The Passenger Rail Agency of South Africa (Prasa) has found itself with potentially two CEOs — Zolani Matthews and Hishaam Emeran.
This was after the labour court in Johannesburg ruled on Monday that Matthews' contract as group CEO was still in force and set aside the rail agency's review application of an arbitration ruling made in his favour.
Matthews was axed in 2021 on the pretext that his dual South African/UK citizenship prevented him from obtaining security clearance. He is the son of the late struggle stalwart Joe Matthews, who lived in exile in England, which is when the dual citizenship was obtained.
In April 2022, retired judge Robert Nugent found after an arbitration that dual citizenship was not a problem and that Matthews' contract “did not stipulate the level of the required security clearance”.
The retired judge ruled that Prasa should reinstate Matthews with back pay. Prasa took this on review but despite this, still appointed Emeran as its new CEO in April last year.
Acting labour court judge Feroze Boda, in his ruling, concurred with Nugent and said: “First, the security clearance requirement is not in the employment contract which contains a non-variation clause. The case is thus a non-starter.
“So the entire case upon which the preclusion of reinstatement is advanced is based on a term not to be found in the contract.
“Second, even if I am wrong on the first point, it seems to me that at best for Prasa, the security clearance issue is a term of the offer letters preceding the employment (which as I said was not a part of the employment contract and not incorporated as such). Even if I assume in favour of Prasa that these letters had contractual force, the security clearance requirement is not stated to be a suspensive condition.”
Boda also said Prasa was not required by law to subject its CEO to security vetting and clearance by the State Security Agency, but chose to do so.
“In the present case, a negative outcome on a security vetting and clearance would not have precluded Prasa from employing Matthews — it would have had a choice to continue with the employment relationship despite the negative outcome,” the court said.
Boda, in conclusion, said there was no basis for the review and that there was “no bar on the award being made an order of the court”.
“If the security clearance issue is resolved against Matthews in the future, that must be dealt with at that stage. The fixed-term contract remains extant. This is not a case where the arbitrator or the court would be reviving an expired fixed-term contract.”
The fixed-term contract remains extant. This is not a case where the arbitrator or the court would be reviving an expired fixed-term contract.
— Labour court ruling
On the costs, the court said while it appreciated this was a labour case and that “costs do not follow the results”, it was of the view that “parties should be discouraged from reviewing private arbitrator’s awards unless there is a clear case made out”.
“In my view, the review had no merit from the start [and] the award was not only unassailable but manifestly well-reasoned and correct.” As a result, Prasa was slapped with a costs order.
Reacting to the news, Matthews' attorney Peter Harris of Harris Nupen Molebatsi Inc said they were pleased with the ruling, as they were with the original arbitration award of retired Nugent, which should have put this matter to rest more than two years ago.
“However, Prasa saw fit to take [judge] Nugent on review and have lost on all counts,” Harris said.
On what the next step was in the nearly three-year saga, Harris said: “As things stand, the arbitration award has been made a court order so that's the situation at present. Of course, if there are negotiations between the parties as to an alternative solution, we are open to discussing that.”
TimesLIVE Premium reached out to Prasa spokesperson Andiswa Makanda for comment, but had not received a response at the time of publishing.
