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IEC constitutional case postponed

by Sunday Express
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Nat Molomo

THE Constitutional Court has postponed the case in which 130 Independent Electoral Commission (IEC) employees are challenging the commission’s intention to enforce a new organisational structure due to the unavailability of one of the judges.

The matter is now expected to be heard on 9 May 2019.

Justices Molefi Makara and Keketso Moahloli postponed the case because Justice Sakoane Sakoane, who is supposed to hear the case with them was unavailable due to logistical problems.

However, Justice Makara told the applicants that interim order granted on 7 March 2019 interdicting the IEC from implementing the new organisational structure was also extended to 9 May 2019.

Advocate Chris Lephuthing is appearing for the 130 applicants while Advocate Khotso Letuka is representing the respondents in the matter.

Before the postponement, Justice Makara explained to the court: “We are sitting as High Court administering constitutional litigation and by operation of law whenever the High Court sits as a Constitutional Court, there must be three judges on the on the bench”.

“However, it is me and my brother Justice Keketso Moahloli and we have to be complemented by Justice Sakoane Sakoane.  Unfortunately, he is not available due to logistical problems and there is no certainty that he was aware that the case would proceed unless he was made aware.

“The reason is that being constitutional this matter must be given preferential treatment,” Justice Makara said.

Justice Makara also said one of the reasons for postponement is that they received some of the heads of argument on the day of the hearing and they needed time to read them before they can proceed.

The 130 IEC employees launched an urgent application against the IEC, the Ministry of Public Service, the Ministry of Finance, the Clerk of the National Assembly, and the Commissioner of Police who are respectively cited as the 1st to the 6th respondents.

The applicants allege in their court papers, among other things, that the new organisational structure is discriminatory against them and violated sections 16 and 18 of the constitution hence the IEC must be interdicted and restrained from implementing them till the matter has been finalised by court.

The Constitutional Court issued a temporary interdict on 7 March 2019 barring the IEC from implementing its new organisational structure until the finalisation of the case.

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, 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, a development that would prejudice them.

“The first respondent (the 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 reads.

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 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.

Last month, one of the applicants, Matsoso Ntsihlele, told the Sunday Express that 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.

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