3 November 2017

Lesotho: Judgment Deferred in Former PSs Case

THE High Court has reserved judgment in a case where 10 former principal secretaries (PS) are challenging the termination of their contracts by the government.

The former PSs filed an urgent application before the High Court in August challenging the amendment of their contracts by the Pakalitha Mosisili-led former government.

In May the previous government made an amendment to the PSs contracts that their contracts would automatically be terminated when the government collapsed.

The principal secretaries are given a renewable contract of three years in terms of the laws governing the public service.

On 24 July 2017, the present government sent the 10 PSs on a 40-day leave pending termination of their contracts which they had signed with the previous regime.

The PSs are Lebohang Moreke, Lisebo 'Mapulumo Mosisili, 'Makhojane Monyane, Majakathata Mokoena Thakhisi, 'Mampho Kotelo-'Molaoa, Borenahabokhethe Sekonyela, Makalo Theko, Motseki Mofammere, 'Mapitso Panyane and 'Mapaseka Kolotsane.

But the aggrieved PSs in August filed an urgent application before the High Court challenging their forced leave pending termination of their contracts.

They are also complaining about the amendment on their contracts by the previous government to the effect that they would end automatically immediately when the then government relinquished power.

The principal secretaries were hired during the seven-party coalition government and they are now arguing that the amendment to their contracts was contrary to the law.

In August, Justice Monaphathi had refused to treat their case on urgent basis saying: "What the applicants are complaining about now is what they have known all along when the amendments were made. They were aware that this would happen because their appointments were political appointments. Therefore, there is no urgency in this matter and the applicants must pay costs because they are even now on leave which expires more than 21 days from now."

The application was only heard on Tuesday after which the Judge reserved judgment to a date which he said he would disclose to the lawyers. Justice Monaphathi reserved judgment explaining he needed the lawyers to give him some related cases which he would consider when making a judgment.

This pending judgement follows the PSs lawyer, Advocate Letuka Molati as well as lawyers representing the government, Attorney Tumisang Mosotho and Advocate Koili Ndebele argued their cases.

During the argument ,Advocate Molati said the government's decision to terminate their contracts before the expiry date was contrary to the law.

But Advocate Koili Ndebele said there were other reasons by which a contract could be terminated.

He said the government had a right to make amendments to the PSs contracts.

The said principal secretaries were individually served by the amendments which were made on 17 May, 2017, about a month before the National Assembly elections.

Part of the letters containing the amendment reads: "Subject to the proviso (condition or qualification) below, the contract of the person engaged shall automatically terminate before its expiry if the tenure of office of the Government which appointed him/her comes to an end, and the new Government takes over."

The letters also state payment of gratuity shall be made on "pro-rata" (proportional) basis where such contract has been terminated prior to its expiry.

It means that they would get their gratuity on the basis of the period they served before completing their three-year term which the main clause to their contracts provide.

In their challenge before court the 10 PSs argued the amendment to their contracts was contrary to the principal law of engaging PSs into the public service.

Former Acting Government Secretary Emmanuel Lesoma on 24 May, 2017 wrote individual letters to the 10 PSs sending them on leave.

Part of the letter written to Mr Mokoena-Thakhisi reads: "Kindly note that the Coalition Government has decided that you proceed on leave of forty (40) working days starting from 24 July, 2017. The forty (40) days include your pending annual leave days."

The letters followed the joint meeting the 10 PSs held with Mr Lesoma in his Government Secretary's boardroom on 18 July 2017, where they were alerted about the intention to retire them.

However, the respondents in the court challenge are Prime Minister Thomas Thabane, Government Secretary and the Attorney General.

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