Acting High Court Judge Liezl van Wyk on Friday said she will this week make a ruling on the application Heinrich Uazuvua Kaumbi lodged against the National Housing Enterprise (NHE), as she needs time to study the opposing arguments advanced.
Kaumbi lodged an urgent application to interdict the Board of the NHE from implementing its decision to appoint Gisbertus Mukulu as chief executive officer (CEO) of the parastatal, with effect from July 1. The interdict is sought pending the resolution of a dispute Kaumbi lodged with Office of the Labour Commissioner.
In the dispute before the Labour Commissioner, Kaumbi is seeking the review and setting aside of the decision by the Board of NHE not to consider current members of its management team for the position of CEO. He is further asking the Labour Commissioner to declare the appointment of Mukulu null and void and order thre firm to start afresh the process of recruiting a CEO.
Kaumbi is represented by Nixon Marcus, while Advocate Thabang Phatela is arguing the case for the NHE on instructions of Clement Daniels Attorneys. Advocate Tinashe Chibwana, assisted by Nelson Mutorwa from the Attorney-General’s Office, is representing the Minister of Urban and Rural Development.
According to Marcus, his client suffered severe prejudice when the Board neglected to follow its own recruitment policy by first looking for a suitable candidate fwithin the corporation before extending the search externally. He argued that Kaumbi is fully qualified for the position, but the Board – using a vague excuse that the minister does not trust the current management team – denied him the opportunity to be interviewed for the position.
To make matters worse, Marcus said, when Kaumbi lodged a grievance with the Board about their decision, they led him on a merry-go-round only to inform him at the very last minute that the grievance procedure was terminated and that they had already appointed a new CEO. This left his client with no other choice than to approach the Labour Court on an urgent basis to seek a remedy, Marcus argued.
Phatela on the other hand argued that Kaumbi is challenging the outcome of a process that started in September 2015 and created the urgency. He asked the court to dismiss the application with costs. According to him, Kaumbi should have approached the court already in October last year when he was unequivocally informed that the Board stands by its decision not to consider applicants currently working for the NHE.
“The ship has sailed,” he told the judge. He further said the applicant claims a right to be considered for the position, supposedly because of a clause in the conditions of employment of the NHE. The specific clause in the terms of service does not include the position of CEO, Phatela argued saying the decision by the Board to exclude employees from the recruitment process does not violate any provision of the terms or contract of employment of the NHE.
He further asked the court to find that no urgency exist in the matter, as the applicant was “luxurious” in the time he took to raise the matter.
“The applicant must have known since October last year that the decision of the Board not to include employees in the search for a new CEO was final, yet he failed to take immediate steps to seek remedy. He knew the only way to set aside an administrative decision of a statutory body was through a court order,” Phatela said, adding that “he failed to do that and now wants this court to come to his assistance at this late stage.”
Chibwana argued that the decision by the Board was endorsed by the Minister of Urban and Rural Development, as the authority responsible for the parastatal. He then asked the court to dismiss Kaumbi’s application with costs.