Zaly challenges dismissal

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Mohalenyane Phakela

FIRED Ministry of Trade, Industry, Business Development and Tourism Principal Secretary, Nonkululeko Zaly, is fighting her dismissal from her plump public service job.

Ms Zaly has petitioned the High Court arguing that Prime Minister Sam Matekane erred in firing her over what she describes as “baseless allegations” of wrongdoing arising from documents seized from her Moshoeshoe I home by the Directorate of Corruption and Economic Offences (DCEO) recently.

She also argues that Mr Matekane cannot fire her without affording her a hearing.

However, Ms Zaly will not be resuming her civil service duties anytime soon even if the courts eventually find in her favour. This because Justice Fumane Khabo yesterday ruled that her application was not urgent. It should therefore follow the long winding queues of unheard civil cases at the clogged courts

Mr Matekane fired Ms Zaly on 11 January 2023 citing lack of trust, among other reasons. Mr Matekane argued that his government had been elected on a platform to fight endemic corruption in Lesotho, among other things. Her continued stay in government had thus become untenable in light of the corruption allegations she was facing. The had also not responded satisfactorily to the allegations the DCEO had raised against her.

The DCEO raided Ms Zaly’s Moshoeshoe I home on 16 December 2022 and allegedly seized documents relating to her alleged malfeasance. The anti-graft body had obtained a search warrant against Ms Zaly on 13 December 2022 from Chief Magistrate ‘Matankiso Nthunya.

According to the search warrant, Ms Zaly, who was then Local Government and Chieftainship PS, Lefu Manyokole who was PS Cabinet around 2020 and was succeeded by Thabo Motoko in 2021,  had all allegedly partaken in fraudulent activities that prejudiced the government of M37 million from an emergency budget meant to fight Covid-19 .

Ms Zaly has become the first casualty of the alleged malfeasance.

“In the past few days, information has been brought to my attention in my capacity as the Prime Minister that the Directorate on Corruption and Economic offences seized certain documents from your possession evidencing a commission (sic) of crime and that you failed to give a satisfactory explanation for your possession of those documents,” Mr Matekane states in his letter dated 11 January 2023.

“This has eroded all the trust and confidence I had in you as the Principal Secretary and there is no way I can continue with you at the helm of any government ministry.

“Kindly handover your office keys and all the equipment in your custody (and or any property of the government) possessed by yourself to the office of Government Secretary (Lerotholi Pheko) upon receipt of this correspondence.”

Ms Zaly then ran to court on Sunday to challenge Mr Matekane’s decision to fire her, contending that she was not afforded a hearing  to respond to  the DCEO’s allegations against her.

Mr Matekane, Minister of Trade, Industry, Business Development and Tourism Mokhethi Shelile, the Public Service Commission and Attorney General Rapelang Motsieloa are first to fourth respondents respectively in her application.

“I must state in no uncertain terms and at the outset that, the first respondent’s (Matekane) decision to terminate my contract of employment with the government is unlawful, null and void and of no legal force and effect. The decision is unlawful in every respect including but not limited to the fact that the first respondent has no right whatsoever under the laws of this Kingdom to terminate my contract of employment without affording me an opportunity to be heard. There are no  valid reasons why my contract was terminated,” Ms Zaly contends in her court submissions.

“The first respondent’s decision aforesaid, is furthermore unlawful in that I was not given any hearing whatsoever before such a drastic decision was taken against me. The first respondent was obliged to give me a hearing before he terminated my contract. The first respondent’s decision has far reaching and adverse effects on my life. In the result, the first respondent has acted arbitrarily and capriciously. This is a travesty at its highest level on the part of the Prime Minister of this country. I was most definitely entitled to a hearing before such an adverse decision could be taken against me.”

She says Mr Matekane’s decision to fire her flies in the face of the rules of natural justice and the constitution of Lesotho. As such, it cannot be allowed to stand.

“The reason advanced by the first respondent for his decision to terminate my contract is without substance and has no merits regard being had to the fact that it is not correct that the documents seized by the Directorate on Corruption and Economic Offences (DCEO) evidence a commission of crime and further that I failed to give a satisfactory explanation for the possession of the said documents. In any event, the allegations are inadmissible hearsay evidence.”

Ms Zaly has since challenged the legality of the 13 December 2022 DCEO search warrant, used to raid her home, in the High Court. That case is back in court tomorrow (Fri).

She argues in her latest application that Mr Matekane cannot act on the basis of the very allegations she is challenging in the courts and  before they have been adjudicated on to finality.

“I must place it on record that I challenged the search and seizure of the documents that were taken by the DCEO and the matter is still pending before this court. I have been advised and I verily believe the advice to be true and correct that the first respondent cannot in any manner whatsoever terminate my contract on the basis of the allegations or issues that are pending before this court and yet to be decided by the court. It is my contention further that the matter is sub judice and this (dismissal) amounts to a usurpation of the judicial function.

“The act of terminating my employment contract on the basis or allegations that are yet to be determined by the court and while the matter is sub judice and most importantly, when I was not even invited to show cause, is an interference with the independence of the court. It is my contention that the government has an obligation to respect the independence of the courts,” Ms Zaly submits.

“On the strength of the outright unlawful decision of the first respondent aforesaid, I am going to be thrown out of my office as soon as I report on duty on the strength of an unlawful and null and void decision of the first respondent. I aver that my employment contract has been unlawfully terminated without any valid reasons.”

She further states that she stands to suffer irreparable harm if Mr Matekane’s decision is not set aside by the court because she has property bought on hire purchase and that her children are going to be expelled from school due to loss of means to pay their fees.

She maintains that Mr Matekane had never asked her to respond to the allegations levelled against her by the DCEO.

“All the issues raised therein by the first respondent  (Matekane) are devoid of merit and factually false. No wonder therefore that the first respondent has not asked me to respond thereto. He is undoubtedly aware that the issues raised in the said letter are actuated by malice and improper motives and the fact that they cannot be used as a scapegoat for my termination aforesaid.”

Ms Zaly also argues that Mr Matekane’s letter stated that the information he relied on to fire her was brought to his attention only a couple of days before his decision to fire her.  That meant he had not had the opportunity to even investigate the information before making his decision to dismiss her.

“He however goes on to state that there were some documents found in my possession evidencing a commission of a crime. It is my contention that I had to be afforded an opportunity to present my side before the first respondent could conclude that my contract had to be terminated on the basis of information that was not interrogated nor confirmed by any competent court.

“I must point out that, on the strength of the employment contract, I designed and regulated my life and affairs on the understanding and legitimate expectation that I would remain in the employment of the government for at least three years as provided for in the contract. On the strength of this legitimate expectation, I have entered into various contracts with third parties such as banks, insurance, companies under which I have taken loans and policies. I have bought goods such as furniture and a motor vehicle on hire purchase. I am able to honour all my obligations herein under on the basis of my salary under the contract which I legitimately expect to last at least three years.”

Ms Zaly’s lawyer, Advocate Rethabile Setlojoane, yesterday argued that his client’s case was urgent because if it followed normal High Court processes,  Ms Zaly’s contract would have expired by the time the application is finally heard. Ms Zaly’s contracts ends on 31 August 2023.

However, the government’s lawyer, Adv Lepeli Molapo successfully counter-argued that the application lacked urgency because Ms Zaly could still be entitled to damages if she wins the case even beyond the expiration of her contract.  Justice Khabo agreed and ruled the matter was not urgent.

 

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