A State IT Agency (Sita)-appointed law firm has concluded that communications minister Mondli Gungubele need not abide by a high court judgment ordering that the board he fired in July last year be reinstated because the application the minister filed to appeal the decision suspended the order.
The legal opinion, given by Pretoria-based Ngeno and Mteto Incorporated, contradicts the interpretation given by parliamentary legal experts on the matter, who concluded that the minister must abide by the order while awaiting the result of the appeal.
The matter is now headed back to court, with the minister filing papers to appeal the judgment.
“As one of the respondents in the matter, it would have been unwise for us not to seek an interpretation of the high court judgment while knowing that it was contestable. The status quo at Sita is influenced by the legal opinion we sought out,” said Tlali Tlali, head of corporate affairs at Sita.
The minister fired members of the Sita board, causing others subsequently to resign, over a spat about then-incoming CEO Bongani Andy Mabaso’s salary.
According to Gungubele, the board “unilaterally” decided to raise the salary offered to Mabaso – who recently resigned and went back to the private sector as group chief technology officer of JSE-listed Altron – by R1-million without consulting him. This consultation, he said, is required under Sita’s memorandum of incorporation.
Gungubele hired a new board on 22 July 2023 on an interim basis and a permanent board was appointed in August.
Differences in opinion
According to Tlali, the current situation at Sita is that the old board has not been reinstated, as per the court order, meaning that the board hired by Gungubele in August last year is the accounting authority for the organisation — at least from Sita’s perspective.
The differences in opinion between the parliamentary legal team and the Ngeno and Mteto report lie in the interpretation of section 18 of the Superior Courts Act, which governs the suspension of court orders. In general, the filing of an appeal does not invalidate the ruling under dispute unless executing the ruling would be final in its effect. The interpretation adopted by Sita argues that reinstating the old board would effectively be final.
“It appears that the part of the order reinstating the dismissed board members is unlikely to be revisited in [the upcoming second part to the court proceedings], which means it has final effect,” it said.
Read: Gungubele given bloody nose in Sita board mess
Democratic Alliance shadow minister of communications Natasha Mazzone, who sits on the parliamentary portfolio committee for communications & digital technology, said it is concerning that a court has to make a decision on a matter where the entities embroiled in a legal battle are accountable to parliament.
“We have to ask how we arrived at this juncture in the first place. How is it that a minister is in a legal battle with an entity in which the ministry is a stakeholder? It shows that there are big problems at Sita,” said Mazzone.
She said that both Sita and the minister must come before the portfolio committee to explain their legal positions and fully disclose information about the issues at the agency. There is some time set out for such probes in weekly committee meetings, but Mazzone argues that it is not enough to interrogate the parties satisfactorily.
“It is of such national importance that we get to the bottom of what is going on at Sita but the department never allots enough time for the minister to account to the committee. The chairperson of the committee must call a special meeting with Sita and the department; what we require is a sit-down for a full day.”
According to Mazonne, full disclosure would go a long way towards equipping the “average man in the street” with enough information to have an informed opinion on the developments at Sita. It would also clarify some inconsistencies between what has been said in parliament’s legal opinion versus the one solicited by Sita.
Read: Unease over ructions at Sita
Sita’s document, dated 9 February, says that the minister filed leave to appeal three days earlier, on the 6th. Parliament’s document, dated 12 February, claims no knowledge of an appeal being filed. According to Mazzone, this suggests a failure by the minister to furnish parliament’s legal teams with the requisite information.
“At the time of our advice, our office did not have access to any court pleadings related to an appeal against this judgment and could not speak to the consequences of such a litigation step,” said parliament’s legal team.
“There must enough information for the average South African, for an average man in the street, to be able to look at it, assess it and understand it. The whole of South African needs to be part of this discussion. Everyone must understand what is going on here,” said Mazzone. – © 2024 NewsCentral Media
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