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An urgent application by fired Mandela Bay Development Agency (MBDA) CEO Anele Qaba seeking reinstatement has been struck off the roll by the high court in Gqeberha.
Judge Vuyokazi Noncembu delivered the judgment last Thursday. The decision to fire him was made during a special board meeting on March 27.
At the time, MBDA board chair Khulile Nzo said they resolved to terminate his employment on the grounds of material breach, misconduct and loss of trust.
Earlier this year, Qaba made explosive allegations against the agency’s board, accusing it of systematically undermining governance, interfering in administration and protecting officials purportedly implicated in financial misconduct.
He made the allegations in a letter to the deputy mayor, Gary van Niekerk, and co-operative governance and traditional affairs MEC Zolile Williams.
In his letter, Qaba claimed the actions of the newly appointed MBDA board had, from the outset, suggested it was protecting certain officials facing various allegations.
On Monday, Qaba said it was unfortunate to lose on urgency, but the judgment was not based on the merits of his case.
“We were expecting it could happen. I have already given my legal team instructions to pursue the matter on a normal court roll as per the judgment.”
He said the MBDA had no case when it came to the merits.
“They know that. I will continue to pursue the matter even if it takes 10 years. I am ready, and I can assure you that in the end I will emerge victorious. Even if I die tomorrow, my legal team has instructions to pursue the matter until justice is served.
“In the meantime, the MBDA is banking my money. I have been through this before, and I am more than ready to walk this path again without any fear,” Qaba said.
Nzo said the board welcomed the judgment. “We are now focused on stabilising and rebuilding the MBDA to deliver on its mandate. Our immediate task is to turn around project performance to add value to the broader Bay economy.”
In her judgment, Noncembu said Qaba was sent a letter on March 24 giving him 48 hours to show why he should not be fired.
“The essence of the letter was that the applicant had made various disparaging and contemptuous allegations concerning the board and the affairs of the agency in a letter sent to certain members of the executive and officials of the municipality.
“The allegation in the termination notice was that the issues raised in the letter related to internal governance, disciplinary processes, and reports, which are confidential and subject to internal governance structures,” Noncembu said.
‘Serious misconduct’
“The communication of such matters externally without authorisation, the notice continued, which resulted in public dissemination, was regarded as serious misconduct and a material breach of obligations since they were not reported to the board.”
According to the judgment, the notice alleged that Qaba had disclosed confidential and non-public agency information to third parties without authorisation in breach of his contractual confidentiality obligations and the agency’s confidentiality and social media policies.
It further alleged that his actions had brought, or were likely to bring, the agency into disrepute and had caused a material and irreparable breakdown in trust between himself and the agency.
On this basis, the agency argued that Qaba had breached a clause of his employment contract, which permits dismissal where an employee is guilty of conduct warranting dismissal.
“In the certificate of urgency, the main basis raised for urgency was the importance of the matter to Qaba, it being alleged that from the communication received it was clearly apparent that dismissal was imminent and [in the] public interest, where it was alleged that without the applicant’s oversight function at the agency, further irregular activities could occur without proper intervention.”
Noncembu said the four main grounds raised as a basis for urgency were the predetermined finding of guilt without following procedures, loss of income, public interest, and reputational harm.
“It is an absolute requirement to set forth the reason for claiming that substantial redress would not be possible other than via the urgent application launched. Notably, information is scarce on these factors in Qaba’s founding affidavit,” she said.
“Even his supplementary affidavit does not address this second leg of the test for urgency. The applicant is silent on why he asserts that he would not be afforded substantial redress in due course.
“An attempt is made in the replying affidavit to make a case for urgency by the applicant. This is clearly impermissible, as an applicant is required to make their case in the founding affidavit. Even so, all that the applicant does in the replying affidavit is to list the family’s financial expenses,” Noncembu said.
“That on its own tells this court nothing about the exceptional circumstances of his financial hardships, which would warrant the urgent intervention of this court.”
She said reputational damage alone does not meet the requirements for urgency.
“Courts have remarked that high-earning employees with means are inclined to seek to jump the queue and have their cases argued on an urgent basis, impacting the important principle of equality of employees before the law.
“Effectively, the relief he seeks before this court is his immediate reinstatement on an urgent basis, and yet he provides no exceptional circumstances, nor does he explicitly set out reasons such relief should be granted by this court on an urgent basis,” Noncembu said.
“He gives no reasons as to why he cannot be afforded substantial redress at a hearing in due course.”
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