SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
ADMINISTRATIVE TRIBUNAL (SADCAT)
TRIBUNAL DE JUSTIÇA TRIBUNAL OF JUSTICE TRIBUNAL DE JUSTICE
BEFORE THE FIRST INSTANCE PANEL OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY ADMINISTRATIVE TRIBUNAL AT GABORONE, BOTSWANA
Application No 1 of 2018
Dr. Herrick Mpuku………………………………………..………..Applicant
And
CEO SADC- DFRC………………………………………….1st Respondent
SADC……………………………………………...………….2nd Respondent
CORAM: Honourable Justice Mbutfo Donatus Mamba
Honourable Justice Fulgency Mwenya Chisanga
Honourable Justice Francis Bere
SECRETARY: Honourable Nemaduthsingh Juddoo
APPPLICANT’S AGENT: Ngwenya Associates
1st RESPONDENT’S AGENT: Kambai Associates
2nd RESPONDENT’S AGENT: Mr. Mphasto Kachule
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RULING NO 2
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[1] The Applicant is Dr. Herrick Mpuku who is employed by Southern African Development Community – Development Finance Resource Centre Trust (SADC- DFRC) as a programs manager.
[2] The 1st Respondent is the Chief Executive Officer of SADC – DFRC. The Trust is registered in terms of the laws of the Republic of Botswana. It is run by a Board of Trustees and has its principal place of business in Gaborone, Botswana.
[3] The 2nd Respondent is the SADC Secretariat, an institution of SADC.
[4] On the 1st day of October 2014, the Applicant in these proceedings, concluded a written contract of employment with the 1st respondent, whereby he was employed by the latter as its programs manager. The contract was to endure for a period of 4 years and due to expire on 30 September 2018.
[5] One of the material terms of the contract was that the applicant had an option to apply for the renewal of the contract by giving at least 6 months’ notice of his intention to do so to the 1st respondent. Apparently, he failed to observe this period and only notified the 1st respondent of such intention in or about July 2018.
[6] By letter dated 21 August 2018, the 1st respondent informed the applicant that it would not renew his contract of employment. The applicant appealed that decision to the Board of Trustees of the 1st respondent, but before the appeal could be heard or determined, he filed this urgent application before this Tribunal seeking the following reliefs:
“(i) nullifying the decision made by the 1st respondent.
(ii) directing the 1st respondent to renew the applicant’s contract for a further 4 years
(iii) … directing that the decision made by the 1st respondent be, immediately as a matter of urgency, suspended and the applicant be allowed to continue in employment for a further 1 year or until the substantive issue is resolved, whichever is later.”
[7] The applicant averred, inter alia that, based on his past performance and experience with the 1st respondent, he had a reasonable expectation that his contract would be renewed for a further period of 4 years.
[8] In opposing the application, the 1st respondent raised a preliminary point amongst others, that this Tribunal has no jurisdiction to hear the application inasmuch as its jurisdiction is restricted or limited to employment disputes between SADC or SADC Institutions on the one hand and their employees on the other. The 1st respondent averred that it is not a SADC Institution and therefore not amenable to the jurisdiction of this Tribunal.
[9] Upon hearing submissions on the issue of jurisdiction, on 28 September 2018 this Tribunal ruled and ordered that SADC be joined as the 2nd respondent in these proceedings. It also ordered that SADC should furnish to this Tribunal any evidence, material or information it may have in its possession and custody pertaining to its relationship or association if any, with the 1st respondent. SADC duly complied with the order and filed its affidavit with the Secretary of this Tribunal on 12 October 2018 and served all parties herein.
[10] In its response, SADC states that the 1st respondent is not a SADC Institution but merely an independent or autonomous subsidiarity organization which carries out its projects and other undertakings.
[11] Notwithstanding the above averments by the 2nd respondent, the applicant did not file any response or reply thereto. Learned Counsel for the applicant was content to address the issue from the bar in argument before us. We found this strange to say the least. We deal with the issue of jurisdiction or lack thereof in the next segment of this ruling.
CONSIDERATION
[12] The SOUTHERN AFRICAN DEVELOPMENT COMMUNITY ADMINISTRATIVE TRIBUNAL (SADCAT) was created by the SADC Summit of the Heads of States held on 17-18 August 2015, acting pursuant to Articles (9) 2 and (10) 6 of the Treaty. The Tribunal is established by Article 1 of the Summit Resolution passed on 18th August 2015. In terms of Article 3 of the Summit Resolution a judge of the SADCAT has jurisdiction to hear and determine an application by a member of staff concerning a dispute relating to the contract of employment or the terms of employment of such a staff member.
[13] In terms of Article II (1), a member of staff is defined as any person whose current or former letter of appointment or similar instrument provides that he shall be a member of staff of the SADC Secretariat or a SADC institution, or any person who is entitled to claim upon a right of a staff member.
[14] From the Articles referred to above it is undeniably established that SADCAT’s jurisdiction is confined to determining disputes concerning members of staff of the SADC Secretariat and SADC institutions.
[15] By Article 9 of the Consolidated Text of the Treaty of Southern African Development Community, as amended, SADC institutions as set out under Article 9(1) were established. Additionally, Article 9 (2) provides for establishment of other institutions as may be necessary.
[16] The power to create other Institutions resides in the Summit, per Article 10 (6) of the Treaty. Article 11 of the Treaty provides that the Council of Ministers may recommend for approval to the Summit, the establishments of other Institutions.
[17] At a meeting held by the Council of Ministers in Luanda, Angola from 30 September to 1 October 2002, Council noted that the Development Finance Institutions (DFI’s) of SADC had submitted a proposal for the operationalization of a Development Finance Resource Centre (DFRC) as a self-financing institution of SADC to be hosted by a member of the DFI network.
[18] Council further noted that the initiative was in furtherance of the provisions of a Memorandum of Understanding (MOU) entered into amongst the SADC DFI’s on 22 May 2000. Council went on to note that the establishment of the Centre had also been approved by the SADC Ministers responsible for Finance and Investment.
[19] The Tribunal notes that under Article 12 of the Treaty it is the responsibility of the Sectoral and Cluster Ministerial Committees to oversee the activities of the core areas of integration, including Trade, Industry, Finance and Investment.
[20] At the meeting held in Luanda, Angola in 2002 Council went on to note that the proposed DFRC would be funded through direct contributions from DFI’s in member states. Council approved the proposal from the SADC DFI’s to operate under the principle of subsidiarity.
[21] The Tribunal observes from the Notarial Deed of Trust that the Southern African Development Community Finance Resource Centre Trust had been established in South Africa. Subsequently the Board of Trustees resolved, on the 19 December 2003, that the Deeds establishing the Trust be registered at the Deed Office for the Republic of Botswana. The Tribunal therefore concludes that the Southern African Development Community Development Finance Resource Centre Trust was established before 19 December 2003.
[22] It is further noted that the founders were the Southern African Development Community Finance Institutions (DFI’s) which were signatories to the original Deed of the Trust.
[23] At a meeting held in Grand Baie, Republic of Mauritius from 12 to 14 August 2004, held by the SADC Council of Ministers, Council considered and approved the following guidelines and procedures, inter-alia;
“Subsidiarity organisations shall be independent from SADC;
As independent entitles:
- Subsidiarity organisations shall not be accorded the designation of SADC institutions. Such designation is restricted to those institutions outlined in Article (9) (1) of the SADC Treaty, as well as those institutions to be created by the Summit as provided for in Article 9 (2) Other as read with Articles 10 (6) and 11 (f) of the SADC Treaty;
- Other Subsidiarity organisations shall not use SADC logo in any of their activities;
- Subsidiarity organisations shall mobilize their own ressources, including those devoted to the execution of SADC Programmes and projects;
- Subsidiarity organisations shall benefit from participation at SADC Meetings by invitations to be approved by ICM;
- SADC shall not bear responsibility for liabilities of subsidiarity organisations;
- Subsidiarity organisations shall be registered in the Member State in which they wish to operate. In this regard, the legal status of subsidiarity organisations shall depend on the application or operations of each Subsidiarity organisation, be determined by each host State in accordance with its laws;
- The diplomatic status of each subsidiarity organization shall be determined by each host State in accordance with its laws;
- The SADC Protocol on Privileges and Immunities shall not apply to subsidiarity organisations as these do not fall in the category of SADC Institutions in terms of the SADC Treaty;
- Subsidiarity organisations shall submit Annual Reports to the Integrated Committee of Ministers as a way of making them accountable to SADC.”
[24] The guidelines reproduced above underscore the independent character of Subsidiarity Organizations. It was expressly stated that the Subsidiarity Organizations would not be accorded the designation of SADC Institutions, such designation being restricted to Institutions outlined in Article 9 of the Treaty. It is rendered clear that Council was mindful of the manner in which SADC Institutions are created.
[25] The documentation on record reveals that the 1st respondent was registered as a trust in South Africa. Council approved operationalization under the principle of Subsidiarity only. There is no recommendation on record by Council to the Summit that the 1st respondent be created as a SADC institution in terms of Article 11(2) (f) of the Treaty. The said Article provides as follows:
“2. It shall be the responsibility of Council to: …
(f) Recommend, for approval to the Summit, the establishment of directorates, committees, other institutions and organs.”
[26] As observed, Article 10 (6) confers power on the Summit to create committees, other institutions and organs as it may consider necessary. It is the applicant’s argument that Article 8 of Annex 9 of the Protocol on Finance and Investment creates the 1st respondent as a SADC Institution. The Tribunal rejects this argument. The reasons for this view are that there is no recommendation to Summit by Council, that the 1st respondent be established as a SADC Institution in terms of Article 11(2) (f).
Secondly, the guidelines approved by Council clearly stipulate that Subsidiarity Institutions would be independent of SADC, and would not be SADC Institutions.
Thirdly, by Article 8 of Annex 9 to the SADC Finance and Investment Protocol which came into effect in July 2011, the State parties stated the following:
“State Parties agree that consistent with Council decision of 2002, there is hereby recognized, under the principle of subsidiarity, the Development Finance Resource Centre as a SADC institution for the purposes of supporting the capacity building and other initiatives of the Network.”
[27] The Tribunal’s view is that the state parties merely recognized the 1st respondent, under the principle of subsidiarity consistent with the Council decision of 2002. The use of the word “Recognize” underscores the reality that the 1st respondent was already in existence at the time. It was not being “established” by the Summit. The mere fact of recognition cannot negate the 1st respondent’s existence prior to its recognition by the State parties. The Tribunal cannot conceive how recognition of the 1st respondent can amount to its establishment on the facts of the case.
[28] The Tribunal has been referred to the ruling in Bookie Monica Khetusegile – Juru and The Southern African Development Community Parliamentary Forum, Case No SADC (T) 02/2009, by Counsel for the applicant as authority for the proposition that this Tribunal is seized with jurisdiction to hear and determine the application. The view of the Tribunal is that the cited case is distinguishable from the present application in as much as in that case there was evidence that the SADC parliamentary forum had been established by Summit in terms of Article 9 (2) of the Treaty. There is no such evidence in this case and therefore the cases are plainly dissimilar.
DECISION
[29] Having considered the documentation on record as well as the respective submissions of the parties, it is the Tribunal’s determination that the 1st respondent is not a SADC Institution. It is not one of those Institutions established by Article 9 (1) of the Treaty, nor has it been established under Article 9 (2) of the Treaty.
[30] Learned Counsel for the 1st respondent urged us, in the event we found that indeed this Tribunal has no jurisdiction in this matter, to order that costs must follow the event in view of the applicant’s failure to withdraw the application after the deposition made by the 2nd respondent. He argued that his client had been put out of pocket unnecessarily by such failure by the Applicant.
[31] The Tribunal has seriously and carefully considered the issue of costs and has come to the conclusion that although the applicant has lost in his application, his matter was not hopelessly unmeritorious. It was an arguable one. Thus, this being a labour dispute, it would not be proper to make an order for costs against the applicant. Accordingly, there is no order for costs made.
[32] Consequently, the application is dismissed for want of jurisdiction and there is no order for costs.
Delivered in Open Court this 31st October 2018 at Gaborone in the Republic of Botswana.
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HONOURABLE JUSTICE MBUTFO D. MAMBA
PRESIDENT SADC ADMINISTRATIVE TRIBUNAL
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HONOURABLE JUSTICE FULGENCY CHISANGA
MEMBER SADC ADMINISTRATIVE TRIBUNAL
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HONOURABLE JUSTICE FRANCIS BERE
MEMBER SADC ADMINISTRATIVE TRIBUNAL
