PART A LRA Form 7.11 REFERRING A Labour Relations Act 1995 DISPUTE TO THE CCMA FOR · PDF file · 2014-02-14Labour Relations Act 1995 Sections 133, 135,191(1) and 191(5A) PART A REFERRING

LRA Form 7.11

Labour Relations Act 1995

Sections 133, 135,191(1) and 191(5A)

PART A

REFERRING A

DISPUTE TO THE

CCMA FOR

CONCILIATION

CCMA KWAZULU-NATAL – Durban

Embassy Building, Durban

Private Bag X54363

Tel: (031) 362 2300

Fax: (031) 368 7387 / 7407

Email: [email protected]

1. DETAILS OF PARTY REFERRING THE DISPUTE

As the referring party, are you:

An employee – within the extended meaning of the term contemplated by section 9 of the

Employment Equity Act 55 of 1998: ‘For the purposes of section 6, 7 and 8, employee includes an

applicant for employment.’

Name of the party if the referring party is an employee:

Name: Adv Anthony Robin Brink

ID Number: 590225 5116 081

Postal Address: 1 Boast Street, Eshowe 3815, KwaZulu-Natal

Tel: 035 474 1043

Cell: 083 779 4174

Fax: 086 672 0776

Email: [email protected]

2. DETAILS OF THE OTHER PARTY (PARTY WITH WHOM YOU ARE IN DISPUTE)

The other party is:

An employer

Name: Legal Aid South Africa (‘LASA’), a statutory body established by the Legal Aid Act 22 of 1969.

Postal Address: 29 De Beer Street, Braamfontein, Johannesburg 2017, Gauteng.

Tel: 011 577 2000

Fax: 011 877 2222

Email: [email protected] (Corporate Services Executive (legal), Attorney Thembile Mtati)

3. NATURE OF THE DISPUTE

What is the dispute about?

Unfair Discrimination S10 of the Employment Equity Act (give details)

After I was duly recommended by a selection panel for appointment to a temporary Professional

Assistant post on annual contract at its Pietermaritzburg Justice Centre, LASA aborted my

appointment on prohibited grounds under cover of a pretextual justification.

Summarise the facts of the dispute you are referring:

The material facts are summarised in the annexure hereto.

4. DATE DISPUTE AROSE

The dispute arose on:

As elaborated in the annexure hereto, the unfair discrimination took place without my knowledge in

November/December 2010, but for the reasons explained therein, (a) I only learned that I’d been

recommended for the post on 14 February 2013 and (b) on 16 August 2013 I acquired the evidence

categorically refuting the business necessity justification advanced to me on 15 December 2010 for

aborting the recruitment. See further the annexure hereto on compliance with section 10 (2) of the

EEA for the referral of unfair discrimination claims to the CCMA within the prescribed six-month

timeframe.

The dispute arose where:

Pietermaritzburg.

5. DETAILS OF DISPUTE PROCEDURES FOLLOWED

Have you followed all internal grievance/disciplinary procedures before coming to the CCMA?

N/A

6. RESULT OF CONCILIATION

What outcome do you require?

Upon the issue of a Certificate of Outcome following the conciliation hearing, I shall be instituting

action against LASA in the Durban Labour Court for orders in the following terms:

1. A declaratory order that in aborting the applicant’s recruitment to its temporary Backlog Court

Professional Assistant annual contract post at the Pietermaritzburg Justice Centre the

respondent unfairly discriminated against him on grounds prohibited by section 6 (1) of the

Employment Equity Act 55 of 1998 (‘EEA’), namely on grounds of his conscience, belief or

political opinion, alternatively his race;

2. An order that the respondent pay the applicant compensation under section 50 (2) (a) of the EEA

for iniuria in the sum of R500 000;

3. An order that the respondent pay the applicant damages under sections 50 (2) (b) of the EEA for

lost income in an amount equivalent to the sum he would have earned over the periods (a) 5

January 2011 to 31 March 2012, the initial three-month commencement period provided on the

draft employment contract drawn for the applicant before the start of the next financial year, and

(b) 1 April 2011 to 31 March 2012, the advertised one-year period of employment, ordinarily

commencing at the start of the respondent’s financial year in the case of such temporary annual

contract posts.

4. An order that the respondent pay the applicant mora interest on his compensation award at the

prescribed rate from date of judgment to date of payment;

5. An order that the respondent pay the applicant mora interest on his damages award at the

prescribed rate, computed on every month’s salary that that the applicant would have earned had

he been appointed to the post on 5 January 2011;

6. An order under section 50 (2) (f) of the EEA that the respondent publish the order made in the

case once in the Sunday Times newspaper and to publish the full judgment on the respondent’s

website in the ‘About us’ tab for a period of one year.

7. SECTOR

Indicate the sector or service in which the dispute arose.

Public Service

8. INTERPRETATION SERVICES

Do you require an interpreter at the conciliation?

No

9. SPECIAL FEATURES / ADDITIONAL INFORMATION

Briefly outline any special features / additional information the CCMA needs to note:

See annexure hereto.

10. DETAILS OF DISPUTE PROCEDURES FOLLOWED

Have you followed all internal grievance/disciplinary procedures before coming to the CCMA?

N/A

11. OBJECTION TO CON-ARB PROCESS

N/A. As an unfair discrimination claim involving the violation of my constitutionally entrenched

fundamental right to equality, only the Labour Court has jurisdiction to determine this dispute.

12. CONFIRMATION OF ABOVE DETAILS

Signed at Eshowe on the 14th day of February 2014.

ADV ANTHONY ROBIN BRINK

ANNEXURE COVERING NOTE

Pressure of time to refer this complaint within the prescribed six-month timeframe for the

referral of unfair discrimination complaints means the footnotes are not yet complete.

Such footnotes referencing documents relied on in the matter (in LASA’s possession) are not

essential to a referral, but are intended in this case to facilitate settlement if possible.

Once the footnotes have been fully populated, hardcopies of the perfected annexure will be

mailed by registered post both to the CCMA and to LASA.

It is envisaged that this will be well before the conciliation hearing.

ANNEXURE TO LRA Form 7.11

Part 3: Summarise the facts of the dispute you are referring:

1. This summary sets out the second instance1 of unfair discrimination covered by a pretext

to which I was subjected by Legal Aid South Africa (‘LASA’) within the space of a year, in a

repeated contravention of section 6 (1) of the Employment Equity Act (‘EEA’), ‘Prohibition of

Unfair Discrimination’: ‘No person may unfairly discriminate, directly or indirectly, against

an employee, in any employment policy or practice, on one or more grounds, including race,

… conscience, belief, political opinion’,2 and in a repeated violation of my fundamental right

to equality guaranteed by section 9 (1) in the Bill of Rights of the Constitution: ‘Everyone is

equal before the law and has the right to equal protection and benefit of the law’, and more

specifically section 9 (3): ‘The state may not unfairly discriminate directly or indirectly

against anyone on one or more grounds: … colour … conscience, belief’.3

2. The nut of the case is that after being recommended by a selection panel for

appointment to a temporary Professional Assistant (‘PA’) post on annual contract at LASA’s

Pietermaritzburg Justice Centre, my appointment was illegally blocked on undeclared

prohibited political or racial grounds (I’m acutely politically controversial4 and white), which

unfair discrimination against me was camouflaged a month later with a false business

necessity justification given me for the abortion of the recruitment, unsupported and

contradicted by LASA’s business records.

3. As will appear below, the facts of the first case are substantially intertwined with the

facts of this one and bear on the time it has taken me to uncover the truth and refer this

complaint to the CCMA. More particularly, documents I obtained from LASA pursuant to

requests for records made under the Promotion of Access to Information Act 2 of 2000

(‘PAIA’) to interrogate the budgetary reason given me for the cancellation of the

recruitment to LASA’s Senior Litigator (‘SL’) post at Pietermaritzburg in 2009, after I’d been

interviewed for it, persuaded me to accept and believe for a long time that the justification

given me for the cancellation of the PA recruitment in 2010 was true.

1 The first instance was tried in the Durban Labour Court by Cele J over nine days from 23 July to 2 August 2013

under case number LC D529/11. At trial LASA’s budgetary defence for aborting my appointment to its Senior Litigator post at Pietermaritzburg, LASA’s most senior legal specialist professional post in KwaZulu-Natal, for which I’d been recommended by a selection panel on 23 November 2009, disintegrated into a shambles of radical contradictions, retractions of key legs of its pleaded version, and transparent new lies told in court by National Operations Executive Brian Nair. All this, and Nair’s contradictory stories on affidavit and then in court about not knowing my acutely controversial and unpopular political background at the time he decided not to sign his approval of my recommendation by the selection panel is canvassed in the Analysis section of my heads of argument, accessible online at http://bit.ly/14CMjKJ. According to the registrar, the case will be argued in court in the second term this year, i.e. in April or soon thereafter. 2 Law and case bundle, page 18.

3 Law and case bundle, page 5.

4 See paragraphs … - … herein below.

2

4. These documents and many others relevant to the proof of my first claim in the Durban

Labour Court are material to this second claim. Accordingly, both at the conciliation hearing

and trial of this second claim to follow, I intend using the same two trial document bundles

admitted into the evidence in my first case in the Labour Court (‘Bundle’ and ‘Bundle

addendum’), as well as a further new bundle of documents compiled specifically for this

matter (‘PA bundle’). I shall make copies of all bundles mentioned in this summary available

at the conciliation hearing; but meanwhile all are accessible at the private, secure trial

document archive online: www.tig.org.za/LASA username: lasa password: LASA2010

where they can be downloaded for printing.

5. The unfair discrimination against me occurred in mid-November 2010, but without my

knowledge at the time. For the reasons detailed below, I only began to suspect it on

14 February 2013 (until then I didn’t even know I’d been recommended for the post) and

only became placed to prove it on 16 August 2013, just under six months ago.

6. Section 10 (2) of the EEA prescribes: ‘Any party to a dispute concerning this chapter may

refer the dispute in writing to the CCMA within six months after the act or omission that

allegedly constitutes unfair discrimination.’ Subsection (3), however, allows: ‘The CCMA may

at any time permit a party that shows good cause to refer a dispute after the relevant time

limit in subsection (2).’

7. Interpreting section 10 (2) of the EEA at the conciliation hearing of my first unfair

discrimination claim against LASA regarding its SL post at Pietermaritzburg, the CCMA in

Pietermaritzburg held on 20 April 2011 that the operative date in determining the inception

of the six-month timeframe allowed by section 10 (2) for the referral of my unfair

discrimination claim was the date I acquired my knowledge of the discrimination against

me, as I argued at the conciliation hearing, and not the date on which the covert

discrimination had taken place without my knowledge.5 (LASA’s unfair discrimination

against me in aborting my appointment to that post was not openly declared, but was

covert and camouflaged with a financial pretext advanced to me, i.e. alleged insufficient

budget to fill the post.) On this basis the CCMA accepted that I’d referred my claim within

5 The selection panel’s recommendation of me for LASA’s SL post at Pietermaritzburg was emailed to Nair as

delegated executing authority on 26 November 2009. On receiving it, he neither recorded his approval nor

disapproval with his reason for rejection, as required of him, and instead dropped it into the proverbial bottom drawer, bargaining that I’d conclude from his silence that I’d been unsuccessful and walk away (Nair’s expectation in this regard was frankly aired during trial). On 28 January 2011 I obtained records via PAIA showing unequivocally that the budgetary pretext given me in October 2010, contrived and advanced to me eleven months after my recommendation for the SL post, was a lie, and referred my claim to the CMMA several weeks later on 22 March 2011. Although Nair’s decision to unfairly discriminate against me was taken in November 2009, the CCMA at Pietermaritzburg was satisfied that since this decision was taken without my knowledge at the time, I’d duly and timeously referred my claim in compliance with section 10 (2), having regard to when I appreciated and could demonstrate that the budgetary justification for aborting my appointment to the SL post was false, thus supporting an inference of unfair discrimination in the particular circumstances of the case.

3

the prescribed six-month timeframe, and rejected LASA’s contention that I needed to apply

for and be granted condonation under section 10 (3), and accordingly recorded on its

Certificate of Outcome: ‘Condonation: … Not Applicable’.6 LASA then abided by this

interpretation and decision.

8. Out of an abundance of caution, however, and to the extent that the CCMA in Durban

may hold differently from the CCMA in Pietermaritzburg, and rule it necessary that I apply

for condonation under section 10 (3) for the time it has taken me to refer this unfair

discrimination, this summary also makes my case for condonation.

9. On 31 August 20107 LASA advertised to recruit a Professional Assistant (‘PA’) on annual

contract for its Backlog Court project8 at its Pietermaritzburg Justice Centre (‘JCE’).

10. The vacancy had arisen upon the resignation of the previous incumbent Rezaan Cassim

with effect from 31 March 2010.9 (He’d resigned in the sense that he chose not to apply for

the renewal of his annual contract when it expired.)

11. Four special backlog regional courts had been established at Pietermaritzburg, served

by eight PA posts at the Pietermaritzburg Justice Centre at the time, i.e. two PA posts for

each court, since ‘In terms of a decision reached, all backlog courts should be served by two

attorneys per court.’10

12. The posts were funded directly by the Department of Justice and Constitutional

Development11 as part of its special backlog court project to clear lower criminal court roll

congestion.12 They were temporary posts, filled on annual contract, ordinarily commencing

at the start of LASA’s financial year on 1 April and expiring on 31 March.13

13. Cassim’s resignation at the end of March 2010 meant that from 1 April 2010 only seven

of the eight Pietermaritzburg posts were filled.

14. A second vacancy opened up in January 2011 with the death of another PA in the

backlog court, Lyov Hassim,14 reducing the number of backlog court PAs at Pietermaritzburg

to six, and increasing the backlog court PA vacancies to two.15

6 Bundle, page 394.

7 PA bundle, page 15, header.

8 PA bundle, page 222, second paragraph.

9

10 PA bundle, page 116, ‘Motivation/Reason for Temporary Appointment’, first sentence.

11 PA bundle, page 116: ‘…where will funds come from? Department of Justice’.

12

13

14 PA bundle, page

15

4

15. Accordingly, under the column ‘How many LA practitioners currently serve this backlog

court’, a ‘Backlog Court Survey’ report circulated in February 2011 correctly recorded a total

of six PAs then employed to serve the four backlog courts at Pietermaritzburg.16 (The table

didn’t reflect existing post vacancies.)

16. LASA’s policy of appointing two PAs per backlog court at Pietermaritzburg was changed

on 21 February 2011, when National Operations Executive Brian Nair issued a directive that

henceforth (i.e. in the following financial year commencing 1 April 2011) all backlog courts

throughout the country would be served by one PA per court only, unless he approved two

at the recommendation of the Regional Operations Executive of the region concerned.17

17. At the time Nair issued this directive, therefore, there were still eight backlog court PA

posts at the Pietermaritzburg Justice Centre, two vacant.

18. Responding to Nair’s directive the following day, Pietermaritzburg Justice Centre

Executive Bertus Appel motivated to KwaZulu-Natal Regional Operations Executive Vela

Mdaka for more than one PA per court at Pietermaritzburg,18 but Mdaka didn’t respond;19

so from 1 April 2011 the number of backlog court PA posts at Pietermaritzburg was reduced

to four, i.e. one per court.

19. In about September 2010, several months after my abortive application for LASA’s most

senior professional post in KwaZulu-Natal for which I’d been recommended in November

2009,20 namely its Pietermaritzburg SL post,21 Appel telephoned me to suggest I apply for

the just-advertised temporary backlog court PA post at his Justice Centre (‘JC’) (I hadn’t seen

the advertisement). He said it was a regional court post.

20. I responded that I felt the post was too junior for me and that I was over-qualified for it,

but Appel emphasized that what he was really interested in was my civil litigation expertise

and experience that I could bring to his Justice Centre,22 lost when my appointment to the

SL post at his JC was blocked.23 I said I’d consider it; and received a copy of the

16

PA bundle, page 221. 17


PA bundle, pages 222 and 288. 19

PA bundle, page 223 (Appel’s email of 28 February 2011 read with Mdaka’s of the 25th.) 20

Bundle, pages 244–8. Human Resources Executive Amanda Clark backhandedly confirmed I’d been recommended for the post in her email to me of 30 April 2010: bundle page …. 21

The subject of the above-cited unfair discrimination claim referred to in footnote 1. KwaZulu-Natal has two Senior Litigator posts, at Pietermaritzburg and at Durban. 22

Appel was aware I’d been a full-time civil trial magistrate for four years, and, with that background, while conducting a senior-senior civil practice from commencement at the Pietermaritzburg Bar for eight years I’d done a lot of civil litigation for his Justice Centre and had trained many of his candidate attorneys. This was recorded this in my CV submitted in support of my application for the SL post, which Appel considered as a member of the selection panel of LASA’s top lawyers in the region who interviewed and recommended me for it. (Bundle. Pages … - … ; and page …) 23

The SL posts were created to employ ‘professional staff that are senior enough to take on … cases of a highly complex nature … build up such capacity at each province linked to a high court unit. Such senior litigators

5

advertisement for the PA post by email soon afterwards, and saw that the post indeed

envisaged the provision of civil litigation services in addition to criminal defences. The key

outputs advertised were to ‘Provide legal representation to the Backlog District [sic:

Regional] Court – Pietermaritzburg’; to provide ‘Training of candidate attorneys’; and to

‘Represent women, children and landless people in civil matters.’24 (The further relevance of

this will be treated below.)

21. Having resolved to pursue my appointment to the SL post in the Durban Labour Court

on the indications then known to me that LASA had unfairly discriminated against me in

aborting my appointment, I decided after some days equivocation to apply for the

temporary PA post in the meantime: it was a foot in the door; some regular light income

while I prepared and pursued my claim to appointment to the SL post in the Labour Court; a

potential opportunity to gather information from inside the organisation relevant to the

proof of my claim; and a test: after the manifestly irregular abortion of my appointment to

the SL post,25 I was interested to see how LASA would respond to my application for another

of its advertised vacant posts.

22. So I appIied, was shortlisted,26 and on 28 October 2010 was interviewed for the PA post

by a selection panel at LASA’s Pietermaritzburg JC, along with other shortlisted applicants.27

23. At the interview I was told again that contrary to the misdescription in the

advertisement28 it was actually a regional court post. And consistent with Appel’s stated

would be able to undertake more complex work as well as support and mentor our other High Court staff’. (Bundle addendum, pages 990–1, paragraph 2.7) The advertised key outputs of the Pietermaritzburg SL post were ‘to render legal services, primarily litigation services in complex criminal and civil matters … specialised, complex or impact litigation matters’; to ‘Provide written legal opinions’; and to ‘Assist with in-house training [and provide] mentoring and coaching to legal staff’. (Bundle, pages 43–4; and 45) LASA’s Annual Report 2010/11 records that SLs ‘provide support for practitioners in more complex matters’. (Bundle, page 142, paragraph 153) LASA’s amended response to my amended statement of claim in the Labour Court in case LC D529/11 summarised: ‘to create a pool of specialist professionals whose role would be to attend to complex matters at various courts’. (Pleadings bundle, amended response, page 20, paragraph 2.2) A LASA communiqué on 5 March 2012 stated: ‘In very complex matters [involving ‘the rights of women and children’], our Senior Litigators provide support and advice to practitioners that need it.’ (Bundle addendum, pages 825–6) National Operations Executive Brian Nair’s ‘Report to Board’ in November 2011 recorded that Senior Litigators are ‘our most senior and experienced lawyers’ appointed to handle ‘very complex matters … in specialist and higher courts such as the SCA and CC’; ‘impact litigation matters’ and ‘High profile matters which could negatively affect our reputation if not handled properly.’ (Bundle addendum, page 869–70) The employment of Senior Litigators was accordingly an integral part of LASA’s Strategic Plan 2009–12, repeatedly mentioned in…………………………………. 24


On 30 April 2010 Human Resources Executive Amanda Clark had implicitly confirmed that I’d been selected for the SL post. I subsequently obtained the selection panel’s written recommendation of me via PAIA on 28 January 2011 (bundle, pages 244–8). 26

27

Bundle, page 17.

28

6

interest in my civil litigation expertise, the selection panel pertinently enquired about my

willingness to support the JC’s lawyers in civil matters, and recorded my affirmative reply.29

24. I thought the interview went well and awaited the result. After a few silent weeks,

I telephoned Appel to ask the score, but he was uninformative and non-committal. (Appel

contemporaneously recorded this in an email to Mdaka30 that I unearthed last year.) Appel

did not inform me, as I much later found out, that I’d been selected and recommended for

the PA post31 and that Mdaka had opposed my appointment and instructed him to ‘redo the

interviews for this position’,32 much less did he recite Mdaka’s stated reasons for opposing

me.

25. On 15 December 2010,33 now six weeks after my interview, I received a letter signed by

acting Pietermaritzburg JCE Jeffrey Mthimkhulu, alleging: ‘we are currently reviewing the

staffing requirements and performance of the backlog courts. Accordingly we regret to

advise that we will not be filling this post.’34

26. Nair had given me the much the same spiel about the SL post some months earlier.

Following my repeated enquiries in April 2010 to Human Resources Executive Amanda

Clark35 as to the upshot of my interview for the SL post five strangely silent months earlier

on 23 November 2009, and then (after Clark’s palpably dishonest, hostile, and deliberately

discouraging second response on 30 April 2010)36 to CEO Vidhu Vedalankar three more still

silent months later in July 2010,37 Nair alleged to me in August 2010, now nearly nine

months after my interview, that ‘the recruitment process to finalize the appointments for all

vacant Senior Litigator posts were [sic] put on hold due to various reasons. I can now

confirm that we will not be proceeding with the filling of any of these posts.’38

27. I tested the truth of these allegations later that month with a comprehensive request

for 51 specified records under PAIA.39 I’d already discovered by then that in April 2010, five

months after the Pietermaritzburg (and simultaneous Durban)40 SL recruitment had been

quietly shelved without announcing the fact,41 LASA had advertised to recruit an SL for

29

30

31

PA bundle, pages 18–21. 32


FEEDBACK 34

Bundle, page 53. 35

36

37

38

Bundle, page 19. 39

40

The two posts were advertised together and the interviews for them held on the same day at the same place by the same selection panel. Bundle, pages 43–4; 45; and 244–248. 41

I subsequently learned from the internal candidate, Bongani Mngadi, selected for internal promotion to the Durban SL post that after I began pressing for information as to the status of the recruitment process, he’d

7

Mthatha;42 and I learned soon afterwards from LASA’s reports to the Portfolio Committee

on Justice and Constitutional Development in the National Assembly that new post creation

and legal and other staff recruitment at LASA had massively boomed in the first financial

quarter April to June 201043 even as the Pietermaritzburg (and Durban) SL recruitment had

stalled with no word to me as to why.

28. In a corrupt attempt to conceal the documentary evidence exposing Nair’s lies to me,

LASA information officer and CEO Vedalankar (in fact Nair ghost-writing for her)44

expressly45 refused my entire request on 18 October 201046 (purportedly justified by a

wholly false statement of legal principles alleged to be applicable and a fake quotation from

a reported judgment claimed to support them in which words were put in the judge’s

mouth that she never spoke, and which were exactly the opposite of what she actually

held)47 and endeavoured to defraud me into abandoning my further pursuit of my

fundamental rights to equality and to information by falsely alleging, for the first time, now

eleven months after my interview for the Pietermaritzburg SL post, that in July 2010 she and

Nair had simultaneously frozen all vacant SL posts at Pietermaritzburg, Durban and

Mthatha48 on account of budgetary insufficiency.49 (Nair later confirmed repeatedly on

affidavit that no record whatsoever exists to vouch these allegations as regards the SL

posts,50 and he reiterated this in court.) These lies told to me about why the recruitment

had been stopped were manifestly calculated to end my pursuit of my appointment to the

SL post. (At trial Nair then changed the story, and said the Mthatha SL recruitment had been

cancelled (also off the record) for reasons wholly unrelated to any budgetary consideration,

namely because, he alleged, Vedalankar was ‘not happy’ with the transfer of the budget for

been told it had been cancelled. (Bundle, …..) LASA (Nair) admitted that Mngadi had been told this ‘instead of’ me, even as I was repeatedly pleading for information. (………..) The decision to put Mngadi off was justified…… no trouble. In court, under oath, Nair falsely denied that he’d instructed that Mngadi be told the recruitment had been cancelled. His perjury was shown by LASA’s pleadings, drawn on his instructions: ‘It was Mr Nair who gave out the instruction.’ (…..) 42

Bundle, page 46; and 62, paragraph 13. 43

TABLE 44

SEE HEADS 45

My request was first ignored, a deemed mute refusal under section … of PAIA, and I had to call the SAHRC in to assist me exercise my fundamental right to information guaranteed by section 32 of the Constitution and to exact an undertaking from LASA to respond. 46

47

48

49

…………………. 1. Nair repeatedly confirmed on oath that no records whatsoever exist to vouch these allegations (Bundle, ………..). 2. At trial in the Labour Court he retracted this story to the extent that he said the abortion of the Mthatha Senior Litigator appointment (an internal transfer: Bundle, pages … and …) took place earlier, for a different reason, and had nothing to do with any budgetary consideration. The extant records contradicted the allegation that the Pietermaritzburg and Durban Senior Litigator posts were frozen for budgetary reasons. 50

8

the ‘redundant’51 Kimberley SL post, where it wasn’t needed, to Mthatha for the creation of

a new SL post, where it was sorely needed, according to then Eastern Cape ROE Thembile

Mtati’s pressing motivation for the creation of the post.)52

29. Some weeks after Vedalankar’s (Nair’s) letter to me of 18 October 2010, however, I

found an audio recording of Vedalankar’s oral presentation to the Portfolio Committee a

week earlier on 11 October53 (reported on the 12th),54 posted on the internet by the

Parliamentary Monitoring Group. Vedalankar informed the Committee (my verbatim

transcription) that:

‘we are on track on all components of our Business Plan and we are confident that we

will deliver this Business Plan in this financial year also. So we don’t have any problem

areas that we would like to report on. We do have challenges in terms of some of the

funding issues like OSD but at the moment we are in the process of fixing it. In fact the

Minister has been involved in that which relates to OSD Phase 1 and Phase 2 funding.

And our Chairperson met with the Minister and he undertook to assist to resolve this

issue through the … mid-term adjustment budget.

Committee Chairperson Jeffery: [Occupational Specific] Dispensation, that’s the salary

increase for professionally qualified people.

Vedalankar: And so that so that the Minister was in was and also because we

indicated that if that didn’t come through it meant that we would have to freeze

posts. In this period of recession we don’t have increases but there is also we have a

budget cut that’s coming in 2012, R34 million. So we were a bit worried because

actually we run a very tight ship and if we didn’t get the OSD money that we were

meant to it would mean that we would have to freeze some posts but the Minister

didn’t want that and said that we needed to continue with the business. And so he did

get involved and he had assisted. We just need to ensure that it’s now, so it was in the

mid-term adjustment, we need to ensure it’s also in the [inaudible] allocations

because then that entails a change in the baseline because if we don’t have that we

still are going to go back to that problem. So overall we are on track in terms of Slide 1

you’ll see.’55

30. Vedalankar (Nair) did not mention in her (his) October letter to me that the outstanding

OSD funding issue had been practically resolved with the Minister’s assistance, that ‘it was

in the mid-term adjustment’, and that the money was on its way. Instead she (Nair)

concealed this critically relevant information from me.

51

52

53

54

55

Bundle, page 184.

9

31. I tested the truth of Vedalankar’s (Nair’s) claims to me that for budgetary reasons they

had simultaneously frozen the Pietermaritzburg, Durban and Mthatha Senior Litigator posts

in July 2010 with a second PAIA request on 15 December 2010.56

32. On the same day, 15 December 2010, I received57 Mthimkhulu’s letter about the

Pietermaritzburg PA post, in which he alleged, ‘we are currently reviewing the staffing

requirements and performance of the backlog courts. Accordingly we regret to advise that

we will not be filling this post.’58

33. In view of the indications then known to me that I’d been unfairly discriminated against

and that my recruitment to the Pietermaritzburg SL post had been aborted illegally in

contravention of section 6 (1) of the EEA and in violation of my fundamental right to

equality guaranteed by section 9 of the Constitution, I was initially sceptical Mthimkhulu’s

claims.

34. What changed my mind a few weeks later and led me to believe – until last year – that

his information to me was bona fide and that the PA recruitment had indeed been duly

cancelled for genuine operational reasons, were some records Vedalankar (Nair) supplied

me on 28 January 2011 purporting ‘To demonstrate’59 Vedalankar’s (i.e. Nair’s) budgetary

justification alleged to me on 18 October 2010 for aborting my recruitment to the

Pietermaritzburg SL post. (The records were put up with Vedalankar’s (Nair’s) letter of that

date, again illegally refusing my August 2010 PAIA request,60 illegally refusing my December

one,61 and even rejecting62 and returning63 my compulsory request fee, all in contempt of

my fundamental right to information guaranteed by section 32 of the Constitution and given

effect by PAIA.)64

56

……………… Nair partially retracted this story in court, as far as it concerned Mthatha – implicitly conceding that Vedalankar’s (his) story to me that three SL posts were simultaneously frozen in July 2010 for budgetary reasons was untrue. For the rest, the budgetary cover-story for the abortion of my appointment was devastated by inter alia (i) Nair’s radical reversal in court, contradicting the claim in the correspondence with and in the PAIA section 23 affidavits, in the several interlocutory affidavits, and in the pleadings that budgetary constraints at the time I was recommended prevented my appointment; and (ii) by the extant documentary record and the glaring lack of such where it ought to have existed had the tale been true. 57

58

Bundle, page 53. 59

60

61

62

63

64

LASA subsequently admitted its non-compliance with PAIA to the SAHRC (bundle addendum, page …), and its failure to comply with the Act was reported to the Portfolio Committee in the National Assembly in the SAHRC annual report on public body PAIA performance (bundle addendum, page … ). When taxed by the Committee about this, CEO Vedalankar then denied that LASA had failed to comply with the Act and called the SAHRC report in this regard ‘untrue’ (bundle addendum, pages …).

10

35. Among the records given me on 28 January 2011, which looked to me to be relevant to

the subsequent abortion of the Pietermaritzburg PA recruitment and seemed to me to

support Mthimkhulu’s story to me, were:

Vedalankar’s letters to the Director General of the Department of Justice and

Constitutional Development on 18 March65 and 13 April 201066 about the Department’s

failure to include funding for OSD phase 1 salary increases in LASA’s 2010/11 baseline

budget, and cautioning that unless it was paid,67 ‘we will be forced to effect the

necessary adjustments to our 2010/11 Budget so as to accommodate the R23 million

budget shortfall of OSD phase 1. The primary impact of that will unfortunately have to be

on service delivery at courts including increased delays and backlogs as a result of us

reducing the number of practitioners that we can make available at courts’.68

Nair’s email to Chief Operations Executive Jerry Makokoane on 15 July 2010, copied to

Vedalankar and other executives, under the ‘Subject’ heading ‘Budget cuts – Reduction in

Criminal Court Coverage – July 2010.xlsx’,69 in which he identified and motivated ‘my first

cut of 56 practitioner posts at JCs [Justice Centres]. I have not looked for paralegal and

admin positions at JCs yet. This amounts to a potential savings of R16m which is much

lower than what is required. In terms of this cut, I have ensured that DC will not be lower

than 80% coverage whilst RCs will not be lower than 90% coverage. If we need to find

more savings from practitioner positions, then we will need to agree lower coverage

levels for District and Regional courts.’70 (The spreadsheet itself, identifying the PA posts

to be cut, was not supplied to me, so I didn’t get to see at what Justice Centres the cut

posts were.)

Makokoane’s71 ‘Report to Board’72 the following day, 16 July 2010, in which he conveyed

Nair’s suggestion to the Board for its approval: ‘To provide for the anticipated OSD

shortfall funding of R23.8 million’, Makokoane ‘recommended’ in his ‘Report to Board …

that ‘District Court coverage be approximately no lower than 80% coverage, while

Regional Court coverage is reduced to no lower than 90% coverage, for the remaining

part of the 2010/11 budget period. This will derive a saving of about R16 million to cover

the shortfall.’73 And that ‘Savings from the 2010/11 financial year be used to fund the

[balance of the] OSD shortfall’74 – the savings deriving from the fact that ‘Salaries for

65

66

67

It had been paid the previous year, but during the year and not as part of LASA’s baseline budget. 68

OLD Bundle, pages 238–9; and pre-trial conference bundle, answer to agenda, page 56, paragraph 38.1. 69

Bundle, page 240. 70

Bundle, page 240; and pre-trial conference bundle, answer to agenda, page 57, paragraph 42.1. 71

Pleadings bundle, original response, page 146–6, paragraph 17. 72

Bundle, page 253, paragraph 2.2. (a); and page 254, paragraph 4.II. 73

Pre-trial conference bundle, answer to agenda, page 57, paragraph 42.1. 74

11

2010/11 are budgeted at 97% [occupancy] with recruitment currently being at about

94%’;75 and,

the minute of the Board’s resolution on 31 July 2010 to ‘approve the mitigating measures

in response to the OSD shortfall as proposed’.76

36. Although these records contradicted and brightly gave the lie77 to Vedalankar’s (Nair’s)

bogus budgetary justification advanced to me (also, later on, to the Minister78 and then to

Parliament)79 for aborting my appointment to the Pietermaritzburg SL post80 (Nair gave the

Board two totally different explanations,81 and gave the trial court yet another)82 in that

they showed that there was never any question at any time of freezing critical LASA’s top-

echelon specialist professional SL posts to save costs, they duped me into believing that

Mthimkhulu’s allegation to me on 14 December 2010 – ‘we are currently reviewing the

staffing requirements and performance of the backlog courts [so] will not be filling this

post’83 – was true.

37. That is, I concluded from these records that the PA post for which I’d been interviewed

in October 2010 had been hit by Nair’s proposed ‘cut of 56 practitioner posts at JCs’84

conveyed to and approved by the Board in July 2010 as a cost-saving measure to mitigate

the anticipated deficit arising from the Department’s failure to include funding in LASA’s

2010/11 baseline budget to pay salary increases under the OSD phase 1 scheme that it had

already commenced implementing85 in the expectation of payment86 on the strength of the

Department’s and Treasury’s written confirmation that it would be paid.87

75

Bundle, page 253, paragraph 2.1. 76

Bundle, page 251, paragraph 4.2, item 8.2. 77

They showed that the freezing of recruitment to SL and other such ‘critical’* posts was never considered,

proposed, agreed, or approved; quite the contrary, among the ‘measures … to mitigate the probable deficit … proposed’

† in his ‘Report to Board’, which measures the Board approved, Makokoane advised that ‘The

recruitment process will be reviewed, centralizing the decision of filling of posts at Executive level, with due regard to the need to prioritise critical positions’.

#

* Pleadings bundle, original response, page 170, paragraph 48.9; and pre-trial conference bundle, answer to

agenda, page 57, paragraph 43.1, and page 58, paragraph 52.1. † Bundle, page 253, paragraph 2.2.

# Bundle, page 253, paragraph 2.2.b; and pre-trial conference bundle, answer to agenda, page 57,

paragraph 42.1. 78

79

80

Bundle, pages 244–8: the selection panel’s recommendation that Vedalankar put up showed that I’d been recommended for the SL post. 81

82

Heads of argument, pages …, paragraphs ……. . 83

Bundle, page 53. 84

Bundle, page 240; and pre-trial conference bundle, answer to agenda, page 57, paragraph 42.1. 85

86

87

12

38. Hence my change of mind after receiving the records annexed to Vedalankar’s (Nair’s)

January 2011 letter, and my acceptance of Mthimkhulu’s claim six weeks earlier in

December 2010: ‘we are currently reviewing the staffing requirements and performance of

the backlog courts [so] will not be filling this post’.88

39. I believed at the time, as I was fraudulently intended to believe, that a legitimate

operational decision had been taken to cancel the PA recruitment and I concluded that this

was for budgetary reasons, seemingly vouched by Nair’s and Makokoane’s cost-cutting

proposals and the Board’s resolution to approve them. With this in mind, I put my

unsuccessful application for the PA post behind me and continued going after the SL one.

40. At the end of 2012, during a lull in my otherwise enormously time- and energy-intensive

preparation for and run-up to the trial of my discrimination claim in the Durban Labour

Court concerning the SL post,89 I decided to revisit the abortion of the PA recruitment and to

investigate the circumstances in which it had occurred, using PAIA to probe the veracity of

the story told me about it; and I mailed my first PAIA request in this regard by post on

31 December 2012.90

41. I didn’t know then, and only discovered fortuitously from internet searches around that

time for other documents material to the approaching trial of my unfair discrimination claim

in relation to the SL post, that subsequent to ‘the Minister [getting] involved in that which

relates to OSD Phase 1 and Phase 2 funding’91 and his undertaking ‘to assist to resolve this

issue through … the mid-term adjustment budget’92 (per Vedalankar’s information to the

Portfolio Committee on 11 October 2010) the outstanding OSD funding issue was indeed

resolved through the national medium-term adjustment budget. (Vedalankar’s information

to the Portfolio Committee about this was garbled, so I didn’t get it at the time: ‘We just

need to ensure that it’s now, so it was in the mid-term adjustment, we need to ensure it’s

also in the [inaudible] allocations because then that entails a change in the baseline because

if we don’t have that we still are going to go back to that problem.’93 (emphasis added))

42. In his ‘Medium Term Budget Policy Statement 2010’ on 27 October 2010 Minister of

Finance Pravin Gordhan94 mentioned ‘unforeseeable expenditure adjustments

recommended by the Treasury Committee this year, including … R320 million for

88

Bundle, page 53. 89

LASA was persistently and determinedly withholding and concealing documents I needed for trial, to remedy which I was put to bringing an application to compel discovery of the many outstanding documents I’d specified, and to requesting not one but two pre-trial conferences at court before a judge to the same end; these were held in January and June 2013. (Application to compel; agendas for January and June 2013 pre-trial conferences at court.) 90

91

92

93

94

Bundle addendum, page 850.

13

occupation-specific dispensation salary adjustment in the Department of Justice and

Constitutional Development, the National Prosecuting Authority and Legal Aid South

Africa.’95

43. In October 2010 the Treasury96 confirmed in its ‘Adjusted Estimates of National

Expenditure 2010’ report issued that month: ‘An additional R96 million is allocated for

phase 2 of the occupation specific dispensation for legally qualified professionals at Legal

Aid South Africa’97 – in keeping with the Minister’s assurance, recorded in Makokoane’s

‘Report to Board’ of 16 July 2010: ‘The Executive Authority has however in a meeting with

the Legal Aid SA Board Chairperson expressed his wish to have Legal Aid SA service delivery

maintained and that DoJ should make funds available to cover the OS shortfall through the

mid-year budget adjustments in September/October 2010.’98

44. On 26 November 2010 ‘The Board approved Legal Aid South Africa’s 2011/12 Budget’.99

This included the ‘R42 million once off backlog funding for OSD Phase 2, which has been

included in the 2010/11 budget’.100 ‘The Budget allocation of R1,169,772,000 for 2011/12

includes … R30,000,000 OSD Phase II funding’.101

45. What I didn’t know until October 2011,102 a year after my interview for the PA post, was

that with the Minister’s undertaking given to LASA’s chairperson Mlambo JP103 to secure

payment of LASA’s outstanding OSD funding, since the Minister ‘didn’t want’ LASA to ‘freeze

… posts’:104

o the brake applied in August and September 2010 on recruitment to 56 vacant lower

criminal court PA posts was released, and public defender coverage of the lower criminal

courts was restored to 100%;105 and,

o following a slowed increase in legal staff recruitment in the second quarter July to

September 2010 of 1.7% (1173 to 1193)106 after the Board resolution to hold recruitment

to some vacant PA posts – following a spiked increase in the preceding first quarter April

95

Bundle addendum, page 851. 96


Bundle addendum, page 849, last paragraph. 98



Bundle addendum, page 883, ‘Comments’. 101

Bundle addendum, page 884, section 3.1. 102

103

104



Bundle, page 692, and pre-trial conference bundle, reply to the applicant’s pre-trial issues, pages 73–4, paragraph 1.

14

to June 2010 of 2.3% (1147 to 1173)107 – it then surged in the third quarter October to

December 2010 and peaked for the year, increasing by 2.5% (from 1193 to 1223).108

46. My misconception that LASA had cancelled the PA recruitment due to budgetary

insufficiency was cemented by Vedalankar’s (Nair’s) fraudulent concealment in her (Nair’s)

letter to me on 28 January 2011 of the fact that six weeks earlier, on 15 December 2010, the

Department had paid LASA its outstanding OSD phase 1 funding, and had further provided it

with funding to commence implementation of OSD phase 2.109 I only discovered this many

months later during pre-trial document discovery110 in the Labour Court litigation

concerning the SL post.

47. Not only was this payment dishonestly concealed from me to maintain the pretence,

and deceive me into believing, that LASA was still financially strapped and that this

prevented my appointment to the Pietermaritzburg SL post,111 Vedalankar (Nair) positively

lied about LASA’s financial situation in her (his) January 2011 letter by dissembling about the

Department’s ‘failure to deliver on the promised funding’;112 that ‘Legal Aid has always had

financial difficulties as a result of failure by DoJ to advance funding in terms of OSD 2nd

phase as promised’;113 ‘even in Parliament, I mentioned challenges that may face Legal Aid

SA should OSD funding not be fixed; that if funding does not come through “we would have

to freeze posts”’;114 ‘by November 2010 [sic: 30 September 2010],115 after the

Memorandum from the COO, it was evident that there would be no funding coming from

the DoJ. In fact a shortfall was expected up to 2012’;116 and there was ‘an impending

shortfall in Legal Aid SA’s budget’.117

48. In truth and in fact, and contrary to Vedalankar’s (Nair’s) shameless lies to me about

this, there was no ‘failure’ by the Department to ‘deliver on the promised funding’, for this

funding was provided as promised on 15 December 2010,118 with the result that there was

no longer an ‘impending shortfall in Legal Aid SA’s budget’ for the 2010/11 financial year,

nor ‘was … a shortfall … expected up to 2012’.119 Quite the contrary, in both years 2010/11

107

Bundle, page 692; and pre-trial conference bundle, reply to the applicant’s pre-trial issues, pages 73–4, paragraph 1. 108

Bundle, page 692; and pre-trial conference bundle, reply to the applicant’s pre-trial issues, page 74, paragraph 1.2. 109


111

112

Bundle, page 214, paragraph V4. 113




Bundle, page 220, paragraph 27. 117

Bundle, pages 214–5, paragraph V6. 118

119

Bundle, page 220, paragraph 27.

15

and 2011/12 LASA enjoyed substantial total budgetary surpluses of R31.7 million120 and

R29.9 million121 respectively.

49. In her (his) prodigiously dishonest January 2011 letter, Vedalankar (Nair) amplified her

(his) lie that LASA still had budgetary issues by stating that LASA ‘had to wait and see if the

Department of Justice and Constitutional Development would allocate us budget to proceed

with finalising the recruitment processes’122 for the SL posts. In truth and in fact, dishonestly

concealed from me by Vedalankar (Nair), such ‘budget’ – to enable LASA to continue filling

its 56 vacant PA posts tat had been frozen with Board approval to mitigate its apprehended

budgetary deficit – had been allocated by 11 October 2010: as Vedalankar told the Portfolio

Committee, ‘the OSD money … was in the mid-term adjustment’.123 And in truth and in fact,

contrary to Vedalankar’s (Nair’s) dishonest pretence to me about this, the apprehended

deficit, soon afterwards resolved, had no bearing on ‘finalising the recruitment processes’

for SLs. To the contrary, among the ‘measures … to mitigate the probable deficit …

proposed’124 in his ‘Report to Board’, Makokoane advised that ‘The recruitment process will

be reviewed, centralizing the decision of filling of posts at Executive level, with due regard

to the need to prioritise critical positions’125 – such as SL positions, duly described in LASA’s

pleadings as a ‘critical position’.126

50. Vedalankar (Nair) did not mention in her (his) January 2011 letter that with the

resolution of the delayed OSD funding issue by early October 2010, thanks to the Minister’s

intervention and assistance, LASA’s temporary hold on lower criminal court practitioner

recruitment in August and September 2010 had been lifted and such public defender court

coverage was restored to 100%,127 and that in the third quarter October to December 2010

legal staff recruitment had then surged, and had peaked for the year with an increase of

2.5%.128

51. All these lies to me, all this dishonest concealment of material information from me,

deceived me, as it was fraudulently intended to do, into believing that as at the end of

January 2011, LASA still had budgetary problems and that the 56 vacant PA posts serving the

lower criminal courts which had been frozen with Board approval in July 2010 were still

frozen. I believed that the vacant PA post at Pietermaritzburg for which I’d applied was one

120


Bundle addendum, pages 904 and 905. 122

Bundle, page 221, paragraph 28. 123

124


Bundle, page 253, paragraph 2.2.b; and pre-trial conference bundle, answer to agenda, page 57, paragraph 42.1. 126

127


Bundle, page 692; pre-trial conference bundle, reply to the applicant’s pre-trial issues, page 74, paragraph 1.2.

16

of them. (As said, I hadn’t been provided with a copy of Nair’s spreadsheet identifying which

56 vacant PA posts were to be frozen, only his covering email.)129

52. After I instituted action in relation to the SL Post in the Durban Labour Court in July

2011, Nair persisted with these brazen lies and repeated them to court in LASA’s original

response (to my original statement of claim) on 9 September 2011,130 drawn on his

instructions:131 ‘despite the Minister’s assurance that he would intervene to ensure that

LASA received the said funding, same did not materialise’132 and ‘the position adopted by

the Minister … did not resolve the funding shortage at all’.133

53. In truth and in fact, and contrary to Nair’s blatant lies to court about this, the ‘OSD

Phase 1 and Phase 2 funding’ in which ‘the Minister has been involved and … had

assisted’134 did indeed ‘materialise’ as expected, for as Vedalankar told the Portfolio

Committee on 11 October 2010, ‘it was in the mid-term adjustment’,135 and it was paid over

to LASA soon afterwards on 15 December 2010.136

54. On 16 January 2013, after the Department’s payment voucher137 that I’d disgorged

from LASA on 18 November 2011 during document discovery138 (after the close of original

pleadings in the Labour Court) revealed the truth of it, Nair reversed his lie to court in

LASA’s original response, told in an attempt to pervert the true and just determination of

my claim, and conceded the truth of the matter in an interlocutory affidavit: ‘Legal Aid SA’s

pleas to the Department [‘to comply with the commitment it had made to advance the OSD

funds’]139 were … ultimately answered after eight (8) months.’140

55. In its reply on 18 November 2011 to the issues I’d raised at the pre-trial conference the

month before,141 LASA provided an itemised break-down of this vouched payment on

129

130

Pleadings bundle, original response, page 182. 131

132

Pleadings bundle, original response, page 171, paragraph 49.5. 133

Pleadings bundle, original response, page 169, paragraph 48.7. 134


136


Ibid. 138

Contradicting LASA’s (Nair’s) lies that ‘despite the Minister’s assurance that he would intervene to ensure that LASA received the said funding, same did not materialise’ and ‘the position adopted by the Minister … did not resolve the funding shortage at all’, LASA (Nair) let slip In the same pleading that the OSD funding problem had been ‘resolved’. (Pleadings bundle, original response, page …., paragraph …) 139

Application to subpoena Mlambo JP, answering affidavit, page 84, paragraph 19. Nair’s confirmatory affidavit, pages …. 140

Application to subpoena Mlambo JP, answering affidavit, page 84, paragraph 20. Nair’s confirmatory affidavit, pages …. 141

This was the first of three pre-trial conferences held in the case.

17

15 December 2010,142 inter alia: ‘R64.5 million for Phase 2 OSD … R18 million for Phase 1

OSD’.143

56. On 17 February 2011, about a fortnight after Vedalankar’s (Nair’s) January letter to me,

repeating her (Nair’s) lying claim in October 2010 that LASA lacked the budget to appoint

me to the SL post – and, I understood from LASA’s cost-cutting records, to the PA post – the

Department’s Chief Director: Third Party Funds, Johan Johnson, informed the Portfolio

Committee that ‘The Legal Aid budget would be increased to R1.3 billion. … An additional

staff budget of R40 million in 2012/13 would allow the appointment of an additional 60

Legal Aid practitioners.144 … Adv Du Rand added that … The National Treasury had made

additional funds available to address the backlog in appointments.’145

57. When on 31 March 2011, at LASA’s presentation of its ‘Strategic Plan and budget 2011’

to the Portfolio Committee, three-and-a-half months after LASA received its OSD phase 1

and 2 funding for 2010/11, ‘Mr Jeffrey enquired about the vacancy rate, generally, and at a

professional assistant level’, ‘Ms Vedalankar replied that in 2010/11, LASA had set a target

of 96% of all posts being filled, although it had then held back on filling some of the

vacancies because of the uncertainty of obtaining OSD funding in Phase 1, which, if not

recovered, would have put the LASA into deficit. OSD was now settled in the baseline

figures, and she thanked the Committee for its support in this regard. LASA now had 96% of

all posts filled.’146

58. On 1 April 2011147 LASA’s ‘Budget 2011/12’ report stated: ‘The recruitment rate was

increased to 100% in the 2011/12 financial year.148 … The recruitment level was also

increased from 97% in the 2010/11 financial year to 100% in 2011/12.’149

59. On 7 June 2011, at a meeting with the ‘Extended Public Committee’150 in the National

Assembly, ‘Legal Aid SA indicated that it received additional funds to improve its

practitioner-per-court ratio, accommodate occupational-specific-dispensation, OSD funding

and increase its civil work. Additional amounts of R44,6 million, R90,8 million and R106,3

million have been allocated to Legal Aid SA to increase capacity, improve conditions of

service and implement phase 2 of the OSD for legally qualified professionals.’151

142


Pre-trial conference bundle, reply to the applicant’s pre-trial issues, page 77, paragraph 2.15. 144


Ibid. 146

Bundle, page 438, penultimate paragraph. 147





Bundle addendum, page 887.

18

60. On 26 October 2011 the ‘Budgetary Review and Recommendation Report of the

Portfolio Committee on Justice and Constitutional Development’152 recorded: ‘The

Committee had made certain funding recommendations in its 2010 Budgetary Review and

Recommendation Report. [Note: These recommendations are quoted in parentheses

below.*] The following amounts were subsequently allocated … LASA also received

additional funds to improve its practitioner-per-court ratio, to accommodate OSD funding

and to increase ability to undertake civil work. Additional amounts of R44.6 million, R90.8

million and R106.3 million were allocated for increased capacity, for improved conditions of

service and the implementation of Phase 2 of the OSD for legally qualified professionals.’153

The report also recorded that LASA ‘Ensured a recruitment level of 96%, compared to 94% in

2009/10.’154 And: ‘The Committee supports the need for more practitioners to increase

coverage in all courts.’155 And: ‘The Committee therefore recommends that – LASA is

provided an additional R133 million and R54.7 million in the MTEF period to improve its

practitioner capacity and to continue to increase its civil work, respectively. LASA is

allocated an additional R37.5 million over the MTEF period to expand its national footprint,

making its services more accessible.’156 (*On 26 October 2010, three weeks after

Vedalankar’s address to the Portfolio Committee on the 11th, the ‘Budgetary Review and

Recommendation Report of the Portfolio Committee on Justice and Constitutional

Development on the performance of the Department of Justice and Constitutional

Development for the 2009/10 financial year’157 recorded: ‘The Committee recommends that

… OSD funding is included in baseline to prevent LASA from having to freeze posts’.158 It was

indeed included: Vedalankar informed the Committee on 31 March 2011 that ‘OSD was now

settled in the baseline figures’.) 159

61. All this financial information I’d sourced and the profusion of lies told by Nair in

affidavits and pleadings in my Labour Court case – as well as the lies160 he brazenly told the

Minister and later the chairperson of the Portfolio Committee in his secret ‘Confidential …

Report … Re: Adv Anthony Brink’161 in March162 and June163 2011, which he drew164 and got

152








Bundle, page 438, penultimate paragraph. 160

After I refuted Nair’s two main lies concerning the abortion of my recruitment as SL in my original statement of claim in July 2011, Nair abandoned them and in November 2011 invented and fed the Board two completely different reasons for doing so. (….) In January 2013 in an interlocutory affidavit, Nair expressly retracted one of his lies as ‘an error’*, then, when faced with this retraction in court, tried reviving his lie on the basis that his retraction was an error. He was pathetic. 161

162

163

19

LASA chairperson Mlambo JP to sign,165 to mislead them and to pervert their respective

enquiries166 into my fundamental rights complaints (copied to the Minister167 and to

Parliament)168 – led me to doubt the propriety and regularity of the cancellation of the PA

recruitment and the truth of the reason Mthimkhulu gave me for it. The story had the same

smooth, ostensibly convincing, authoritative-sounding ring, and had the same dishonest

prose rhythm characteristic of Nair’s writing that I’d become increasingly familiar with in the

SL case. I’d already discovered that SL recruitment at LASA was thoroughly corrupt.169 So, I

was later to discover, was PA recruitment at Pietermaritzburg – for which LASA’s KZN

regional office and the national office, not its Pietermaritzburg JC, were responsible.170

62. I commenced interrogating LASA’s story about the PA post with my first PAIA request

mailed by post on 31 December 2012,171 and on 14 February 2013172 I discovered the

following from deputy information officer for KwaZulu-Natal (and KZN ROE) Mdaka’s

response on that date:

63. On 9 November 2010 the selection panel which interviewed me for the PA post on

28 October 2010 had selected me out from the other shortlisted, interviewed candidates

and had ‘highly recommended’ me for appointment.173

64. On 15 November 2010, Pietermaritzburg Administration Manager Bhamani Maharaj

emailed to KwaZulu-Natal Regional Human Resources Manager Baboo Brijlal174 a draft

contract (‘Temporary Employment Agreement – Mr Anthony Brink.doc’)175 followed by a

scanned copy of the ‘signed motivation’176 for my appointment (‘Motivation Temp PA

Backlog.tif’).177

164

165

166

167

168

169

Brink’s heads of argument, pages .. to …, paragraphs .. to …. ‘Second round’ and abortion of Mngadi and Skibi appointments in the cover-up. 170

Subsequent to the abortion of my recruitment, after I’d been recommended for appointment, attorneys EJ Arjoonan-Saktu, S Ngobeni and N Binessarie were appointed to backlog court PA posts at Pietermaritzburg without undergoing the shortlist, interview, selection and recommendation process prescribed by the Recruitment code: PA bundle, pages ………. and 213, item 2(h). Grossly irregularly, and with scant regard to LASA’s recruitment processes prescribed by the Board, Nair approved these year-long PA contracts without satisfying himself as to the qualifications of these candidates with reference to a selection panel’s motivation: there wasn’t any; they were never interviewed for the posts. 171

PA bundle, pages 1–8. 172


PA bundle, page 18–21 at 20. 174

PA bundle, page 22, second and third emails on the page. 175

176

177

20

65. The advertisement for the post had stipulated: ‘The incumbent will be appointed on a

fixed term contract for the period of 1 year’.178 As said, LASA’s annual backlog court PA

contracts ordinarily ran from the beginning to the end of LASA’s financial year, 1 April, to

the end of the year, 31 March.179 Since I was recommended by the selection panel on 9

November 2010,180 the initial draft contract that Maharaj prepared provided for my

employment in the remaining three months of the financial year after LASA’s annual

Christmas shutdown was from 5 January 2011 to 31 March 2011,181 in accordance with the

recommendation of the selection panel as to when I should start.182

66. Brijlal duly forwarded both the recommendation and the draft contract to Mdaka on

the same day.183

67. On 16 November 2010 Mdaka emailed Appel, stating that he opposed my appointment

for several reasons stated (taken to pieces below) and directed184 him to ‘redo interviews

for this position’.185 Obviously, the necessary implication of this instruction was that Mdaka

appreciated that the PA post needed to be filled.

68. Mdaka revealed in his email to Appel that he was particularly concerned that I should

not know that I’d been recommended for the post.186 (And indeed I wasn’t told).

69. According to Mdaka, claiming this on oath under section 23 of PAIA, no record exists of

any further correspondence in the matter.

70. Contradicting this, however, Appel informed me on 16 August 2013, two weeks after

the trial of my first unfair discrimination claim, when I interviewed him about the

circumstances in which my recruitment to the PA post had been aborted, that he certainly

relayed to the selection panel the issues that Mdaka had raised with him and that he

thereafter returned the panel’s responses to Mdaka. Likewise, former Principal Attorney

Rajen Manickum, who’d been on the panel, confirmed to me when I interviewed him in

November 2013 that he’d indeed responded to Mdaka’s queries and that he’d justified his

recommendation of me to answer Mdaka’s objections.187

71. The probabilities favour Appel’s and Manickum’s mutually corroboratory claims over

Mdaka’s here. Appel was keen that I be appointed to the PA post: his favourable opinion of

178


180

181

182

PA bundle, page 18, section 1. 183

Ibid, first email at the top of the page. 184

185


PA bundle, page ……. 187

21

me is recorded in his commendation of me for the SL post, in his email to Brijlal covering my

CV submitted in support of my application for it,188 and he’d urged me to apply for the PA

post despite my initial disinclination. So Appel wouldn’t have left unanswered Mdaka’s

professed reasons for opposing my appointment and his call for a response to them, after

explicitly undertaking to provide the panel’s response.189

72. Mdaka’s purported reasons stated to Appel for rejecting my appointment to the

temporary PA post were manifestly insupportable, indefensible, and pretextual:

73. First, he said, ‘none of the candidates did well in [the] criminal section’, i.e. unlike at the

searching SL interview, I didn’t score well in answering the few random basic criminal law

questions put to me at the PA interview, so ‘On what basis was this candidate preferred

over the others?’ In the first place, answers to such basic questions must either be right or

wrong, yet there was a marked disparity in the scoring190 by the attorneys who interviewed

me, casting doubt on the reasonableness of the evaluation of my answers. But much

importantly, as a member of the selection panel for the SL post a year earlier, Mdaka had

seen my full CV so he knew that:

(a) I’d been a prosecutor in the district and regional courts for five years;

(b) I’d been a magistrate on the district and regional court benches for three years (none of

my recent judgments upset on appeal; to the contrary, in the only appeal against any of my

judgments as a regional magistrate, the quality of my judgment was commended by the

appeal court);

(c) before commencing practice as an advocate at the Pietermaritzburg Bar, not only did I

pass the Bar examinations in both criminal and civil law, I was found by the Society of

Advocates of KwaZulu-Natal to be the best pupil in the province and the only pupil

exempted by my examiners, including judges, from the oral examination; and,

(d) besides my predominantly civil practice at the Bar, following four prior years as a civil

magistrate, I’d conducted innumerable criminal defences in the High Court and lower

courts, including a defence on brief, not pro Deo, of a man wrongly accused of nine counts

of murder and seven of attempted murder (an attack with an AK47 on a taxi during the

UDF/Inkatha civil war) before Judge President Alan Howard and assessors, at the end of

which I secured an acquittal.

74. At my interview for the SL post, Mdaka and the other members of the selection panel,

comprised of LASA’s top lawyers in the region, closely interrogated my knowledge both of

criminal and civil law, and after doing so, unanimously selected and recommended me for

188

189

190

22

the post. That is, after interviewing me, Mdaka was entirely satisfied that I’d very ably

represent the indigent in ‘complex criminal … matters linking to the higher courts (High

Courts, Appeal Courts and Constitutional Court) in the country, and provide specialist

support to Justice Centres in these matters’,191 and be able to deliver a competent reliable

‘written legal opinion for the LAB’192 on these ‘specialised, complex or impact litigation

matters’193 as and when required.

75. Yet notwithstanding my knowledge of criminal law and my extensive applied experience

in the field acquired over decades of legal practice, which Mdaka personally tested and

established to his perfect satisfaction at my interview for the SL post on 12 November 2009,

he claimed to think, on the basis of a handful of random questions put to me by the

attorneys who once appeared before me as a magistrate (one) and whom I trained as

articled clerks (two) when I was at the Bar and they brought their cases and legal problems

to me, that I now lacked the professional wherewithal to ‘Provide legal representation to

the Backlog District Court’ – let alone to ‘Provide legal representation’ in ‘complex criminal

… matters linking to the higher courts (High Courts, Appeal Courts and Constitutional Court)

in the country, and provide specialist support to Justice Centres in these matters’, and also

deliver a ‘written legal opinion for the LAB’ on these ‘specialised, complex or impact

litigation matters’ whenever asked for one.

76. I am hardly unqualified to represent accused persons in the regional court. Mdaka’s

purported demurral at my criminal law expertise was transparently vacant.

77. Mdaka asked Appel: ‘If the issue of civil experience was an important aspect for the

panel to make a selection, why was the same argument not used for the candidate who is

said to [have] specialized in civil litigation[?]’194 The clear answer was in the

recommendation of me recording the panel’s reason for rejecting her, namely that she

‘lacked any criminal knowledge’195 to ‘cover the criminal court’.196 Her very limited civil

experience anyway hardly compared with mine. Again Mdaka’s point raised on this score

was manifestly specious. As if the defences of indigent accused in the criminal courts should

rather have been placed in the hands of a ‘candidate’ who ‘lacked any criminal knowledge’

so ‘would not be suitable for the post’197 rather than me with my extensive applied criminal

law experience.

78. Mdaka challenged the relevance of my civil law background in the selection panel’s

determination of my suitability for the post: ‘Why was this point of civil [experience] 191

192

193

194

195

196

197

23

relevant in any case for the appointment?’ The clear answer was in the advertisement. Two

of the ‘Key Outputs’ advertised for the post were to ‘Represent women, children and

landless people in civil matters’ and to provide ‘Training of Candidate Attorneys’.198

79. Mdaka knew from my full CV and from my replies at his interview of me for the SL post

a year earlier that I’d trained very many of LASA’s candidate attorneys and two pupil

advocates (and one of the latter so well that, like me, she was also exempt from the oral

examination); been a Commissioner of the Children’s Court, and as an advocate conducted

innumerable family law cases in which I represented women and children; and handled two

land claims for landless people, and argued an appeal for a landless man evicted.

80. Plainly Mdaka’s cavilling at the relevance of my civil law experience was idle.

81. Mdaka claimed: ‘The motivation does not seem to show that the panel considered

[employment] equity issues in arriving at the conclusion.’199 Here, the advertisement for the

Professional Assistant post very properly stated, ‘Preference will be given in terms of our

affirmative action approach, to suitable candidates who meet the minimum

requirements’.200 Recommending me for the SL post on 23 November 2009 the previous

year, however, Mdaka personally certified to the executing authorities ‘delegated for

approval’, namely CEO Vedalankar (‘Must agree’) and NOE Nair (‘Final approval’), that my

prospective appointment as SL at Pietermaritzburg ‘meets the Employment Equity

targets’.201 He personally certified that he had ‘taken into account’ the demographics in the

Pietermaritzburg JC, tabulated in the motivation. On 9 November 2010, a year later, the

office demographics tabulated in the motivation for my appointment as temporary PA had

barely changed. According to the motivation recommending me for the PA post, one of the

two other shortlisted applicants interviewed ‘severely lacked any criminal knowledge’202 and

the other ‘lacked any criminal knowledge’203 at all. That is, neither of the other two

candidates met ‘the minimum requirements’ for the post. Since the other two interviewees

were disqualified by their grossly insufficient knowledge of criminal law, employment

‘equity issues’ couldn’t lawfully have entered the equation when the selection panel

selected me out from the other clueless candidates and ‘identified’ me as ‘the most suitable

candidate for appointment’ to the post (in the language of the Policies and Procedures on

Recruitment),204 ‘the preferred candidate’ as Mdaka put it.205

198

199

200

201

202

203

204

205

24

82. Again, Mdaka’s suggestion that my appointment as a temporary PA wouldn’t have

conformed to LASA’s Employment Equity targets was bad on its face.

83. On 14 December 2010 (emailed to me the next day) acting JCE Jeffery Mthimkhulu

wrote to me in Appel’s absence (Appel tells me he thinks he was on holiday leave), alleging:

‘we are currently reviewing the staffing requirements and performance of the backlog

courts. Accordingly we regret to advise that we will not be filling this post.’206

84. It’s highly significant that in its communication with me, LASA chose not to rely on

Mdaka’s purported objections to my appointment. Instead the justification for not

proceeding with my appointment was completely different: I was told a totally different,

contradictory story. Evidently appreciating that his grounds stated to Appel for opposing me

were wouldn’t stand up, Mdaka elected not to openly rely on them and assert them to me

as the justification given me for rejecting the selection panel’s recommendation of me, so

another pretext was concocted and advanced to me in Appel’s absence to cover the real

reason for blocking my appointment.

85. Had it been true that ‘staffing requirements and performance of the backlog courts’

were under review, there would obviously have been a record of this, for as Cachalia JA has

observed pithily in the Supreme Court of Appeal: ‘Surely … there’s a note, there’s a minute.

Government does operate like a glorified spaza shop.’207

86. Mdaka confirms on oath that no record exists to vouch Mthimkhulu’s claim that a

review process was taking place as at mid-December 2010.208

87. When I interviewed him on 16 August 2013, Appel confirmed to me that in truth there

was no such review on the go, and that had there been, he’d certainly have known about it

as JCE at the time.

88. Indeed, consistent with this, Mdaka confirms on oath that no record exists to show that

a decision was duly taken in the weeks between 16 November 2010, when Mdaka directed

Appel to redo the interviews,209 and 14 December 2010, when Mthimkhulu alleged this,210

that it had been decided not to fill the post.

89. I was the only interviewed shortlisted candidate to whom it was alleged that LASA had

resolved not to fill the post; Mdaka confirms on oath that no records exist211 to vouch that

206



209

210

211

25

such letters were sent the other interviewed candidates.212 That is, I was singled out for

telling this story.

90. No record exists of the instruction given to Mthimkhulu to allege to me that it had been

decided not to fill the PA post.213

91. At the August interview, Appel gave me a file he’d kept on the Morris and Fourie case at

his Justice Centre, another case of unfair discrimination by LASA, tried in the Labour Court

under case number LC D517/11 (and decided a couple of weeks later in favour of the

applicants on 29 August 2013).214 Interrogating the contents of the file afterwards, I found

several critically material documents, inter alia:

o recording that Appel had responded to Mdaka’s purported objections to my appointment

the day after he received them on 16 November 2010: ‘I will refer the issues raised by

you to the interviewing panel and will revert to you’,215 and that he’d explained his

recusal from the selection panel on the basis that ‘Mr Brink is well known to me … we

know each other very well’;216

o confirming that LASA’s two-PAs-per-backlog-court policy was not changed before

21 February 2011, the date on which Nair issued a directive that henceforth all backlog

courts be serviced by only one PA, unless he authorized otherwise upon an ROE’s

recommendation;217

o showing that Appel contemporaneously recorded that his sight of this directive on that

date was the first he knew of the decision to reduce the number of PAs per backlog court

to one per court;218 and,

o showing that on 7 February 2011, seven weeks after it was alleged to me that it had been

decided not to fill the PA post, Mdaka emailed all JCEs in his region and advised them

that although ‘funding for the backlog courts will be extended into the new financial

212

Bundle addendum, page 718, section 1.5.1. 213

214

Law and case bundle, page 193ff. 215

216

PA bundle, page 212. In point of fact our relationship though always cordial was purely collegial, and besides our occasional professional engagement while I was at the Pietermaritzburg Bar* we had zero social contact with each other. (*Appel referred to this on record: Bundle addendum, page 827) I testified about this purely professional relationship in the Labour Court in July 2013, and it wasn’t disputed. So I was surprised in August 2013, after the trial, to find in Appel’s file on the Morris case that Mdaka had issued him with a written warning for, inter alia, having participated in the panel (with Mdaka) that selected me for the SL post as a ‘friend’ of mine: PA bundle, page …. . Appel explained his decision not to contest the allegations: PA Bundle, page … Mdaka repeated this incorrect allegation of a friendship between Appel and me in his answers to my PAIA requests (PA bundle, pages … … and …), thereby insinuating that my selection for the SL and PA posts had been irregular. 217

218

26

year’, ‘there is no confirmation as to which courts will be allowed to continue’, as ‘there

is a need to assess the effectiveness of each court to determine its necessity. A meeting

to this effect will be held this month to identify the sites that will continue to function

going forward and it is only those identified sites that will be funded.’219 (This had

nothing to do with the matter of how many PAs per court were to be employed, but with

what backlog courts would continue.)

92. In sum, it was not until just under six months ago when I interviewed Appel and

interrogated his file on the Morris and Fourie case that I obtained the evidence categorically

exposing the lying cover-story told me for the abortion of the PA recruitment as a pretextual

justification to camouflage the true reason I was not appointed.

93. I learned from Manickum in November that after the abortion of my appointment to

the PA post, national Human Resources Executive Amanda Clark had reproached him as a

member of the selection panel over his recommendation of me for the post, and that her

animus towards me in doing so had been unmistakeably negative. (In April 2010 Clark had

made common cause with Nair in trying to put me off pursuing my appointment to the SL

post. Her several lies to me in so doing, later exposed as such, are canvassed in my heads of

argument – as are two contradictory affidavits220 she subsequently made in the matter.)221

94. The crucial significance of Clark’s conduct in taking Manickum to task for recommending

me for the PA post is that it shows that she, and undoubtedly Nair too, had discussed my

application for the PA post. On the face of it, this relatively minor, temporary recruitment

had been cancelled by Mdaka at regional level:222

95. Under section 8.2.3 (a) of the Approval Framework, the executive delegated to approve

my appointment under the initial three-month contract was ROE Mdaka as ‘Exec’,223 i.e.

‘The executive responsible for the line function in question.’224 On the other hand, section

8.2.3(b) of the Approval Framework delegated NOE Nair to approve temporary contracts of

‘More than 3 months’.225 Accordingly, the draft contract Maharaj prepared for me duly

provided for Mdaka’s approval and signature. That is, the approval of my appointment and

signature of my initial temporary PA contract for the first three-month term, before the

commencement of the advertised year-long contract starting on 1 April 2011, was Mdaka’s

responsibility at regional level, and not Nair’s in the national office, which had no legal

interest in my application for the PA post at that stage.

219


221

222

223



Bundle

27

96. Yet the abortion of my appointment to the relatively low-ranking temporary PA post,

following the abortion of my appointment to the top-deck permanent SL post, had been

discussed in the national office by the self-same national management executives who’d

previously acted together in a bid to block my appointment to the SL post.226

97. In court, at the trial of my claim to instatement to the SL post and other relief, Nair

alleged that he’d discussed his decision to freeze the SL recruitment with Mdaka in April

2010. The probabilities favour the conclusion that Nair told Mdaka why he hadn’t signed his

approval of the selection panel’s recommendation of me,227 namely that I was a political

undesirable. And this is why Mdaka blocked me at Nair’s instance. As I’ve shown, Mdaka’s

purported reasons stated to Appel don’t bear intelligent scrutiny, and he or Nair evidently

preferred that I be told a completely different (contradictory) story about why the

recruitment had been stopped after I was ‘highly recommended’ for the PA post.

98. My conclusion from this is that Nair, the prime actor in the abortion of my appointment

to the SL post (clearly established on the evidence at trial), was the prime actor in the

subsequent abortion of my appointment to the PA post. And I expect that when this second

claim is tried in the Durban Labour Court, and Mdaka will confirm this under oath, and

testify that in blocking my appointment he was dancing to Nair’s tune. Especially since

Mdaka himself had recommended me for the very much more senior, permanent SL post a

year earlier as a member of the selection panel that interviewed me for it.228 I could be

wrong about this, but it seems to me that Mdaka wasn’t himself opposed to my

appointment as PA, notwithstanding his conduct in blocking me. He will clarify this aspect

for us under oath at trial – whether it was him or really Nair who was opposed to my

appointment. Or both.

99. In sum, my selection for the PA post was concealed from me and the unfair

discrimination against me resulting in the abortion of my appointment was camouflaged;

and for a very long time I was successfully defrauded. Hence the time it has taken me to

refer this claim to the CCMA. As mentioned, the EEA affords an unfair discrimination

complainant six months within which to refer his claim. I’ve done so within six months of

being able to show I was unfairly discriminated against on a conspectus of all material facts

weighed with the probabilities.

226

Initially Nair acted alone in deciding not to proceed with my appointment, and told no other national executives. He said so in court, and indeed when I telephoned Clark on … April 2010, five silent months after my interview for the SL post, she’d never heard of me and knew nothing of the recruitment, and very pleasantly and professionally undertook to expedite the matter. Nair was out of office in Cape Town on the day I called. On his return he filled her in about why he’d blocked my appointment. Clark then made common cause with Nair, and her second email to me at the end of the month was palpably, deliberately opaque, transparently disingenuous and contradictory, and clearly contrived to put me off pursuing my appointment. 227


Bundle, page 248.

28

100. In the situation, I submit that in due compliance with section 10 (2) of the EEA, I’ve

referred this claim to the CCMA within six months of acquiring the evidence devastating

LASA’s pretext advanced to me for the abortion of the PA recruitment and thereby tending

to show as a matter of high probability229 in all the material circumstances that LASA unfairly

discriminated against me in blocking my appointment.

101. As for the burden of proof, the law has just changed. When my unfair discrimination

claim goes to trial in the Durban Labour Court, LASA will bear the burden of proof, for

section 6 of the Employment Equity Amendment Act 47 of 2013, assented to by the

President of the Republic a month ago on 14 January 2014, has amended section 11 of the

EEA by substituting the following (I’ve redacted irrelevant provisions):

‘11. (1) If unfair discrimination is alleged on a ground listed in section 6 (1), the

employer against whom the allegation is made must prove, on a balance of

probabilities, that –

(a) such discrimination did not take place as alleged; […]’230

102. I am notorious and extremely unpopular231 for my political activism over the past

decade and a half, involving researching, publishing, public-speaking, awareness-raising and

agitating, both locally and internationally, in regard to the therapeutic worthlessness and

extraordinarily harmful toxicity of the so-called anti-retroviral drugs AZT and nevirapine,

being plied by the pharmaceutical industry in the countries of the South with the virtually

unanimous, enthusiastic support of all the media, and consequently of the general public in

turn; for moving then President Thabo Mbeki to order an enquiry into the safety of AZT in

1999; for actively supporting the government’s appeal to the Constitutional Court in 2002

against an order won by a pharmaceutical interest group, the Treatment Action Campaign,

compelling it to provide nevirapine to HIV-positive pregnant women and their newly born

babies in public hospitals, nearly all African; and generally for opposing pharmaceutical

interests in South Africa and contradicting the almost complete propaganda consensus they

have established in favour of these drugs.

103. As the High and Constitutional Courts have repeatedly observed, the policy disputes

over the provision of AZT and nevirapine largely to the African poor have been intensely

ideologically, morally, and politically charged: ‘In our country the issue of HIV/AIDS has for

some time been fraught with an unusual degree of political, ideological and emotional

contention.’232 There is ‘deep anxiety and considerable hysteria’ about it.233 There has been

229

230

Law and case bundle 231

232

Bundle addendum, page 852: Minister of Health and others v Treatment Action Campaign and others, Constitutional Court, Case CCT 8/02. 233

Bundle addendum, page 1007: Hoffmann v SAA, Constitutional Court, Case CCT 17/00.

29

much ‘discord’ in the ‘boisterous and, at times, unseemly debate with regard to the efficacy

or otherwise of antiretroviral treatment’.234 And for my public participation in the

controversy over their use in this climate, I have been repeatedly denounced and vilified

over the years publicly and privately in the strongest imaginable negative terms.235

104. CEO Vedalankar (other senior LASA officers too) subscribes to the almost universal

popular consensus in favour of AZT and nevirapine, and two days before my interview went

on record declaiming ‘Legal Aid SA’s most significant accomplishment’ (per the question

put) to have been that ‘Legal Aid SA funded the constitutional litigation on behalf of the

Treatment Action Campaign to get the government to roll out anti-retrovirals to pregnant

mothers who are HIV positive to prevent the transmission of the virus from mother-to-child

in all state hospitals. This case is arguably one of the most significant impact cases as it has

resulted in preventing the loss of life of a large number of babies who would otherwise have

contracted HIV Aids.’236 In her introduction to the respondent’s ‘Impact Litigation’237 booklet

in March 2011, Vedalankar again singled out for special mention the respondent’s financial

support for the TAC in the case, and frankly underscored its propaganda value to put down

the dissenters in the epistemological and political contest between the believers and the

recusants: ‘Not many people are aware that the Impact Litigation Unit funded, amongst

others, the challenge brought by the Treatment Action Campaign in the Constitutional Court

to make treatment available to those suffering from HIV/AIDS at a time when many were

still questioning the link between HIV and AIDS.’238

105. I didn’t mention my controversial political background in my CV submitted in support of

my application for the PA post, but I’d disclosed it in my much more detailed CV submitted a

year earlier in support of my application for the SL post,239 as well as in a Personal and

Political History memorandum240 handed in at my interview for the post. As a member of

the SL selection panel241 Mdaka would have read my CV, and he emailed it to Nair on 26

November 2010,242 along with the selection panel’s signed recommendation,243 which

234

Bundle addendum, pages 853–4: Treatment Action Campaign v Matthias Rath and others, Cape High Court, Case 2807/05. 235

236

237



Bundle, pages 71ff. 240

Bundle, pages 83ff. 241



Denying his knowledge of the constitutionally protected characteristic (my ‘conscience, belief, political opinion’) at the time he unfairly discriminated against me in November 2009 when rejecting the selection panel’s recommendation of me for the SL post, Nair testified that he never opened the email attachments to Mdaka’s email when he received them, and never read the recommendation and my CV detailing my background, which is to say he wasn’t interested in seeing who’d been recommended for LASA’s top professional post in KZN. He claimed in court that the first time he opened and read them was a year later in late 2010 or early 2011, when he said he decided to find out who I was and what I stood for. Besides its glaring

30

referred to my work in the vehemently contested, acutely controversial policy arena in

question.

106. In short, at the time Mdaka rejected my appointment to the PA post in his email to

Appel on 16 November 2010,244 my extremely controversial, unpopular political background

was known both to Nair245 and to Mdaka.

107. Having regard to the implosion of LASA’s false explanation given me for blocking my

appointment to the PA post in the light of LASA’s records, and the different manifestly

specious objections to my appointment that Mdaka raised with Appel, a conspectus of the

known facts weighed with the probabilities supports the conclusion that in truth and in fact

LASA unfairly discriminated against me for exercising my constitutional right to freedom of

conscience, thought, belief and opinion; my right to freedom of expression, including my

freedom to impart information or ideas, to artistic creativity, and to conduct scientific

research; my right to campaign for a cause; and my right to equality, including the full and

equal enjoyment of all rights and freedoms, and not to be unfairly discriminated against by

the State, directly or indirectly, for exercising these constitutional rights and freedoms in the

post-apartheid, democratic era.

108. Although the matter hasn’t been specifically treated by the South African Labour Court

in any reported precedent case to date, it’s well established in international labour

jurisprudence, supported by the International Labour Organisation,246 that when an

employer lies about its reason for an adverse employment decision the most likely reason is

that it has lied to cover an illegal discriminatory motive.247

109. As is invariably the case in claims involving camouflaged unfair discrimination, I rely on

circumstantial evidence to prove I was unfairly discriminated against in this case, and

primarily on proof of pretext, i.e. proof that LASA’s justification advanced to me for not

proceeding to complete the recruitment by appointing me to the PA post after I was ‘highly

recommended’ for it by the selection panel, was a false cover-story to camouflage the true

reason.

inherent improbability, this claim was betrayed as a lie by a different lie Nair told in an affidavit made before the trial (his instructions given for the affidavit, plus his confirming affidavit): that I’d revealed my political background in my letter to Vedalankar in July 2010, and that’s when it became known. That is, not only did Nair lie about the reason he stopped my appointment – lying that budgetary insufficiency prevented it, and telling conflicting lies about the reason the Mthatha recruitment was aborted too – he also lied about his knowledge of the protected characteristic on which prohibited ground he unfairly discriminated against me. 244

245

As mentioned immediately above, Nair alleged on affidavit that he first knew of my political background in July 2010 (in court he pumped up the lie by pushing the date out to the end of 2010 or early 2011. (Application to subpoena Mlambo JP, pages …….) On his own showing, Nair knew of my political background at the time I was rejected for the PA post on 16 November 2010. 246

247

31

110. In compliance with section 10 (4) of the EEA, which requires:

‘The party that refers the dispute must satisfy the CCMA that –

(a) a copy of the referral has been served on the other party to the dispute; and

(b) the referring party has made a reasonable attempt to resolve the dispute.’

I have served a copy of this referral on LASA by telefax, and annex proof of transmission.

111. I am not pursuing a claim to appointment, only damages and ancillary relief. Given the

background to my claim, there appears to be no possibility of compensation by LASA

without the compulsion of a court order, so I’ve not lodged a demand for same, more

especially because it’s plain from Mdaka’s responses248 to my letters249 that my claim to

have been unfairly discriminated against in the abortion of my appointment to the PA post

will be opposed. I therefore had no other means to resolve the dispute other than to refer it

to the CCMA as required by the EEA before instituting action in the Durban Labour Court.

248

249

Documents

PART A LRA Form 7.11 REFERRING A Labour Relations Act 1995 DISPUTE TO THE CCMA FOR · PDF file · 2014-02-14Labour Relations Act 1995 Sections 133, 135,191(1) and 191(5A) PART A REFERRING