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Court 'can't reinstate' estate CEO

Johannesburg - Axed Estate Agency Affairs Board CEO Nomonde Mapetla cannot ask the High Court in Johannesburg to reinstate her as the court does not have the authority to do so, the EAAB argued on Thursday.

"She can't bring this case here... she hasn't set out a case in law... that can be heard here," said Ross Hutton SC for the EAAB.

Her urgent application to be reinstated as CEO should be heard in a labour court.

"The other elements of her case are so hotly disputed that they cannot be dealt with as an urgent matter," Hutton argued.

One disputed aspect was Mapetla's contention that she was fired for whistle-blowing.

In an affidavit, EAAB board chairperson Thami Bolani said that Mapetla "has, through nothing more than conjecture, speculation and self promotion, attempted to build up a case which pretends that this matter is about something much bigger than the mundane early termination of a fixed term contract".

Her contention that she was suspended for whistle-blowing was without foundation and it "had nothing to do with any fight against corruption and crime", he said.

Mapetla, in her affidavit, said her dismissal went against the terms of the Protected Disclosures Act as it amounted to an "occupational detriment".

"There appears, overwhelmingly, to be a direct linkage between certain anti-corruption or whistle-blowing activities upon which I had embarked in the period immediately preceding my suspension, which may fit the definition of 'protected disclosure'."

Some board members who were part of the decision to fire her would likely be affected by these activities, she said.

Mapetla's senior counsel, Dali Mpofu, the former SABC head, argued that Mapetla should be granted an urgent interdict to reinstate her to the position she was fired from on February 27.

Threatened by stalkers

He said her case rested on three broad clusters of rights.

The first cluster was common law rights including the right to receive a fair hearing.

The second was the fundamental constitutional rights of dignity and privacy.

Thirdly, it dealt with statutory rights provided by the Estate Agency Affairs Act and the Protected Disclosures Act.

"The violation of those rights may constitute urgency," said Mpofu.

Mapetla was taking the EAAB, the department of trade and industry (dti) and the individual board members to court.

She wanted to prohibit the board from acting as a board and to be restored as CEO as her suspension and termination were allegedly unlawful.

She also wants to prohibit the board and dti from commenting on her in the media.

Mpofu argued Mapetla's suspension on February 17 and her subsequent dismissal came "like a bolt out of the blue" but the main issue was that she had been given no hearing.

This was a "flagrant disregard" of her right to be heard or to reply, he said.

The matter was urgent as Mapetla had been threatened by "unknown stalkers" and she had had to increase her security.

Judge Lotter Wepener asked Mpofu why they wanted an urgent interdict to prohibit the EAAB board from "purporting to act as a board".

"Why is that urgent today?" he asked.

Mpofu said the EAAB board was unlawfully constituted as it only had 11 members while the Estate Agency Affairs Act required that the trade and industry minister should appoint 15 members.

"I'm attacking the minister's appointment of the board... he didn't follow the statute," argued Mpofu, who said the board had not been constituted properly since December 2010.

Mapetla was supported again in court on Thursday by Winnie Madikizela-Mandela, who was also at her side on Wednesday.

The EAAB board said Mapetla's employment contract had been terminated immediately "due to an irreconcilable breakdown in the working relationship between the parties".

Her contract was due to expire on July 15.

Mapetla took up the post of CEO six years ago.

The EAAB is the regulator of the country's 27 000 estate agents.
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