Khomari suf­fers set­back in fight to re­main PS

Lesotho Times - - News - Tefo Tefo

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.

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