THE fight for reinstatement is far from over for 77 National Security Services (NSS) officers who were dismissed by the Thomas Thabane regime in January 2018.
This after the Court of Appeal referred NSS Director, Pheello Ralenkoane’s appeal against a May 2019 High Court judgement ordering their reinstatement back to the High Court.
Justice Semapo Peete granted their appeal against their dismissal in May 2019 but on Friday, Zambian Justice Phillip Musonda, ruled that the matter should be heard again in the High Court by a different judge.
“The appeal succeeds and the matter is remitted back to the High Court to be heard by a different judge,” Justice Musonda ordered. Court of Appeal president, Kananelo Mosito, and Zimbabwean judge, Tafuma Mtshiya, concurred with the ruling. However, the court of appeal judges did not give reasons for their decision.
The 77 officers were appointed by the previous Pakalitha Mosisili-led seven parties’ coalition but they were fired by the current governing coalition allegedly because they had been hired on political grounds. Tumo Lekhooa, who fled the country in 2017, was the NSS boss at the time the 77 officers were hired.
Part of the letter confirming the termination of their employment states that, “After considering your irregular employment into the National Security Service (NSS) … take notice that you are hereby discharged from the service with effect from 1 January 2018”.
In the notice of motion they filed in the High Court on 26 February last year, the dismissed officers asked the court to declare their expulsion as “null and void and of no force in law”.
They also asked the court to order their reinstatement with full pay from February 2018 as they allege they were last paid in January 2018.
They eventually won their case in the High Court in May 2019 when Justice Semapo Peete ruled that Mr Ralenkoane had acted unlawfully by terminating their employment. This after he had first referred the matter to the NSS Board of Inquiry on the grounds that there were some confidential issues relating to the NSS officers which could not be brought before the High Court.
But spy boss, Pheello Ralenkoane, did not take Justice Peete’s judgement lying down and appealed to the Court of Appeal.
One of his prayers was for the matter to be remitted back to the High Court for the merits to be argued. He said Justice Peete erred by refusing to entertain the merits of the case to be argued before ruling in favour of the 77 officers.
During the 24 October 2019 appeal court hearing, the state counsel, Attorney Monaheng Rasekoai, argued that the High Court incorrectly ruled that the 77 officers were properly hired. He said the verdict was wrong because the 77 officers did not meet the requirements and they exceeded the number of officers who were supposed to be recruited.
“The officers were rightly not afforded a hearing (before their dismissal) because they were improperly hired in that they did not meet the criteria which was specified in the advertisement, which also required a quota of 50 and the not 77 who were hired.
“Even before the recruitment of officers, the NSS board has to advise the director-general who in turn will advise the minister of defence to recruit new members. In this case, this process never occurred because there was no NSS board. Since they were not properly appointed, they were deemed a threat to national security hence the reason of their dismissal,” argued Attorney Rasekoai.
On the NSS officers’ lawyer, Adv Teele KC, argued that the officers were improperly fired as they were dismissed without being afforded a hearing. He said they deserved a hearing as they were already hired.
“The Director-General concedes in his affidavit that they (77 officers) are (NSS) members whose membership was questionable. He could only discharge the expulsion after an inquiry.
“Even if the appointment was irregular, the appellant (Director General) refused to bring the recruitment information saying it was a confidential NSS issue which could not be placed on affidavits hence the judge (Justice Peete) said he did not have jurisdiction to hear the matter, thus, referring it the NSS Board of Inquiry,” Adv Teele KC said.
It remains to be seen who will win the long drawn-out case when the High Court eventually sits and delivers its judgement.