High court finds Radebe’s axing of Necsa board members unlawful
In a judgment the court agrees former energy minister Jeff Radebe was too hasty in sacking a member of the board as well as its chair
The Pretoria high court on Friday ruled that the minister of energy’s axing of SA Nuclear Energy Corporation (Necsa) chair Kelvin Kemm and board member Pamela Bosman was unlawful.
The applicants had launched a legal bid to set aside their removal in December when then energy minister Jeff Radebe disbanded the board for gross misconduct relating to financial mismanagement, remuneration irregularities, unauthorised international travel, and the issuing of misleading, inaccurate or defamatory media statements.
The minister further blamed the Necsa board for a year-long shutdown in production at its subsidiary, NTP Radioisotopes.
Radebe also suspended Necsa CEO Phumzile Tshelane pending the outcome of an investigation. Tshelane was ultimately fired in May.
Necsa, a state-owned entity, is in crisis. It made a loss for the past two years and NTP has continued to experience ongoing operational challenges in 2019. In July, Necsa chair Rob Adam resigned after just seven months at the helm, and its board suspended chief legal officer Vusi Mabelana.
In their court papers, Kemm, Bosman and Tshelane said the manner in which they were removed by the minister was procedurally unfair and part of a preordained plan.
They argued they were given an unreasonably short amount of time to respond to the minister’s many allegations against them — the board members were given five calendar days to respond while Tshelane was afforded seven. They also argued the minister could not have engaged with their response adequately as they were removed from their posts within an hour after submitting over 2,000 pages of response to the minister.
In the ruling, acting Judge Mbulelo Mtati agreed that Radebe appeared to have already made the decision to remove the board members when he sent the letters on November 22, and found his action was unlawful and set it aside.
Although Kemm and Bosman had initially asked for the court to order their reinstatement, this became irrelevant when their terms of office lapsed on March 23 this year.
Mtati found that Tshelane’s situation, however, could not be equated to that of Kemm and Bosman, and his bid to have the suspension overturned was dismissed.
The ruling awarded no costs as neither Kemm and Bosman nor Radebe were totally successful in this matter.
“In my view the applicants had every right to assert their rights to restore their dignity and Kemm and Bosman have been successful in doing so, but for Tshelane,” Mtati said. “I do not find on the other hand that the minister had any ulterior motives by the actions that he took. Hasty, he definitely was, but in pursuance of restoring the stature of Necsa as an institution.”
In a statement issued by the National Education, Health and Allied Workers’ Union following Friday’s judgment, the union called on the minister of mineral resources and energy, Gwede Mantashe, to sack the Necsa board and investigate, among other things, whether there are deliberate acts of sabotage taking place in the organisation.