SWADE CEO Doctor Lukhele loses appeal

MBABANE – SWADE Chief Executive Officer (CEO) Doctor Lukhele is no longer employed by the organisation.

This follows a decision by the Supreme Court to dismiss his appeal against a High Court judgment that found that Lukhele had never had a tacitly renewed contract with the Swaziland Water and Agricultural Development Enterprise (SWADE).

Judge Stanley Moore who prepared the judgment, with presiding Judge Ahmed Ebrahim and Dr Seth Twum said Judge Bheki Maphalala at the High Court was correct to find that Lukhele’s contract had not been renewed.

Moore agreed with SWADE’s Advocate Paul Kennedy that Lukhele had been informed that his contract would not be renewed further at the expiry of the last 12 month contract given to him when a new SWADE Board took over.

Kennedy had been instructed by lawyer Zweli Jele.

He said Lukhele had been present when the announcement was made and that the position would be advertised, but he did not protest.

"In December 2010, when the board indicated its intention to commence a recruitment exercise for a new CEO, the appellant (Lukhele) raised a dispute contending that his contact of employment had been tacitly renewed for a three-year period more than a year earlier," Moore said.

He said the Employment Act of 1989 was clear on when an employee would be considered to have been dismissed from employment. He said Lukhele’s Advocate Garth Hulley who had been instructed by Lawyer Muzi Simelane had failed to ascribe any technical meaning for the word ‘dismiss.’

Judge Moore also said the employment act was clear that an employee was considered to have had his employment terminated, in this case, if engaged on a fixed term and whose term of engagement has expired.

He also said Kennedy’s submissions that High Court Judge Bheki Maphalala was correct in finding that Lukhele’s contract had not been tacitly been renewed because he had received proper notice on June 12, 2009 notifying him that his contract would not be renewed when it expired in September 2009. Kennedy had also submitted arguments that Lukhele, upon receipt of the notice, he exercised his right to appeal and did so to the Minister of Agriculture. He said the appeal was challenging SWADE’s board not to renew the contract.

"The minster acted on the appeal. He set about investigations made by the appellant and he appointed a Commission of inquiry to investigate the respondent’s operations. This culminated in the minister sanctioning steps to place the appellant on a series of short term contracts," Moore said.

Moore also said the letter written by the then Board Chairman Walter Bennett in his personal letterheads communicating the non-renewal was valid and official. Lukhele had argued that the letter was not official and was of no force and effect because the decision had not been approved by the Minister of Agriculture.

Moore said Kennedy’s submissions clearly and logically prevailed over those of Lukhele’s legal team.

"This court is in respectful agreement with the Court a quo (High Court) whose decision in effect upholds the soundness of the above submissions," Moore said.

He also said the High Court was entitled to consider the dispute in its entirety and make a determination of the issues placed before it. Lukhele had argued that the High Court had no jurisdiction because the Industrial Court had only issued an interim order barring SWADE from proceeding to hire a new CEO while the matter was finalised. The appeal was dismissed with costs including the costs of advocate.

Comments

Sorry Mhlanti weNdlunkhulu, actually I am not surprised, I didnt think you would pull this one off against government. Cases against the state are hard to win, and it now seems like a forgone conclusion when you go against the state that you risk losing...for some reason. But this could have gone either way. Hope you can cope with the wasted costs though.
Jun 1, 2012, 11:32 AM, Burns Dlamini Lobhoncela (Burnspolitics@gmail.com)

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