A case brought against the Universal Service and Access Agency (USAASA) and the Department of Communications (DOC) by suspended officials from the agency has been thrown out by the Labour Court in Johannesburg.
In September, CFO Andrew Hlubi; executive manager of business development, Molefi Jacob Mollo; and senior manager of supply chain management, Archie Nhlanhla Mbatha were placed on special leave.
The three applicants were advised that management was considering their suspension pending a forensic investigation into allegations, which arose via an internal audit report. The agency said the suspensions were necessary, as their presence at the workplace would have jeopardised the investigation. Judge AC Basson of the Labour Court, in Johannesburg, said this is a reasonable reason for suspension.
On 6 December 2011, each of the applicants was served with a notice of disciplinary enquiry. All three applicants were also served with a detailed charge sheet, which included charges for numerous contraventions in the process of awarding tenders. The disciplinary hearing was scheduled for 15 December 2011, but as it was about to commence, the applicants launched this present application on an urgent basis. It went before the Labour Court SA on 17 January.
CEO Phineas Moleele was also placed on cautionary suspension on 6 October and the agency in February confirmed that Thato Matsepe, in charge of USAASA's internal IT infrastructure, had also been suspended pending the conclusion of an internal investigation.
Interim leadership
“I am happy with the progress being made as a result of my decision to second two officials from the department to act as executive caretakers to steer the entity towards recovery. The agency is beginning to find its feet, with the business strategy and corporate governance systems having been put in place,” said Pule.
The applicants submitted a leave to appeal, questioning the powers of the minister of communications to appoint executive caretakers in respect of a public entity in terms of section 80 of the Electronic Communications Act 36 of 2005.
The order made was that the application was dismissed with costs, including the costs of the two senior counsel employed by the DOC and the costs of senior counsel employed by the agency.
Basson said there is nothing in law to preclude the minister from replacing the board on an interim basis with executive caretakers, pending the appointment of a new board. “It is concluded that the appointments... [are] implicitly authorised by section 80(2) of the ECA.”
Material prejudice
The applicants were seeking orders declaring the appointments of Phiri and Vilakazi as unlawful and null and void for failure to comply with the provisions of the ECA; their suspension from work as unlawful and invalid; and they were also seeking an order lifting their suspension and restraining the disciplinary proceedings against them.
The applicants are contending that their suspension is not justified and they were not afforded an opportunity to be heard prior to their suspension. Basson was not persuaded, saying when the special leave was initially cancelled, the applicants were afforded an opportunity to submit representations in writing.
“The applicants remain on full pay during the course of their suspension pending the disciplinary hearing. I am not persuaded that the applicants will be materially prejudiced by the suspension and I am particularly not persuaded that they will suffer any irreparable harm as a result of the suspension. In the premise, the applicants have failed to make out a case for the order they seek.”
Universal access
In terms of the project under investigation, ITWeb in September reported that USAASA paid the service provider R15 million, even though it only provided one out of the expected 20 access centres for the first quarter of this year.
The agency revealed this while reporting on its 2011 first-quarter performance at a parliamentary portfolio committee meeting. Only one service provider had been appointed. The amount paid by the date of the meeting was R15 million. The project was put under review after input was received from stakeholders and the committee's oversight visits.
The government agency is responsible for promoting the goal of universal service and access.
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