Acting High Court Judge Liezl van Wyk explained that only the board can appoint a CEO and that it cannot delegate its powers as it is a statutory institution, thus the conditions of employment that Uazuva Kaumbi relied upon are delegated power which in turn means there was no prima facie case established.
The acting judge stated this when she explained the dismissal of the application by Heinrich Uazuvua Kaumbi lodged against the National Housing Enterprise (NHE) following the recent appointment of a new CEO at NHE that Kaumbi challenged, he saying the recruitment unfairly excluded him and other internal candidates.
She said the board of NHE derives its powers and duties from Section 4 of the National Housing Enterprise Act. According to these powers the board may appoint staff and create the necessary human resource environment for such staff to be gainfully employed. The board shall also have powers to exercise the powers of the NHE, including that of management and the financial management of the corporation, and delegate these powers if need be.
She further said that according to the Act, the board is duty-bound to appoint a CEO and determine the functions and powers of the position. “I found the Act anticipated a delegation of powers to the chief executive officer to manage and control the organisation on behalf of the board,” she stated.
She further said the power of the board reiterates the delegation and this delegation takes shape in the approval of rules and company frameworks to assist the CEO. To this end, she said, the conditions of employment Kaumbi relied upon are such a delegation of power.
The conditions of employment emanated as an example of such rules to provide the CEO with a policy framework within which to appoint and manage staff, Van Wyk stressed. The appointment of a CEO cannot be delegated and can therefore for obvious reasons not be governed by a delegated set of rules, she said.
“The decision-making regarding the integrity of the recruitment process, such as whether to advertise or to headhunt, and the appointment of the CEO itself resorts fairly within the statutory powers and duties of the board,” the judge said, adding: “In my view this appears to be the intention of the legislator.”
According to the judge, due to the delegated nature of the conditions of employment it cannot have equal force or supersede the establishment Act, from where it obtained its origin. As a result the prima facie right upon which Kaumbi relied is reliant on the breach of a set of rules which did not apply at the level at which the decision of the appointment of the CEO has taken place, but at a higher level.
“As such the conditions of employment could thus not have been broken as the board did not exercise any power in terms of the conditions of employment in any of its decisions concerning the appointment of the CEO. It follows then that the applicant (Kaumbi) did not establish a prima facie right and the interdict cannot be granted,” Judge Van Wyk concluded.