Poverty eradication coordinator challenges her firing
Mpho Mokwape | Friday November 2, 2018 14:55
Bernadette Malala, who was employed in the Office of the President on October 5, 2016 for a contractual period of two years, was fired for underperforming in September 2017.
Though fired for underperforming, Malala has maintained that her termination 12 months prior to the end of her contract was unlawful.
Her contention is that her removal was in breach of Section 112 (1) of the Constitution and in breach of Section 15 of the Public Service Act (PSA), which was incorporated into her contract.
In that regard, Malala through Rantao Kewagamang Attorneys reckons she is entitled to the balance of her contract and the gratuity she would have earned for the entire period.
“The permanent secretary to the President failed to comply with Section 41 of the PSA and the Constitution,” the court papers read.
Accordingly, Malala’s argument is that the President hired her and that only he can be the one to fire her.
In that, the provisions of the PSA makes it clear that a person appointed by the President in terms of the Constitution, or any other law shall be removed only by the President. She pointing out that subject to the Constitution, the power to appoint a person to hold or act in office and to remove from office or disciplinary control is vested in the President.
“The President appointed the applicant in terms of Section 11 of the Constitution. It therefore follows that she can only be removed by the President and no one else,” she argued.
On the account that the permanent secretary by the phrase ‘appointing authority’, he meant the President, Malala said the averment was not sustainable because they did not file a confirmatory affidavit from the former president to confirm.
Further that the permanent secretary did not state on oath why he was unable to produce such confirmatory affidavit and did not produce any record of his consultation with Khama.
“Following a false conclusion and recommendation, he removed me from office. There was no single document that shows that he received any instruction from the President, nor does he state when that instruction was given, a clear violation of the PSA and the Constitution as incorporated in the applicant’s contract of employment” Malala said.
The respondents, who include the permanent secretary, the Director of Public Service Management and Attorney General on the other hand contend that Malala’s removal from office was after consultation and on instruction of the appointing authority.
They argued that the termination of the contract of employment was based on unsatisfactory performance in terms of Section 26 (2) PSA.
The case was heard before Justice Zein Kebonang yesterday and he shall determine whether Malala’s termination of contract was unlawfully carried out.
The parties also had filed a draft consent order in which they agreed that should it become necessary, the issue of quantum damages, if any, should be referred to trial.