THE government must by 5 August 2020 pay former principal secretaries whose gratuities it had withheld to settle their government guaranteed personal loans which they had not finished servicing by the time they left in 2017.
The Constitutional Court on Thursday ruled that withholding the former PSs’ gratuities to service the outstanding loans was unconstitutional.
Justice Moroke Mokhesi delivered the judgement.
Former government secretary (GS), Lebohang Ramohlanka, who is now the deputy speaker of the National Assembly; principal secretaries Majakathata Mokuena Thakhisi (Ministry of Development Planning); ‘Mapitso Panyane (Ministry of Local Government and Chieftainship); ‘Mapaseka Kolotsane (Ministry of Education and Training); ‘Mapulumo Mosisili (Ministry of Labour and Employment); had dragged the government to court for discriminating against them by withholding their gratuities to settle their M500 000 interest free loans.
The applicants were represented by former Attorney General, Advocate Tšokolo Makhethe, with the government deciding not to oppose the case, which was filled last November. The matter was heard in March this year.
The Prime Minister, the Minister of Finance, the Ministry of Finance PS, the principal officer of the Specified Offices Defined Contribution Pension Fund, the Specified Offices Defined Contribution Pension Fund and the Attorney General were the first to sixth respondent respectively.
According to the 2017/18 audit report, the former PSs had not yet settled M4 585 711 for the same financial year.
The applicants, whose employment ended in September 2017 upon the change of government, had in 2015 been engaged by the 2015’s seven-parties’ coalition government led by form prime minister Pakalitha Mosisili. They were engaged in three-year contracts which would be terminated once the ruling government’s reign ended.
Among other things, their contracts contained standard terms which provided that:
- “The incumbent shall be eligible to take an interest free loan of up to M500 000 for which the government of Lesotho will act as a guarantor;
- The contract of the person engaged (i.e. the applicants) shall automatically terminate before its expiry if the tenure of office of government which appointed him or her came to an end;
- That in the event government came to an end before its five year term, the applicants would be entitled to tax free gratuity at the rate of 25 percent at the end of every two years of service or prorated to the time severed if she/he leave office as stipulated in the Specified Offices Defined Contribution Pension Fund Act as amended.”
However, after settling the PSs loans with their respective banks, former premier Thomas Thabane’s 2017 coalition government decided to recoup those funds by garnishing the PSs gratuities.
The government’s decision was announced through a January 2018 letter written by the then principal secretary of the Ministry of Finance, Nthoateng Lebona, directing the Public Officers’ Defined Contribution Pension Fund to transfer all monies deducted from the PSs gratuities into the government’s account in order to clear the outstanding balances.
“The government decided that the amounts settled on behalf of PSs be recovered through their gratuities. You are therefore, kindly requested to transfer the gratuities of the former PSs as per attached schedule to the following bank details and please send proof of payment to the Ministry of Finance,” Ms Lebona said in the letter.
But justice Mokhesi said the government’s decision was discriminatory as the PSs were not the only beneficiaries of the loan facility who have been incapacitated by the premature collapse of the government.
“It is declared that the government’s decision… to recover from the applicants the amount of money it (government) had paid to Standard Lesotho Bank or Nedbank Lesotho on behalf of the applicants, consequent upon the applicants having vacated office as respectively Government Secretary and Principal Secretaries, (is) unconstitutional.
“The Minister of Finance is directed to provide funds, within 30 days to pay the applicants…,” part of the order reads.
Mr Mokuena Thakhisi, said he was relieved that justice had been served.
“This is a good victory for us, and we hope the government will duly comply with the court’s ruling because we are in the throes of poverty as a result of the injustice we suffered at the hands of the government,” Mr Mokuena Thakhisi said.
The same PSs are currently awaiting finalisation of another case where they are suing the government to pay them their severance packages for the final year of their contracts. When the government changed in 2017, they had only served two of their three-year contracts.