Saturday, October 23, 2021

‘Difficult’ nightwatchman arrests school authority

A Mochudi man who lost his job as a nightwatchman at a government school after running for political office as an independent candidate has been reinstated through a court order.

Against what the Public Service Act stipulates, Moagi Kobedi stood as a council candidate for Boseja North Ward in the 2014 general election. At this time, he was employed as a nightwatchman at Sedibelo Junior Secondary School. When the school management learnt of this plan in October 2014, it wrote Kobedi a letter inviting him to show cause why disciplinary action should not be taken against him. The very first point that Justice Dr. Zein Kebonang makes in his numbered 17-page judgement is that Kobedi is “a 60-year old man and by all indications a very difficult one.”

He refused to receive the letter from school management and never tendered a response to this and a second letter. A disciplinary hearing that was convened to hear this matter in December 2014 ended abruptly when Kobedi became “abusive and uncooperative.” At a second hearing that was held two days later, he was accompanied by a trade union representative but little headway was made as Kobedi was “disruptive and petulant.” The Disciplinary Committee recommended that Kobedi be fired for engaging in political activity in contravention of the Public Service Act. Management adopted the recommendation and fired Kobedi on January 30, 2015.

However, what seemed an open-and-shut case was in fact wide open. Section 39 of the same Public Service Act says that disciplinary action must be taken “promptly” and when Kobedi’s union-appointed lawyers filed additional grounds of review last month, they raised the point that the school management had not acted promptly as the law requires. Having learnt of Kobedi’s candidature in September 2014, management terminated his employment in January 2015. The state’s explanation was that “the public service is a huge empire where coordination is not always seamless.” It stated that Ministry of Education and Skills Development authorities in Mochudi needed to gather evidence, empanel a Disciplinary Committee, agree on hearing dates, communicate with the Independent Electoral Commission (IEC) as well as handle a slew of other necessary administrative requirements.

Justice Kebonang said that while that explanation may make perfect sense, it is not reflected in the record of proceedings and that he is “legally estopped” from reading those reasons into the record.

“The respondents knew by September 2014 that the applicant had registered to stand for political office. This information was readily available from the IEC’s office. When confronted with the allegation, the applicant did not deny it. There was nothing that could have objectively prevented an immediate disciplinary action being taken when one considers the nature of the charge/offence and its complexity. The period of 4.5 months in taking disciplinary action against the applicant in my view was not prompt and stands in violation of Section 39 of the Public Service Act,” Kebonang’s judgement says.

On such basis, he ordered that Kobedi be reinstated to his old position “with no loss as to his income.” The latter means that he will be back-paid from February 2015 to September 2016.

The court did not decide the question of whether a provision that prohibit civil servants from holding political office are constitutional as Kobedi had wanted. He had argued that this provision infringes upon his constitutionally-guaranteed rights to freedom of expression and association. However, Kebonang said that little would be accomplished by making such determination “as the case turns on a narrow point which is whether the applicant was subjected to prompt disciplinary proceedings.”

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