LNDC boss fights back

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…sues govt, demands job back

Pascalinah Kabi | Mohalenyane Phakela

FORMER Lesotho National Development Corporation (LNDC) chief executive officer, Mohato Seleke, has wasted no time in demanding his job back.

Mr Seleke was forced to leave his post after the expiry of his three-year contract on Monday. This after the LNDC board decided against renewing his contract.

But barely a day after leaving his post, Mr Seleke has filed an urgent High Court application for an order compelling Trade and Industry Minister, Thabiso Molapo, to renew his contract.

In his court papers, Mr Seleke alleges that the LNDC board recommended the renewal of his contract by a further three years when it met on 7 September 2020.

He argues that Dr Molapo’s decision not to renew his contract was thus irrational, arbitrary and done in bad faith.

Dr Molapo; Trade and Industry principal secretary Maile Masoebe; Attorney General Haae Phoofolo; the LNDC board and the LNDC are first to fifth respondents respectively in the application.

Mr Seleke was appointed LNDC CEO on 1 December 2017 by then Trade and Industry Minister, Tefo Mapesela. His contract expired on 30 November 2020 and it was not renewed. (See story above).

But Mr Seleke is refusing to quietly go away hence his application to compel Dr Molapo to reappoint him. The case will be heard tomorrow.

He argues that clause 2 of his contract of employment specifically provides for an option of renewal. He says the LNDC board assessed and evaluated his performance and found it to have been more than satisfactory. Therefore, he expected his contract to be renewed, he says.

He said he formally submitted his application for renewal to the LNDC board on 18 August 2020.

“The (LNDC) board, based on their assessment and evaluation of my performance over the past three years, did consider my request in its meeting of 7 September 2020 and reached a resolution that it be recommended to the Minister that my contract be renewed for a further period of three years,” Mr Seleke states in his court papers.

“Due to the apparent conflict of interest if I sat in the meetings I was always excused from the board’s deliberations when the issue of the renewal of my contract was considered. However, and based on the purported response by the Minister that will be discussed later in this affidavit, it is beyond doubt that the Board did advise the Minister to renew my contract of employment based on my more than satisfactory performance and meeting of set targets over my tenure.”

The term of the board which purportedly renewed Mr Seleke’s contract ended in September 2020. The current board was appointed a month later in October, five months after the collapse of the former Prime Minister Thomas Thabane’s administration.

The Thabane government collapsed after the former premier’s All Basotho Convention (ABC) party agreed to form a new coalition with the Democratic Congress (DC).

As per the ABC, DC coalition agreement, each party has the responsibility of filling key positions in any of the institutions falling under the ministries it controls. The LNDC falls under the trade ministry which is controlled by the DC. Mr Seleke is not a DC member and he is widely seen as close to Prime Minister Moeketsi Majoro of the ABC.

In August this year, the national executive committees of the ABC and DC are said to have rejected a proposal by Dr Majoro to remove the LNDC from the ambit of the Ministry of Trade and Industry and place it under the control of the premier’s own office.

According to some ABC sources, the move was meant to make it easier for the premier to retain Mr Seleke as the LNDC boss. However, Dr Majoro’s office denied the allegations.

It now seems Mr Seleke’s removal is in lieu of the enforcement of the ABC/DC coalition agreement.  As Mr Seleke is a long-term ABC apparatchik, he is being removed, it seems, to pave way for a DC appointee in a ministry it controls.

In his court papers, Mr Seleke says he was only informed of the decision not to renew his contract on 27 November 2020.

“I invite the Honourable Court to note that the aforesaid letter (not to renew the contract) was written on the 26 October 2020 but was only delivered to me just when my contract was due to expire. I submit that the only reason for the 1st and 2nd respondents (Molapo and Masoebe) to prepare such a letter as early as October 2020, then sit on it until the eleventh hour when they knew well that I would not be in office, was solely to deny me an opportunity to challenge their actions in this regard whilst in office.

“Their strategy is quite obvious: to kick me out and ensure that their decision is known to me at the very last minute in order to dispel any chance of having any potential legal challenge instituted and challenged whilst I was still in office. I submit that the ill-motives and mala fides (bad faith) of the 1st and 2nd respondents could not be clearer than this.

“In the circumstances, I submit that I have a reasonable apprehension that in the event that this matter is not dealt with on an urgent basis and the interim interdicts sought granted as prayed, the respondents will in all likelihood proceed to appoint a caretaker CEO and even worse, appoint a substantive holder to the position because as things stand, nothing bars them from proceeding as they deem fit.

“Should the events proceed as anticipated above, then there be no real value in continuing to challenge the invalid administrative conduct of the 1st and 2nd respondents in this regard because, even if this Honourable Court were to ultimately set aside their impugned decisions herein and declare them invalid, that would be of no real value to me as the applicant (sic). Further, the specific prayer in my notice of motion to have the minister directed to appoint and/renew my contract as per the advice of the Board would by then be meaningless when any other person has been appointed to the position,” Mr Seleke states.

He says the contents of Dr Molapo’s letter informing him of the decision not to renew his contract suggest that the minister had in fact been advised to renew his contract but acted contrary to that advice of the LNDC board. It’s not apparent from the court papers how the   minister’s letter made that suggestion as claimed by Mr Seleke.  The ex-LNDC boss is nonetheless adamant the board had advised the minister to renew his contract.

He argues the minister’s power to appoint or to renew the contract of the LNDC CEO is regulated by Section 9B (1) of the LNDC (Amendment) Act of 2000 which provides that in appointing the CEO, the minister shall act on the advice of the board.

“Though I have no absolute right to have the contract renewed, I clearly and undoubtedly had a legitimate and valid expectation that my appointment will be renewed having regard to the circumstances of this case. I strongly argue that the administrative function conferred on the minister to make a decision in this regard entails the right to an application for renewal and the advice of the Board should be considered and decided upon rationally, in good faith, in accordance with the principles of legality, diligently and without delay. The minister failed to observe any of these known legal principles in the exercise of public power conferred to him under the (LNDC) Act.

“I submit that the Minister does not have a wide discretion in this regard; on the contrary his powers are curtailed by the provisions of the Act. In other words, his decision in the appointment of the CEO does not involve a value judgement and is legally bound by the advice of the Board, unless he can demonstrate legally acceptable exceptional circumstances for a departure. In this instance, the letter containing the Minister’s decision does not even attempt to give such a justification.

“The Minister was not only duty bound to follow a rational process in making his decision, but also to make a rational decision.

“It is my humble submission that properly interpreted; the Board’s advice in terms of section 9B of the Act constitutes a report put forward as something worthy of acceptance (sic). It serves to ensure accuracy of the information (sic) on which the Minister makes the decision. As such, the advice of the Board in this regard is more than suggestive. A fundamental pillar of natural justice is contradicted if the Minister can willy nilly and without reasons decide against the advice of the board.

“The Minister clearly used the powers vested in him contrary to the provisions of the Act, alternatively he completely misconstrued his powers. In the circumstances, it is my humble submission to the Honourable Court that the impugned decision by the minister stands to be reviewed and set aside on the grounds of irrationality, bad faith, unreasonableness and arbitrariness,” Mr Seleke said.

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