Mohalenyane Phakela
LESOTHO Correctional Service (LCS) Acting Commissioner, Chabana Majara, has been dragged to court over his January 2021 decision to reverse LCS officers’ promotions which were effected in 2015.
One of the promoted officers, Percy Bereng, who was appointed assistant superintendent in April 2015, last week filed an urgent High Court application arguing that Commissioner Majara does not have the power to demote him.
He also argues that he stands to suffer irreparable harm if his salary is cut and if he is compelled to pay the M100 169, which is said to be an “overpayment” on his salary from April 2015 when his promotion was effected.
The respondents in the matter are Commissioner Majara, Law and Justice Minister Nqosa Mahao and Attorney General Haae Phoofolo. The matter is scheduled to proceed on 3 March 2021.
On 14 January 2021, Commissioner Majara wrote to Ass Supt Bereng advising him that he was reversing his 2015 promotion with effect from 12 February 2021. That effectively meant that Ass Supt Bereng would assume his previous rank of chief officer.
Ass Supt Bereng is one of the eight LCS officers who were promoted in 2015 by then Minister of Justice and Correctional Service Moeketse Malebo. At the time, ‘Matefo Makhalemele was the Commisioner and was later replaced by Thabang Mothepu in 2018.
Other officers who were promoted were Kabo Moeno (to Senior Assistant Commissioner), Thabang Mothepu (Assistant Commissioner), M Raphuthing (Acting Assistant Commissioner), Letooane Selahla (Senior Superintendent), Ramohai Ntsasa (Superintendent), Motsamai Rammasa (Assistant Superintendent) and Matingoe Phamotse (Acting Deputy Commissioner).
The LCS Staff Association (LCSSA) challenged the eight promotions and won in the High Court after Justice Maseshophe Hlajoane granted their prayers for the promotions to be revoked. The promoted officers appealed in 2019, however, the Court of Appeal confirmed the High Court ruling that their promotions were illegal.
At the time of the Court of Appeal ruling, Mr Mothepu had now been elevated to Commissioner of LCS and he did not reverse the said promotions arguing that he did not have the power to do so. He said the power lay with the Justice minister.
Commissioner Majara took over the reins after Mr Mothepu was fired by Prime Minister Moeketsi Majoro on 24 July 2020.
Commissioner Majara was sued in November 2020 by LCSSA for contempt of court in failing to implement the May 2019 Court of Appeal order which nullified the promotions. The matter is still pending before the High Court.
At the time the appeal was noted, Ass Supt Bereng was hiding in South Africa. He had fled the country in June 2018 and only returned in October 2019 after the government facilitated his return to the country and to work. Asst Supt Bereng fled from the police headquarters in Maseru where he and another man, Mohau Lebajoa, had been called in for questioning in relation to the leaking of a government gazette which announced the appointment of South African judge Yvonne Mokgoro as acting president of the Court of Appeal.
Asst Supt Bereng alleged that he fled for his life fearing that he would be tortured like his co-accused, Mr Lebajoa.
The leaked government gazette was used by three prominent lawyers, Zwelakhe Mda, Karabo Mohau and Qhalehang Letsika as the basis for their successful March 2018 lawsuit against the appointment of Justice ’Maseshophe Hlajoane as the acting Court of Appeal President.
In his court papers, Asst Supt Bereng argues that his promotion was ratified by the then Minister of Justice (Mokhele Moletsane) in October 2019 and therefore, the May 2019 Court of Appeal judgement had no bearing on his promotion.
“It is important to highlight that the appeal was noted while I was outside the country having fled to South Africa in June 2018 and only returning by end of October 2019. Upon my return, I continued to enjoy my benefits and was still treated as Assistant Superintendent notwithstanding the two judgements of the High Court and the Court of Appeal,” Asst Supt Bereng argues.
“Upon my arrival from South Africa, I inquired about our position given the judgement of the Court of Appeal and I was advised that the second respondent (Minister of Justice) sought retrospective approval that our promotions should be confirmed. In this regard I was advised that the Public Service Commission held its meeting on 18 October 2019 and resolved to retrospectively appoint us.
“I submit therefore that, once the minister approved our appointments after consulting with the Public Service Commission, the first respondent (Commissioner Majara) would not be entitled to undo the decision basing his position on the judgement of the court. I aver that once the minister rectified our appointments in 2019, the judgement of the Court of Appeal became academic and had been overtaken by events,” he said.
Ass Supt Bereng also argued that Commissioner Majara cannot demote him without affording him a hearing. Through the hearing, he would have notified the commissioner that the judgement had been overtaken by events.
“I aver that on 14 January 2021 the first respondent gave me a document in terms of which he showed me the amount by which I had been ‘overpaid’. In terms of this document, I am liable to repay the sum of M100 169. I wish to take this court into my confidence by pointing out that I received the payments relating to my position in good faith because I had always believed that our promotions had been done in accordance with the law. I was not at fault and would not be held responsible and liable for the moneys that were paid to me in good faith and as a result of a promotion that the authorities deemed legitimate.”
He said “the decision to demote me from the position of the assistant superintendent to the position of chief officer is unlawful and unfair”.
“The first respondent failed to give me a proper hearing. He simply communicated his decision to implement the judgement of the Court of Appeal and he was not prepared to listen to my side of the story. Had he given me a hearing; he would have known that there have been further developments which he just brushed aside.
“Finally, the first respondent does not have the power to demote officers in as much as he is not the appointing authority under the Prisons Proclamation. The first respondent did not promote me and the officers that appear in the Public Service Commission list. He is therefore, not entitled to undo the decision of the minister and the Public Service Commission.”
Ass Supt Bereng also wants the court to order that “the decision of the first respondent of demoting the applicant from the position of assistant superintendent to that of chief officer within the organisational structure of LCS be reviewed and set aside as irregular and unlawful”.
He also wants it declared that his appointment to the position of assistant superintendent “is valid and lawful and that the applicant is entitled to be paid salary and other financial benefits and entitlements attaching to that position”.
