Bakoko Bakwena, an employee of the Ministry of Education, was recently reinstated by Justice Omphemetse Motumise with full benefits including arrears from the date of dismissal following his review application. “The decision of the Permanent Secretary contained in a letter dated July 29, 2022 dismissing the applicant is set aside. Consequently, he is reinstated and the State to pay costs of the application,” said Motumise. Bakwena, who was represented by Uyapo Ndadi, was reportedly employed as a Senior Architect by the Ministry of Education in the Department of Technical Services. On August 26, 2021, he received a letter from the Director of the Department of Technical Services suspending him from duty pending allegations of his involvement in apparent improper activities regarding the award of Works Contract tender. The letter was reportedly followed by another one written on February 8, 2022, in which allegations that he had disclosed confidential information and received bribes were levelled against him. As per the court papers specifically, it was alleged that between March 25, 2021, and August 18, 2021, he had willfully communicated project details regarding the tender in question although it was still to be treated as confidential information.
Furthermore, the letter highlighted that, on August 18, 2021, he solicited bribes from a certain Benjamin Kametse, an employee at Ragno Construction (Pty) Ltd, and also from Mido Construction (Pty) Ltd. He was reportedly charged with three counts and dismissed following a disciplinary hearing. In reinstating the employee, Judge Motumise said Bakwena argued that the decision to dismiss him was irrational and unfair as he was adamant that his dismissal was based on an affidavit obtained from him by force or under duress by the Directorate of Intelligence and Security (DIS). He explained that regarding the DIS confession statement, no independent evidence was produced of the existence of the tender, the payment of bribes for such tender, or any of the material aspects of the charges that needed to be proved against the employee. “The DIS statement featured prominently at the disciplinary enquiry not only because it was relied upon by the complainant but also because the chairperson of the proceedings used it as the basis for accepting that the applicant's guilt had been proved,” he said. The judge said it bears repeating that throughout the proceedings, the employee contested the validity of the confession statement and called upon the chairperson of the inquiry to reject it, or not to accept it unless satisfactory evidence was led to show that the statement was freely and voluntarily given. He stated that the record further reflected that the chairperson of the inquiry accepted that it had not been shown that the statement was or was not involuntarily made. “It defies logic, therefore, why reliance was then placed on the statement to prove the applicant's guilt. In view of the foregoing, it is clear that no objective, independent, and reliable evidence was produced to establish the guilt of the applicant,” said the judge. Justice Motumise also said a related matter, with identical facts, was recently brought before Justice Chris Gabanagae wherein the applicant had also been charged and dismissed on the confession statement taken by the DIS.
He noted that the learned judge found that the sole reliance on the DIS statement was insufficient to prove the guilt of the applicant on the charges as preferred and he accordingly granted the applicant the relief sought; relief which is also the relief sought in this matter. “The learned judge found that the sole reliance on the DIS statement was insufficient to prove the guilt of the applicant on the charges as preferred. He accordingly granted the applicant the relief sought; relief which is also the relief sought in this matter. In light of the above, it is clear, on a balance of probabilities that the decision to dismiss the applicant was both irrational and unreasonable under the circumstances,” he said. Motumise concluded that no decision maker, properly exercising his mind, would have relied on the DIS statement, while acknowledging that there was no evidence that it was voluntarily given.
Meanwhile, Bakwena in his defence had denied that he willfully communicated project details regarding the tender, or having divulged any confidential information to anyone. He further denied allegations that he had solicited bribes from Benjamin and that he had received any bribes from the said Kametse or anyone else. Bakwena also averred that he challenged the statement he made before the DIS as the statement was taken under duress but his complaint was ignored by the chairperson.
Attorney General and Ministry of Education PS represented by Attorney T Kwapa and Salvation Lebetwa had opposed the application contending that Bakwena’s dismissal was lawful and also argued that his statement was made voluntarily to the DIS and proceeded to take an oath of the truthfulness of the statement with the police. “The applicant confessed to the offences and there was no need to call someone to come and give a statement on something that has already been admitted,” said the State.
