Court slams PSP for arbitrary, capricious recruitment
Innocent Selatlhwa | Monday May 12, 2025 14:35
The action follows a complaint by Baamogetswe Monyena, who was excluded when D1 officers were promoted directly to E1 without any competitive process. In her ruling, Justice Mphetlhe found that Peloetletse treated Monyena unfairly In 2025, the PSP invited officers serving at E2 to apply for the positions and failed to follow the precedent she had set herself of promoting D1 officers (Assistant District Commissioner) directly to an E1 position. This shift was found to violate Section 7 of the Public Service Act, which protects public officers from capricious and arbitrary administrative decisions. The Court ruled that the PSP exercised discretion unfairly by applying inconsistent standards. Monyena is currently employed as an Assistant District Commissioner at D1 salary scale. He has served in the same scale for almost seven years. Represented by Kago Mokotedi of Otto Itumeleng Law Chambers, Monyena asserts that whilst in this capacity, he was appointed to act in the positions of District Commissioner at El and Deputy District Commissioner at E2 prior to the E2 position being scrapped off the structure.
On the 27th March 2025, Monyena filed an urgent application seeking a rule nisi (temporary order) calling upon the PSP, Permanent Secretary at the Ministry of State President and Attorney General to show cause why the following orders should not be made final: An order interdicting and restraining them, their agents, employees or any person(s) acting under their instructions from proceeding with the Internal Advert (Deputy District Commissioner- El) dated 17th of March and any recruitment pursuant to such advert pending the finalization of the review application or any challenge to the respondent's decision to issue the aforesaid internal advert and/or savingram.
He also wanted an order interdicting Peloetletse or any person under her authority to process and/or consider any application made pursuant to the internal advert (Deputy District Commissioner-El) after the closing date of the advertisement pending the finalisation of this application and the intended challenge to the decision to issue the internal advert. The application for an interim interdict was vehemently opposed by the respondents. They through their attorney Tapaphiwa Motsumi argued that the applicant is not eligible for the appointment to the position of Deputy District Commissioner at E1 salary scale as he does not meet the requirement as per the Job Effectiveness Description (JED). They further argued that contrary to the applicant's assertion that the advert filed of record is discriminatory that is not the case, as same is in alignment with the JED which sets out the positions competencies, experience and qualifications required. The respondents argued that notwithstanding the fact that the applicant is a fit and proper person, that does not render him legible for appointment to the position of Deputy District Commissioner at El salary scale as he does not meet the requirements.
The respondents admitted that Kushata Tsokedi, Opelo Gabatshwane and Ramogaupi Gaborekwe who were in similar circumstanced as the applicant were promoted from D1 scale to El at the discretion of the PSP as the appointing authority for senior management positions in terms of section 15 of the Public Service Act. In making her determination, Justice Mphetlhe said the respondents have not taken the Court into their confidence as to why Monyena who was similarly circumstanced as the other three was not considered for the same position. “Neither have they proffered any justification why the PSP in exercising her discretion, preferred some officers over the applicant, the court is thus left to conclude that there was nothing adverse about the applicant and the only logical inference that can be drawn was that he was not treated fairly. In an attempt to answer this the respondents argued that the applicant should have raised this issue when the other officers were promoted,’ she said.
What Mphetlhe found even more absurd is the assertion by the respondents that the applicant is at liberty to apply to other ministries and Departments where E2 scales exist. She said Motsumi could not justify why the PSP could not identify officers in those Ministries and Departments when she decided to use her discretion to promote Assistant District Commissioners from D1 to El, when there were eligible officers within the Public Service. “It is also common cause that the JED's, which the respondents seeks to use as a smoke screen were in place when the decision to accelerate the officers mentioned in the documents filed of record but that did not stop the PSP from promoting them though they were not eligible as per their claim,” she said. The judge further said it was apparent from the facts of the case that the PSP subjected the applicant to an arbitrary and capricious administrative decision and that she failed to exercise her discretion fairly.
“The respondents has failed to justify the exclusive promotion of officers who were similarly circumstances as the applicant,” she said. Mphetlhe issued an order interdicting and restraining the PSP and PS, its agents, employees or any person (s) acting under their instructions from proceeding with the internal and any recruitment pursuant to such advert pending the finalization of the review application or any challenge to the Respondents' decision to issue the aforesaid internal advert and /or savingramme. She also issued an order interdicting the PSP or any person under her authority to process and or consider any application made pursuant to the internal advert (Deputy District Commissioner-El) after the closing date of the advertisement pending the finalisation of this application and intended challenge to the decision to issue the internal advert. It is not the first time Peloetletse was slammed by courts for being unreasonable, as just recently she was ordered to reinstate an officer she had wrongfully fired in 2021.
For instance, 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 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. Peloetletse’s decision dismissing Diwanga from her employment was 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 the date of the court decision.