Settlement Agreement in the Commission for Conciliation, Mediation and Arbitration (CCMA)

Settlement Agreement in the Commission for Conciliation, Mediation and Arbitration (CCMA)

Bandile Mdlalose was expelled from our movement on the 6th of April. This followed the lodging of a set of formal complaints against her from members of our movement. Following the lodging of these complaints, which were serious, a disciplinary process was followed. This process was carefully documented, conformed to the movement’s rules and was transparent and fair.

Following her dismissal Bandile lodged an action against our movement with the Commission for Conciliation, Mediation and Arbitration (CCMA) claiming that she had been unfairly dismissed. We were surprised that she took this action as she was expelled from a political organisation after being found to have violated a number of its rules and not dismissed from a job. We never considered her to be an employee and therefore did not understand why she was taking us to the CCMA.

The first meeting called by the CCMA to deal with this matter was on the 14th of May. At this meeting Bandile claimed to have been unfairly dismissed and demanded financial compensation. Our response was that she had never been an employee of our organisation and that, therefore, we did not owe her any financial compensation. The Commissioner at this first meeting was Mr Mthokozisi Khuboni.

As there was no agreement between ourselves and Bandile the matter was adjourned to 10 July 2014. On the 3rd of July the law firm representing Bandile, Jayshree Moodley & Associates, contacted us to demand all of our documents relating to Bandile’s expulsion. We were happy to hand these documents over to the law firm as we had nothing to hide and were confident that the process that resulted in her expulsion was in accordance with our rules and fair.

When we returned to the CCMA on 10 July there was a new commissioner, Ms Fiona Moodley and then Ms Balkaran. We were surprised to see that at this meeting Bandile was accompanied by one of the men that, working with the local ANC, had intimidated us with threats of violence to cancel a meeting in the Mandela Complex on the 1st June 2014.

At this meeting Bandile changed her demand. Whereas she had originally approached the CCMA claiming to have been unfairly dismissed and demanding money she now agreed that she had not been an employee of our organisation and withdrew her demand for financial compensation. She asked, instead, for reinstatement.

Our guess was that when her lawyers saw all the documents relating to her expulsion they realised that the process had been fair and had therefore advised Bandile not to contest the expulsion. We went to the CCMA with the head of the Abahlali disciplinary committee and delegates from among the community members that had laid the complaint against Bandile that resulted in her dismissal. We consulted with this group of members and it was clear that they could not accept Bandile’s reinstatement to the position that she held prior to her expulsion. But we always try, where ever possible, for healing where there is conflict and so we offered that she could return to the movement as an ordinary member with the same rights as all other members to stand for a position at the next AGM. Her lawyer rejected this offer and said that her demand was that she return to her position. We could not accept this. Returning someone to a high position after they have been found to have been responsible for serious violations of our rules by a fair and careful disciplinary process would be too damaging to the credibility of our movement in the eyes of our members. Most of our members have a background in the ANC. They expect our movement to be different to the ANC and to hold its leaders to the highest standards. This is why the right to recall leaders, as well as the right to lay complaints against leaders and to have them fairly investigated, is so important.

The commissioner then made a suggestion to resolve the disagreement. She said that both parties should agree that the dismissal was void because Bandile had never been an employee. The commissioner also said that we should have described her expulsion as a ‘termination of membership’ rather than using the term ‘dismissal’ (which the head of our Disciplinary Committee had used in an email to Bandile). And she said that if we were not prepared to return Bandile to her position, and that she did not want to return as an ordinary member, then Bandile could submit a letter of resignation.

We discussed this proposal with our delegation and we agreed to it. We agreed to it because we had never considered Bandile to have been an employee, this agreement did not require us to pay compensation to Bandile or to reinstate her, both of which would have been an acknowledgement that we had done something wrong when we had not done anything wrong, and because this agreement did not question, in any way, the fairness of the process that resulted in Bandile’s expulsion. Also, although a decision that had been taken that Bandile’s actions were so serious that she had to be expelled from our movement, we never had any intention to embarrass her publicly or to damage her chances for finding employment in the future. For this reason we were happy to confirm that Bandile had not been dismissed from a job while remaining confident that the process that resulted in her expulsion from our movement was necessary and fair.

 The exact words of the agreement that both parties signed are as follows:

Whereas the Applicant claimed that she had been unfairly dismissed.

And whereas the parties agree that there was no employment relationship between them.

And whereas further the Respondent concedes that it ought not accordingly to have subjected the applicant to a disciplinary hearing resulting in her dismissal

And whereas finally the Respondent concedes that the ‘dismissal’ is void.

It is now agree that the Applicant has elected to forthwith submit a Letter of Resignation which will result in the termination of the membership from the Respondent’s organisation.

At the same time Bandile wrote a short letter of resignation from the movement.

Both parties agreed that we would not take this to the media. Since her expulsion Bandile has constantly tried to attack us in the media. She has made a number of statements that are untrue and defamatory. We have made no attempt to approach the media with the aim of damaging her reputation. She has also sent a series of emails to a very large group of people, many of them academics (many of whom she has never met and who have no connection to our movement) in which she has made a series of untrue and defamatory statements. Many people told us that they could immediately see that these emails were continuing the agenda of Heinrich Bohmke, who has long been notorious among many activists for his ongoing attempts to slander, defame and character assassinate grassroots activists, their organisations and people who have stood in solidarity with us. For this reason most of the people that we work with have not taken these emails from Bandile seriously. Most of the media has also ignored them. However we did received a few emails from people who had received Bandile’s emails and wrote to ask us what was going on. We drafted a factual account of the events leading up to Bandile’s dismissal and sent this to these people but we did not issue this letter as a public statement. We have focused on the struggle and avoided making public responses responding to ongoing public personal attacks.

However the day after the agreement was signed Bandile sent out another email in which she claimed that we were forced to admit that we were wrong and that her name had been cleared. This is not an honest account of what happened at the CCMA. We still ask ourselves a question as to why Bandile had taken Abahlali to the CCMA in the first place if she concedes that she was not an employee in the first place? It makes no sense at all to take an organization to the CCMA and claim that you were unfairly dismissed from that organization and to then suddenly change your mind and agree that you were never an employee of that organization and then claim the agreement by both sides that you were never an employee as a vindication.

In the email sent out after the agreement was signed at the CCMA Bandile also made a whole lot of other statements that are entirely dishonest. Once again many people noted how these statements follow very closely what Bohmke has been saying about us for many years. They have always been untrue and they remain untrue. Bandile even said that our movement is dead. Membership and participation are higher than they have been since our movement was launched in 2005. In fact we now have to rent halls to be able to hold our ordinary general meetings on Saturdays because attendance is so high. Of course our movement faces many serious challenges, most of them related to how to organise under seriously repressive conditions, including impunity for the illegal eviction, wrongful arrest, assault and murder of grassroots activists. For instance we have had to suspend the holding of camps (all night meetings) because of safety concerns.

We are certain that the campaign of slander and defamation against us that has been driven by Bohmke, with the support of few others linked to him, since 2006 will continue for as long as our movement continues to exist and to protect its autonomy and for as long as the dishonest character assassination of black grassroots activists can be carried out with impunity. The fact that Bandile has chosen to associate herself with this politic, and with the NGO that has always been linked to this politic (CCS), does not suddenly make the claims that are being made true. Bohmke, now with the support of Bandile, will continue to act as though the main political task is to destroy our movement. We will continue to focus on the struggle for land and housing. It has always been like this. The only thing that has changed is that Bohmke, and CCS, now have the support of a former member of our movement who was expelled from our movement for good reason.

However our members have made it very clear that this impunity to engage in character assassination by means of lies must be opposed. At a time when activists are facing assassination with impunity – as well as eviction in violation of court orders, wrongful arrests assault and death threats – it would, it is felt, be irresponsible, to allow these lies to be uncontested. We are not willing to allow people like Bohmke and Bandile to waste our time by having to call meetings and write long responses to every allegation that they will make. We cannot allow these people to set the agenda for our movement. We have to focus on the struggle.

It has therefore been decided to bring these lies into an arena where evidence has to be provided for claims that are made and a neutral third party can assess this evidence. We have initiated a process to bring this campaign of character assassination before a judge. However we are open to other ways of making a clear distinction between truth and lies if they present themselves. We will not allow this process to displace our focus on the struggle for land and housing.

Abahlali baseMjondolo Leadership