Top civil servant wins appeal

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THE Court of Appeal has set aside a High Court and disciplinary committee decision which dismissed the Director of Finance and Administration in the Prime Minister’s Office, ‘Marapelang Raphuthing, four years ago.

Ms Raphuthing was fired on 25 August 2011 after a disciplinary committee had  found her guilty of misconduct.

The High Court upheld her dismissal on appeal, but subsequently took her case to the apex court.

In her appeal, Ms Raphuthing argued the High Court erred in confirming her dismissal based on the merits of the case yet it was only supposed to deal with procedural issues since this was a review application and not an appeal.

Ms Raphuthing’s complaint had been she was not afforded sufficient time to prepare her defence for the disciplinary hearing, which included forensic evidence prepared by experts.

But although the High Court’s decision has been set aside, Ms Raphuthing would  have to fight for reinstatement or an exit package, the Court of Appeal ruled.

The apex court made the judgment after Ms Raphuthing’s lawyer, King’s Counsel (KC) Haae Phoofolo, handed in his supplementary written submissions urging the court to reinstate his client should her appeal succeeded.

However, the court upheld an argument presented by crown counsel Advocate Makhele Sekati that he had not investigated if the position was still vacant.

The court then ordered that reinstatement proceedings should be instituted separately.

Part of the judgment prepared by Justice Moses Hungwe Chinhengo read: “In my view, there is merit in the respondents’ opposition to the claim for reinstatement.

“Where the decision of a quasi-judicial body is set aside on review for procedural irregularity and not, as it must be obvious, on the merits, the court needs not go further than merely setting aside the decision.

“That will leave it open for the employer to reinstate the public officer concerned or institute fresh proceedings.

“That, in my view, should be the position in this case.”

According to court papers, Ms Raphuthing was dismissed after being found guilty by a disciplinary committee chaired by then Principal Secretary for the Ministry of Justice, Retšelisitsoe Masenyetse.

She had been accused of 12 corruption-related crimes and bringing the civil service into disrepute by failing to lead by example and exercise her powers impartially.

Four of the charges Ms Raphuthing faced concerned a transaction she approved on 13 July 2009 regarding the procurement of goods and services from a company called Success Enterprise (Pty) Ltd allegedly owned by her son.

Among the other charges, Ms Raphuthing was also accused of allegedly using a government laptop to access pornographic material.

In setting aside the High Court decision, Justice Chinhengo said: “Except in exceptional circumstances, reviews are not concerned with the merits of the case but correcting erroneous decision-making.”

Mr Masenyetse, Ms Matabane and Attorney General Tšokolo Makhethe were first to third respondents respectively.

Court of Appeal President Justice Kananelo Mosito and Justice Petrus Tileinge Damaseb concurred with Justice Chinhengo’s judgment.

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