Mohalenyane Phakela
THE government has been given until today to withdraw what has been described as an “irresponsible decision” to send 16 principal secretaries on forced leave pending the finalisation of their High Court application in which they are challenging their summary dismissals from the public service.
Prime Minister Sam Matekane’s government had fired most of the PSs it inherited after winning the October 2022 general elections, saying it wanted to recruit new professionals outside of political considerations to replace them.
PSs , who are the administrative heads of ministries, have generally been political appointees from the various parties that have formed coalition governments in Lesotho over the years. Mr Matekane argues this has hobbled competency and professionalism in the public service as the PSs appointed on the basis of politics are answerable to their political masters. Most of them are in any event unqualified and not fit for purpose, Mr Matekane has charged. Mr Matekane has emphasized that he wants to run a professional civil service by ensuring that all administrative heads of ministries are professionals , appointed purely on merit and on the basis of their professional and intellectual wherewithal than politics.
He could also not have retained all of the nearly 30 PSs he inherited from the previous coalition as he had slashed the size of cabinet to only 15 ministries. A reduction of the number of PSs had thus become unavoidable.
But the PSs are having none of it. At least 16 of them have gone to court to challenge Mr Matekane’s decisions. They say he should at least buy out their contracts – some of which run until 2025- instead of summarily dismissing them on three month notice pay as he had done. The best he could do in his zeal to remove them was to honour their contracts by paying them off.
Mr Matekane’s government and the PSs have thus been slugging it out in court.
They initially fought over the recusal of Justice ‘Maliepollo Makhetha who was accused by the government’s lawyers of showing bias towards the PSs. Judge Makhetha subsequently refused to recuse herself, saying allegations that she was biased because of remarks she had made during proceedings – deemed to be sympathetic to the PSs – were totally misplaced.
The arguments on the merits of the actual dismissals case were due to be heard before her on 28 April 2023. This after all the parties had agreed to go straight into dealing with the substantive issues of the dismissals instead of expending time on preliminary issues to interdict the firings.
The decision to send them on forced leave has thus not gone down well with the PSs. One of their lawyers, Christopher Lephuthing, has come out guns blazing, accusing the government of mistreating the PSs and reneging on the agreement to halt all manoeuvres to fire them until the High Court has finalised the challenge of their dismissals. This after the Government Secretary, Lerotholi Pheko, wrote to the PSs last week, essentially sending them on forced leave pending the finalisation of their court case.
“I have been directed by the Prime Minister to instruct you to take leave of absence from work with effect from 14 April 2023, running (sic) until the hearing of the court application which will be heard on 28 April 2023. The government will revisit your position after the application has been heard. Your leave of absence is on full pay … and benefits as normal,” Mr Pheko stated.
“You will not be expected to take up other employment during this period and must remain available to be contacted by your principals and colleagues.”
In their response dated 18 April 2023, the PSs lawyers give the government until today to reverse the decision. They argue that the decision to send them on forced leave before the court case is completed is tantamount to firing them via the back door.
In a letter to the government’s lawyer – ‘Mateboho Tohlang-Phafane of Webber Newdigate – Advocate Lephuting prescribes a 24 hour ultimatum for the reversal of the decision. He argues the decision is a clear violation of agreements the lawyers had reached.
“….This is unlawful to the extent of undermining the rule of law. We cannot tolerate this cloak and dagger approach meant to defeat the ends of justice,” Advocate Lephuting declares.
After they lost the recusal battle, Ms Tohlang-Phafane had even written to Chief Justice Sakoane Sakoane on 17 March 2023 asking him to fast-track the hearing of the PSs case, suggesting the government wanted a final outcome to the dispute.
“Kindly withdraw this restriction of access to the offices occupied by our clients in terms of the constitution within 24 hours pursuant to the principle of responsible government. We have noted instructions to challenge this decision as it is for the most part incompatible with the principle of sub-judice. It would seem the government is prepared to always occasion a clash with our clients unnecessarily…,” fumed Adv Adv Lephuthing in his letter.
“Our clients remain chief accounting officers and no one must assume their constitutional functions until their contracts expire. Their replacement is an unlawful and illegal set up which is clearly intended to siphon the resources of the state under false pretences. If we do not get response within 24 hours, we will proceed to interdict the steps taken to place our clients on forced leave of absence….,” said Adv Lephuting, adding they would seek a punitive costs order against the government if it did not reverse its decision.
Adv Lephuting also drags the United Nations Development Programme (UNDP) into the whole saga, saying the UN agency stands to soil its reputation as it was aiding the government in taking unlawful actions.
“We are aware that UNDP is sponsoring the initiative of recruitment of Principal Secretaries that is underway before the reforms are completed. It also sponsors the reforms agenda intended to secure ability of the government to hire PSs that are apolitical. The existence of the pending recruitment process before the case of our clients is completed appears likely to compromise the integrity of UNDP and prolonging the crisis around the ability of the Prime Minister to appoint the PSs. You must assist your clients to avoid the risk of such crisis occurring in the kingdom of Lesotho,” Adv Lepthuting exhorted.
The 16 PSs had filed two cases which have since been consolidated into one. The first set of 10 PSs filed their case on 17 February 2023. They are Thabo Motoko, Tlhopheho Sefali, Mamoho Matlama, Dira Khama, Bereng Makotoko, Retṥelisitsoe Mohale, Lira Moeti, Mamonyane Bohloko, ‘Masekhobe Moholobela and Matela Thabane.
The other six who filed their petition on 24 February 2023 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.
The 16 PSs accuse Mr Matekane’s government of seeking to oust them despite a clear agreement they had reached with Public Service, Labour and Employment Minister Richard Ramoeletsi that their contracts would be paid out in full if the government wished to proceed with their dismissals. It seems the government opted to not follow that route, possibly because of lack of resources.
The government had not responded to the petition to reinstate the PSs by the time of going to print.
