…as transfer challenge ruled not urgent
Moorosi Tsiane
DIRECTOR of Immigration, Mantšebo Motšoanakaba, has suffered a major setback after the High Court dismissed her bid to urgently block her transfer, ruling that the matter did not warrant urgent intervention and should proceed through the ordinary court process.
Ms Motšoanakaba had approached the Constitutional Court seeking to stop the Minister of Local Government, Chieftainship, Home Affairs and Police, Lebona Lephema, from transferring her to the Ministry of Foreign Affairs and International Relations. However, Judge Polo Banyane ruled on Monday that the application was not urgent and struck it off the urgent roll, dealing a body blow to her bid to remain in her powerful office.
Through her lawyer, Advocate (Adv) Kabelo Kelepa, Ms Motšoanakaba challenged the constitutionality of the Public Service Commission’s (PSC) decision to transfer her from her post as Director of Immigration to Director of Consular Affairs. She argues that the PSC has no constitutional or statutory authority to effect transfers.
In her application, Ms Motšoanakaba seeks a declaratory order that the PSC’s resolution to transfer her be declared unconstitutional and unlawful. She further wants the court to review, correct and set aside the decision, insisting that the power to transfer public officers lies with the Principal Secretary (PS), not the commission.
“According to regulation 32 on the transfer of public officers, the Principal Secretary may transfer a public officer to work anywhere within the public service in concurrence with the minister and in consultation with the head of department of the receiving ministry, department or agency,” argued Adv Kelepa.
“That is why I say the power to transfer rests with the PS and the Public Service Commission’s resolution is unconstitutional.”
Adv Kelepa further submitted that the matter was urgent because Ms Motšoanakaba stood to suffer prejudice from the change of duties, moving from Director of Immigration to Director of Consular Affairs.
“We are raising serious issues here. A change of duties is a prejudicial aspect for which one can challenge. She was Director of Immigration and now she is being moved to Director of Consular Affairs,” he argued.
He warned that by the time the court determined whether the PSC’s decision was lawful, the transfer would already have been implemented and the post filled, rendering any review an academic exercise.
However, Justice Bany
ane was not persuaded, saying Ms Motšoanakaba would suffer no irreparable prejudice as she could still return to her original post should the Constitutional Court rule in her favour.
“How is that academic when she can still return? We are talking about a government institution, not someone’s personal house. What belongs there belongs to the government, not to the individual,” said Justice Banyane.
“What is the prejudice when someone is transferred to a different ministry?”
The judge further criticised the delay in approaching the court, describing the matter as one of self-created urgency.
“Counsel, on 31 December, when you filed this case, you already had issues about the decision. You decided to waste time and a month later you come to the Constitutional Court and say the matter is urgent,” he said.
“Challenging the law cannot be said to be urgent. I am not persuaded that the matter is urgent. The ordinary periods prescribed in the rules for service and set-down shall be followed, and the matter is accordingly removed from the roll of urgent matters,” ruled Justice Banyane.
In her court papers, Ms Motšoanakaba claims Mr Lephema is determined to remove her from office. She alleges she has been unable to perform her duties after her official stamps were confiscated and that she was suspended several times before the transfer was ultimately engineered.
Ms Motšoanakaba, who has served as Director of Immigration since 2019, contends that the transfer was hurried, unlawful and procedurally flawed. She notes that the High Court last year declined jurisdiction in the matter, which remains pending before the Labour Court. She lays the blame squarely on Mr Lephema.
“It is important to inform this court that at the centre of the controversy herein is the minister responsible for the Ministry of Local Government, Chieftainship, Home Affairs and Police, Mr Lebona Lephema.
“My battle with this minister can be traced back to 2022 when he became minister. He influenced the principal secretary to suspend me in 2023 for no reason. The court found my suspension unlawful and set it aside with costs. The minister was not happy with that finding and has continued to fight against me.”
She further claims that at the time her transfer letter was issued, Mr Lephema was acting Minister of Public Service while the substantive minister, Stephen Mputi, was out of the country.
“For this reason, I place the blame squarely on his doorstep. This view is further supported by the fact that no reasons were provided for my transfer,” she states.
