Staff Reporter
A former Centlec chief executive officer has been waging a court battle in an attempt to stop the Mangaung power utility from appointing someone else to another post that he previously held.
Andries Mgoqi filed an urgent application in the Free State High Court seeking an order to restrain Centlec from filling the position of executive manager for engineering wires that he occupied prior to his appointment as the electricity distribution company’s CEO on April 1, 2015.
He was not retained upon the expiry of his five-year fixed-term contract as CEO on March 31, 2020, which led him to instituting a High Court application that sought to compel Centlec to reinstate him to his previous post.
His case was founded on a disputed clause in his contract as CEO that essentially entitled him to be placed in the position he occupied prior to his appointment as CEO or be offered an equivalent post upon the expiration of his tenure as CEO.
Clause 16.6 of Mgoqi’s employment contract – which Centlec claimed had not been ratified by its board – states:
“Irrespective of any provision to the contrary and/or despite what any other provision may state on this agreement, upon expiration of this employment agreement and in the event that the employer elects not to renew it on the same or similar terms, the employee will be placed in the position which he previously held with the employer immediately prior to the conclusion of this employment agreement and shall continue his employment with the employer until retirement age. However, should the employee’s position not be available for whatever reason, then the employer will offer the employee a position equivalent to the position he occupied immediately prior to the conclusion of this employment agreement. By signing this employment agreement the employees (sic) does not in any way waive his permanent employment status as an employee of the employer.”
A few days after he filed the High Court application, Centlec also instituted an application in the Labour Court in which it sought relief declaring that clause void, unlawful or alternatively unenforceable.
On or about February 16 this year, Mgoqi became aware that Centlec had advertised a vacancy for the position of executive manager for engineering wires.
The deadline for the submission of applications for this position was February 26.
This advertisement prompted Mgoqi to approach the High Court again on an urgent basis for an interdict to stop Centlec from filling the position pending the final determination of the other two applications.
Centlec was cited as the first respondent and Mangaung Metropolitan Municipality, which owns the entity, as the second.
Centlec – which distributes electricity in areas under the jurisdiction of Mangaung, Kopanong, Naledi, Mantsopa and Mohokare municipalities – opposed the urgent application.
It contended in its heads of argument the position of executive manager for engineering wires constituted 51 percent of its core business and, therefore, the position could not remain vacant the parties engaged in protracted litigation.
The company also argued that if Mgoqi succeeded in the application before the Labour Court, he could insist on an equivalent position or claim damages later.
After hearing the case on March 12, Judge Pitso Molitsoane concluded the applicant could not insist and was not entitled to a specific position as the clause on which his cause of action was founded made provision for two alternatives.
“Should his prior position be unavailable, he is entitled to be offered another equivalent position. If the position he seeks to interdict is filled, he still has another remedy in the form of alternative appointment to an equivalent position,” the judge noted in his ruling delivered on March 18.
“To this end, the applicant would suffer no irreparable harm should the appointment of the position he seeks to interdict be filled. On this basis, his application also ought to fail.”
Judge Molitsoane dismissed Mgoqi’s application with costs.