Top civil  servant wants his  job back

Top civil servant wants his job back

MASERU – LELINGOANA Makhaola believes he is still the director of Geological Services in the Ministry of Mines. The ministry says he is not because that position was filled after he retired in September 2015. Makhaola says he should not have been replaced because he withdrew his application for early retirement just before his package was finalised. The result is a stalemate that has left Makhaola in limbo for the past three years. Meanwhile, the government dithers on how to resolve his curious case. Now Makhaola says he will soon approach the courts to force the government to reinstate him.

In mid-September 2015 Makhaola wrote the ministry’s principal secretary applying for early retirement from the civil service, citing ill-health. He was to serve a three-month notice starting from January 1, 2016 as he wrapped up his fifteen years of service in government. But in December 2015 – before he could start serving the notice and the package could be processed – Makhaola had a change of heart. He wrote another letter withdrawing his retirement application. This, he said, was because he had been misled by the ministry’s human resources office on his retirement package and his health had improved.

He said as his retirement was being processed the Ministry of Finance discovered that he was not entitled to retire on a director’s package because he had held the position for two years instead of the three required by the Pensions Proclamation Act 4 of 1964. That meant his package would be based on his previous position and therefore significantly less than the M352 395 he had been promised. “My health problem has now improved and I can perform my duties to my full abilities up to the date of retirement,” he said. The Ministry of Mines did not support him in his new application until he sought the Public Service Commission (PSC)’ intervention.

The PSC agreed with Makhaola, in a memo to the then Mining Principal Secretary Lebohang Moreke on March 7, 2016, that he was “eligible for withdrawal of his application for early retirement”. Moreke advised the Ministry of Mines to assist Makhaola “in order to avoid unnecessary litigations that are already implied”. But instead of reinstating Makhaola the ministry advertised his position. Makhaola then sued but lost the case in May 2016. High Court judge Justice Tšeliso Monaphathi found that Makhaola had no other reason to retire except ill health. Justice Monaphathi said Makhaola had to prove to the principal secretary that he was indeed ill and when he claimed to have recovered he had to provide proof.

The judge found “that subsequently his health improved is not clear when regard is had to the assertion that it could have been after the responses from the Public Service Commission”. However, Justice Monaphathi also found that a principal secretary had no business deciding “whether the withdrawal was meritorious or otherwise lacking in some essentials”. “That was for the Public Service Commission to decide,” Justice Monaphathi ruled. “Indeed whether (Makhaola) was out of turn, according to the (Principal Secretary), for later adding on to the reason of health the issue of the pension benefits having been a mistake was not the business of (Principal Secretary) to consider.”

“I decided that it was not relevant for the (Principal Secretary) to consider.” Justice Monaphathi said “all the merits of the application belong for decision of the Public Service Commission”. The court agreed with the PSC that the application for retirement or withdrawal of retirement should be made through a line ministry. The judge however added that where a principal secretary puts spanners so that the aggrieved official does not get help from the PSC the court should intervene. He was ruling on the ministry’s argument that Makhaola should have approached the Public Service Tribunal instead of the High Court.

Makhaola only lost this case because there was no evidence that the principal secretary frustrated his application for withdrawal of his early retirement. Although dismissing this case the court had therefore granted Makhaola a loophole he could use to continue fighting for reinstatement. He appealed against Justice Monaphathi’s judgment but withdrew the case in September 2017 on the advice of the current Mining Minister Keketso Sello “in order to allow for amicable settlement leading to restoration of (his) status as a public servant”. But eight months later Makhaola remains in limbo, unwilling to take early retirement and unable to get back to work.

He is now threatening to approach the court again. In a letter to the PSC, Makhaola’s lawyer Advocate Letuka Molati says his client has not retired because the PSC has accepted the withdrawal, he is “entitled to demand all his arrear salaries and benefits from August 2017 to the date when all is restored alternatively to 24th April 2022”. Molati says if Makhaola’s position is not restored he is going to earn about M2 million while staying at home because of “the bad and ill-advised decision of the administration of the government”. “In the premises, we demand that you intervene so that the government does not get into unnecessary financial loss,” Molati told the PSC. He is expected to approach the courts this week if the PSC does not intervene.

Senate Sekotlo

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