Blow for Ntšinyi

Blow for Ntšinyi

MASERU – AMBASSADOR Lebohang Ntšinyi’s court battle to block her recall collapsed in the High Court this week. This after the court ruled that she had failed to justify why the government cannot recall her from her China post. Ntšinyi, a Lesotho Congress for Democracy (LCD) stalwart, was appointed under the previous seven-party coalition. Her contract was due to end in May next year but she was caught up in the new government’s wholesome culling of the diplomats hired by the previous administration.

In her application Ntšinyi said she explained to Foreign Affairs Minister Lesego Makgothi that she would suffer prejudice if her contract was terminated. “I aver that my immediate termination of contract of service or recall is therefore highly prejudicial from a family life, social, and children’s welfare perspective,” Ntšinyi said in her affidavit. “I aver that this recall or reassignment is unlawful as it was done without the involvement of the Ministry of Public Service.”

She said the decision was irrational and unreasonable as the government did not give reasons why she was being recalled. “It has no justification. It should therefore be reviewed, corrected and set aside.” She told the court that the principal secretary Nkopane Monyane had promised to notify her of the outcome of the meeting he held with her while in a diplomatic meeting held in Rome. Ntšinyi said she awaited the notification from the ministry but only to receive the letter on 6 March 2018 announcing her recall.

In the letter Ntšinyi was expected to wind up her affairs and report to Makgothi on or before this coming Saturday. “In order to meet the stipulated three month-notice you will be paid cash in lieu of notice for one month. On conclusion of this recall you will be paid terminal benefits due on terms of your contract including but not limited to salary for the remaining term of your contract,” the letter said. The court found that her lawyer Advocate Molise Molise had made a fatal mistake of not submitting a record of the meeting Ntšinyi had with the ministry officials in Rome.

During the hearing Advocate Molise admitted that he did not have the record. “Failure to do so has detrimental effects on her case as will soon be illustrated,” the judgment reads. “…it is she who should…ensure by all means that the record is placed before court to facilitate the hearing of the review application,” the court said. The court said the record is an invaluable tool that sheds light on what happened. The record, the court said, would show if Ntšinyi told the ministry that the recall would affect her child who is still in school in China.

Monyane told the court that during the meeting in Rome Ntšinyi never mentioned how the child would be affected by her recall. The court said according to section 143 of the constitution the King, acting in accordance with the advice of the Prime Minister, has all powers to appoint ambassadors “as a means of increasing (his) control of foreign policy”. “Ambassadors…are key levers of the Executive’s control of its foreign policy,” the court said. “The relationship between the Executive and its Ambassadors being a special one, require as its keystone utmost trust and confidence.”

“It is important to observe that the power of the Executive Head (King) to recall Ambassadors is unconstrained. The regulations do not stipulate the basis on which the Ambassadors may be recalled from their tour of duty.” The court said it “cannot prescribe to the Executive how it should conduct its foreign policy and how to control it”. The court however said “the decisions of the executive are susceptible to administrative-law review on the grounds of legality and rationality”. Ntšinyi’s application relied heavily on the High Court’s previous decisions in the cases of diplomats Malefetsane Mohafa and Bothata Tsikoane who successfully challenged their recall.

But the court found that the “Mohafa decision is not applicable in the present case”. “It is not a case about a review of Executive decision, rather it dealt with the issue of tacit renewal of Foreign Service contract and whether government was liable to pay gratuity for the initial contract of three years and for the tacitly extended period,” the court said. “The Bothata Tsikoane matter is relevant to the extent that it is authority for proposition that a recall of principal representatives should conform to the principles of natural justice.” The court found Ntšinyi challenged her recall on the basis of the principle of rationality.

“Rationality speaks to the issue that the decision must be evidence-based and the means chosen must be related to the purpose sought to be achieved.” On Ntšinyi’s argument that she was not given a hearing, the court said she was given an opportunity to make representations “as to why the decision to recall her based on political mistrust would prejudice her”. “The reasons for her recall are exactly the same as those tabled to her in Rome.” thepost understands that Ntšinyi will appeal the judgement.

Senate Sekotlo

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