Mohalenyane Phakela

THE 77 National Security Services (NSS) officers who successfully challenged their January 2018 dismissal by the Thomas Thabane administration will have wait until 1 November 2019 to know whether or not they will be allowed to return to work.

This after the Court of Appeal on Thursday reserved judgement in the case in which the Director-General of the NSS, Pheello Ralenkoane, appealed against the May 2019 judgement ordering their reinstatement to the spy agency.

The Court of Appeal bench comprising of Justice Kananelo Mosito (president),  Zambian judge, Justice Phillip Musonda and the Zimbabwean, Tafuma Mtshiya, reserved judgement after hearing arguments from state lawyer, Attorney Monaheng Rasekoai, and the NSS officers’ lawyer, Advocate Motiea Teele King’s Counsel.

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.

On Thursday, state lawyer, Attorney Rasekoai, argued in the apex court that the High Court incorrectly ruled that the 77 officers were properly hired because they did not meet the requirements and that they exceeded the number of officers who were supposed to be recruited.

“The officers were 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,” argued Attorney Rasekoai.

“Even before 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.”

Adv Rasekoai further argued that Justice Peete erred in refusing to entertain the merits of the case saying the High Court did not have the jurisdiction to hear the matter and he referred it to NSS Board of Inquiry.

“Justice Peete misdirected himself in referring the matter to NSS Board of Inquiry as the High Court had the jurisdiction to pronounce itself.”

On the other hand, Adv Teele KC, argued that the NSS officers were improperly fired as they were dismissed without being afforded a hearing they deserved 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 of discipline.

“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.

Justice Mosito then reserved judgement to 1 November 2019 saying the court had to apply its mind to the applicants and respondents’ lawyers’ submissions.

“The court will take its time to consider judgement in this matter. It will be handed down on 1 November 2019 along with other appeal judgements,” Justice Mosito said.