TEMPERS flared in the High Court this week as lawyers fought over the recusal of a judge hearing the case of 16 principal secretaries (PSs) who have been dismissed by the government.
Justice ‘Maliepollo Makhetha had ruled that her court has jurisdiction to hear two applications by the 16 PSs challenging their firings, dismissing a submission that theirs was a labour dispute which should have been put before the Labour Court.
Prime Minister Sam Matekane’s lawyer, ‘Mateboho Tohlang-Phafane, then railed against Justice Makhetha, accusing her of having already pre-determined the merits of the PSs’ petition, judging from her choice of words in her ruling that her court has jurisdiction.
She was backed by Attorney General Rapelang Motsieloa’s lawyer, Thomas Thakalekoala.
However, the lawyer representing 10 of the 16 PSs, Christopher Lephuthing, objected to Tohlang-Phafane’s approach, saying she should have asked Justice Makhetha to take the matter to her chambers and not embarrass the judge in open court.
The rest of the six PSs are represented by Sello Tṥabeha, who did not have anything to say during the altercation by his colleagues.
Adv Lephuthing’s clients are Thabo Motoko, Tlhopheho Sefali, Mamoho Matlama, Dira Khama, Bereng Makotoko, Retṥelisitsoe Mohale, Lira Moeti, Mamonyane Bohloko, ‘Masekhobe Moholobela and Matela Thabane. They filed their application on 17 February 2023.
Those represented by Adv Tṥabeha are Matṥeliso Manaleli Phafoli, Maneo Moliehi Ntene, Mantsenki Nthabiseng Sekete Mphalane, Mole Khumalo, Moliehi Moejane and ‘Mamoeketsi Nkiseng Ellen Ntho. They petitioned the High Court on 24 February 2023.
Mr Matekane and Advocate Motsieloa are the two respondents in the two applications which were filed separately in the High Court.
Adv Thakalekoala had argued last Thursday that the High Court lacked jurisdiction to entertain the PSs’ petition as it was a labour dispute which needed to be put before the Labour Court.
But Adv Lephuthing had counter-argued that the High Court had inherent jurisdiction to entertain the application.
While it had been expected that Adv Tṥabeha would argue his six clients’ case on Tuesday morning when all parties appeared before Justice Makhetha, he instead said he would await and abide by Justice Makhetha’s afternoon ruling over the jurisdictional issue. This because their application was premised on similar facts as those of the other 10 PSs.
And on Tuesday afternoon, Justice Makhetha ruled that the High Court had inherent jurisdiction to entertain the applications and afford the PSs a platform to enforce their contractual rights.
“I have, in my considered view, concluded that there is no other court that can grant a declarator where a right has been infringed, except this court. I believe this is the right time for the applicants to make all the noise about the protection of their rights. This court is responsible to ensure that their contractual rights are being protected against oppression by the employer….,” Justice Makhetha ruled.
“In terms of the review under section 119 of the Constitution, this is a review of public administrative action. The applicants cannot wait any longer for them to suffer irreparable harm while they are waiting for a subsequent recourse for the violation of their rights. For that matter, I have decided that this court is the proper platform to determine the matter,” she said.
This did not go down well with Adv Tohlang-Phafane who immediately stood up to demand Justice Makhetha’s recusal.
“Based on your reasoning that you have just delivered, we apply for your recusal your Ladyship. You have already made a prima facie view……You keep on saying that the applicants cannot wait any longer to suffer irreparable harm and that the respondents have actually violated the applicants’ rights and that it is not fair for the applicants to wait for the harm to continue.
“My respectful submission is that it constitutes a prima facie view on the interim reliefs and we would like to have a fair hearing,” Adv Tohlang-Phafane said.
Her submissions immediately enlisted a sharp rebuke from the PSs’s lawyer Adv Lephuting who saw it as an unwarranted attack on the judge.
Retorted Adv Lephuting; “This is unprocedural. It is bad! If my colleague had that opinion, the best she could have done was ask for an adjournment and we see you in chambers, not this embarrassment she is causing.
“This is ethically reprehensive. You cannot tell a judge when you are not happy with the ruling that she has formed a prima facie view.”
Justice Makhetha then retired the proceedings to her chambers where it was resolved that the parties would argue her recusal on 6 March 2023.
The 16 PSs argue in their applications that they had a consultative meeting with Minister of Public Service, Labour and Employment, Richard Ramoeletsi, who promised them that the government would pay them the remainder of their contracts as a form of settlement but had now reneged on that promise.
They say that their contracts expire at varying intervals up to June 2025.
Instead of paying for the remainder of their contracts, Mr Ramoeletsi has sought to dismiss them on only three months’ notice pay.
The government would then publicly hire only 14 principal secretaries based on merit, the minister had said.