Sunday, November 28, 2021

Judge slams PSP for disregarding rule of law

Gaborone High Court’s Justice Gaopalelwe Ketlogetswe has slammed Permanent Secretary to the President Carter Morupisi for failing to respect the rule of law. The judge made the observation in case in which Morupisi had unlawfully dismissed Palapye Administrative Authority Senior Council Secretary Koti Molefi from work. “In my view it was up to the PSP to observe due process and the rule of law before reaching the adverse decision he took to summarily dismiss the plaintiff from the public service. In this case the delay is not only inordinate but also inexplicable. He added that “The PSP (Permanent Secretary to the President) has chosen not to come to court to explain why he could not comply with the peremptory provisions of section 39(1) of the Public Service Act. This court has been deprived the opportunity to assess whether or not the delay in this case, which is at any rate unconscionably long was justifiable .” Ketlogetswe described as unlawful Morupisi’s decision to dismiss Molefi adding that it was in breach of dictates of the Public Service Act. The judge said the case was about enforcing discipline in the public service according to the principles of law and dictates of fairness, good faith and the cardinal requirements for a fair disciplinary enquiry based on the Public service Act and employment Act.

The judge found that Morupisi expelled Molefi from work because the lPSP was angry at some alleged utterances made by Molefi during a Kgotla meeting at Malaka village. According to evidence before court, on the 14th January 2016 there was a kgotla meeting at Malaka Village customary Court addressed by the Minister of Lands and Housing Prince Maele and at that meeting during the question and answer session ,one  Nyaza asked if civil servants only worked when threatened by the PSP. Molefi who was the most senior officer (Civil servant) in attendance at that meeting answered that question by stating that civil servants did do their work with minimum supervision and that if they failed to do their work they should be reported to their immediate supervisor further advising the gathering that civil servants are guided by Public Service Act and Public Service Charter and that there would be no need for them to be threatened with the PSP in order for them to do their work. Ketlogetswe said the evidence before court shows that the PSP was angry at the manner in which Molefi had answered and called him to his home in Malaka to warn him and eventually to his office where he was dismissed from work.

He said there were no concrete reasons that the PSP relied on except an internal Audit report which was used to investigate some maladministration under the supervision of Molefi. He said Molefi has denied any wrongdoing in his evidence in relation to the audit report that was used to expel him. Ketlogetswe criticized Morupusi’s conduct saying he failed to provide evidence by way of minutes of the meeting he held in relation to any disciplinary charges of any form, let alone in relation to the audit report carried to investigate mal administration in Palapye Administrative Authority. “In this case, I have no doubt that the requirements for a fair disciplinary procedure were breached in most fundamental way. I am also satisfied that the plaintiff(Molefi’s )evidence that he never admitted any wrong doing in relation to the audit report let alone to plead guilty to the charges,” said Ketlogetswe. The judge said Molefi’s complaint was also that Morupisi was actuated by an improper motive to make the decision he did and attributed it to the Malaka incident. He said Morupusi was to be blamed for not being listed as witness and giving evidence as to why the plaintiff was fired.

“The defendant can only have himself to blame for the adverse finding I make, to wit, that the delay in instituting summary disciplinary action against the plaintiff by the PSP was done in breach of the dictates of the Public service Act and it is accordingly held unlawful and set aside on the basis of procedural unfairness,” said Ketlogetswe Ketlogetswe ordered Morupisi to reinstate Molefi with immediate effect. Molefi was represented by Meshack Mthimkhulu while Morupisi was represented by Grenorrah Begane from Attorney General Chambers.

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