SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
ADMINISTRATIVE TRIBUNAL (SADCAT)
TRIBUNAL OF 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
V
CEO SADC- DFRC................................................................ Respondent
CORAM: Honourable Justice Mbutfo Donatus Mamba
Honourable Justice Fulgency Chisanga Honourable Justice Francis Bere
SECRETARY: Honourable Nemaduthsingh Juddoo
APPPLICANT’S AGENT: Ngwenya Associates
RESPONDENT’S AGENT: Kambai Associates
RULING No.1
[1] The Applicant is Dr. Herrick Mpuku.
[2] The Respondent is the Chief Executive Officer of SADC - DEVELOPMENT FINANCE RESOURCE CENTRE TRUST (hereinafter referred to as the Trust). The Trust is registered under laws of Botswana. It was registered on 26 February 2004. It is run by a Board of Trustees and has its principal place of business in Gaborone, Botswana.
[3] The Applicant and the Trust entered into a written employment contract in August 2014, whereby the Trust employed the applicant as its Programs Manager for a fixed period of 4 years, with effect from the 01 October 2014. In concluding the said agreement the applicant represented himself whilst the Trust was represented by Mr. Stuart Kufeni, in his capacity as its Chief Executive Officer. The employment agreement is governed or regulated by, amongst others, the SADC - DFRC Rules and Procedures Handbook.
[4] The employment agreement is due to end on 30 September 2018. In terms of regulation 11.7 of the said Regulations, the Applicant had the right to apply for an extension of the contract for a further term of 4 years. Such a right had to be exercised by the Applicant at least 6 months before the expiration of the contract.
[5] By letter dated 25 September 2018, the Respondent notified the applicant that it would not renew his contract of employment. This was after the Applicant had during the month of July or August 2018 intimated to the Respondent that he wished to have his contract renewed. The decision by the Respondent not to renew the contract has prompted the Applicant to file a substantive application for review simultaneously with the urgent application on 18 September 2018. In the urgent application, the Applicant claims, inter alia, that pending the hearing and determination of the substantive application, he be granted the following interim relief:
“1. Nullifying the decision made by the Respondent.
2. Directing the Respondent to renew the applicant’s contract for a further 4 years.
3. In terms of rule 19, directing that the decision made by the respondent be, immediately and 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.”
[6] This application is opposed by the respondent who has raised the following points in limine, namely.
1. The application is not urgent and that the Applicant has failed to set out the circumstances which render the matter urgent and the reasons why he claims he cannot be afforded substantial relief at a hearing in due course.
2. The Applicant has failed to allege all the facts to prove or establish that he is entitled to an interdict or injunction.
3. The Applicant has failed to show that the impugned decision is unlawful, and
4 “The Tribunal does not have the jurisdiction to entertain disputes pertaining to conditions of employments of SADC - DFRC, which is a body Corporate and registered under the Deeds Registry... of the laws of Botswana.”
[7] The third ground of objection stated above was filed and served by the Respondent on 25 September 2018, whilst the other grounds were filed on 21st September 2018.
[8] The crux or nub of the third ground of objection raised by the Respondent is that this Tribunal has jurisdiction only in respect of employment disputes between SADC and its institutions on the one hand, and their employees on the other. It is averred by the Respondent that the Respondent is not a SADC institution as it is an independent and autonomous Trust as enshrined in its deeds. The Applicant has argued that the Respondent is a SADC institution and therefore this Tribunal has the requisite jurisdiction to hear and determine this dispute between the parties.
[9] It is common cause that this Tribunal has the jurisdiction to hear employment disputes between SADC and SADC Institutions and “any member of staff or any person who is entitled to claim upon a right of a staff member.” A SADC institution described is a body established as an institution of SADC, under article 9 (1) of the SADC Treaty. The Trust is not one of those institutions listed under article 9 (1) of the Treaty. However, article 9 (2) of the Treaty refers “to other institutions (that) may be established as necessary”.
[10] Apart from the Deed of Trust and the registration of the Trust, there is insufficient material before us on how the Trust was actually registered or, whether or not it is one of those institutions established in terms of section 9 (2) of the Treaty of the SADC.
[11] It is common cause that the applicant, as an employee of the Trust is a bearer or holder of a SADC passport, and Diplomatic identity card issued to him on 24 July 2016, by the Government of Botswana. This identity card is number SADC - 31012014-03381. This card reflects that it was issued to him in his capacity as a Program Manager at SADC Secretariat. This card was valid until the 23rd day of July 2018. His visa expires on 30 September 2018; that is the date on which his contract of employment expires). This information tends to suggest some affiliation to or association with SADC.
[12] From the above summary and analysis of the facts, it is plain to us that SADC as an institution has a direct and substantial interest in the adjudication and outcome of these proceedings. SADC is, however, not a party in this proceedings. Because of its direct and substantial interest in the matter, we order that SADC be and is hereby joined as the Second Respondent in this proceedings
[13] The Tribunal is also of the considered view that because of the deficiency or inadequacy of the material pertaining to the establishment of the Trust and, its relationship if any, with SADC, the latter must and is hereby ordered in terms of Rule 24 (3) of the Rules of this Tribunal, to produce any evidence, information or document that it has in its possession pertaining to or regarding the establishment of the Trust that may assist the Tribunal in a fair and expeditious disposal of these proceedings.
[14] This Tribunal is mindful of the fact that because this application has been filed on an urgent basis and within a relatively short period, it may have been less than easy for the parties to assemble or garner the necessary material or evidence in support of their respective cases and thus the insufficiencies in the evidence referred to above. However, the Tribunal has a duty to do justice between the litigants. It is not a passive umpire but a vehicle for justice and fairness.
[15] We are of the considered view that because of the challenge or objection to the jurisdiction of the Tribunal to hear this dispute, it would be totally inappropriate and indeed illogical to grant the interim relief sought by the Applicant.
(a) SADC is to be joined as the Second Respondent herein.
(b) SADC is ordered to submit to this Tribunal any evidence material or information it may have in its possession or custody relating to the formation of the Trust and the Trust relationship with SADC, if any.
(c) The required information shall be submitted to the Secretary of the Tribunal within 15 days of the service of this Order upon SADC.
(d) The Secretary of the Tribunal is to effect service of all documents on SADC as a Second Respondent.
