A high-level board meeting to determine the fate of seven directors of the Eastern Cape Development Corporation (ECDC) — who were irregularly dismissed by the provincial minister for economic affairs, environment and tourism, Andre de Wet, in September — turned pear-shaped on Wednesday after De Wet effectively ruled against a High Court judgement instructing him to act “without capriciousness”.
On Monday, the Grahamstown High Court dismissed an urgent application by the directors to prevent De Wet from holding Wednesday’s meeting — where they were told they will be “procedurally” fired.
However, the court also ruled that De Wet “may not remove directors at a whim, or capriciously, or without rational grounds. He must always act within the fundamental constitutional principle of legality [which provides] for an attenuated right to a hearing before removal.”
Instead, the directors were sacked on Wednesday without any reasons being supplied. They were therefore not afforded a reasonable opportunity to make representations, despite asking that the meeting be suspended for 14 days to allow them to prepare responses.
“We were given a chance to make a representation at the meeting, but how do you do that if you have been given no information about what the charges are against you?” said Mkhokeli Bovungana, one of the board members.
The seven sacked directors are Nominise Gogo, Pumela Mxakato, Nombuyiselo Ncwaiba, Andile Ntsonkota, Andile Sihlahla, Nkokheli Vuba and Bovungana.
This is the latest chapter in a drama that has played itself out at the ECDC since De Wet controversially fired the corporation’s entire board and suspended its CEO, Mcebisi Jonas; the chief financial officer; and the executive manager of property and development in September. They were never given reasons.
A month later, Jonas was reinstated after a High Court judgement found his suspension unreasonable in terms of fair labour practice. Simultaneously, the board members were reinstated on the basis that their dismissals had also been irregular.
Following this decision, De Wet gave written notice to the directors on October 19 that they should be present at a shareholder meeting on November 17, where they would be lawfully dismissed.
The directors tried to interdict the meeting, saying they had never been furnished with reasons for their dismissal in September and therefore could not make a fair counter-representation at Wednesday’s meeting.
Decision based on ‘confidential’ report
De Wet says his decision to sack them was based on a forensic report that shows irregularities into the sale of the Mpekweni resort near Port Alfred by the ECDC to a business consortium. De Wet has refused to produce the report because he says it is “confidential”.
He also claims to have a second report, from the auditor general, showing irregularities within the ECDC. However, John Smith, the attorney for the beleaguered board members, says this report doesn’t exist.
“I represented the ECDC at a meeting with the auditor general last week, and they made it very clear that there was no report and the only thing that they had were their own personal notes about issues that they want to address to senior management,” said Smith.
According to Monday’s court judgement, “De Wet is bound to consider [the] representations in good faith in the context of his statutory obligations … if he proceeds [at the meeting] for disregard [of these], he will do so at his own peril.”
“The intention isn’t to fight with [the] government, but there are principles involved. If there are serious allegations against any person, that person has a constitutional right, firstly to be told what those are and secondly to be heard,” said Bovungana.
According to De Wet, “the directors had every chance at the meeting to make a representation if they wanted to”.
“What they were effectively saying was that they wanted the meeting to be suspended for another 14 days to allow them to prepare representations,” he said.
“A written notice was given to them on October 19, alerting them to the meeting, which gave them ample period to make representations.
“If one takes into consideration my concern for the operations activities within the ECDC, I really didn’t think that I would be doing my duty to allow for a 14-day delay.”