Pascalinah Kabi | Mohalenyane Phakela
PRIME Minister Moeketsi Majoro has blasted government secretary Moahloli Mphaka for allegedly “unilaterally” and “fraudulently” renewing the contracts of principal secretaries, ‘Mabotle Damane and ‘Maseithati Mabeleng, earlier this year.
Dr Majoro said Mr Mphaka had no legal authority to renew principal secretaries’ contracts. That power was vested in him as prime minister and he acted in consultation with the Public Service Commission (PSC).
Dr Majoro makes the allegations against Mr Mphaka in a replying affidavit filed last week to oppose Ms Damane and Mabeleng’s High Court application to stop the premier from removing them from office.
His claims are supported by the PSC chairperson, Moshoeshoe Sehlooho, who also deposited an affidavit in which he accused Mr Mphaka of “consistently arrogating to himself” powers he did not have to advise the PSC to renew the PSs’ contracts.
Mr Sehlooho says the PSC only agreed to renew Mr Mphaka’s own contract after receiving a request from then Prime Minister Thomas Thabane. He said the PSC refused to renew the PSs’ contracts because the request had not come from the prime minister but from Mr Mphaka whom he said did not have the power to make such requests.
Mr Mphaka yesterday insisted that the PSs’ contracts were renewed by Mr Thabane.
“The matter is now before the courts of law,” Mr Mphaka told the Lesotho Times yesterday.
“The courts will interpret who is wrong or right in this matter. But I wish to indicate that the contracts of principal secretaries were renewed by the prime minister (Mr Thabane) in terms of the law and Majoro was not the prime minister at the time.”
Last month, Ms Damane (Communications, Science and Technology ministry) and Ms Mabeleng (Forestry, Range and Soil Conservation) refused to vacate their offices to make way for Mr Tšeliso Lesenya and Advocate Mole Khumalo who had been appointed by Dr Majoro to replace them respectively.
The duo was sent on forced leave with effect from 10 July 2020 but they refused to go away quietly and they petitioned the High Court to nullify Dr Majoro’s decision to send them on forced leave. They also want the premier to be stopped from firing them from their jobs.
Dr Majoro, Mr Mphaka and the Attorney General Haae Phoofolo are first to third respondents respectively.
Ms Damane and Ms Mabeleng are among eight PSs whose contracts were renewed in April 2020 allegedly by then Prime Minister Thabane after they wrote to him expressing their wishes to have them renewed.
The six other PSs whose contracts were allegedly renewed by Mr Thabane are Mothabathe Hlalele (Public Works), Nthoateng Lebona (Finance), Motena Tšolo (Development Planning), Malefetsane Nchaka (Water), Tšeliso Lesenya (Communications, Sciene and Technology) and Khothatso Tšooana (Health).
Apparently, Dr Majoro does not want to retain Ms Damane and Ms Mabeleng in his new government which replaced the Thabane regime on 20 May 2020.
But the duo seems determined not to go without a fight.
In her founding affidavit filed in support of her application, Ms Mabeleng said she was initially appointed principal secretary on 7 July 2017.
She said her appointment was for an initial three years and she was obliged to indicate her intention to have the contract renewed five months before it expired if she wanted it extended. She said she expressed her desire to have her contract renewed by writing to Mr Mphaka in January this year.
She said on 21 April 2020, Mr Mphaka wrote to inform her that her contract would be renewed for another three years with effect from 6 July 2020, a date on which it was due to expire.
“On 12 May 2020 the (then) Minister of Finance (Dr Majoro) wrote me a letter in terms of which he designated me as the chief accounting officer in the Ministry of Forestry, Range and Soil Conservation.
“On 10 July 2020 I received a letter from the second respondent (Mr Mphaka) where he informed me that the first respondent (Dr Majoro) had directed him to request me to “proceed on leave with immediate effect”.
She says she then wrote to Mr Mphaka informing him that Dr Majoro does not have the powers to order her to go on forced leave with immediate effect.
Ms Mabeleng said she further informed Mr Mphaka that in terms of section 12 (c) of the Public Service Act, only the government secretary could decide on her application for leave.
In her supporting affidavit, Ms Damane says on 10 July 2020 she received a letter from Mr Mphaka informing her that Dr Majoro had directed him to order her to go on leave with immediate effect.
She further says she immediately wrote to Mr Mphaka informing him that Dr Majoro did not have the powers to order her to go on forced leave.
“The second respondent (Mr Mphaka) told us in no uncertain terms that the first respondent (Dr Majoro) does not want to work with us, which we interpreted to mean he is dismissing us by requiring us to proceed on leave with immediate effect,” Ms Damane says.
It is not clear why Dr Majoro wants to get rid of the duo but his affidavit seems to suggest they had committed wrongdoing while in office.
In his replying affidavit, Dr Majoro says he evicted Ms Damane and Mabeleng from office because their contracts expired on 6 July 2020. He says their contracts had been illegally renewed by Mr Mphaka who does not possess the powers to do so.
“I categorically aver that the purported renewal of the contract of the deponent (Ms Mabeleng) by the government secretary is a pro non scripto (something that should be taken as though it never existed) and hence illegal,” Dr Majoro said in his affidavit.
“The government secretary does not have the power to renew contracts of principal secretaries. That power vests in the office of the prime minister acting with the concurrence of the Public Service Commission.”
Dr Majoro says Ms Mabeleng’s contract expired on 6 July 2020 and she cannot insist that her contract was renewed by Mr Mphaka who had no powers to do so.
He argues that his 12 May 2020 letter designating Ms Mabeleng as the chief accounting officer of the forestry ministry cannot be used to justify the argument that the contracts of Ms Mabeleng and Ms Damane were renewed.
He says his letters to Ms Damane and Mabeleng were issued for the purpose of administering public funds and cannot be linked to the renewal of the duo’s contracts. He confirms ordering Mr Mphaka to place the duo on forced leave.
“I confirm that I directed the second respondent (Mr Mphaka) to place the deponent on forced leave. I equally confirm that this was done without according the deponent (Ms Mabeleng) a hearing. I affirm that the right to due process would only be tenable if the deponent was legally in occupation of the relevant office.
“I aver that as the appointing authority of the principal secretaries with the concurrence of the Public Service Commission, it was and is, well within my powers to direct the government secretary to place the applicants on forced leave given the irregularities which I unravelled when probing the issues around their continued occupation of office.
“Forced leave…was an emergency measure which I had to undertake in order to protect the dignity and integrity of the esteemed offices which were occupied by the applicants given the compromised role that was played by the government secretary…
“I therefore aver that the forced leave was necessary given the illegal transactions which animated the applicants’ (Ms Damane and Ms Mabeleng)’s continued occupation of office as principal secretaries…
“There is a sound basis for acting as I did and such a decision cannot be faulted. There is no justifiable ground for applicants to be granted any of the reliefs that they seek. The entire reliefs that they seek are premised on the regularity or legality of the renewal of their contracts which is hotly contested and marred with grave irregularities,” Dr Majoro states.
PSC chairperson Mr Sehlooho also deposited an affidavit in support of Dr Majoro saying Mr Mphaka wrote to him sometime in March 2020 requesting the renewal of his (Mr Mphaka’s) contract along with those of the eight PSs including Ms Damane and Ms Mabeleng.
“The court shall observe that the first glaring anomaly had to do with the fact that the author of the document (Mr Mphaka) was conflicted. Secondly, the court shall observe that the office of the government secretary does not have any role to play in the renewal of contracts of principal secretaries. The mandate and power lay between the prime minister and the Public Service Commission.
“Thirdly, the dates of engagements and expiry of the contracts were not shown in the correspondence and hence limited in terms of critical information for the commission to make an informed decision. Fourthly and perhaps significantly, the right authority to author such a letter is the prime minister, not the government secretary especially given the fact that he was and is conflicted in the given circumstances,” Mr Sehlooho states in his affidavit.
He says that he personally called Mr Mphaka to a meeting to inform him that the prime minister (Mr Thabane at the time) and not the government secretary was the only one who could write to the PSC on the renewal of the government secretary and PSs’ contracts.
He says after the meeting, he subsequently received a letter from Mr Thabane but “it was authored specifically in motivation of the contract of the government secretary to the exclusion of all others”.
“The principal secretaries were not included… Following the transmission of the relevant letter (to the PSC from Mr Thabane) the PSC concurred with the proposal for renewal of the contract in favour of the government secretary.”
He said he received another memo on 21 April 2020 requesting the renewal of the eight PSs’ contracts but again the memo was authored by Mr Mphaka instead of the prime minister.
He said the PSC did not approve the request because Mr Mphaka “consistently arrogated to himself the powers that he did not have”.
If Mr Sehlooho’s submission is correct, this would mean that the eight PSs’ contracts which were said to have been renewed by Mr Thabane are all invalid but Dr Majoro is only intent on getting rid of Ms Damane and Ms Mabeleng as he has reassigned the other six.
Dr Majoro’s sharp tounged rebuke of thee GS in the affidavit will likely cast the spotlight on his working relationship with Mr Mphaka, who was known to be very close to Mr Thabane and his controversial wife ‘Maesaiah. The GS’s post is a key pillar of the entire administrative apparatus of government. A close working relationship between a prime minister and a GS is thus seen as essential.
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