• as High Court upholds termination of PSs contracts

 Pascalinah Kabi | Mohalenyane Phakela

Prime Minister Moeketsi Majoro’s hand to transform the civil service has been strengthened considerably after the High Court dismissed an application by two principal secretaries (PSs) challenging his authority to fire them.

Former Communications, Science and Technology PS ‘Mabotle Damane and her counterpart at Forestry, Range and Soil Conservation ‘Maseithati Mabeleng had asked the High Court to stop the premier from sending them on forced leave pending dismissal and replace them with Tšeliso Lesenya and Mole Khumalo respectively.

They argued that they could not be fired because they held valid three-year contracts renewed by former premier Thomas Thabane before he was ousted by his party in May 2020.

The premier had nevertheless argued their contracts were invalid as they had been “fraudulently” renewed by ousted Government Secretary (GS) Moahloli Mphaka.  Mr Thabane had in turn supported Mr Mphaka and accused Dr Majoro of being a “liar”. The ex-premier said the contracts of Ms Damane and Ms Mabeleng had been lawfully renewed by him before he left office.

But the High Court has ruled otherwise.

In his Friday judgement, Justice Sakoane Sakoane dismissed Ms Damane and Ms Mabeleng’s argument that Dr Majoro could not dismiss them as their contracts were valid till 2023 after their renewal by Mr Thabane.

Messrs Thabane and Mphaka had deposed strong affidavits supporting the application by the two PSs.

But Justice Sakoane trashed all the arguments by the two PSs and Messrs Thabane and Mphaka.

The ruling sets a precedent likely to ensure that another PS, Mothabathe Hlalele (Public Works), fails in his pending application against his dismissal by Dr Majoro. Mr Hlalele’s application is premised on the same argument that prior to his departure, Mr Thabane had renewed his contract by a further three years until 2023, and Dr Majoro has therefore no legal right to terminate it.

Mr Hlalele goes as far as branding Dr Majoro a “caretaker” prime minister who could not reverse the decisions of his predecessor.  But all such arguments now rest on thin ice after Judge Sakoane’s ruling.

In fact Mr Thabane had purportedly renewed the contracts of eight PSs before he left office.  Dr Majoro had however opted to fire three and retain the other five.  After Friday’s ruling, none of the eight would be able to vindicate their positions, based on the contracts they attribute to Mr Thabane, should Dr Majoro elect to dispense them.

A key consequence of the ruling is that it confirms Dr Majoro as his own man, not bound by his predecessor’s decisions as the aggrieved PSs had claimed.

Mr Hlalele and newly appointed Local Government and Chieftaincy PS, Nonkululeko Zaly, had bizarrely argued that Dr Majoro is a mere “caretaker or regent prime minister” who is only finishing Mr Thabane’s term which would have ended in 2022 had the latter not been pushed out by his own party.

They had argued that as ‘caretaker prime minister”, Dr Majoro could not make independent decisions to undo decisions made by Mr Thabane who was a substantive prime minister.

Ms Zaly makes the claim in her court papers challenging Dr Majoro’s decision to revoke her appointment by Mr Thabane as PS in the Ministry of Home Affairs.

Ms Damane, Mabeleng and Mr Hlalele were among eight PSs whose contracts had been purportedly renewed by Mr Thabane in April.

The five others are Nthoateng Lebona (Finance), Motena Tšolo (Development Planning), Malefetsane Nchaka (Water), Tšeliso Lesenya (Communications, Science and Technology) and Khothatso Tšooana (Health).

Mr Thabane had also appointed Ms Zaly to the Home Affairs portfolio. But the ex-premier was then ousted on 20 May 2020 and replaced by Dr Majoro.

Dr Majoro subsequently revoked Ms Zaly’s appointment on 29 July 2020. However, the premier had a change of heart and a fortnight ago, he appointed her as local government PS. He also re-appointed Ms Lebona (Finance), Nchaka Makara (Agriculture and Food Security), Lebeko Sello (Law and Justice), Malefetsane Nchaka (Water), Tšokolo Maine (Mining), ‘Mamoeketsi Ntho (Tourism, Environment and Culture), Moliehi Moejane (Gender and Youth, Sports and Recreation), Sello Tšukulu (Development Planning), Retšelisitsoe Mohale (Public Works) and Tlhopheho Sefali (Transport).

He nevertheless fired Mr Hlalele, Ms Damane and Ms Mabeleng who all challenged their dismissals in court. The Hlalele application was filed last week and is pending.

Ms Damane and Ms Mabeleng’s application was filed early last month.

Dr Majoro, Mr Mphaka and Attorney General Haae Phoofolo were the first to third respondents respectively.

In his Friday judgement, Justice Sakoane dismissed Ms Damane and Ms Mabeleng’s application, saying “the purported renewal of the contracts of the respondents is reviewed and set aside, each party to pay its own costs”.

Justice Sakoane dismissed the duo’s as well as Messrs Mphaka and Mr Thabane’s claims that the latter had renewed the former PSs’ contracts along with those of their former colleagues while he was still in office in April 2020.

The judge upheld Dr Majoro’s contention that Mr Thabane had not renewed any of the former PSs’ contracts and the purported renewal had in fact been done by Mr Mphaka who did not have such authority as it only rested with the PM acting in consultation with the Public Service Commission (PSC).

Dr Majoro’s claims were supported by the PSC chairperson, Moshoeshoe Sehlooho, who deposed an affidavit in which he accused Mr Mphaka of “consistently arrogating to himself” powers he did not have to advise the PSC to renew the PSs’ contracts.

Mr Sehlooho says the PSC only agreed to renew Mr Mphaka’s own contract after receiving a request from Mr Thabane. Mr Mphaka has since been removed from his post and re-deployed as the government’s advisor to the Lesotho Highlands Water Commission (LHWC) with effect from next month.

Mr Sehlooho said the PSC refused to renew the PSs’ contracts because the request had not come from Mr Thabane but from Mr Mphaka who he said did not have the power to make such requests. Mr Mphaka had, however, insisted that the PSs’ contracts were renewed by Mr Thabane with the ex-premier agreeing with his now fallen GS.

However, Justice Sakoane said there was no evidence that Mr Thabane had actually consulted and obtained the approval of the PSC to renew the former PSs’ contracts as per his and Mr Mphaka’s claims.

Justice Sakoane said the memos written by Mr Mphaka to the JSC on the subject of the former PSs’ contract renewals in March and April this year only prove that Mr Thabane wanted the processes to renew the contracts to begin.

He said the memos did not prove that such processes including the former premier’s consultation with the JSC were ever completed and the latter’s approval of the renewals was ever obtained.

The judge also said there was nothing to suggest that Mr Thabane wrote to the applicants to prove that he renewed their contracts.

“The alleged repudiation of the (Ms Damane and Ms Mabeleng’s) contracts rests on the false suggestion that the applicants’ contracts were renewed before the former prime minister (Thabane) left office in May…

“It cannot be said that the former prime minister consulted the (PSC) commission. The commission properly requested a covering letter authored by the prime minister (requesting the JSC’s approval for the renewal of the PSs’ contracts). None came.

“The two pieces of correspondence written to the commission’s secretary (by Mphaka) expressing a desire that the contracts be renewed have no motivation by the former prime minister.

“They convey a bare desire bereft of any elaboration for its concurrence. Absent any material put before the (PSC) commission to motivate the former prime minister’s “desire”, the court cannot fathom how the former prime minister says he did consult the commission. There is even nothing to suggest that he (Thabane) even wrote to the applicants thereafter. (sic).

“The stubborn fact is that the applicants do not have letters of proof of their re-appointment. Their case rests on the letters written by the government secretary (Mphaka) well before any contacts were made with the (PSC) commission,” Justice Sakoane states in his judgement.

The judge ruled that in any event, the former PSs’ argument that their contracts had been renewed by Mr Thabane before he left office “directly flies in the face” of a memo written by the former premier, in response to Mr Mphaka, indicating that he would only renew their contracts after they had actually expired. Their contracts had then expired in July (for Ms Mabeleng) and August (for Damane), long after Mr Thabane had been booted out of office in May. It therefore follows that he could not have renewed the contracts as per his previously stated wish.

“The applicants’ case made in their founding papers is that the government secretary gave them written assurances that their contracts had been renewed.

“This flies directly in the face of the memo of 21 April in terms of which the former prime minister “approved” the government secretary’s request that he considers ‘renewal of their employment contracts when they expire’.  The expiry dates thereon are 20 July and 8 August…If he (Thabane) left office in May, he could not have been there to renew the applicants’ contracts in June and July and/ or even renewed them prospectively before he left office,” Justice Sakoane ruled.

The ruling will come as a relief to Dr Majoro and strengthen his hand to re-fashion the government and civil service in the manner he sees fit. The premier has been subjected to sustained efforts by loyalists of the former premier to reduce him to a lame duck incapable of overturning any of the decisions made by his predecessor with respect to key appointments.

The ruling also throws more shade on Mr Thabane as he is continuously on the receiving end of court judgements. This brings into question whether he ever fully understood the legal implications of his actions while still in charge of the government.