Victory for human settlements minister in court case

Human Settlements Minister and ANC firebrand Mmamokolo Kubayi says she feels “vindicated” after a scathing ruling against fired deputy director general of corporate services in the department, Nelly Letsholonyane.

In a statement after the court ruling, Kubayi said the judgment confirmed her assertion that there had been wrongdoing in the department, which exposed it to litigation.

This comes after the labour court found against Letsholonyane for having abused her position by employing nine public liaison officers (PLOS) outside of the legal permits.

The court set aside the employment of the PLOS, ruling that their employment was illegal.

“Being in civil service does not mean a civil servant is at liberty to conduct the affairs of the state, its department, and its state-owned entities, contrary to the laws of the republic.

“Civil servants employed in any sphere of government or in any organ of state must not consider themselves beyond the bounds of law but subject to it.

“Being in civil service is a privilege that must be held in great respect at all times,” the court ruled.

In 2009, the department established a national call centre to assist housing beneficiaries, employing 18 PLOS for a fixed term.

The department would later extend the fixed-term contracts until it was established that the work to be done at the call centre had been drastically subsidised.

During the process of extending the fixed-term contracts, the department established a community scheme ombudsman service responsible for dispute resolution involving parties in community schemes.

Nine of the 18 PLOS were employed by the scheme while the others could not be absorbed by the department when the assignment at the national call centre drastically diminished.

The court heard that the department of human resources had conducted a feasibility analysis to explore the possibility of absorbing the nine staffers permanently into the department but it concluded that it was not feasible because their positions were not on an approved organisational structure.

In a departmental meeting, which was chaired by Letsholonyane, involving employees from the finance division, it was resolved that the PLOS could not be permanently employed by the department. However, she is said to have employed the nine PLOS despite that resolution.

Kubayi said the department had conducted an internal audit assessment during which the matter was picked up.

The irregular appointments and salary payments had been placed in the department’s financial statements under irregular spending, pending the court judgment.

She argued in court that Letsholonyane had no authority to issue appointment letters and was neither instructed nor authorised by her or the director general of the department to do so.

Acting labour court judge Smanga Sethene found that Letsholonyane had acted beyond her powers.

Sethene said that case law was replete with precedent where courts had found that acting beyond powers conferred by legislation constituted acting illegally.

“I have been vehemently urged to properly consider whether the department created legitimate expectation with its series of extensions of fixed-term contracts.

“It was submitted that the nine legitimately expected to be made permanent employees of the department, however, it was never stated on behalf of the nine that the legitimate expectations were created by an official duly authorised by the minister or the minister herself,” Sethene said.

The judge added that in terms of the applicable act, only the minister is the employer of all employees in the department — except for the director general.

According to Kubayi: “It is my belief that we are on the path to restoring the credibility of the department and ensuring all public servants understand compliance with policies and prescripts within public service are not optional.

“We are playing our part in professionalisation of public service.”