Chief Justice to rule later

LEKOPANYE MOOKETSI
Correspondent | Monday November 15, 2010 00:00

 

The 17 employees, who were working for the Central Transport Organisation (CTO) and the Department of Building and Electrical Engineering Services (DBES) were forced to retire early this year by the former permanent secretary, Carter Morupisi.

The Directorate of Intelligence and Security (DIS) is mentioned in court papers as one of the institutions that compiled a secret report that influenced the firing of some of the employees.

The applicants are represented by Gaborone attorney Tshiamo Rantao, while Morupisi is defended by the Attorney General (AG). 

In September, the applicants were granted an order to replace the AG as the first respondent with Morupisi.

In their heads of argument, the applicants' lawyers submitted that the permanent secretary failed to apply his mind and thus acted unreasonably in taking the decision to retire them. The lawyers said the permanent secretary treated the fact that the applicants were good performers as irrelevant. He also failed to consider properly their service history and relied on untested reports for the decision to retire them.

The lawyer further submitted that Section 15 (3) of the new Public Service Act abolishes the power to retire a public officer early because the parties were in agreement that it is not compatible with modern labour practices.  'The applicants therefore had an expectation that post April 1, 2010, which was the date earmarked for commencement of the Act, they would not be retired early.  Such an expectation was not unreasonable,' the applicant's lawyers stated in their heads of argument.

'The permanent secretary, in his answering affidavit, states that it was irrelevant that the applicants were good performers.  This clearly shows that the permanent secretary failed to give appropriate consideration or gave insufficient weight to the fact that the applicants were good performers, prior to retiring them.  A decision on whether the applicants are likely to contribute to the public service, if not retired, must of necessity involve a consideration of the employees' service history and must be informed by a review of the service history.  Every administrative decision must be supported by some evidence, which a reasonable person could have relied upon to reach the decision under review.'

Rantao further submitted that the service history of the applicants demonstrates that there is no evidence upon which any reasonable person could have concluded that they were not in a good position to continue contributing meaningfully to the public service. 

He said the permanent secretary stated that in his decision, he did not rely on facts.  'Apart from the fact that the applicants had attained the age of 45, there is not a single fact, which has been placed before the  honourable court, to support the early retirement of the applicants. 

The permanent secretary has remained mum and has not bothered to take the honourable court into his confidence by stating what informed his decision to retire the applicants,' said Rantao.

He said the court should consider that the permanent secretary did not have any reliable information in taking the decision to retire his clients.  'The decisions which are based on irrelevant considerations are liable for review,' the lawyer has stated.

He said in retiring some of the applicants, the permanent secretary was relying on the Modisenyane Report, which does not contain an iota of truth. He maintained that the permanent secretary has not bothered to defend the assertions by the applicants that the Modisenyane Report is not credible.   He noted that the permanent secretary also relied on the secret report by the Director of Intelligence and Security, Isaac Kgosi. He said Kgosi's report was also shown to have no foundation. 

He added that Morupisi's decision to retire some of the applicants, was vitiated by reliance on irrelevant considerations, which he should not have taken into account.

In their written response, the Attorney General noted that the section that the applicants were referring to does not mention performance as a factor to be considered when exercising the power. 

The Attorney said the onus is on the applicants to prove that the decision they seek to challenge was influenced by any of the factors they aver.  'The applicants cannot escape retirement on the sole basis that they were good performers.'

The respondent's attorney said all letters to the applicants state that they were being retired in terms of Section 15 (3) of the Public Service Act and the letters deliberately omit to provide the reasons for firing them. 

'The circumstances of this case are such that the applicants have not discharged the onus of showing that the decision to retire them was influenced by capriciousness or bad faith as averred.

Some of the applicants duly welcomed the decision only to somersault when they discovered that they could not benefit from the benefits of the early exist policy.  If the applicants were retired on the basis of a restructuring exercise it is submitted that  definitely it would have been about such an exercise.  In the premises the respondent enjoins this honourable court to dismiss their application with costs.'