Khomari suffers setback in fight to remain PS
HigH Court judge Justice ‘ Maseforo Mahase has refused to treat as urgent, an application by embattled Communications, Science and Technology Principal Secretary (PS) Tšeliso Khomari seeking to block his transfer and demotion.
Mr Khomari approached the High Court two weeks ago seeking an order to stop his reassignment to the Ministry of Public Service following the reinstatement of Nonkululeko Zaly to her old post.
Mr Khomari had filed a civil application in which he wanted the court to review and set aside Prime Minister Thomas Thabane’s decision to transfer him to the Public Service ministry where he was to be the Director-general.
On Monday this week, Mr Khomari filed yet another application imploring the High Court to treat his case as urgent and the case was argued the same day.
However, Justice Mahase dismissed the application the following day, noting: “This Court has come to the conclusion that the plaintiff has failed to successfully persuade it that this application deserves to be treated and dealt with as urgent. it is accordingly dismissed with costs to the respondents.”
Justice Mahase also gave a brief background of the application.
“This court was allocated this application at around 3pm or 3:30pm on 8 December 2014. This was after three of my colleagues had declined to preside over it. Counsel then briefly addressed the court for and against their respective clients. As has been indicated above, the applicant is seeking this court to temporarily stay his purported demotion,” she said.
dismissing the application, the judge said there was no urgency in Mr Khomari’s application in which he cites Dr Thabane, government Secretary Moahloli Mphaka, Commissioner of Police, Ms Zaly and the Attorney general, as respondents.
“The court process, herein, was duly served upon all the respondents on whose behalf a notice of intention to oppose has been filed. The respondents are within the 14-day period within which they are to file their opposing affidavits.
“Having heard both counsel and having read prayers filed of record, this court has made certain observations which, in its view, will go into the merits of this case and should not be highlighted now.
“For that reason, the court declines to refer to same until at a later stage. For now, this court has to make a determination on the issue pertaining to the urgency of this interlocutory urgent application,” Justice Mahase noted.
The reasons advanced by Mr Khomari’s lawyers to support the application were not convincing, Justice Mahase added.
“This court feels obliged to indicate that it has had problems with the reasons advanced and stated in the certificate of urgency which has accompanied the notice of motion filed of record, for one simple reason that the Ministry of Finance and probably its Principal Secretary, have not been joined as interested or relevant parties herein.
“Be that as it may, after reading the papers filed herein, the court has come to the conclusion that this application filed on an urgent basis is misplaced,” she ruled.
The judge was also puzzled by Mr Khomari’s failure to give Ms Zaly’s title in his application.
“The court notes that of all the five respondents, only the official title of the fourth respondent (Ms Zaly) has not been disclosed to the court.
“The applicant ( Mr Khomari) has, and for reasons best known to himself, and which reasons have not been disclosed to this court, described the fourth respondent only as Nonkululeko Zaly of the Ministry of Communications, Maseru.”
Meanwhile, in his rejected urgent application, Mr Khomari wanted Dr Thabane’s decision to demote him from Communications PS to Director-general in the Ministry of Public Service, to be stayed pending the finalisation of the main application.
However, Justice Mahase ordered lawyers for both sets of lawyers to approach her for a hearing date of the main application to be set.
“As has been indicated above, and which fact is a matter of common cause, the respondents who have since filed a notice of intention to oppose this matter are still within the 14 days period to do so.
“Once pleadings have been closed, parties, through their counsel, are to approach this court for the reallocation of a date for arguments on the merits in this interlocutory application and for argument of the main application.”
Mr Khomari’s lawsuit emanates from the reinstatement of Ms Zaly as Communications, Science and Technology PS after she successfully challenged her dismissal in the courts in July this year.
However, in the main case, Mr Khomari wants the High Court to declare him the ministry’s lawful PS noting in his affidavit: “My appointment was made by the 1st respondent (Thabane) on 28 April 2014. At the time i was appointed, the 4th respondent (Ms Zaly) who was my predecessor, had just been removed from office after a disciplinary hearing.
“On or about December 2013, the 4th respondent instituted proceedings in the Constitutional Court inter alia, praying to the court to review and set aside the disciplinary inquiry which led to her removal from office.
Furthermore, she prayed for a declaratory order proclaiming that Section 8(2) of Part iii of the Code of good Practice 2008 is inconsistent with Sections 12 and 19 of the Constitution.”
Mr Khomari further noted the Constitutional Court set aside Ms Zaly’s disciplinary proceedings on 29 July, on the basis that she was denied an opportunity to be represented by a lawyer during the proceedings.
“Subsequently, on 25 August 2014, she was reinstated to her original position as the Principal Secretary for Communications.
“On or about 29 October 2014, it came to my notice that the Acting government Secretary (Mphaka) had sought assistance from the 3rd respondent (Commissioner of Police) to remove me from office.
“i verily believe that the said removal would be done forcibly as it has previously happened to the Director of Public Prosecutions (DPP) and Attorney general.”
However, Mr Khomari argues that the Constitutional Court did not order Ms Zaly’s reinstatement.
“it just set aside the disciplinary proceedings on the basis of a procedural defect,” he stated in the affidavit.
Mr Khomari further alleges he was not consulted before being instructed to vacate office, and also argues Mr Mphaka had not fulfilled his promise to re-deploy him to an “appropriate position”.
Mr Khomari further stated that he wrote a letter to Mr Mphaka on 14 October 2014 detailing his concerns about having two principal secretaries in one ministry.
He alleges Mr Mphaka did not respond to his letter, until he lodged the court application.