SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
ADMINISTRATIVE TRIBUNAL (SADCAT)
TRIBUNAL DE JUSTIÇA | TRIBUNAL OF JUSTICE | TRIBUNAL DE JUSTICE
IN THE FIRST INSTANCE PANEL OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY ADMINISTRATIVE TRIBUNAL AT GABORONE, BOTSWANA
Application No 1 of 2017
IN THE MATTER BETWEEN
TED LUKA 1st APPLICANT
BUSISIWE DLAMINI 2ND APPLICANT
HELEN ANDREAS 3RD APPLICANT
MULENGA CHIWAMA 4TH APPLICANT
JOCELYNE LUKUNDULA 5TH APPLICANT
KUENA MOLAPO 6TH APPLICANT
ALCIDES MONTEIRO 7TH APPLICANT
SHUBI MUKURASI 8TH APPLICANT
LISEBO MOSITSI 9TH APPLICANT
ALFRED NDABENI 10TH APPLICANT
CLEOPHAS SAMUSODZA 11TH APPLICANT
AND
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 1ST RESPONDENT
THE EXECUTIVE SECRETARY 2ND RESPONDENT
CORAM: Honourable Justice Fulgency Chisanga
Honourable Justice Ivy Chatha Kamanga
Honourable Justice Francis Bere
REGISTRY: Honourable Nemaduthsingh Juddoo
Applicant’s Agents: Mr. T. Rantao with Mr. T. Motsumi, Messrs Motsumi Attorneys
Respondent’s Agents: Mr. M. J. Tafa, Messrs Armstong Attorneys
Delivered by Vice President of the Tribunal Honourable Justice F. M.
Chisanga
Introduction
1. The applicants are former employees of the Southern African Development Community. They were engaged on different dates on four- year term contracts between in 2009, with the exception of the 3rd and 5th applicants who were engaged in 2008 and 2011 respectively. Their respective letters of appointment and the SADC Administration’s Rules and Procedure constituted the contract of employment. They all had their contracts renewed for another four-year term after the expiry of the first contract. They filed this Current Application on 7th August 2017 seeking Orders that the respective decisions of the 1st and 2nd respondents dated 15th – 17th March 2017 and 8th December 2018 be set aside. They also seek a directive that the respondents renew the applicants’ contracts in terms of the Council decision of November 2011.
Procedural History
2. The Tribunal held a case management meeting with the parties’ legal representative on 10th November 2017, and appointed the 19th December 2017 as the date of hearing. On the said date, the Tribunal was informed that the applicants would rely on the affidavit and submissions. The 1st respondent called one called witness who testified regarding the procedure of SADC when hearing appeals. The respondents also relied on the affidavit in opposition, and the submissions filed on their behalf.
Factual Background
3. At the time of the applicants’ employment, the Council Decision of 2005 was in force. Thereby, Council had approved that regionally and locally recruited staff would be eligible to serve a maximum of two four-year contracts in the same position.
4. At the Extraordinary meeting held between 18th – 24th November 2011, Council approved the recommendations of the Standing Committee as follows:
(i) The establishment in principle of long term fixed contract system for
professional and local staff;
(ii) Direct the Secretariat to develop the framework of the long term fixed contract system and submit for Council’s consideration in August 2012; and
(iii) The adoption of a contractual age limit of 60 years for all professional and local staff.
5. Council approved the following recommendations of the standing committee of senior officials on transitional arrangements:
(i) Treaty based positions and Directors: Status quo
(ii) Regionally recruited staff positions: a once-off performance based contract extension, subject to the approval of the framework.
(iii) Locally recruited personnel: a once-off performance based contract extension, subject to the approval of the framework.
6. The Secretariat had difficulties in implementing the decision regarding the 60 years age limit due to lack of clarity. Council clarified as follows:
(i) Recruitment and renewal of contracts should be based on the contractual period or 60 year age limit whichever comes first.
(ii) Renewal of once-off contracts for employees will be limited to four years or 60 years age limit whichever comes first; and
(iii) Staff who are currently serving their first or second four-year contracts and those serving once-off contracts are allowed to complete their employment contracts to the end of their contracts (regardless of age).
7. In August 2015 Council approved:
(i) The renaming of the Long Term Employment Contract Framework to Fixed Term Employment Framework, as defined by Human Resources and Legal Experts.
(ii) Employment Contract Framework as follows:
(a) Regionally recruited staff: four year term, renewable once for a four year term; based on satisfactory performance and age limit of 60 years; and
(b) Locally recruited staff: Four-year term contract, renewable based on need for the position, satisfactory performance and to a maximum of 60 years age limit.
8. 84 members of staff had their contracts renewed under the once-off transitional arrangement by August 2015.
Grievance
9. The regionally recruited professional staff members, through the Staff Association, lodged a grievance with the Secretariat, which was said to have arisen from the 2015 Council decision. It was their view that this decision modified the terms and conditions of service for a category of staff and disadvantaged other categories of staff who were included in the 2011 decision. They felt very strongly that they had been discriminated against.
10. As a result of the Council’s decision of 2015, the affected staff acquired a legitimate expectation that they would benefit upon adoption of the implementation framework. The premise of this expectation was that the decision to have staff below director level on renewable contracts until the age of 60, subject to performance and the need for positions had been adopted in principle. What remained were the details of implementation.
11. The contractual age limit of 60 years was being implemented, with effect from December 2011. This further raised a legitimate expectation of staff members below Director Level who had not reached the age of 60, that they would benefit from the long service tenure introduced by the decision, in as much as it made staff members leave the institution at 60 years of age.
12. 93 professional and local staff had their contracts renewed under the once-off dispensation, thereby serving the institution for three terms of four years each. This too had given a legitimate expectation for similar treatment by those in SADC employment at the time the 2011 decision was made by Council.
13. Based on the Council’s decision of August 2015, it appeared professional staff on their first and second contracts in August 2015 were no longer eligible to the once-off renewal and for the long term contract framework. They had therefore been denied the benefits from the Council’s decision of November 2011, as compared to those who enjoyed a once-off third contract term or those now eligible for the long term employment.
14. In taking its decision of August 2015, regarding the Long-Term Employment Framework, the Council overlooked its previous decision on the matter, and the legal implications of the decision.
15. The issues were the issuing of once-off contracts, and the fair implementation of the 2011 decision.
Decision of the 2nd Respondent
16. The management team was of the view that the Secretariat was not in the position to offer once-off contracts which were intended as an interim measure to cater for transitional arrangements pending final approval of the long term employment contract framework, and came to an end after the Council decision of August 2015. Therefore, the Secretariat was in no position to offer the once-off contract extension after the August 2015 Council decision.
17. The Council decision of August 2015 pertaining to the Long Term Fixed Contract Framework was informed, among other things, by the previous decisions of Council of November 2011 and March 2014. Additionally, Council was guided by the outcome of the bench-marking exercise and comparative analysis of SADC with other Regional Economic Communities as well as some international organisations. The decision was fair, equitable and not discriminatory.
18. The asserted legitimate expectation could not have arisen, as the decision ‘in principle’ did not imply in any way that the contracts of regionally recruited staff would be renewed until the staff reached the age of 60 years of age.
19. The decisions of November 2011 and March 2014 not only allowed, but directed the SADC Secretariat to apply the contractual age limit of 60 years, and the Secretariat had acted accordingly.
20. The entire grievance was baseless and this position was communicated to the Staff Association by the Executive Secretary by letter dated 8th December 2016.
Appeal to Council
21. Dissatisfied at the decision of the management team, 22 members of staff sought the intervention of Council by letter dated 6th February 2017. The applicants were among those who appealed.
22. The issues formulated in their grievance to Council were:
(i) The issuing of once-off contracts to the 24 staff eligible for the same as employees of the institution when the 2011 decision was taken; and
(ii) The fair and non-discriminatory implementation of the 2011 decision in granting long term contracts to all staff as was agreed in principle prior to the 2015 decision.
The aggrieved employees were essentially asking the Council to review its decision of August 2015.
23. At the meeting held at Ezulwini in the Kingdom of Swaziland the Council reaffirmed its decisions of November 2011, March 2014 and August 2015 as they were not discriminatory, and dismissed the appeal. This prompted the applicants to seek the stated relief from this Tribunal.
24. The founding affidavit narrates the background to the matter, as outlined above and asserts the following:
(i) The respondents failed to address the substance of the grievance. The August 2015 decision seeks to retrospectively and unilaterally amend the applicants’ conditions of employment, contrary to their conditions of employment and international best practices relating to administration and law.
(ii) The decision of Council was erroneous, because there is bias and or an apprehension of bias in that only the 2nd respondent made representations to the Council despite having been the decision maker whose decision was being appealed against.
(iii) The grievance the applicants had submitted to the Council, as well as that submitted to the 2nd respondent were not tabled before Council, as it does not appear in the agenda of the meeting, and council merely reaffirmed its previous resolutions when the matter concerned the application of the said resolutions.
(iv) The decisions impugned prejudice the applicants in that they are a breach of the applicants’ conditions of employment, and the applicants will be deprived of an opportunity to continue with their employment with the 1st respondent.
(v) Further, the applicants will be deprived of income from their employment, and will have to relocate as none of them are citizens of the Republic of Botswana. This entails pulling children out of school for those with such, and this will negatively impact the studies of the children.
(vi) The applicants undertook financial obligations they require to service monthly on the expectation that they would be granted contract extensions. Their ability to discharge these obligations will be impacted negatively. Some married applicants’ spouses quit their employment in other countries in order to join their spouses in Botswana. The failure to extend the contracts will leave the applicants as well as their spouses unemployed.
(vii) The respondents have not once cited non-performance as a reason in forming their decisions. The applicants had a legitimate expectation that their contracts would be renewed. Further the 1st respondent stands to suffer prejudice due to its decision. This is on account of the departure of the applicants at the same time. As a result, immense loss of institutional memory will be occasioned to the 1st respondent. It will also incur repatriation and recruitment costs.
(viii) By selectively applying Council decisions, the 1st respondent has breached its own rules of fairness and non-discrimination and created uncertainty among staff. This has far reaching implications for its operations and credibility as an international organisation.
25. The answering affidavit asserts the following:
(i) The response issued by the 2nd respondent adequately and correctly reflected the position of the 1st respondent as espoused by the SADC Council of Ministers.
(ii) At the time the 2011 decision was taken by the Council, the applicants were still on the first term of their two-term renewable four year contracts.
(iii) The once-off contract, was intended as an interim measure to facilitate for transitional arrangements pending Council’s approval of the long term employment contract framework. Therefore, approval of the fixed term employment framework in 2015 automatically ended the once-off arrangement.
(iv) The applicants’ second and final terms of their contracts had not expired by the time the fixed term employment framework was approved in August 2015. This once-off contract was not an entitlement but an interim measure. As such, the SADC Secretariat could not offer the once-off extension after the August 2015 Council decision, as that would be contrary to the decision.
(v) The 2nd respondent’s view that the establishment ‘in principle’ of long term fixed contract system meant that it was still within the council prerogative to take a final decision in the manner it considered fit was well founded. The final decision was duly and correctly taken in August 2015. Council noted the need for a clear categorization of staff in terms of job categories. As a result, the Treaty-based and Directors’ positions were excluded due to the nature of the work executed in these positions. Council clearly indicated in its Decision of November 2011 that the once-off contract extension was a transitional arrangement pending the approval of long term fixed contract framework.
(vi) In order to enable Council take an informed decision, the SADC Secretariat undertook a bench-marking exercise in other Regional Economic Communities namely Common Market of Eastern and Southern Africa (COMESA), East African Community (EAC) and Economic Community of West African States (ECOWAS). It also bench-marked with two international organizations, the African Union (AU) and the United Nations (UN). The exercise revealed that ECOWAS and UN are on differing long-term employment frameworks, while COMESA, SADC and EAC have contract terms ranging from three, four and five year individual employment contract respectively, with the maximum duration of 12 years. It was also discovered that with the exception of SADC, local staff in all other Regional Economic Communities are on long term employment frameworks.
(vii) Regionally recruited staff were entitled to educational and security allowances which the local staff were not entitled to. The applicants were not informed that they were entitled to employment up to the retirement age. It was at all times appreciated that contract extensions and renewals were subject to the approval of the framework. By its decision of March 2014, Council clarified that the recruitment and renewal of contracts should be based on the contractual period or 60 years age limit, whichever came first. Therefore, the Council decision was fair, equitable and not discriminatory. The alleged expectation was in the circumstances baseless.
(viii) The demand that the Secretariat should not advertise the positions the applicants had held was not justified, considering that the SADC Council of Ministers had already rendered its Decision in March 2017, dismissing the appeal.
(ix) In terms of SADC procedures, all Human Resources and Administrative issues, including appeals to Council are processed though the Human Resources and Administrative Committee composed of experts in that area from SADC member states. The SADC Secretariat Staff Association lodged the appeal to Council, participated in the drafting of the annotated agenda, and made its representations for the committee’s meeting. The appeal was considered by the Committee, which then recommended to SADC Council of Ministers to reiterate its decisions and dismiss the appeal.
(x) The report of the committee was presented to SADC Council of Ministers as reflected in item 10 of the Record of Council Meeting held in Ezulwini, Kingdom of Swaziland in March 2017. The grievance was attached to the annotated agenda for Council.
(xi) Marital, family arrangements and financial obligations have no bearing on these proceedings, which relate to the contractual relationship between the parties. Moreover, the Secretariat is not privy to the applicants’ personal financial commitments with third parties.
(xii) No loss of memory would be caused to SADC by the departure of the applicants as the 1st respondent is working through files system, and safely maintains record of SADC activities in the Records Section.
26. The applicants’ replying affidavit asserts;
(i) that the applicants were aware, at the time of employment, that they were to serve a maximum of two four year terms pursuant to the council Decision made at its 24-25 February 2005 meeting, and were all employed before the Council decision of November 2011.
(ii) Council reviewed its 2005 Decision at the November meeting of 2011. It resolved, in Decision 2 that the satisfactory performance and need for the position by the organization in a special dispensation for local and regional staff whose contracts were running when the two four-year contract limit was introduced, in order to avoid litigation.
(iii) Council Decision 3 of the November 2011 meeting addressed the ‘establishment of professional permanent staff system.’ It noted that in order to preserve institutional memory, continuity and sustainability of SADC Secretariat operations, the Executive Secretary had confirmed that it was in the long-term interest to establish a long-term employment framework category of staff. The reason for institutional continuity was substantive. The transitional arrangement was not a mere interim measure. Additionally, Council’s resolution was influenced by its noting that;
“the contracts for the staff categories to serve on permanent basis would be reviewed subjected (sic) to satisfactory performance.”
(iv) Council also noted that the framework to be developed was for implementation purposes only. It was not to come up with a new system other than the ‘long term fixed contract system,’ and it could not be the two four-year contract system that had hitherto applied to the applicants.
(v) The decision of Council therefore amounted to, and was understood as, an undertaking that the individual contracts of employment would be varied in line with Decision 3, Clauses 2.8.2.14 (i) and (iii). The decision certainly created legitimate expectation on their part, which they were to serve in line with the clauses.
(vi) The Council decision of November 2011 were in fact communicated to the SADC staff by an internal memorandum from the Executive Secretary dated 14th January 2013, annexure SS16.
(vii) 93 members of staff enjoyed, under the so-called transitional arrangements which took more than four (4) years, 12 years in office, whilst the applicants’ terms were limited to a maximum of two four-year terms, as per the very old 2005 Council Decision. This was highly discriminatory, unfair and inequitable, and in breach of Article 4(d) of the SADC Treaty.
(viii) The 5th Applicant, by letter dated 7th November 2014, had a contractual agreement with the 1st respondent that her contract of employment shall be renewed for a contractual period of four years or 60 years age limit, whichever comes first. This is only subject to performance.
(ix) The Council Decision of 14-15 August is a material departure from the decisions of November 2011, which were communicated to the staff.
(x) The bench-marking exercise favours the applicants, and at the very least, they should be entitled to a maximum duration of 12 years.
(xi) The applicants’ grievance was not adequately addressed as it ignored the 1st respondent’s Administrative Rules and Procedures and other instruments. The council of Ministers is enjoined to fairly apply its decisions in terms of existing employment agreements, policies ad its own decision.
(xii) Receipt of terminal benefits was not a waiver of the right to pursue the present matter, which concerned interpretation of Council Decisions.
Oral Evidence
27. The respondent called Ntabiseng Kiphapang, a legal counsel in the employ of SADC Secretariat. Her duties include the servicing of SADC Meetings, including Council and Summit meetings. She testified as follows:
28. The taking of decisions by Council is governed by processes and procedures in the Treaty, which is the supreme law of SADC. Article 11 creates the Council of Ministers, whose responsibilities inter alia include determination of terms and conditions of service of SADC institutions, including the Secretariat. Article 11 confers power on Council to create its own committees. Article 30(1) (3) of the SADC Treaty deals with the Standing Committee of Officials. It further provides that the Standing Committee of Officials is a technical advisory committee to Council, and one of its responsibilities is to clear documentation from other SADC institutions to Council.
29. Article 14 of the Treaty provides that the Secretariat is the principal Executive Institution and one of its responsibilities is the implementation of decisions of SADC institutions. Thus, the Council, the Standing Committee of Officials and the Secretariat are the institutions that play a role in decision making.
30. The process usually starts at the Secretariat. It may emanate from the other SADC institutions. Depending on the nature of the matter, the Secretariat will execute its mandate. The Secretariat facilitates the presentation of the matter to Council.
31. If, due to its nature, the matter requires consideration by a technical committee, the Secretariat would advise Council accordingly. If a committee has already been established by Council under Article 11, the Secretariat will present the matter before the technical committee, for the latter to provide guidance to Council.
32. Reports that are produced by technical committees together with their recommendations are presented to Council through the Standing Committee of Officials, which is a clearing house for Council. It considers matters that are presented before it. It may make a recommendation to Council as presented to it, or it may modify the recommendation.
33. When Council receives a report from the Standing Committee of Officials, it considers the matters presented, and makes a final determination. In so doing, the Council may modify or reject the recommendations. Council is not bound by the Standing Committee’s recommendations and may take its own decision.
34. Decisions of Council are binding on other SADC institutions as well as the member states.
35. The Staff Association launched the grievance. No individual employee lodged a grievance. It was the Staff Association that appealed against the decision of the Secretariat. The witness was not aware of any other appeal.
36. As the appeal was against the decision of management, it lay to Council. Council had already created a technical committee, known as the Human Resources and Administration Committee, composed of human resource and administration experts from the 15 SADC member states. It was to deal with human resource matters, and advise Council.
37. The appeal was referred to this committee by the SADC Secretariat, and was attached as a background document to the annotated agenda. The annotated agenda is developed by the Secretariat to present the issues to any SADC meeting. It presents the facts pertaining to the matter on which the meeting has to pronounce itself. It also presents recommendations. The appeal itself was attached to the agenda, to enable the Committee to go through it and make appropriate recommendations to Council.
38. The record of Council taken in Ezulwini Kingdom of Swaziland reveals that the appeal was considered at that meeting, as shown by page 211 of the record. Pages 66 and 244 of the record reveals that Council had the appeal before it.
39. As regards the long term frameworks, the structure or terms was never discussed, or communicated with the employees. At the time the proposal was made by the Republic of Namibia at the meeting held in March 2010, it was merely noted, as a matter for further consideration, which would be guided by the concept note to be prepared by the Secretariat. When the proposal was made, there was no motivation that guided the form or the format. The Secretariat was tasked to come up with the long term format. It was to be developed and submitted to Council for its consideration, and decision.
40. In August 2012, the framework was not yet ready. Therefore, Council could not pronounce itself on the framework. No undertaking was given to the employees that they would be entitled to a once-off extension. The decision on the once-off extension was taken at the same meeting that was held in Luanda Angola in November 2011.
41. Council took a decision relating to the once-off contracts at the meeting held in Lilongwe, between 10th and 11th March 2014.
42. The contract for Dr. Elsie Meintjies, who is not party to this application was not renewed, based on the November 2011 and 2014 decisions. He was disqualified, on account of being above 60 years of age.
43. When cross examined, the witness stated that she was employed on a four-year contract, renewable once for another four years, subject to her performance. The contract ended in April 2015, and she was offered a once-off contract, based on the November Council decisions of 2011 and 2015. The once-off contract was a transitional once.
44. When referred to page 212 of the record, the witness pointed out that it was part of the Council Record as indicated at page 211. The reference, (SADC/HRAC/1/2017/1) pertained to the report. The members of Council read and considered the background documents to the annotated agenda.
45. Council may exercise its discretion when reports are presented by its technical committee, and direct that such reports be presented by Chairpersons of the committees. The Chairperson of the Human Resources and Administration Committee presented the report to Council as the Secretariat was conflicted. In this particular meeting, the Staff Association represented the staff, including the applicants. The witness was present when the report was made by the Chairperson.
46. The witness testified that a dispute arose on the interpretation and application of the decision by the 2nd respondent. According to her, the decisions of 2011 and 2015 were clear, and both are applicable.
Applicants’ submissions
1. Legitimate expectation
(i) The applicants were aware that they were to serve a maximum of two four-year terms, pursuant to Council Decision of 2005. Council made Decision 2 at its November 2011 meeting, resolving that the once-off contract extension, subject to satisfactory performance and need for the position by the organisation in a special dispensation for local and regional staff whose contracts were running when the two four-year contract limit be introduced, in order to avoid litigation.
(ii) In Decision 3 made at the same meeting, Council addressed the establishment of a professional permanent staff system and noted that in order to preserve institutional memory, continuity and sustainability of SADC Secretariat operations, the Executive Secretary had confirmed that it was long term employment framework for certain categories of staff.
(iii) Council also noted that transitional arrangements had to be made for institutional continuity. The reasons given were very substantive. The transitional arrangement was not a mere interim measure.
(iv) Council noted that the contracts of the staff categories to serve on permanent basis would be renewed subject to satisfactory performance. This influenced the resolution that was ultimately adopted by Council.
(v) It was also noted that the standing committee of senior officials noted the rationale behind the proposal for the establishment of a professional long term fixed contract system at the Secretariat, and that this was in line with practices in comparable international and regional organisations such as the United Nations, African Union and EAC. Therefore, a comparative analysis had been done with other international and regional organisations. Thus, the respondents’ contention suggesting that only the 2015 Decision was preceded by some research is with respect, untenable.
(vi) The risks which led to the decisions of November 2011 included “a significant institutional continuity risk and financial cuts due to the impending staff turnover, and lengthy replacement processes, starting from end of 2011 onwards.”
(vii) The elements of the framework to be developed did not exclude the applicants, including only those whose contracts of employment were to end between November 2011 and August 2015 as the respondents seemed to imply.
(viii) Decision 3 was not conditional upon anything else. The Secretariat was only directed to develop the framework of the long term fixed contract system and submit it to Council for consideration in August 2012. The framework to be developed was for implementation purposes only. The Secretariat was not to come up with a new system other than the “long term fixed contract system.” It could not be the same system that had been approved by Council 2005.
(ix) The Council decision therefore amounted to and was understood as an undertaking that applicants’ individual contracts of employment would be valid in line with Decision 3. Angelo Mondlane vs SADC1 and Clement Kanyama vs SADC Secretariat2 refer.
(x) The reaffirmation of the Decisions of November 2011 and March 2014 in August 2015 was a material departure from November 2011 and March 2014. The Tribunal should apply Decision 43 to the exclusion of the August 2015 as Council reaffirmed the November 2011 and March 2014 Decisions.
(xi) The giving of once-off contracts to 93 members of staff, but denying the applicants the once-off renewals is discriminatory, unfair, inequitable and in breach of Article 4 (d) of the SADC Treaty and clause 3.2 of the Employees Relations Policy. It also violates the guiding principles of the November 2011 principles of fairness, transparency; accessibility and predictability.
(xii) The applicants place reliance on Kryvoi’s discussion of the principles of international law, viz:
Although each tribunal has its own written regulations and rules, a number of general principles of international administrative law have developed over time, such as those relating to discrimination and equality of treatment, procedural and substantive irregularity, and other employment-related issues”
(xiii) The Council Decision of 10th - 11th March 2014 maintained the four-year contractual period or 60 years age limit, whichever came first. The 5th applicant’s contract was renewed in line with Council Decisions of 24th November 2011 and 11th March 2014. Dr. Else Meintjies was denied renewal of the contract on account of age. Thus, the 1st respondent had begun implementing the contractual age limit of 60 years, which was not in the 2005 Decision.
(xiv) The Benchmarking exercise favoured the applicants.
(xv) The 1st Respondent unilaterally varied the applicants’ conditions.
Respondents’ Submissions
(i) The case the applicants ought to make out in their affidavit is that the interpretation and application of the Council Decision of November 2011, March 2014 and August 2015 by the respondents was incorrect and or erroneous.
(ii) Decision 2 as reflected in the applicants’ submissions was not in respect of the once-off contract extension that form the subject of the dispute before this Honourable Tribunal. The Decision that is relevant to the applicants on the once-off contract extension, follows at clause 2.8.2 in the Record of the Council Decision of November 2011, and addressed the Establishment of Professional Permanent Staff System, while Decision 2 pertained to the outcome of the implementation of the 2007 on evaluation. The latter decision has no relevance to these proceedings.
(iii) The Tribunal rulings in Mondlane and Kanyama are distinguishable and of no particular assistance to the current proceedings. They concerned employees who had running contracts that were due for renewal. They were not in relation to once-off contract extensions.
(iv) The applicants’ appeal formed part of the presentation made to Council. It comprised of documentation appearing at pages 247 to 265 of the paginated bundle.
(v) The memorandum at page 308 of the paginated bundle, was a communiqué of the Council Decision taken on November 2011 and was issued for information to staff. As evidenced from the memorandum, the framework could not be said to have existed. Furthermore, all the applicants had running contracts at the time the framework approved in August 2015. In terms of their said contracts, which were never varied and or amended, the applicants were never contractually entitled to the once-off extension. The basis of the applicants’ alleged legitimate expectation was therefore unreasonable. Kifle vs Secretary General of the UN3 referred to.
(vi) Mrs. Jocelyn Lukundula’s contract renewal under the 2011 dispensation constituted a new and separate contractual entitlement expressly reduced to writing between her and the Secretariat. It is only through the issuance of a contract, that a contractual obligation for renewal and or extension could come into play. Brown vs Secretary General UN4 refers.
(vii) It was not discriminatory to offer once-off contract extensions to 93 employees, as their employment contracts expired before approval of the framework. Had the applicants’ employment contracts expired before approval of the framework, they too would have been eligible to be offered the once-off contract extension.
(viii) Unfairness does not arise, as there was a genuine pursuit of reform, and not the targeting of individuals. Thus, the decisions of Council did not discriminate against any of the applicants nor were they taken with malicious intent or arbitrarily. Such Decisions have been held to be binding when applied here. Oguntola vs Secretary General of the UN 5 refers.
(ix) The fact that the approval of the framework occurred before their contracts lapsed, is not reflective of a discriminatory practice, but rather, the outcome of a Council Decision which never expressly and or impliedly excluded them.
(x) Council noted the observations made by the Standing Committee of senior officials with respect to the framework to be developed. The elements noted were proposed to be contained in a framework to be presented to Council for consideration. Council was not compelled to accept whatever framework would be placed before it.
(xi) The framework developed by the Secretariat could have taken any form. The specific terms of the framework and its intricacies were at no point ever disclosed to the applicants. The recommendations made to Council were not binding, and Council was entitled to change the name of the framework. Decisions of Council are binding, and Council could determine what was appropriate. Article II of the SADC Treaty refers.
(xii) Council’s decision, being an interim/transitional measure could not have logically remained in force, after the long-term contract framework had been approved and finalised.
(xiii) It is apparent that upon considering the recommendations of the standing committee of senior officials, Council approved, in principle that a long-term contract system be established. At this juncture, no framework, or format of the framework was in place yet, but rather the approval of a recommendation that such a framework be established.
(xiv) The approval being in principle, further consideration was to be made on the establishment of the framework, and this was to be done in August 2012.
(xv) The Council approved the recommendation that both regionally and locally recruited staff be offered a once-off performance contract extension subject to the approval of the framework. Thus, it was subject to a particular and specifically identified condition, which was still to be decided upon by Council. The once-off contract extension would cease to have any relevance once the framework was adopted.
(xvi) The format or structure in the long term fixed contract framework was in the sole discretion and purview of the Council. Neither the Applicants nor the 2nd Respondent had any say in that regard. The argument that the appellants are entitled to a once-off contract extension, irrespective of whether the framework took a particular form or not is untenable.
(xvii) A plain reading of the Council’s decision needs no elaborate interpretation, as a straightforward application and interpretation does not lead to ambiguity.
(xviii) In March 2014, Council clarified its Decision of November 2011, in so far as it pertained to those employees who would reach the age of 60 years whilst in their first or second four-year contracts or serving the once-off contract extension. Council clarified that in applying this Decision, those employees would be allowed to complete their contracts, irrespective of age.
(xix) Council approved long term fixed contract framework in a fashion and form it deemed appropriate, in accordance with its mandate under the Treaty.
(xx) Council’s Decisions, once taken and enforced by the Secretariat remain as valid decisions, and cannot be varied, save though Council itself. Timothy vs Secretary General of the UN 6, Ovcharanco Et Al vs Secretary General of the UN7 and in RE LINDSEY (No.2) – JUDGEMENT NO 209 ADMINISTRATIVE TRIBUNAL OF THE LEAGUE OF NATIONS.
(xxi) Article 9 of the SADC Treaty establishes SADC institutions, including Council. Article II confers power in Council to inter alia, determine the Terms and Conditions of Service of Institutions of SADC. It creates committees as may be necessary. Article 13 provides that the Standing Committee of Officials is a Technical Advisory Committee to the Council, to which it reports. Article 9 creates the Secretariat which is mandated, inter alia, to implement decisions of the SADC Institutions including Council. The Executive Secretary is responsible to the Council for the appointment of the staff of the Secretariat, in accordance with procedures and under terms and conditions of service as determined by the Council.
(xxii) The applicants allege that not all of them were members of the Staff Association that initiated the current proceedings. The respondents assert, through their sole witness that the only grievance received with respect to the issues before this Tribunal were relayed though the Staff Association. The appeal to Council was also instituted and relayed through the Staff Association. Therefore, those applicants who were not part of the Staff Association would not have exhausted internal review remedies at their disposal, in terms of Article 3.2(9) and are not appropriately before the Tribunal.
(xxiii) The only relief the applicants seek is that the erroneous interpretation and application of Council’s Decision be set aside, and that the applicants be awarded the once-off contract.
(xxiv) The applicants’ appeal to Council was on the implementation of Council’s decisions by the 2nd respondent. The dismissal of the appeal confirmed that the 2nd respondent had correctly applied and interpreted Council Decisions of November 2011, March 2014 and August 2015.
(xxv) Any other interpretation would lead to a chaotic state of affairs, and be unfair on the 2nd respondent who acted in accordance with the Decisions.
Oral arguments
1. The applicant’s written submissions were orally augmented by Messrs Rantao, and Learned Counsel appearing for the applicants as follows:
(i) The applicants filed an appeal to Council as revealed by pages 32 – 33 of the Record. Only one applicant, Alcides Monteiro did not do so. The grievance is one, and indivisible. The applicants lodged the appeal to Council, and it would be illogical to exclude some of them on a technicality, as the applicants are similarly circumstanced.
(ii) The once-off transitional arrangement was for purposes of implementation of the 2011 decision of Council. It was not to be varied by way of a framework. Although the transitional arrangement was subject to the framework being drawn up, it had to apply to everyone in the interest of equity. The applicants were attacking the manner in which Council made the decision.
(iii) In terms of the treaty the SADC Council of Ministers sets terms and conditions. This is not a legislative decision. Legislation is made by the summit. Council Decisions are binding. Communication of those Decisions follows. Therefore, the employees did not expect variation through the framework. The Council of 2015 changed the substance. It was now no longer about implementation.
(iv) It is material that the long term contractual framework was renamed, as a different framework altogether. This was an unfair legal practice. Any decision made should be consistent. Council’s powers are purely administrative and reviewable by the Tribunal.
2. Mr. Tafa, Learned Counsel for the respondent also augmented the arguments as follows:
(i) Issues of arbitration and how decisions are taken are not before the Tribunal. The issue is whether Council’s decisions, which are binding, were correctly applied by the respondent.
(ii) The appeal pertained to an erroneous application of the Council decision. The issue was about how the 2011 contracts were being implemented.
(iii) As the applications raised the issue of non-representation by the Staff Association, the question of competence arose. The respondents’ advocates were left wondering as to whether all internal procedures had been dealt with. However, the issue of jurisdiction should not obstruct the hearing.
(iv) One of the issues before the Tribunal is how the 2011 decision is to be applied. Nothing about the age limit of 60 is tied to the once-off extension.
(v) Decision 2 was taken before this matter arose, and was not conditional. The once-off contract renewal under that Decision is of no relevance.
(vi) The memorandum addressed to the applicants did not expressly state that the applicants would be entitled to a once-off contract.
(vii) The Tribunal has no power to review a binding Council decision.
3. In response, Mr. Motsumi, Counsel for the applicants submitted that:
(i) The Staff Association did not lodge the grievance. The grievance was merely carbon copied to it.
(ii) The drafter of the Decisions was to be blamed, in drawing them up as done. Decision 2 was made to avoid costly litigation.
Considerations
At a meeting held in Grand Baie Mauritius in February 2005, Council approved the introduction of two term fixed staff contract system, under which local and regional staff were appointed for a period of four years, renewable once for a maximum of four years. This decision varied the system which had provided that staff could serve with no time limitations on renewal of contracts. Thus, at the extraordinary meeting of the council held in Luanda Angola from 18th to 24th November 2011, Council noted the need to address contractual grievances from some members of staff who had running contracts in February 2005, when the decision of the two term limit was made. It was with this in mind that Council approved the once off contract extension subject to satisfactory performance and need for the position by the organisation, in a special dispensation for local and regional staff whose contracts were running when the two four-year contract limit was introduced, in order to avoid litigation. The Tribunal holds that the applicants’ reference to this decision is clearly misplaced, and an attempt to enlist the aid of an inapplicable decision.
It is noteworthy that at the meeting of the SADC COUNCIL OF MINISTERS IN WINDHOEK NAMIBIA on 3rd to 4th March 2011, Council noted the document (SADC/CM/1/2011/4) presented by the Republic of Namibia dealing, inter alia, with the issue of appointment of permanent staff to the SADC Secretariat. By its Decision 22, Council directed the Secretariat, in consultation with member states, to prepare relevant background papers and submit them to Council in August 2011 to facilitate deliberations and inform decision making.
It is notable that at the extraordinary meeting held in Luanda Angola in November 2011, Council considered the Note on the Establishment of Professional and Permanent Staff System (SADC/Troika/1/2011/3.1)presented by the Secretariat, and made particular reference to issues raised in the Note.
Council noted, as indicated in the Note presented by the Secretariat that it was the Chairperson of SADC who had indicated to Council in March 2011 and to the Executive Secretary during his visit to the SADC Headquarters in April 2011, that there was need for SADC to have permanent staff at the Secretariat. The Executive Secretary had confirmed that it was in the long term interest of SADC to establish a long term employment framework for certain categories of staff. The reasons preferred by the Executive Secretary for this view were those advanced by the Chairperson, and the need to ensure effective utilization of SADC resources. A significant decline in the Secretariat absorption capacity and loss of institutional capacity would be avoided if such a framework were adopted. Additionally, SADC would with such a system show SADC’s commitment to its development partners.
Council noted that transitional arrangements would be required to continue improving the institutional capacity, pending the submission of staff terms and conditions of the long-term employment framework. It also noted the basis on which transitional measures were being proposed. Council went on to note that the contracts for the staff categories to serve on permanent basis would be renewed subject to satisfactory performance.
Council noted the Troika’s recommendations as follows:
(i) re-visit its decision on fixed two four-year terms and approve, in principle, the creation of long term fixed contracts and mandate the Executive Secretary to develop its implementation framework, to be submitted to Council in February 2012.
(ii) maintain the status quo on Treaty based positions, namely the Executive Secretary and Deputy Executive Secretaries.
(iii) Adopt staggered transitional arrangements in the following staff categories:
(a) regionally recruited staff positions: a once-off performance based contract extension, subject to the approval of the framework.
(b) locally recruited personnel: a once-off performance based contract extension, subject to the approval of the framework.
(c) adopt a contractual age-limit of 60 year for all categories of staff.
Council noted the observations of the Standing Committee of Senior Officials on the elements of the framework to be developed. Noteworthy is the recommendation by the standing committee that the framework be approved after the submission of relevant documentation and costs, and after its alignment with the RISDP.
Council recommended that the transitional framework should be governed by the principles of fairness, transparency, accessibility and accessibility. Council also observed that the framework should include among other things, merits and demerits of the system (emphasis added).
Upon considering the Note on the Establishment of Professional Permanent Staff System, Council made Decision 3, as follows:
1. Council reiterated that quota based recruitment guidelines, rotation and gender equity considerations should underpin the proposed long term fixed contract system.
2. Council approved the following recommendations of the Standing Committee of Senior Officials:
(i) the establishment, in principle, of long term fixed contract system for professional and local staff;
(ii) direct the Secretariat to develop the framework of the long term fixed contract system and submit for council’s consideration in August 2012; and;
(iii) the adoption of a contractual age limit of 60 years for all professional and local staff.
Council also approved the following recommendations of the Standing Committee of senior officials on transitional arrangements:
(i) treaty based positions and directors: status quo;
(ii) regionally recruited staff positions: a once-off performance based contract extension subject to the approval of the framework; and
(iii) locally recruited personnel: a once-off performance based contract extension subject to the approval of the framework.
The Record of the Council of Ministers Meeting held on 10th – 11th March 2014 indicates that Council clarified the age limit on the once-off employment contract renewal. It considered the background Note (SADC/CM/2014/7.2 on the implementation of the age limit on the once-off employment contract renewal. It noted as indicated in the Note, that staff of the SADC Secretariat are contracted on a four year employment contract renewable once, as approved by Council in February 2005.
The implementation of the two four year contracting framework coincided with the restructuring of the SADC Secretariat. This entailed the following:
(a) The approval of a new SADC Secretariat organisational structure with a staff compliment of 185. This was aligned to expanded mandate of the SADC Secretariat, which incorporated responsibilities of Sector Coordinating Units; and
(b) The filling up of the positions had to be undertaken through a recruitment process as no staffs’ was (sic) migrated from the previous SADC Secretariat organizational structure. Council recalled that at its extraordinary meeting held in November 2011, in noted implications of the implementation of the two-four year staff contracting framework. As recruitment of the majority of staff into the SADC organizational structure took place within a relatively short interval, these positions were due for recruitment in the period 2011 to 2014, which could have resulted in the following:
(i) loss of skills and experience;
(ii) loss of institutional memory;
(iii) lack of absorption capacity of Secretariat;
(iv) de-motivation of ICPs on capacity building programmes;
(v) lack of sustainability of projects/programs with departure of staff; and
(vi) high staff turnover leading to low staff morale and sense of institutional belonging.
Council also recalled that at its meeting held in March 2011, it directed the Secretariat to prepare relevant background papers on a number of issues including on the matter of appointment of permanent staff to the SADC Secretariat. Council at is Extraordinary Meeting held in November 2011, noted that:
(i) transitional arrangements would be required to continue improving the institutional capacity, pending the submission of staff terms and conditions of this long term employment framework; and
(ii) the contracts for the staff categories to serve on permanent basis would be renewed subject to satisfactory performance.
Council noted that the Secretariat was facing challenges on the implementation of the decision on 60 years days age limit due to lack of absolute clarity. It further noted that the Committee of Senior Officials provided further clarification on the issue of age limit for the Secretariat and re-affirmed the Extraordinary Council Decision of November 2011 that adopted a contractual age-limit of 60 years for all staff except for Treaty based positions. Council further noted that the draft long term fixed contract system would be presented to Council in August 2014.
Council approved that:
(i) recruitment and renewal of contracts should be based on the contractual period of 60 years age limit, whichever comes first.
(ii) renewal of once-off contracts for employees would be limited to four years or 60 years age limit whichever comes first; and
(iii) staff who are currently serving their first or second four-year contract and those serving once off contracts are allowed to complete their employment contracts to the end of their contracts regardless of age.
At the meeting held in Gaborone Botswana on 14th – 15th August 2015, Council approved the renaming of the long term employment contract framework to fixed term employment framework. It also approved an employment contract framework as follows:
(a) regionally recruited staff: 4 year term, renewable once for a four year term; based on satisfactory performance and age limit of 60 years; and
(b) locally recruited staff: 4 year term contract, renewable based on need for the position, satisfactory performance, and to a maximum of 60 years age limit.
At the meeting of the SADC Council of Ministers and the Extraordinary Summit of Heads of State and Government held on 15th – 16th March 2017, Council noted the report of the Human Resources and Administration Committee on 22nd to 24th February 2017, in Gaborone Botswana and deliberated on a number of human resources and administration issues as presented in document (SADC/HRA/1/2017/1).
Council noted that the staff of the Secretariat launched a Grievance on the implementation of the long-term fixed contract system. It noted that the Grievance was submitted to the Executive Secretary who sought a legal opinion from the Legal Affairs Unit on issues raised. The legal opinion identified and addressed the following issues:
(i) whether or not the concerned employees are entitled to a once-off contract extension after the Council Decision of August 2015 taken in Gaborone, Botswana;
(ii) Whether or not the concerned employees were discriminated against, unfairly treated and denied equity by the same Council Decision of August 2015;
(iii) Whether or not there was any legitimate expectation created by the Council Decisions of November 2011 and March 2014 that the concerned employees are entitled to work for the SADC Secretariat until they reach the age of 60 years; and;(iv) Whether or not the contractual age limit of 60 years was applied to some staff members before the final approval of the Long Term Fixed Contract framework by Council in August 2015. Council noted the pronouncements of the management team on each of the issues.
Council also noted that the management team, with guidance from the Legal Affairs Unit had considered the Appeal, and observed that the Appeal raised most of the issues that were similar to those in the Grievance. The council further noted management’s stand on each of the issues raised, based on the opinion.
Council re-affirmed its Decisions of November 2011, March 2014 and August 2015 as they are not discriminatory and dismissed the appeal by the concerned employees.
The relief sought by the applicants is that the erroneous interpretation and application of the 1st respondent’s decision of 2015 be set aside, and that the applicants’ contracts be renewed in accordance with the 2011 dispensation as was done for other staff.
Article III of the Statute of the SOUTHERN AFRICAN DEVELOPMENT COMMUNITY ADMINISTRATIVE TRIBUNAL (SADCAT) confers jurisdiction on a judge to hear and determine, at first instance, any application by a member of the staff concerning a dispute relating to the contract of employment or the terms of appointment of such member of staff as follows:
“Subject to a right of appeal to an appeals panel under Article X (4), a Judge shall have jurisdiction to hear and determine, at first instance, any application by a member of staff concerning a dispute relating to the contract of employment or the terms of appointment of such staff member.”
Article III further stipulates;
“No application shall be admissible unless:
(a) the applicant has exhausted all other administrative review remedies available within the Secretariat, except in cases where the applicant and the SADC Secretariat or SADC institution have agreed to submit the application directly to the SADCAT; and
(b) the application is filed within ninety days after the latest of the following:
(i) receipt of notice (after the applicant has exhausted all other remedies available within SADC secretariat or SADC institution) that the relief asked for or recommended will not be granted; or
(ii) receipt of notice that the relief asked for or recommended will be granted, and the expiry of thirty days after receipt of such notice without such relief being granted.”
There is confirmation that the appeal to Council was lodged by the applicants, as shown by correspondence dated 6th February 2017, and the attached grievance, signed by the affected regionally recruited staff, with the exception of Alcides Monteiro. The Tribunal’s considered view is that the admissibility requirements of Article III were satisfied. The Secretariat, and, the Council of Ministers had pronounced upon the issues raised. There was therefore no requirement for Alcides Monteiro to ventilate the same issues administratively before applying to the Tribunal. The clear intendment of Article III is that the grievance should have been dealt with administratively before being brought to the Tribunal for determination. Once this is done, an affected employee may approach the Tribunal for redress.
In terms of Article III supra, it is competent for the Tribunal to determine a dispute that arises between the parties, if it relates to the terms of employment of the applicants. While is it recognized the Tribunal has no jurisdiction to question a decision of Council generally, a decision that directly affects the terms and conditions on which members of staff serve may be agitated before the Tribunal. It remains to be seen whether the Council decisions in question affect the applicants, and therefore reviewable.
The issues raised in the grievance to the Secretariat were:
(i) The issuing of once-off contracts to those who were eligible for the same as employees of the institution when the 2011 decision was made;
(ii) Fair and non-discriminatory implementation of the 2011 decision in granting long term contacts to all staff as was agreed in principle prior to the 2015 decision on appeal to Council.
In terms of Article III of the Statute of the SOUTHERN AFRICAN DEVELOPMENT COMMUNITY ADMINISTRATIVE TRIBUNAL (SADCAT), it is procedurally not permissible for a party to raise issues not exhausted before “all other administrative review remedies available within the Secretariat” and for the first time before SADCAT unless there is an agreement to that effect by all parties. It was not contended before those mentioned fora, that the interpretation and application of the 2015 Decision was erroneous. This issue cannot therefore be raised now. The Tribunal is as a result confined to determining the issues that were raised at those fora, viz:
(i) The issuance of once-off contracts to the applicants; and
(ii) The fair implementation of the 2011 decision in granting long term contracts as was agreed in principle prior to the 2015 decision. (Emphasis added).
It is noteworthy that in addition to the prayer that the erroneous interpretation of the 1st respondent’s decision of 2015 be set aside, the applicants seek an order that their contracts be renewed in accordance with the 2011 dispensation as was done for other staff. While the first prayer is unreceivable, the second part of the prayer captures the issues formulated for determination.
The November 2011 Council Decision falls to be construed by the Tribunal. The ordinary meaning of the words used is to be recoursed in so doing. The context in which the decision was made requires to be examined. As acknowledged by the applicants, they were to serve a maximum of two four-year terms, pursuant to Council decision of 2005. They were initially offered a four-year term, which was renewable depending on their performance. It is equally unarguable that once an employee had served the second four-year term, the question of renewal did not arise.
The Council directive to the Secretariat to prepare relevant background papers and submit them was for the purpose of facilitating deliberation, and informing decision making. Council could make its own observations on the matter, and indeed, proceeded to do so when considering the Note. One crucial observation was that the merits and demerits of the system were to be included in the proposed framework.
As stated above, the Secretariat confirmed the need to have permanent staff at the Secretariat, as this was in the long term interests of SADC. The Secretariat’s absorption capacity would be enhanced, and loss of institutional capacity avoided if such a framework were adopted. The Troika’s recommendation was that Council revisit its decision on fixed two four-year terms and approve, in principle, the creation of long term fixed contracts, and mandate the Executive Secretariat to develop its implementation framework, to be submitted to Council in February 2012.
It is noteworthy that Council approved the Troika’s recommendation, and established in principle, a long term fixed contract system for professional and local staff. Council also directed the Secretariat to develop the framework of the long term fixed contract system and submit for Council’s consideration in August. While it is correct to assert that the framework that was to be developed was the long term fixed contract system, it should be remembered that the merits and demerits of the proposed system had also to be considered. This factor undermines the conclusion that Council had made up its mind to conclusively and decisively inaugurate the long term employment framework. Caution is discernible on Council’s part.
The Tribunal also notes that the 60 year age limit was not applied to those serving their first or second four-year terms, as they were to be allowed to complete their employment contract, unaffected by the newly introduced age limit. The applicants’ argument in that regard is unsustainable.
Additionally, at the time Ms Jocelyn Lukundula’s contract was renewed, Council had already clarified its decision relating to the 60 year age limit, in March 2014. Thus, Ms. Lukundula’s contract was renewed for another period of four years. She was expressly informed that renewal of a contract was, in terms of the November 2011 and March 2014 Council decisions, limited to a contractual period of 4 years or 60 years age limit, whichever came first.
The argument that Ms Lukundula’s contract would be renewed until she turns 60 years of age is a strained interpretation of the letter of renewal. The language employed cannot be construed as suggested by the applicants. It should be borne in mind that at that time, the long term employment framework had not yet been adopted. The November 2011 decision merely adopted a contractual age limit of 60 years of age, and did not imply that employees’ contracts would be renewed until they turned 60 years of age. Such a construction leads to absurdity and is contradictory of the undeniable intention by Council to consider a suitable framework as well as the merits and demerits thereof. Council had not yet adopted a long term contractual framework.
The internal memo addressed to all staff by the Executive Secretary, dated 14th January 2013 was captioned “Implementation of November 2011 Council Decision on once off contracts.”
The Executive Secretary noted that the Council decision reiterated that quota based recruitment guidelines, rotation and gender equality considerations should underpin the proposed long-term fixed contract system. The Executive Secretary also referred to the decision taken by Council, regarding a long-term fixed contract system, and the transitional arrangements to be put in place. The members of staff were informed that the development of the framework was still work in progress, and that extension of contracts of members of staff whose contracts of employment would expire before approval of the framework would be considered if, there was need for the position in the institution, overall performance of the staff member, and a contractual age limit of 60 years.
The Tribunal cannot conceive how this communication could be read as a firm commitment that the members of staff would be employed under the long-term employment framework to be developed. To the contrary, this memo underscored the transitional character of the once-off contract renewals. This would be for transitional purposes, where there was need for the position.
Of importance to the framework to be developed were quota based recruitment guidelines, rotation and gender. It is impossible, given these requirements, and on the state of the evidence, for any member of staff to validly conclude that they would serve the institution until they turned 60.
Thus the Tribunal finds that no express promise was made to the applicants that their contracts would be renewed under the long term employment framework, once it was finalized. A legitimate expectation cannot therefore arise. In Monteiro and Chinyama, the Tribunal held that there was a practice that an employee whose performance was of the expected standard would have their contract renewed for a second four-year term. Legitimate expectation thus arose on the applicants’ part in those cases, which the institution had to fulfill. The circumstances of the present case are distinguishable from the two cases, rendering those cases inapplicable.
Absent an express promise that the applicants would be engaged on long term contracts when their current two four-year terms ended, the claim that they legitimately expected to be so engaged is ill founded. The observation that contracts of the staff categorises to serve on permanent basis would be renewed subject to satisfactory performance cannot be said to have ‘influenced’ the resolution, as argued by the applicants. That observation cannot be taken in isolation from the requirement to abide by quotas, rotation and gender balancing, as well as consideration of the merits and demerits of the long term employment framework. Those elements would inform any long term employment framework to be adopted.
Mesch vs Asian Development Bank, Decision No. 2 cited by the applicants gives expression to the entrenched principle that fundamental and essential terms and conditions of employment cannot be unilaterally amended. However, the applicants’ argument that the respondents unilaterally and retrospectively amended the applicants’ conditions of employment is devoid of merit, as neither the circumstances, nor the documentation on record support the contention that the two four-year terms on which the applicants were engaged were amended by Council. Thus, the basis of the applicants’ conclusion that they were to be embraced in the long term employment contract framework is nebulous.
The once off contract extensions were to be effected as staggered transitional arrangements. They were to be performance based, and subject to the approval of the framework. The words ‘subject to approval of the framework’ meant that the once-off contract extensions were conditional. Once the proposed framework had been approved, there would be no need for this transitional measure. Therefore, only those employees whose contracts terminated before the proposed framework was approved could benefit under this transitional measure.
It is undeniable that expectation to obtain a once-off extension arose in the applicants’ before the framework was adopted. That expectation was however extinguished upon adoption of the framework in August 2015. The fact that the framework was adopted almost four years later, leading to the extension of contracts for 93 members of staff is inconsequential. The sense of discrimination felt by the applicants in this regard is equally baseless.
The assertion that the 1st respondent varied the applicants’ conditions of service is equally unjustified. As noted above, the applicants were not informed that their contracts of service had been amended, or that they would continue in the service of the 1st respondent once the long term employment framework had been adopted by Council.
In Kifle vs Secretary General of the United Nations Judgment No. UNDT/2016/012, reference was made to Hepworth 2015 – UNAT – 503 where the United Nations Appeals Tribunal pronounced on the issue of legitimate expectation of renewal as follows:
“Although a staff member may challenge the non-renewal of an appointment on the ground that the administration made an express promise that gave rise to a legitimate expectation of renewal, there is no legal authority for the proposition that an implied promise of renewal stems from past renewals of an appointment.”
While mindful that decisions of other tribunals are not decisive, due weight should be accorded to those decisions that encapsulate established principles in international administrative law. The cited decision is consonant with the tribunal’s opinion in the instant case. The claimed variation is devoid of merit.
It is noteworthy that the 1st respondent considered the applicants’ appeal and dismissed it, and reaffirmed the 2011 and 2014 decisions. The annotated agenda included the appeal, which was considered as shown by Ms. Lipaphang’s testimony. No bias is discernible in Council’s approach on appeal, as it in effect confirmed that the position taken by management was correct. The 1st respondent was on terra firma in dismissing it, as the purported legitimate expectation, and discrimination were clearly misconceived.
The Council determines the Terms and Conditions of Service of the staff of the institutions of SADC, per Article II of the Treaty. The Executive Secretary is inter alia, responsible for the appointment of the staff of the Secretariat, in accordance with procedure, and under Terms and Conditions of Service determined by the Council. It follows therefore that Decisions of Council are binding on the Executive Secretary. It is as a result impermissible for the Executive Secretary to put own interpolations on Council decisions.
In Ovrachenko et al vs Secretary of the United Nations judgment No 2015 UNAT – 530, it was held that Decisions of the General Assembly are binding on the Secretary General and decisions taken by the Secretary General in accordance with the content of those higher norms were lawful.
The assertion that Council selectively applied the 2011 decision does not prevail. Sight should not be lost of Council’s mandate to determine and fix terms and conditions on which staff would serve. As long as those terms do not affect the conditions of those serving their terms, Council’s decision in that regard is unreviewable, as it is lawful.
As the applicants’ terms and conditions of employment had not been amended by Council, the applicants cannot be heard to complain on how Council decides to deal with local staff. It was within its prerogative to do so, after conducting the bench marking exercise, in genuine pursuit of reform. It is misplaced to argue that the bench marking exercise favoured the applicants, as they were not the subjects of the proposed long term employment framework.
DECISION
For the above reasons the application is dismissed.
Given the circumstances of this case, each party will bear its own costs.
Delivered in Open Court this 15th day of February 2018 at Gaborone in the Republic of Botswana.
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HONOURABLE JUSTICE F. M. CHISANGA
VICE PRESIDENT - SADC ADMINISTRATIVE TRIBUNAL
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HONOURABLE JUSTICE F. BERE
MEMBER - SADC ADMINISTRATIVE TRIBUNAL
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HONOURABLE JUSTICE I. KAMANGA
MEMBER - SADC ADMINISTRATIVE TRIBUNAL
