Fired PS fights for reinstatement

Tefo Tefo

Former Principal Secretary (PS) for the Ministry of Communications, Science and Technology, Nonkululeko Zaly, continued her battle for reinstatement on Friday last week as her case was brought before the Constitutional Court.

Ms Zaly was fired in November last year following a disciplinary hearing which found her unfit to hold office after a series of clashes with then Communications, Science and Technology Minister, Tšeliso Mokhosi.
However, Ms Zaly’s lawyer, Advocate Zwelakhe Mda (King’s Counsel) on Friday urged the Constitutional Court to set aside the results of the inquiry, arguing his client was not afforded a fair hearing.

Addressing a panel of three judges comprising Acting Chief Justice Tšeliso Monaphathi, Justice Lebohang Molete and Justice Molefi Makara, Advocate Mda said Ms Zaly was denied her constitutional right to legal representation in the disciplinary proceedings.

Giving the background of the case, Advocate Mda said his client was served with papers summoning her to a disciplinary hearing in May last year, before her suspension the following month.
“She asked the tribunal to give her a chance to get a legal representative because she considered her charges very serious, but the chairman of the tribunal refused.
“She made a second attempt to have a legal representative on the date of the hearing, but her lawyer was dismissed from the proceedings.
“She did this fully aware that the consequences, if she was found guilty, could be serious for her.
“However, she was denied that constitutional right and ultimately, was dismissed in November.
“She was facing serious charges of failing to obey lawful instructions by the minister.
“Another charge was that she allegedly effected an unlawful payment from the ministry’s funds.
“These are serious charges that required legal representation,” Advocate Mda said.

The lawyer added what made matters worse was Ms Zaly’s disciplinary case was prosecuted by a senior lawyer (then Government Secretary, Advocate Motlatsi Ramafole) who had been in practice for years yet she was denied an opportunity to be legally represented.

However, for the state, Advocate Makhele Sekati said Ms Zaly had taken the wrong option by bringing her complaint before the Constitutional Court, arguing she should have approached the High Court sitting in its ordinary jurisdiction, for recourse.
“As far as I understand her case, she is not challenging the unconstitutionality of the legislation that was used to determine her case.
“If she wanted the proceedings to be reviewed, she could have approached the High Court, sitting in its ordinary jurisdiction, not this Honourable Court.
“I admit that she was denied an opportunity to get a lawyer of her choice,” he said.

In response, Justice Monaphathi asked Advocate Sekati if his concession that Ms Zaly was denied her right to legal representation brought the case to finality.
However, Advocate Sekati maintained that Ms Zaly had brought her case before a wrong forum, without giving a direct response to the question.

Meanwhile, arguments in the main case proceeded after the Constitutional Court had earlier dismissed an application by Advocate Sekati that a certain statement made in Ms Zaly’s responding papers, be withdrawn.
Zaly, in her answering papers, had stated that her disciplinary case was prosecuted by Advocate Ramafole, who is a lawyer by profession, yet she was denied the right to legal representation.

Advocate Sekati’s application was based on a technicality that the issue that Ms Zaly’s disciplinary case was prosecuted by a lawyer had been raised at a time he did not have an opportunity to respond to such a statement.
However, handing down judgment on the matter, Justice Molefi Makara said there was no need to investigate whether the former GS was a lawyer or not “because he is a well-known lawyer” in the country.
“At the commencement of this case, Advocate Sekati motivated an application on the issue raised by the applicant that the Second Respondent (Ramafole), who was prosecuting the disciplinary case, is an advocate of this court.
“He said this is indicative of the fact that the Second Respondent had a higher advantage than the applicant.
“In the final analysis, this court comes to a conclusion that it has the powers to take judicial notice that indeed, Advocate Ramafole, is an officer of this court.
“This is a constitutional case and the court should focus more on the substance than other aspects.
“In the circumstances, the application is refused,” he ruled.
However, judgment on the main case, in which the Prime Minister, Government Secretary, Minister of Communications, Science and Technology and Attorney General are the respondents, has been postponed to 21 July.