juru v The Southern African Development Community Parliamentary
Forum – Case No. SADC (T) 02/2009. The Tribunal reserved its ruling about
whether the Applicant had exhausted internal remedies in that she had not
lodged an appeal in accordance with her conditions of employment since this
was a matter which should be decided on the merits of the case.
[4] However, the Respondent did not press this issue when the case was heard
on its merits. Rightly so, too, in our opinion, since the Applicant had
written various letters of protest about her dismissal to the Chairman of
the Executive Committee of the Respondent which had remained unanswered.
Moreover, it is significant that the Applicant’s contract of employment had
been terminated with the knowledge and support of the Executive Committee of
the Respondent. Consequently, it would have served, in our opinion, no
useful purpose in the circumstances for the Applicant to have filed an
appeal, the more so as there is no clear and express procedure relating to
appeals made by officers of the rank and status of the Applicant in Rule 17
of the Administration Rules and Procedures Handbook of the SADC
Parliamentary Forum (the Handbook), as rightly submitted by learned Counsel
of the Applicant – vide Mike Campbell (PVT) Ltd and Others v The Republic of
Zimbabwe SADC (T) Case No. 2/2007 at page 21.
[5] The contract of employment of the Applicant (Doc. BK5) could be
terminated before its expiry “subject to three (3) months’ written notice in
the event of any unforeseeable circumstances as detailed” in the Handbook
(Clause 19 of Doc. BK5). However, there is no mention at all in the Handbook
of such “unforeseeable circumstances”. Indeed in the letter of dismissal
(Doc. BK9) addressed to her by the then Secretary General of the Respondent,
no mention is made of any unforeseeable circumstances. Reliance, however,
was placed on the authority granted to the Secretary General under Rule
15.2.1 of the Handbook to terminate the Applicant’s contract of employment
since her conduct was prejudicial to the interests and/or image of the
Respondent in terms of that Rule in that she had “expressed disparaging
views about the Respondent, its management and operations”.
[6] The Applicant was also informed that she had been summarily dismissed,
but would be paid compensation in lieu of the required three months’ notice,
pursuant to Rule 15.2.1 of the Handbook. Rule 15.2.3 makes it quite clear,
however, that “no employee’s services shall be terminated summarily unless
in compliance with the disciplinary procedures established in the Discipline
section of this Handbook” (the underlining is ours).
[7] Rule 16 deals with matters of discipline. Rule 16.1.1 states that “all
SADC employees shall conduct themselves in a manner which preserves the good
image of SADC at all times.” Rule 16.1.4 specifies that “continued
employment by SADC shall be conditional on rendering satisfactory service.”
Rule 16.2.3 provides that the Head of Institution shall be the disciplinary
authority in the case of employees in regional posts. Rule 16.3.2 states
that serious offences include, inter alia, “behaviour likely to bring SADC
into disrepute”, a charge similar to the one levelled against the Applicant.
Rule 16.3.3 refers to dismissal offences which, significantly, do not
include “behaviour likely to bring SADC into disrepute” or conduct
prejudicial to the interests and/or image of the Respondent. Rule 16.4.2,
however, stipulates that “employees who commit serious offences shall
receive a written warning for the first offence, and thereafter the offence
may be considered as grounds for dismissal”. We pause here to note that
there is no indication in the Applicant’s letter of dismissal that she had
repeatedly committed such a serious offence, namely, behaving in a manner
prejudicial to the interests and/or image of the Respondent.
[8] Rule 16.5 details the procedure to be followed in a case where an
employee in a regional post has allegedly committed a serious offence: the
employee is given first an opportunity to exculpate himself or herself in
writing (Rule 16.5.3) and it is then for the Head of the Institution i.e.
the Secretary General to decide whether or not to institute an investigation
into the allegation or drop the charges (Rule 16.5.4). If the Head of
Institution decides that an investigation is called for, he appoints a
committee to carry out the investigation and submit a report (Rule 16.5.5).
Upon receipt of the report, the Head of Institution studies the report and
informs the employee of his conclusions. If convinced that a serious or
dismissal offence has been committed, the Head of Institution shall charge
the employee in writing, giving the details of the charge (Rule 16.5.6). The
employee then has ten days to respond in writing to the Head of Institution
to exculpate himself or herself (Rule 16.5.7). Upon a written response from
the employee, the Head of Institution shall inform the employee in writing
of his decision (Rule 16.5.8). Upon receiving written notice from the Head
of Institution that the employee has been found guilty, the latter has 10
days to appeal against the decision (Rule 16.5.9). Similar provisions exist
for local staff.
[9] We are of the considered view that, although there is no specific
disciplinary process in the Rules of the Handbook dealing with officers of
the rank and status of the Applicant, Rule 16.5 applies, as appropriate, to
the Applicant, especially in the light of Rule 15.2.3, already mentioned
above. Finally, mention must be made of Rule 16.7.1 which provides as
follows:
“A person whose actions are being investigated, or against whom action is
being taken for having committed a serious offence shall be suspended from
duty with full pay” (the emphasis is ours).
[10] It is abundantly clear that the Respondent, through its former
Secretary General, acted in utter disregard of the relevant Rules of its
Handbook, highlighted above. We, therefore, have no hesitation in holding
that the Applicant’s employment had been unlawfully and unprocedurally
terminated by the Respondent on 1 August 2008. Moreover, the summary
dismissal of the Applicant by the Respondent violated the rules of natural
justice, namely, the right to be heard and the rule against bias or the rule
that no man shall be a judge in his own cause, since the Applicant was not
given any opportunity to make representations before an independent and
impartial body before the decision was taken by the Respondent, through its
former Secretary General, who had acted as both party and judge in the
circumstances to sack her, in spite of evidence adduced before us to the
effect that there was bad blood between the Applicant and the former
Secretary General of the Respondent – vide Attorney General of the
Commonwealth of the Bahamas v Ryan (1980) AC 718 quoted in the Mike Campbell
case, cited already, and Luke Munyandu Tembani v The Republic of Zimbabwe
SADC (T) Case No. 07/2008 at page 19.
[11] The reinstatement of the Applicant cannot be seriously envisaged for
the simple reason that her contract of employment had already come to its
lawful expiry on 4 September 2009. As for the Applicant’s claim to have had
a legitimate expectation that her contract of employment would be renewed
for another term of four years, we reject it as untenable since, as rightly
contended by learned Counsel for the Respondent, she was only confirmed in
her post in June 2007 and the then Secretary General and Head of the
Respondent had strong reservations about the performance of her work and her
alleged improper conduct. Such reservations were apparently shared by the
Executive Committee of the Respondent.
[12] We turn now to the issue of damages. We consider that the Applicant is
entitled to the salary and all the allowances and benefits accruing to her
from her date of dismissal on 1 August 2008 until the lawful expiry of her
contract on 4 September 2009. From that amount should be deducted, however,
the sum of N$398,221.92 already paid to the Applicant by the Respondent. We
also award her the sum of N$100,000.00 for the trouble, annoyance and
prejudice suffered by her.
[13] We, therefore, declare that the Applicant’s contract of employment had
been unlawfully and unprocedurally terminated by the Respondent.
We also order that:
(a) the Respondent should pay the salary and all the allowances and benefits
accruing to the Applicant from her date of dismissal on 1 August 2008 until
the lawful expiry of her contract on 4 September 2009. From that amount
should be substracted the sum of N$398,221.92 already paid to the Applicant
by the Respondent; and
(b) the Respondent should pay to the Applicant moral damages amounting to
N$100,000.00.
[14] We would also recommend to the Respondent to consider amending the
Rules of the Handbook in order to provide for a specific disciplinary and
appeal process in relation to officers of the rank and status of the
Applicant since the Rules are not clear about such process.
[15] With regard to the issue of costs, we shall first refer to Rule 78 of
the Rules of Procedure 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.”
[16] 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.
[17] We take the view that there are exceptional circumstances on the
particular facts of the present case justifying the award of costs to the
Applicant in the interests of justice. We have taken into account, in this
regard, especially the fact that the Applicant, who was a high ranking
officer of the Respondent, and the deputy to the Head of Institution, has
had to suffer prejudice, trouble and annoyance when she was summarily
dismissed and her contract unlawfully and unprocedurally terminated by the
Respondent which acted in flagrant breach of the Rules of its Handbook, in
the circumstances mentioned already. We accordingly award costs to the
Applicant under Rule 78(2) of the Rules. The costs are to be determined by
the Registrar in case of disagreement between the parties.
Delivered in open court this 11th day of June 2010, at Windhoek in the
Republic of Namibia.
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