PEEPA ex-CEO sues against unfair dismissal

Pushing back. Moumakwa is fighting for reinstatement and his dues PIC BOTSWANAGUARDIAN
Pushing back. Moumakwa is fighting for reinstatement and his dues PIC BOTSWANAGUARDIAN

Former Public Enterprises Evaluation and Privatisation Agency (PEEPA) CEO, Ezekiel Moumakwa, is suing the parastatal for unfairly dismissing him in 2019, in a case set for judgement soon before the Industrial Court.

Former Presidential Affairs, Governance and Public Administration minister, Nonofo Molefhi dismissed Moumakwa in October 2019 citing an investigation by the PEEPA board into alleged disregard of instructions and misconduct relating to the use and subsequent damage of a company vehicle.

Moumakwa’s dismissal came amidst reports of a breakdown in his relationship with the board and alleged political influence in the parastatal. PEEPA’s previous CEOs all suffered sudden departures and since Moumakwa’s exit, the agency has not had a substantive leader.

Industrial Court Judge President, Justice Tebogo Maruping is expected to render judgement any time from now on an acrimonious case in which both sides, according to documents before the court, have made strong allegations against each other.

The judgement will cover two cases in one, with Moumakwa primarily suing for reinstatement to his former position, failing which he wants PEEPA to pay the 39 months, which were remaining in his contract at its termination. The former CEO is also suing for the payment of P418,243.32 in terminal benefits he says have been unlawfully withheld by PEEPA.

The agency, on the other hand, accuses Moumakwa of owing an amount of P418,000 advanced or loaned to him during his tenure, which it wants offset against his terminal benefits claim. PEEPA has also said the amount of P418,000 were credit card amounts used by Moumakwa and claimable against his benefits.

“I was never loaned any amount by PEEPA as it alleges,” Moumakwa wrote in his papers before the Industrial Court.

“It has not been able to produce any document to that effect.

“The amounts I am alleged to owe are transactions that in the normal business operations cannot be construed to have been an advance or a loan.”

The former CEO states that his dismissal was unfair in that PEEPA applied conditions of service that did not apply to him as CEO, that he was found guilty of a charge that would not normally be levelled against a CEO and that he was denied the right to be represented at his disciplinary hearing because he was restricted in his choice of a representative.

Moumakwa also says in determining his dismissal, Molefhi took into account certain factors that were not raised at the disciplinary hearing. The former CEO also says the then minister took into consideration the findings of an investigation report that Moumakwa did not contribute to.

“The minister decided on the dismissal without giving (me) a hearing as he chose to ignore the fact that the applicant was not well and not fit to respond to the show cause letter within the time provided,” Moumakwa stated.

The filings before the Industrial Court indicate that the former CEO and the parastatal failed to reach a deal at a mediation held shortly after his dismissal, then wrangled before the courts, with processes in part delayed by COVID-19 and its impact on proceedings.

Moumakwa scored an early victory in March this year when Justice Tapiwa Marumo of the Industrial Court allowed him to pursue both his unfair dismissal case and his demand for terminal benefits in a fresh new case. Moumakwa, in his papers, has accused PEEPA of seeking to frustrate and delay his cases.

“I would like to impress upon the court that the conduct by PEEPA is calculated to wear me out and cause me untold prejudice,” Moumakwa said.

“It is not difficult to see that there is a plan to cripple me. PEEPA refused to pay my terminal benefits as far back as October 2019 and decided after 12 months of pleading to pay me a small fraction. No explanation was given for the 12 months delay.

“PEEPA opposed an urgent application wherein I sought payment of my withheld benefits and vigorously opposed an application for condonation of late filing of my statement of claim on the very flimsy ground that was rejected by Justice Marumo.

“PEEPA deliberately and without legal capacity delayed in filing its statement of defence to launch a condonation application, all in the name of wasting time and causing me prejudice.”

Moumakwa added: “I submit that it cannot be right that big organisations, especially a parastatal such as PEEPA, which owes its existence to taxpayers, should be allowed such financial muscle to torment helpless individuals such as myself.”

The agency, through its lawyers Armstrongs Attorneys, has said Moumakwa’s termination was procedural as he was found guilty of wilful disobedience after a disciplinary hearing, which was a dismissable offence.

“The applicant was given an option of being assisted or represented at the hearing by a co-employee of his choice. This the applicant elected not to do.

“The applicant was terminated from employment on the basis of, inter alia, wilfully disobeying the board’s instructions to cease with immediate effect use of the company vehicle in terms of his letter of suspension.

“This was a dismissable offence.”

The arguments before Maruping may, however, not proceed to their merits as Moumakwa has raised technical points against PEEPA including an allegation that the board has not been properly constituted since April 2020 and yet, without lawful resolutions and proven power of attorney, has been litigating against him.

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