MASERU – GOVERNMENT has lost a case in which seven Foreign Affairs and International Relations officers contested their transfers to other ministries.
The seven who were transferred on 28 April, 2021 are Khotso Mabaso (transferred to the Public Works ministry), David Ntheola (to Forestry, Range and Soil Conservation), Thakane Thene (to Mining), ‘Mapuleng Mokitimi (to Communications, Science and Technology), ‘Nyane Moeti (to Tourism, Lebohang Tlhoriso (to Public Service),Ngaka Ramoroke (to Labour and Employment).
These officers had approached the court for intervention after the Principal Secretary of Public Service Advocate ’Mole Khumalo transferred them without giving reason.
They were transferred after they and nine others of their colleagues had taken their employer to court for “unfairly overlooking them when filling vacant positions in foreign missions in violation of Public Service Act.
They accused the PSC of ignoring the principles of fairness, transparency, merit and equality when appointing unnamed people to serve in the country’s diplomatic missions earlier this year.
They argued that the appointments are made on the basis of political expediency given that the positions were not advertised in accordance with the public service legislation.
They wanted the High Court to intervene and compel the respondents to consider them for appointments, as they say they stand to suffer irreparable harm if they are deprived of their right to participate in the recruitment process because they hold required educational qualifications and have been trained in diplomacy.
The 16 also wanted the High Court to compel the respondents to disclose names of candidates considered for appointments or those already appointed to foreign missions and their application is pending in the High Court.
In an alleged bid to frustrate this lawsuit, the employer transferred seven of the 16 officers, a move they believed was to dismantle their unified efforts.
The nine co-applicants who were not served with transfer letters are, ‘Mathapelo Kanono, ’Malefa Manong, Rethabile Ramalefane- Matobo, Mothepane Mokati, Paballo ’Matentekie Nkhahle, Rabele Makoa, Setloke Lekhela, Nofikile Patala Mofana, ’Masefora Tšolo and Realeboha Sethathi.
The transfers were however challenged and the matter taken to court.
Kanono had already taken her matter to court as she was transferred while acting as the Director Legal of the Ministry of Foreign Affairs and International Relations and she was also awarded her sought relief.
The respondents in this matter are Foreign Affairs Minister ‘Matšepo Ramakoae, the Public Service Commission, the Ministry of Public Service, Foreign Affairs PS Tanki Mothae, the Ministry of Foreign Affairs’ Human Resource Manager and the Attorney General respectively.
Chief Justice Sakoane sakoane presided over the matter and consolidated Kanono’s and the other officers hearing referenced CIV/APN/146/2021 and CIV/APN/149/2021 “because of the similarity of causes of action and commonality of the applicants who are public officers serving in the Ministry of Foreign Affairs and International Relations,” reads part of the judgment.
The Applicants sought a relief that the decision by Principal Secretary Public Service Advocate ‘Mole Khumalo to transfer them to various ministries be reviewed and set aside.
Adv. Khumalo had written letters of transfer to the officers on 28 April, deploying them to their new ministries with effect from 3 May, and the officers had argued that they had been trained as career diplomats in the Ministry of Foreign Affairs and therefore they were not transferable to other ministries.
They also argued that they should at least been afforded an opportunity to be heard before the transfers were made and that the transfers were done without the compliance with the procedure in regulation 32 (1) of the Public Service Regulations, 2008, which obliges the PS of the Public Service and to consult with the Heads of departments of the ministries to which they were being transferred.
At the time of the transfers no reasons were advanced, but in the court papers Adv. Khumalo contends that “when the applicants were transferred, there were simultaneous transfers of other public servants to take the positions of the applicants in the Ministry of Foreign Affairs. The simultaneously transferred applicants have not been joined in these proceedings. The relief being sought by the applicants affects them as they have a direct and substantial interest in the outcome of these proceedings.”
The PS also contends that “transfers in the public service are always for effective and efficient functioning of the public service and for no other reason. Therefore absent proof of ulterior motive and bad faith, the transfers cannot be challenged. Entitlement to a pre-transfer hearing arises only in circumstances where a public officer stands to suffer prejudice. The applicants might be inconvenienced by the transfers, but this does not constitute prejudice.”
“Given the frequency of the need of transfers from one ministry to another, it would be a mammoth task hampering the goal of efficiency in the public service to adhere to pre-transfer hearings in all cases,” PS Khumalo had reasoned.
He also said the officers were not prejudiced as they were not transferred to other districts and their positions, job descriptions and salaries remained the same, and their career paths were also not affected.
“There is nothing peculiar about the training they received at Foreign Affairs or any post graduate degrees they acquired. As long as a public officer retains the position and grading, he/she can be transferred to work anywhere within the public service. The procedure to be followed when effecting transfers is that the receiving Principal Secretary must be consulted and not that receiving ministry must concur.
“The relevant Principal Secretaries were duly consulted and the Ministries concurred. The applicants make serious allegations about the receiving ministries without citing them in the proceedings or getting any supporting affidavits from them.”
It is evident that despite the PS’ argument consultations were not made, An example of such was a letter written to one of the applicants Mr ’Nyane Moeti who was transferred to the ministry of Tourism, Environment and Culture.
The letter dated 4 May, a day after the new deployment read:
“We notice that you availed yourself at our office today on 4th May, 2021 as per your letter of transfer from the office of the Principal Secretary of the Public Service. We would like to bring to your attention that we still have to engage in further consultations with Ministry of Public Service and other relevant authorities pertaining to this matter.
In the meantime we advise you to await further communication from us and to kindly notify your ministry.”
The letter was signed by Tourism PS Ms Moliehi Moejane and PS Khumalo did not file any contradicting response to her counterpart and “this is proof that” Moejane was not consulted in the decision to transfer Moeti and this means that there was no compliance with Section 32 (2) of the Public Service Regulations, 2008.
In concluding the matter, Chief Justice Sakoane Sakoane said the applicants had succeeded to persuade him that their purported transfers were “contrary to the law and should be reviewed and set aside.”
“In the result the following order is made: the applications are granted. The transfers of the applicants per the letters of the Principal Secretary dated 28 April, 2021 are reviewed and set aside and the respondents must pay the costs.”
Advocates Qhalehang Letsika and Setlojoane appeared for the applicants while Ratau and Letompa appeared for the respondents.
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