Court rules PSP’s decision irrational, unreasonable
Innocent Selatlhwa | Monday March 24, 2025 14:22
Justice Omphemetse Motumise recently ordered the reinstatement of former Ministry of Environment and Tourism deputy director, Kgomotso Neo Diwanga, stating that the decision to expel her from work by the Permanent Secretary to the President (PSP), Emma Peloetletse, was 'irrational and unreasonable'. Peloetletse was only 10 days in office as acting PSP when she dismissed Diwanga, who had at that point been suspended for over 11 months based on recommendations from the ministry. On August 13, 2021, Diwanga brought an application seeking the review and setting aside of the decision of Peloetletse, dated April 26, 2021, dismissing her from employment. The Attorney General (representing the then Ministry of Environment, Natural Resources Conservation and Tourism) and Peloetletse in her capacity as the then acting PSP and decision-maker to the decision sought to be reviewed were cited as the respondents.
Diwanga argued that the disciplinary process was not taken promptly contrary to Section 39: l of the Public Service Act, Act No. 30 of 2008 (the PSA), and the decision was 'unreasonable, irrational, and illegal.' On that basis, she also prayed for immediate reinstatement and the payment of all salary arrears and costs. The respondents opposed the application. Their position was that the decision in question was both substantively and procedurally fair. They further argued that the disciplinary hearing was prompt and within reasonable time limits. Diwanga was by a letter dated May 25, 2020, placed on leave of absence by the permanent secretary in the ministry who stated that they had received serious allegations that she was involved in the authorisation of payments for the procurement of motor vehicles from Motor Centre Botswana (Motor Centre) with an expired PPADB Form 3 contrary to the 'PPADB Act and Financial Instruction 304.' The PS found Diwanga's alleged conduct was contrary to Section 27(3)(n) of the PSA and indicated that they wanted to investigate the matter fully. By a letter dated May 28, 2020, the applicant was suspended from duty pending investigations, this time for the alleged contravention of the 'PPAD Act and Finance Instruction 304.'
The PS then levelled charges against Diwanga by a letter dated September 14, 2020, which reads in part; 'Nature of the offence: willful neglect of duty in accordance with Section 27(3)(a) of the Public Service Act No. 30 of 2008, as read with GO 45.2.6 Financial Instructions 304 9a), 405 and 411 as well as PPAD Act 44 and PPAD Regulations 53.' Under offence description, it was stated that between March 16–28, 2020, Diwanga countersigned the payment for the following amounts using an expired PPADB Form 3: P1.1million; P3.1 million; P576, 000; and P623, 806. Diwanga was furnished with the investigation report conducted by the ministry concerning her alleged misconduct relating to the procurement of goods and services without due regard to the PPADB procedures, Financial Regulations, and COVID-19 procurement procedures.
The investigation went far beyond the signing of an expired ”PPADB Form 3.' The disciplinary hearing was initially scheduled for September 25, 2020, but was re-scheduled a couple of times at the instance of the employer. Eventually, it took place on January 13, 26, and 27, and February 3 and 11, 2021. Upon its conclusion, the chairperson concluded that Diwanga was guilty on all the charges and recommended the applicant's dismissal. The then PSP, Elias Magosi, agreed with the reasoning and findings of the disciplinary enquiry in a letter dated March 22, 2021. He invited the applicant to make representations on the issue of the termination of her employment. The applicant responded by letter dated April 12, 2021 stating that, when she signed the payment vouchers in March 2020, the contract to buy the motor vehicles was still valid as the CTB form ceased to expire when the contract ended on April 15, 2020. She attached the contract to her letter.
She emphasised her view that her relationship with the employer had not reached a level of irreparable harm. She, however, could not convince the PSP’s office, which was then occupied by Peloetletse from April 16, 2021, following the appointment of Magosi as ambassador-at-large. Making a determination on the length of the disciplinary process, Justice Motumise said from the period the employer professed knowledge or the alleged offence in May 2020 to April 26, 2021, when the applicant was ultimately dismissed is a period of 11 months. “However, considering the totality of the evidence, and especially the need to carry out investigations, give the applicant due and full notice to prepare and the duration of the hearing, one cannot say that the disciplinary enquiry was in the circumstances of this case conducted in breach of Section 39(1) of the PSA,” he said. On the submission that the decision was unreasonable, irrational, and illegal, Justice Motumise said the original complaint, as seen from the letter of May 25, 2020, was that the applicant had authorised payments for the procurement of motor vehicles from Motor Centre using an expired PPAD Form 3. “This was said to be in contravention of Section 27(3)(n) of the PSA. That Section provides for the summary dismissal of an employee for the serious misconduct of causing the loss of government funds by willful or gross negligence. So the original complaint was not merely countersigning an expired form, but loss of government funds,” he stated.
He further referred to the charge sheet dated September 14, 2020, stating that it indicates invoices that were counter-signed for payment by the applicant. “These forms had in fact been checked and signed by other officers on the basis of an existing contract to procure motor vehicles from Motor Centre Botswana. The charge sheet does not allege that these amounts were either wrongfully paid, or were not due, or that their payment resulted in the willful loss of government funds. The total amount of the invoices does not exceed P5,000,000,” he stated.
Justice Motumise further said it bore mention that, in her letter dismissing the applicant, Peloetletse, stated that the invoices the applicant had counter-signed using an expired 'PPADB Form 3' amounted to 'P19.47 million'. He therefore stated that the dismissal was for willful negligence of duty contrary to Section 27 (3)(a) by counter-signing expired forms. The court found that the forms in question featured extensively during the disciplinary enquiry. “The two witnesses who testified were asked if the expiry date of the form was endorsed anywhere on it. No such date was identifiable on the form, nor was any provision made for its expiry date to be recorded. The witnesses acknowledged this but said that the financial year in dispute was 2018–2019, for which payment could not be made in March 2020 without using a new form. In other words, the expiry was said to be tied to the financial year, which ends in March of each year,” he said. He stated that Diwanga asserted that the forms were used to pay for a legally justifiable procurement under a valid contract for 12 months, from April 15, 2019, to April 15, 2020.
According to Justice Motumise, this meant that payment was due and had to be processed and authorised accordingly. He noted that the forms had no expiry date, and the forms were signed by four people being; the Head of the Department, the Planning Officer who certified the availability of funds, the Chairman of the Committee and a committee member. Justice Motumise said the fact that there was an underlying contract, in terms of which a legitimate obligation to pay the supplier of the motor vehicles had arisen, was not at all dealt with by the respondents and it is a fact that should counter the idea that the form had expired, or that the government had lost any funds. This he said was in addition to the fact that the expiry of the forms was not established in the evidence.
“At this juncture, the question is whether the decision arrived at is either unreasonable, illegal or irrational. To dismiss a person from employment for countersigning an expired form when the form carries no expiry date looks unreasonable. The additional complaint was the violation of financial instructions but they do not appear on record,” he said. Justice Motumise said the complaint was no longer that the government had lost funds by wilful means. It also appears both irrational and unreasonable to insist that the form was wrongly countersigned when the existence of the contract and the obligation to pay for the motor vehicles was not denied. “On that basis I conclude that the decision to dismiss the applicant was both irrational and unreasonable under the circumstances and grant a prayer in terms of the draft order. The decision of the second respondent (Peloetletse) dated April 26, 2021 dismissing the applicant from her employment is hereby reviewed and set aside on the basis of unreasonableness and irrationality,” he said. Peloetletse was further ordered to reinstate Diwanga forthwith, to her position, with payment of all salary arrears thereto, from the date of dismissal to date. Costs of suit were also awarded to the applicant.