…files urgent court application to stop Prime Minister Thomas Thabane from removing him as Communications PS in favour of the previously fired Nonkululeko Zaly
THE Ministry of Communications, Science and Technology Principal Secretary (PS) Tšeliso Khomari wants the High Court to stop Prime Minister Thomas Thabane from forcing him out of office.
In his urgent application filed before the court on 19 November 2014, Mr Khomari also wants the court to interdict Government Secretary Moahloli Mphaka and the Commissioner of Police from evicting him from office to make way for his co-PS, Nonkululeko Zaly.
Mr Khomari also seeks the High Court to “review and set aside the decision of the 1st respondent (Dr Thabane) to reinstate the 4th respondent (Ms Zaly) to the office of the Principal Secretary for the Ministry of Communications,” and declare him the lawful PS for the ministry.
In his affidavit, Mr Khomari narrated events which led to the application.
“I am presently employed by the Government of Lesotho as the Principal Secretary for the Ministry of Communications.
“My appointment was made by the 1st respondent on 28 April 2014. At the time I was appointed, the 4th respondent (Ms Zaly) who was my predecessor, had just been removed from office after a disciplinary hearing.
“On or about December 2013, the 4th respondent instituted proceedings in the Constitutional Court inter alia, praying to the court to review and set aside the disciplinary inquiry which led to her removal from office. Furthermore, she prayed for a declaratory order proclaiming that Section 8(2) of Part III of the Code of Good Practice 2008 is inconsistent with Sections 12 and 19 of the Constitution.”
Mr Khomari further noted the Constitutional Court reviewed and set aside Ms Zaly’s disciplinary proceedings on 29 July, on the basis that she was denied an opportunity to be represented by a lawyer during the proceedings.
“Subsequently, on 25 August 2014, she was reinstated to her original position as the Principal Secretary for Communications,” he said.
Mr Khomari further notes that on 25 September 2014, Mr Mphaka wrote him a letter informing him he was to be re-deployed to a position yet to be found as Ms Zaly had been reinstated to her position.
He added Mr Mphaka then instructed him to vacate the PS’s office with immediate effect.
He noted in the affidavit: “On or about 29 October 2014, it came to my notice that the Acting Government Secretary (Mphaka) had sought assistance from the 3rd respondent (Commissioner of Police) to remove me from office.
“I verily believe that the said removal would be done forcibly as it has previously happened to the Director of Public Prosecutions (DPP) and Attorney General.”
However, Mr Khomari argues that the Constitutional Court did not order Ms Zaly’s reinstatement.
“It just set aside the disciplinary proceedings on the basis of a procedural defect,” he stated in the affidavit.
Mr Khomari further alleges he was not consulted before being instructed to vacate office, and also argues that Mr Mphaka had not fulfilled his promise to re-deploy him to an “appropriate position”.
“The whole exercise was completed without consultation with the Minister of Communications (Selibe Mochoboroane),” he added.
He also attached Mr Mochoboroane’s supporting affidavit to his application, to substantiate his statement of non-consultation.
Mr Khomari further stated that he wrote a letter to Mr Mphaka on 14 October 2014 detailing his concerns about having two principal secretaries in one ministry.
He alleges Mr Mphaka did not respond to his letter, until he lodged the court application.
“Thus the decision of the 1st respondent (Dr Thabane) has to be set aside as he failed to take into consideration a lot of relevant factors such as:
* The Constitutional Court’s decision did not bar or prohibit fresh disciplinary proceedings to be instituted against the 4th respondent (Ms Zaly).
* Whether it was possible to re-deploy the 4th respondent to an appropriate position in the civil service.
* Whether it was possible to compensate the 4th respondent in lieu of reinstatement.
* The working relationship between 4th respondent and the minister of communications.
* Potential prejudice to me as the incumbent principal secretary.
* All of the above was due to the failure of the 1st respondent to consult with the minister over crucial decisions.”
Mr Khomari continues: “In essence, the 1st respondent has failed to take into consideration all the relevant factors, thus his decision has led to an unjust and unreasonable situation.”
Meanwhile, in his supporting affidavit which he signed on 18 November 2014, Mr Mochoboroane states that Ms Zaly was removed from office around September last year after being found guilty for insubordination, abuse of authority and misuse and embezzlement of public funds.
“After her removal, I made a recommendation to the 1st respondent for the appointment of the applicant (Mr Tšeliso Khomari) in terms of Article V of the ‘Agreement to Form a Coalition Government of Political Parties’ entered into by the three parties in June 2012,” Mr Mochoboroane stated.
The said Article V (f) reads: “The parties agree that the appointment of principal secretaries shall, in line with the principle of proportionality of seats, be made by the prime minister on the recommendation of the minister or ministry concerned, who shall in turn, have consulted with his/her political party.”
But Mr Mochoboroane argues he was surprised to receive a copy of the letter informing Ms Zaly that she had been reinstated as there was no prior notification or consultation.
“This was clearly inconsistent with the spirit of the Coalition Agreement, especially Article V (f).
“The scenario created a dilemma for me as the ministry does not have a budget for two principal secretaries.
“However, I instructed the applicant (Mr Khomari) to try, by all means, to accommodate the reinstatement of the 4th respondent.
“Since then, it has been a very difficult task to look viaments within the budget of the ministry to facilitate the remuneration of the 4th respondent,” he said.
Mr Mochoboroane also criticised Dr Thabane for ignoring the sour relationship between him and Ms Zaly when ordering her reinstatement.
“The decision taken by the 1st respondent did not take into account the serious fallout and breakdown of the relations between 4th respondent and I.
“It should be noted that in the exercise of her duties, the principal secretary is answerable to the minister in terms of the Public Service Act 2005 Section 13 (3).
“At the time that the acting government secretary instructed the applicant to vacate office, I had already started negotiations with the 4th respondent about the possibility of her accepting compensation in lieu of reinstatement and she had duly undertaken to discuss the matter with her legal representatives,” he stated.
Mr Khomari had given the respondents until Friday, 28 November 2014, to have filed their notice showing their intention to oppose the application, if they planned to oppose it, and the application is expected to be moved on 8 December 2014r.
However, sources close to the matter told the Sunday Express yesterday that the respondents had not filed their notice to oppose the application by Friday.
The respondents are Dr Thabane, Mr Mphaka, Commissioner of Police, Ms Zaly and the Attorney General.