Labour court dismisses Gama application as ‘misguided’ and ‘meritless’

The Labour Court has ruled that axed Transnet chief executive Siyabonga Gama’s application to interdict the state-owned entity from firing him was misguided and meritless.

Judge Connie Prinsloo was scathing in her ruling, saying: “The application was wholly misguided and meritless. The applicant dismally failed to satisfy even the requirements for the contempt application and the interdict he seeks.”

The primary issue the court had to determine was whether the order granted on October 19 interdicted Transnet from terminating Gama’s employment contract.

READ MORE: Gama wants Transnet board jailed

Judge Prinsloo noted that the previous judgment that had sent Gama and Transnet to arbitration did not rule that Gama could not be fired.

“The Court order did not interdict the termination of the applicants contract of employment,” reads the judgment.

Gama failed to show that Transnet did not comply with the first court order. The contempt application failed.

Over a month ago, Advocate Tembeka Ngcukaitobi argued that his client’s employment was terminated because of misconduct, but he was not given a hearing before Transnet concluded that there was a loss of trust.

“It is in bad faith to tell an employee that they are guilty of misconduct and then when you think that it will take too long to fire him, then you say there is a breakdown of trust,” he said.

Gama’s lawyers argued that if there were allegations of misconduct against him they should be investigated and be referred to a disciplinary hearing. Because Transnet did not do this there was a breach of his contract of employment.

READ MORE: Court papers show Transnet execs ‘colluded fraudulently’

Tim Bruinders SC, Transnet’s counsel, argued that Gama was invited in October to make representations as to why his appointment should not be terminated on six months notice for a breakdown of the trust and confidence between him and the board.

He did not make the representations and the board fired him.

“We believe that he, Mr [Anoj] Singh and Regiments Capital colluded to procure an undue overpayment of R166-million from Transnet to Regiments. He [Gama] is going to be sued for the repayment of that amount. There will be litigation between him and Transnet,” argued Bruinders.

READ MORE: Gigaba, Koko and Singh named in bombshell treasury report on rot at Eskom, Transnet

Judge Prinsloo said: “In my view the applicant (Gama) cannot succeed on either ground. Firstly the Applicant cannot show that the notice of termination is unlawful because he cannot show that the board was not entitled to terminate his employment contact.

“Terminations is provided for by the clause 15 of the applicants contract in terms whereof the board may terminate his contract for any reason recognised by law, as being sufficient, subject to a fair pre-dismissal procedure. It is evident that the board has not terminated the applicants employment for misconduct but rather for loss of trust and confidence to manage Transnet.”

READ MORE: Gama lobby guns for Maria Ramos

Prinsloo further found that Transnet has had to defend a meritless urgent application and that it cannot be expected to carry the costs of defending “litigation that ought not to have been brought in the first place…The applicant is to pay the respondents costs, to include the costs of two counsel.”

Read the court judgment here:

Gama vs Transnet Judgment by Mail and Guardian on Scribd

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Athandiwe Saba
Athandiwe Saba

Athandiwe Saba is a multi award-winning journalist who is passionate about data, human interest issues, governance and everything that isn’t on social media. She is an author, an avid reader and trying to find the answer to the perfect balance between investigative journalism, online audiences and the decline in newspaper sales. It’s a rough world and a rewarding profession.

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