NHE in breach of own Act, court rules

NHE in breach of own Act, court rules

The National Housing Enterprise (NHE) violated the very Act that established it when the board of directors appointed one of its own as acting Chief Executive Officer, the Windhoek High Court found in a ruling delivered yesterday.

Deputy Judge President Hosea Angula upheld an application brought by Willem George Titus, the NHE Senior Manager for Operations and Business Development, against the decision by the NHE board to appoint Elton Khoitage !Gaoseb as the acting CEO after the term of Vincent Hailulu came to an end last year.

Titus launched the application on January 26 this year after the board extended the appointment of !Gaoseb from an initial two months to an indefinite period until a suitable candidate for the position of CEO was found.

He sought a declaratory order that the designation and appointment of !Gaoseb, as the CEO of NHE, is in violation of Section 10 (4) of the Act and therefore invalid and of no force or effect.

The section in question stipulates that if the post of CEO of NHE falls vacant, the board shall designate any suitable staff member of NHE to act, until a substantive CEO has been appointed.

NHE and !Gaoseb opposed the application, with NHE arguing that the provision of the section is merely directory and mandatory and that the board was not satisfied that any of the staff members was suitable to act as CEO.
It also raised three objections, firstly, that Titus unreasonably delayed in bringing the application; secondly, that he lacks locus standi; and, lastly, that the application is academic and of no practical effect.

!Gaoseb argued that the declaratory relief is not appropriate and he questioned whether an administrative decision can be set aside by way of a declaratory order and whether Titus has locus standi to bring the application and, in the result, if the court has jurisdiction to hear the matter.

On the question of locus standi, the Deputy Judge President said that Titus is a senior employee of NHE who in the past acted as CEO and this qualifies him as an interested party giving him locus standi.

On the question of jurisdiction, the judge said that the matter is not an employment issue, but an ordinary case where a declaratory order is sought and it is thus in the purview of the court to adjudicate and determine whether such declaratory order should be granted or not.

Deputy Judge President Angula further squashed the objection on unreasonable delay and found that the applicant did not unduly delay in bringing the application. He said NHE first appointed !Gaoseb for an initial two months and only on November 1, 2015, extended his appointment for an indefinite period until the appointment of a substantive CEO. In the circumstances, he said, the delay in bringing the application was less than three months, which does not constitute an unreasonable delay.

On whether the NHE violated the Act, the Judge said the words of Section 10 (4) are unambiguous that a director is disqualified and shall not be appointed as CEO. He granted the declaratory order that the appointment of !Gaoseb is invalid and ordered NHE and !Gaoseb to pay the costs of the application, jointly and severally, the one paying the other to be absolved.

Norman Tjombe represented Titus in the application and NHE and !Gaoseb were represented by Sisa Namandje.

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