Court cannot reinstate axed estate agency boss, court hears

2011-03-10 14:38

Axed Estate Agency Affairs Board (EAAB) CEO Nomonde Mapetla cannot ask the Johannesburg High Court to reinstate her as it does not have the authority, the EAAB argued today.

“She can’t bring this case here. She hasn’t set out a case in law that can be heard here,” said Ross Hutton SC for the EAAB.

Mapetla was taking the EAAB, the department of trade and industry (DTI) and the individual board members to court.

She wanted to prohibit the board from acting as a board and to be restored as CEO, claiming her suspension and termination were unlawful.

Hutton submitted that her urgent application to be reinstated as CEO should be heard in a labour court.

However, Mapetla’s senior counsel, Dali Mpofu, the former SABC head, argued that there was no question about the jurisdiction of the court, based on case law.

Arguments today centred on whether the matter was urgent, with both sides presenting technical arguments.

Judge Lotter Wepener will hand down a decision on the urgency of the matter at 11.30am tomorrow.

If Mapetla is successful, the case will then be heard on its merits. Hutton argued that the matter was not urgent.

“The other elements of her case are so hotly disputed that they cannot be dealt with as an urgent matter,” he said.

In dispute was Mapetla’s contention that she was fired for whistleblowing.

In an affidavit, EAAB board chairperson Thami Bolani said that Mapetla “has, through nothing more than conjecture, speculation and self-promotion, attempted to build up a case which pretends that this matter is about something much bigger than the mundane early termination of a fixed-term contract”.

Her contention that she was suspended for whistleblowing was without foundation and it “had nothing to do with any fight against corruption and crime”, he said.

Mapetla, in her affidavit, said her dismissal went against the terms of the Protected Disclosures Act as it amounted to an “occupational detriment”.

“There appears, overwhelmingly, to be a direct linkage between certain anti-corruption or whistle-blowing activities upon which I had embarked in the period immediately preceding my suspension, which may fit the definition of ‘protected disclosure’.”

Some board members who were part of the decision to fire her, particularly Wendy Machanik, would likely be affected by these activities, she said.

An EAAB investigation into estate agency Wendy Machanik Properties led to the closing of the agency and criminal charges against Machanik and chief financial officer, Bruce Bernstein.

They allegedly made irregular transfers totalling R28 million from Wendy Machanik Property Holdings, to a fictitious account.

Mpofu argued that Mapetla should be granted an urgent interdict to reinstate her to the position she was fired from on February 27.

He said her case rested on three broad clusters of rights.

The first cluster was common law rights including the right to receive a fair hearing.

The second was the fundamental constitutional rights of dignity and privacy. Thirdly, it dealt with statutory rights provided by the Estate Agency Affairs Act and the Protected Disclosures Act.

“The violation of those rights may constitute urgency,” said Mpofu, who argued that Mapetla’s suspension on February 17 and her subsequent dismissal came “like a bolt out of the blue”, but the main issue was that she had been given no hearing.

This was a “flagrant disregard” of her right to be heard or to reply, he said.

The matter was urgent as Mapetla had been threatened by “unknown stalkers” and had had to up her security.

Judge Wepener asked Mpofu why he wanted an urgent interdict to prohibit the EAAB board from “purporting to act as a board”.

“Why is that urgent today?” he asked.

Mpofu said the EAAB board was unlawfully constituted as it only had 11 members while the Estate Agency Affairs Act required that the trade and industry minister should appoint 15 members.

“I’m attacking the minister’s appointment of the board... he didn’t follow the statute,” argued Mpofu.

Counsel for the DTI, Gcina Malindi, argued that the board was established in October last year when Mapetla was still CEO and that she ought to have challenged that at the time as she was one of the people entitled to launch that challenge.

Therefore, there was no urgency to dissolving the board now.

Mapetla was supported again in court today by ANC veteran Winnie Madikizela-Mandela, who was also at her side yesterday.

The EAAB board said Mapetla’s employment contract had been terminated immediately “due to an irreconcilable breakdown in the working relationship between the parties”.

Her contract was due to expire on July 15. Mapetla took up the post of CEO six years ago.

The EAAB is the regulator of the country’s 27 000 estate agents.

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