Decision to fire Gwabeni ‘unlawful’

North West Premier Supra Mahumapelo and his executive committee acted unlawfully in their decision to fire Themba Gwabeni as board chairman of the provincial government’s transport entity. This was the ruling of Judge Hilary Rabkin-Naicker who ordered North West Transport Investment (NTI) to confirm the appointment of Radinaledi Josiah Mosiane as the entity’s legitimate group chief executive officer. The job carried an annual salary of just over R2 million over a 5-year period. Judge Rabkin-Naicker made the ruling in the Labour Court in Joburg on Monday after protracted resistance by members of the new board, including the acting chief executive advocate Kgabo Mapotse, to allow Mosiane to resume his post. Mosiane was due to take up the post on September 1. It became vacant towards the end of December last year and Gwabeni and his board members took a decision to advertise the position. But on May 27, during a meeting at Modimong Village in Taung, Mahumapelo and his executive took a decision to fire Gwabeni and his board members.

The decision came soon after a group of North West business people protested against Mahumapelo and accused him of giving tenders to his wife and his cronies. The voices of protest included slain North West billionaire Wandile Bozwana. Bozwana and Mahumapelo were arch-rivals while Gwabeni had close ties with Bozwana. Determined to remove Gwabeni from his post, Professor Job Mokgoro, a former North West director-general, was appointed acting head of NTI. However, Gwabeni ignored Mahumapelo’s decision and confirmed Mosiane’s appointment. But on August 27, Mosiane received a letter from Lindi Mthunzi, the new NTI transactional adviser, stating: “The offer of employment extended to you was not authorised, is invalid and unenforceable and your acceptance thereof accordingly does not result in the conclusion of a valid and binding agreement.”

On September 1, Mosiane reported for duty accompanied by Gwabeni. The next day, he received a letter from Mokgoro stating that his appointment was “unlawful, arbitrary and lacked the requisite authority”. Mokgoro said there was no board resolution to appoint him but Gwabeni handed the board resolution to Mokgoro on September 7. In court papers, Mapotse told Judge Rabkin-Naicker that the premier had fired Gwabeni and Mosiane’s appointment was invalid. He also cited an earlier meeting on March 18 in which Mahumapelo and his executive took the decision to sell the operations of NTI to the Gauteng provincial government. Mapotse said the Premier also resolved that “all processes of the filling of vacancies should be put on hold until all processes has been concluded.” He said the premier took the decision to dissolve Gwabeni’s board “on the basis it was dysfunctional and unable to carry out its mandate”.

In his written reply affidavit, Mapotse said the provincial government was empowered by the Public Finance Management Act (PFMA) to take such a decision but Mosiane disagreed in his court papers. Mosiane said in his papers the NTI was a public entity and therefore Mahumapelo was supposed to summon Gwabeni and his team to a meeting and formally communicate his decision to them. Judge Rabkin-Naicker agreed. In her ruling, she said: “I cannot accept the submissions by advocate William Mokhari that the PFMA is the source of power of the NTI. It is legislation that governs the financial accountability of public entities such as the NTI. “In the absence of the exemption in terms of section 9 of the Companies Act, the NTI must be treated as a public company.” The judge also pointed out that Mahumapelo later became aware of the illegality of his actions and he decided to write letters to Gwabeni’s board members on July 20 with the view of meeting the requirements of the Companies Act.

She said Mahumapelo’s action supported Mosiane’s founding affidavit that the provisions of the act “did not consider the dissolution of the board lawful and reflected this in a resolution dated July 13, 2015”. “Mosiane had accepted the offer from the board on August 3, 2015. At the time, the resolution to dissolve the board by the shareholder (the North West government) was not valid and binding in terms of the Companies Act,” Judge Rabkin-Naicker said.