Pascalinah Kabi

THE Constitutional Court has issued a temporary interdict barring the Independent Electoral Commission (IEC) from implementing its new organisational structure until the finalisation of the commission’s 130 employees’ main application for the nullification of the structure which they say is discriminatory.

The interim court order was granted on 7 March 2019 by the constitutional bench comprising of justices, Sakoane Sakoane, Keketso Moahloli and Molefi Makara. The main case will be heard on 10 April 2019 and the IEC is expected to ‘show cause’ why the substantive application of the 130 employees cannot be granted.

The employees argue that the IEC has reneged on implementing a new organisational structure based on the recommendations of a study that was conducted by a consultant, Dr Griffith Zabala, which would have seen them being promoted and receiving higher salaries. They allege that instead of implementing the Dr Zabala structure, the IEC has decided to implement another structure which allows it to hire new employees- development that would prejudice them.

The IEC, the Ministry of Public Service, the Ministry of Finance, the Clerk of the National Assembly, the Commissioner of Police and the Attorney general are cited as the first to sixth respondents respectively in the lawsuit.

“The first respondent (IEC) is interdicted, prohibited and restrained from proceeding with the implementation of the new organisational structure formulated by the management task team of the IEC and/or appointing any person to the created positions envisaged in the new structure pending finalisation of the main application (for the setting aside of the organisational structure).

“Taking any steps in relation to the performance of any activity pursuant to the new organisational structure pending finalisation hereof (is prohibited),” part of the interim interdict states.

Justices Sakoane, Moahloli and Makara further directed the IEC to submit to them the documents of the new organisational structure within seven days of receiving the 7 March 2019 interim court order.

The 130 IEC employees want the constitutional court to declare that the positions contemplated in the new structure null and void.

“An order (is sought) declaring the invalidity of the decision of respondent (IEC) stalling the implementation of the structure executed by Dr Griffith Zabala to the extent of taking away the benefits of applicants.

“A declaratory order (is sought) that the applicants are entitled to the benefits and salaries commensurate to their appointments to positions authorised in the structure of Dr Zabala,” the applicants’ legal representative Advocate Christopher Lephuthing states in his notice of motion to the High Court Registrar.

According to one of the applicants, Matsoso Ntsihlele, the IEC allegedly shelved and stalled the implementation of the Dr Zabala’s structure thus depriving the applicants of salary increments as per the new structure.

“For avoidance of any doubt, I must frankly indicate that the professional services of Dr Zabala for restructuring IEC were facilitated by United Nations Development Programme (UNDP) and this was a legitimate assignment. The structure recommended by Dr Zabala came about as a result of an intervention in the affairs of the operations of IEC to resolve the concerns we raised as employees in different categories of the IEC,” Mr Ntsihlele said.

He said the structure recommended by Dr Zabala should be implemented because it had strong inbuilt checks and balances to protect employees and these were the product of the consultations that Dr Zabala had with IEC workers.

“I must state that there is a gazette authorising a staff transitional arrangement. The gazette came into effect to facilitate the independence of the IEC from the government with effect from 26 August 2012.

“As the employees of the first respondent (IEC), we were consulted and we ventilated our views. We took part in the deliberations which culminated in the structure (by Dr Zabala) being finalised and approved by the first respondent pursuant to its power to employ staff on terms and conditions of employment it deems fit.

“We were accordingly informed that our new appointments have been dispatched to the relevant office for implementation,” Mr Ntsihlele said.