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Khomari loses PS battle against Zaly


Keiso Mohloboli

The High Court has declared Nonkululeko Zaly the legitimate Principal Secretary (PS) for the Ministry of Communications, Science and Technology.

According to a judgment delivered last Tuesday (3 March) in response to an urgent application filed by Tšeliso Khomari challenging his removal as the ministry’s PS, Ms Zaly had the right to return to her old post after the Constitutional Court nullified her suspension.

Ms Zaly was fired in November 2013 following a disciplinary hearing which found her unfit to hold office due to a series of clashes with then Communications, Science and Technology Minister, Tšeliso Mokhosi.

Mr Khomari was subsequently appointed the ministry’s PS, but after Ms Zaly successfully challenged her dismissal in the Constitutional Court, he was redeployed to another government department.

However, Mr Khomari challenged the transfer, arguing it was tantamount to a demotion, and on 19 November 2014, urged the High Court to declare him the rightful PS.

Mr Khomari cited the Prime Minister, Government Secretary, Commissioner of Police, Ms Zaly and the Attorney General as first to fifth respondent, in the lawsuit.

When dismissing Mr Khomari’s application, High Court judge, Justice ‘Maseforo Mahase said the High Court and Constitutional Court’s decisions which ruled Ms Zaly’s dismissal illegal, could not be ignored. Justice Mahase also criticised Mr Khomari’s submission of a supporting affidavit written by Selibe Mochoboroane in his capacity as Communications minister.  According to the judge, Mr Mochoboroane had no right to submit the affidavit as he had been fired from the post on 16 October 2014.

“The applicant, as well as the office of the Attorney General, who were parties in all these cases, became aware that as a result of the two court judgments, the respondent had to be reinstated into the position of Principal Secretary which had, by then, been occupied by the current application.

“There can therefore, be no urgency alleged by the applicant four months after the said judgments were delivered and he became aware of the same. He even took steps to assist in accommodating the 4th respondent (Ms Zaly) to resume her duties

“The issue is whether or not the fourth respondent’s suspension from her position  is no longer sub-judice so that she is reinstated to her former position which she held prior to her unlawful suspension.

“Consequently, the effect of the applicant’s application is to either stall or frustrate and or prevent the execution of the said orders of the court. Refer to his notice of motion prayer where he specifically prays this court not to reinstate the fourth respondent to the office of principal secretary for the ministry of communications. He prays that he be declared the defacto and lawful principal secretary for this ministry. The question to be answered is, if indeed he is already lawful principal secretary as he alleges, why does he then seek this declaratory order?”

Justice Mahase also spoke about Mr Mochoboroane’s affidavit.

“The applicant is alleged not to have disclosed to the court that in fact, the deponent to the supporting affidavit , Mr Selibe Mochoboroane, is no longer the Minister of Communications, Science and Technology.

“Mr Mochoboroane has long been removed from such office by Legal Notice 83 of 2014 on 16 October 2014 and another minister was assigned to take over.

“There is no legal notice through which Mr Mochoboroane was reinstated to the position , and is accordingly not  suited to dispose to any affidavit in support of the applicant or in any other ministry, in his official capacity. In law, his affidavit is a non-starter and as such, this court ignores it completely as well.

“In fact, since an affidavit is a form of sworn evidence, he is actually committing a crime of perjury by disposing to an affidavit as if he is still holding the position of a minister in His Majesty’s government because he ceased to be such an officer way back on 16 October 2014.

“In the premises, all the points of law raised by and on behalf of the respondents are upheld. In fact, counsel for the applicant has not at all addressed the said points of law raised on behalf of the respondents. They are therefore to be taken as having been admitted. This application is accordingly dismissed with costs to the respondents,” Justice Mahase said.

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