An employee in the Department of Traffic and Transport has filed an urgent case before the High Court seeking an order directing the Ministry of Public Service not to alter terms of a post it had advertised.
Motsoaole Lesupi (51)—a Traffic and Transport Development Coordinator in the Department of Traffic and Transport since 1992—has failed in his bid to become a Traffic Officer on two occasions, and believes he could be prejudiced should the requirements for the post be reviewed.
Presenting his case before High Court judge, Justice Tšeliso Monaphathi on Wednesday, Mr Lesupi accused the minister of acting “contrary to the spirit of the Public Service Act which promotes efficiency and consistency in the public service.”
The Minister of Public Service, Ministry of Public Works and Transport, Public Service Commission and Attorney General have been cited as First to Fourth respondents, respectively in the lawsuit.
Mr Lesupi, who holds a degree in Public Administration and Political Science and post-graduate diploma in Transport Management, argues the changes to the post were illegal, and wants them reversed. Through his lawyer, Advocate Tembo Lesupi, Mr Lesupi told the court: “It cannot be intended to promote efficiency for the respondents to decide overnight to reduce the required experience from 15 to just five years that will hinder rather than promote efficiency.
“The applicant submits that the decision of the respondents, particularly the First Respondent, to alter the terms of employment from permanent and pensionable to contract, is unlawful.
“The applicant has also sought an order directing the First and Second respondents to issue a new circular within 30 days, advertising the post of Traffic Commissioner on a permanent basis and with the job specifications as advertised in the Ministry of Public Works and Transport Circular No 2 of 2009.”
The lawyer is now seeking a temporary interdict “restraining the respondents from recruiting any person into the office of Traffic Commissioner pending the outcome of this application. The applicant seeks the said decisions to be reviewed and set aside.”
According to Mr Lesupi, the position of Traffic Commissioner first fell vacant in 2007 and 2009, and applied on both occasions without success.
Mr Lesupi further told the court that in 2010, he applied for the post yet again, and lost out to Mathato Makwate, who held a degree in Education, yet the position required a candidate with a Public Administration qualification.
After Ms Makwate’s three-year-old contract expired in 2013, Mr Lesupi said he applied for the post but later realised that its terms had been changed, prompting the current litigation.
However, the prosecution—in opposing heads of argument filed by Advocate Mafefoane Moshoeshoe— argues: “The decision to alter job specifications of the position of Traffic Commissioner was made by the Ministry of Public Works to ensure that the position remains efficient and effective.
“The honourable court has no jurisdiction to order the respondents to issue advertising for the position of Traffic Commissioner on permanent and pensionable terms and on job specifications that appeared in Circular 2 of 2009.
“The question to ask is whether the Minister is empowered to change a position from permanency to contractual.”
Advocate Moshoeshoe further argued that the Minister did not act “ultra vires the law.”
“The Public Service Act no 1 of 2005 gives the Minister of Public Service the power to do anything, including changing a position from permanency to contractual, if he deems it necessary to give effect to the purport and objects of the Act.”
On the issue of altering job specifications, the prosecution submitted that, “job descriptions of any position are not written in stone. Every ministry has the power in terms of the Recruitment and Selection Policy to review and alter job specifications of any position to ensure that they are relevant and promote efficiency and efficacy as required by the Act.
“The applicant applied for an order directing the respondents to appoint him to the position of Traffic Commissioner with effect from April 2014, alternately to implement an order of the Public Service Tribunal.
“However, the honourable court refused to grant the above prayer, but instead ordered that the position of Traffic Commissioner be advertised and the applicant, together with other interested persons, be shortlisted in accordance with the constitution and the public service laws.”
The prosecution claims that the complainant objected “due to change in the appointment terms and job specifications hence the present application.
“…if the court were to order that the respondents advertise the position on permanent and pensionable terms, the honourable court would be usurping the powers of the minister and it is trite that the courts will not interfere with the policy function of the administration.”
Justice Monaphathi reserved judgment in the case.
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