NHE in breach of own Act, court rules

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Not lawful… NHE director Elton !Gaoseb had been acting illegally as CEO of NHE, the High Court ruled last week.

Windhoek

The National Housing Enterprise (NHE) violated the very Act that established it when the board of directors appointed one of its own as acting chief executive officer, the Windhoek High Court found in a ruling delivered on Friday.

Deputy Judge President Hosea Angula upheld an application brought by Willem George Titus, the senior manager for operations and business development against the decision by the board to appoint Elton Khoitage !Gaoseb as the acting CEO after the term of Vincent Hailulu came to an end last year.

Titus launched the application on January 26 after the board extended the appointment of !Gaoseb from an initial two months to an indefinite period until a suitable candidate for the position of CEO was found.

He sought a declaratory order that the designation and appointment of !Gaoseb as the CEO of NHE is in violation of Section 10 (4) of the Act and, therefore, invalid and of no force or effect.

The section in question stipulates that if the post of CEO of NHE is vacant, the board shall designate any suitable staff member of NHE to act, until a substantive CEO has been appointed.

The NHE and !Gaoseb opposed the application. NHE argued that the provisions of the section are merely directory and not mandatory and that the board was not satisfied that any of the staff members were suitable to be appointed acting CEO.

It also raised three objections: firstly, that Titus unreasonably delayed in bringing the application; secondly, that he lacks locus standi; and lastly, that the application is academic and of no practical effect.

!Gaoseb argued that the declaratory relief is not appropriate. He questioned whether an administrative decision can be set aside by way of a declaratory order and also whether Titus has locus standi to bring the application and in the result, whether the court has jurisdiction to hear the matter.

On the question of locus standi the deputy judge president said Titus is a senior employee of NHE, who in the past acted as CEO, and this qualifies him as an interested party, giving him locus standi.

On the question of jurisdiction, the judge ruled that the matter is not an employment issue, but an ordinary case where a declaratory order is sought and it is thus in the purview of the court to adjudicate and determine whether such declaratory order should be granted or not.

Deputy Judge President Angula further squashed the objection of unreasonable delay and found that the applicant did not unduly delay in bringing the application.

He said NHE first appointed !Gaoseb for an initial two months and only on November 1, 2015 extended his appointment for an indefinite period until a substantive CEO would be appointed. In the circumstances, he said, the delay in bringing the application was less than three months, which does not constitute an unreasonable delay.

On the issue of whether or not the NHE violated the Act, the judge said the words of Section 10 (4) are unambiguous that a director of the board is disqualified and shall not be appointed as CEO.

He granted the declaratory order that the appointment of !Gaoseb is invalid and ordered NHE and !Gaoseb to pay the costs of the application, jointly and severally, the one paying the other to be absolved.
Norman Tjombe represented Titus in the application. The NHE and !Gaoseb were represented by Sisa Namandje.

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