What is emerging within Eskom and other state-owned enterprises is a modern-day McCarthyism. The lenders wanted all those linked to state capture removed. A mere suspicion should easily justify termination of their employment contracts. This is the fire that President Ramaphosa and former Minister of Finance Malusi Gigaba started. The fire is spreading.
In January 2018, President Cyril Ramaphosa and then Minister of Finance Malusi Gigaba started a fire which neither they nor anyone else may be able to control. This was done based on a directive issued by the government on Sunday, 21 January 2018, to the effect that:
“The board [Eskom] is directed to immediately remove all Eskom executives who are facing allegations of serious corruption and other acts of impropriety, including Mr Matshela Koko.”
According to the directive released by President Ramaphosa, the affected executives were to be dismissed and not to be subjected to a disciplinary hearing to determine whether there were grounds in law for their employment to be terminated by the new board of Eskom. Government and Gigaba were not bothered that Eskom is constrained to act in line with the rule of law and that unlawful actions are harmful to the rule of law. They did not realise that this could start a fire they might not be able to control.
Government wanted action and a few days later newly appointed Eskom CEO Phakamani Hadebe acted. He directed the affected employees to resign within 24 hours, failing which their employment with Eskom would be terminated.
The Labour Court found that Hadebe was adamant that the unlawful directive from government be implemented. Based on the evidence before the court, Judge Graham Moshoana found that Eskom was determined and actually under pressure to dismiss the affected employees. Should the outcome of the legal processes not yield the desired results, Eskom would dismiss them anyway, and Hadebe saw nothing wrong with this.
In two separate Labour Court judgments, Eskom was ordered to act specifically in accordance with the terms and conditions of the employees’ contract of employment, including Eskom’s disciplinary code, policies and procedures before terminating their employment.
Pursuant to the two Labour Court judgments, Eskom reinstated all employees who where forced to resign, including the employees whose contracts were terminated unlawfully.
Only one dismissed employee accepted the offer of reinstatement. Others declined because they saw reasonable prospects that Eskom may return to its old ways since evidence before the courts suggested Mr Hadebe did not see his conduct as unlawful. Mr Hadebe’s take was that, if the reasons that justify summary dismissal are absent, he could still terminate by simply giving notice. This contention ignored the fact that misconduct is the only reason that justifies summary dismissal.
The only employee who agreed to be reinstated was immediately placed on a precautionary suspension and was charged with misconduct five months later. The external independent chairman of the disciplinary tribunal acquitted him on three of the four charges. The independent chairman recommended a final written warning valid for 12 months on the remainder of the charge. To this day, more than 30 days after the ruling, the employee remains on suspension. As a matter of fact, Eskom has since asked him to make submissions on why his contract of employment should not be terminated. This is clearly in contravention of the court orders of 23 and 26 February 2018.
Eskom indeed returned to its old ways. The outcome of the disciplinary process presided over by an independent external chairman did not yield the desired results for Eskom; be that as it may, Eskom is determined to dismiss the reinstated employee because it is under pressure to remove him to comply with the instruction of 21 January issued by President Ramaphosa, an instruction the Labour Court found to be unlawful.
The Board of Eskom and government have to be asked the question: “Have you no sense of decency?”
What is emerging within Eskom and other state-owned enterprises is a modern-day McCarthyism. The phenomenon known as McCarthyism destroyed thousands of lives and careers. In the late 1940s and early 1950s American political leaders trampled on democratic freedoms in the name of protecting America from the threat of communism.
Senator Joseph McCarthy led a hunt for more than 200 “known” members of the Communist Party who were alleged to be working and shaping policy in the State Department and allegedly spying for the then Soviet Union. Despite lack of proof, more than 2,000 government employees lost their jobs.
The crisis in South Africa is centred on Eskom, which has been highlighted as the single biggest risk to South Africa’s economic stability. President Ramaphosa called the Eskom situation a perfect storm, allegedly caused by state capture.
The lenders want all those linked to state capture to be removed. They must be hunted like Senator McCarthy hunted communists. Mere suspicion should easily justify termination of employment contracts. This is the fire that President Ramaphosa and Minister Gigaba started. The fire is spreading.
Richard Seleke, the director-general of the Department of Public Enterprises, has been placed on “extended leave” because he is linked to state capture by the “leaked Gupta emails”. It looks certain that a mere suspicion will cost him his job. I ask the question again; “Have you no sense of decency, Sir?” DM
Matshela Koko is former acting group chief executive of Eskom.
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