Illegitimate DC chairing costs Kweneng Land Board
Innocent Selatlhwa | Tuesday May 16, 2023 06:00
Letsweletse Keoraletse who was employed at Kweneng Land Board, under the Ministry of Land Management, Water and Sanitation Services as a Principal Technical Officer won his case because his employer had appointed an illegitimate chairperson for his hearing.
Keoraletse was represented by Uyapo Ndadi while Phenyo Sekape was represented by the then Permanent Secretary in the ministry and the Attorney General, who were quoted as respondents.
According to court papers, on March 20, 2020, Keoraletse was suspended from work by the permanent secretary in the ministry, pending allegations of maladministration levelled against him. He was accused of using inside information to acquire tribal land and then benefiting from compensation awarded to owners of such acquired tribal land. It was further stated that Keoraletse failed to declare his interest.
After the said suspension, Keoraletse was served with a letter, in terms of which he was charged with two counts, namely: willful dishonesty against government and a client of government, and secondly, failure to declare or resolve a conflict of interest.
A disciplinary hearing was conducted on January 13, 2021, in terms of which the applicant faced the aforestated two counts of alleged maladministration. After the hearing, he was found guilty on both counts. Consequent thereto, he was dismissed from work on June 4, 2021.
Keoraletse’s case
The applicant contends that the decision to dismiss him was unlawful, unreasonable, procedurally flawed, and irrational. In amplification, he has averred that no law prohibited Land Board Employees from acquiring tribal land from willing sellers. He has further averred that the compensation model that the Kweneng Land Board used when compensating land owners, whose land was acquired by the Land Board, was not confidential nor privileged, but was in the public domain.
On the alleged failure to resolve a conflict of interest, Keoraletse asserts that he was not part of the adjudicating panel and therefore there was no requirement for him to declare his interest. He states further that he was not involved in the allocation of plots and that he dealt with the Land Board as an ordinary citizen. In any event, the applicant states that there is no lawful policy that prohibited Land Board employees to acquire tribal land.
It was submitted by the applicant that the Chairperson of the Disciplinary Hearing was not appointed in terms of the applicable law, considering that he was not a public officer, as contemplated by the Circular issued by the Permanent Secretary to the President dated April 11, 2021.
Respondents case
The respondents’ case is predicated upon an answering affidavit deposed thereto by Elizabeth Bonolo Khumotaka, the first respondent or the Permanent Secretary in the Ministry of Land Management, Water and Sanitation Services.
According to Khumotaka, the applicant was fairly dismissed from Public Service after he was found guilty on the two counts stated above.
It is the respondents’ case that sometime in December 2019, an internal Kweneng Land Board Audit of Land Acquisition Process and Compensation In Kind Model 3, Mogoditshane Sub-Land Board, was conducted. The audit revealed that the applicant as at March 25, 2019, had no ploughing field or land within Mogoditshane Sub-Land Board. After becoming aware of the compensation model, it is the first respondent’s case that the applicant then acquired a piece of tribal land from Sheilah Mothokodise and Selekanya Besent and then surrendered the said land to the Sub-Land Board, which in turn allocated residential plots to the applicant, under the compensation model alluded above.
According to Khumotaka, at the time that the applicant applied for compensation from Mogoditshane Sub-Land Board, he did not disclose his interest and further that he competed with other clients who sought compensation from the Sub-Land Board. The first respondent maintained that the Compensation In Kind Model was confidential in that it was an internal communique from Kweneng Land Board to Mogoditshane Sub-Land Board. Khumotaka admitted that the Chairperson of the Disciplinary Hearing was not a public officer. She stated that it is not mandatory that a chairperson be a public officer, but s/he must be a member of staff, senior to the employee charged. Where it is not possible to get such a chairperson, then an officer from another department or ministry may be appointed chairperson.
The judgment
Justice Michael Leburu of the Gaborone High Court found that it is not in dispute that the Chairperson of the Disciplinary Hearing Panel was not a member of staff.
“In my judgment, there was clearly non-compliance with the procedural dictates of the aforestated Circular. The said Circular on the Composition of the Panel is clear, especially with respect to who should be the Chairperson. Such Chairperson, it is abundantly crisp, must be a government employee. In this case, the Chairperson was not a government employee. He was not from another government department/ministry, hence there was non-compliance with the said Circular. Put differently, there was procedural irregularity,” he said.
Leburu found that Keoraletse ably demonstrated and proved procedural impropriety concerning the process or hearing. “On this ground alone, which is dispositive, the applicant has made out a case for judicial review. Consequently, the application succeeds and it is ordered as follows: the decision of the first respondent, contained in a letter dated June 4, 2021, dismissing the applicant from employment is reviewed and set aside; the applicant is hereby reinstated to his position with full benefits forthwith, including payment of arrears, from the date of dismissal; and respondents shall bear costs of the application,” Leburu ordered.