Staff Reporter
MASERU
SIX diplomats are challenging their recall by the government from their foreign posts.
The diplomats were in December last year sent “show cause” letters regarding the proposed termination of their employment in the public service.
On February 5 this year, the government again wrote the six recalling them from their diplomatic posts.
But a lawyer representing the government, Advocate Roland Surh, told the High Court in his heads of argument that diplomats have a duty “to obey the recall without demur”.
He said the diplomats who form part of Lesotho’s Foreign Service are an arm of the executive, which is “entitled to flex such arm as it sees fit”.
Bothata Tsikoane, an officer of Local Government who was assigned on Foreign Service as a high commissioner in New Delhi, India, wants the court to order Foreign Affairs Minister Tlohang Sekhamane to stop the process of recalling him.
The other diplomats are ’Malejaka Letooane who is a former police boss, textile businessman Nkopane Monyane, state-owned Ultimate FM boss and journalist Lerato Tšosane, Mophethe Sekamane and ’Mabaphuthi Moorosi-Molapo.
Letooane is a high commissioner in Pretoria, Sekamane is a consular general in Johannesburg, Moorosi-Molapo a high commissioner in Kuala Lumpur, Monyane an ambassador in Geneva and Tšosane a consular general in Durban.
The diplomats are challenging Sekhamane’s letters of February 5, 2016 which wanted them to “show cause” why they could not be recalled from their foreign service.
They seek to interdict the process that was initiated by the “show cause” letters regarding their employment in the public service before such process had reached any conclusion, according to Advocate Surh.
Surh argues that they are not “permitted in law to stifle the process” before any decision has been made consequent upon the show cause letters.
“They are not so permitted to interfere in the process but should rather have participated in it,” Surh says.
He argues that their application “is accordingly premature and without a proper cause of action”.
He says their appointments or contracts of employment “are not affected by the recall letters” and that upon their return to Lesotho “their statutory or contractual terms of employment will remain unaltered unless that employment is lawfully terminated by the effluxion of time or otherwise”.
Surh argues that the diplomats are public officers and are also subject to the special foreign service regime “and they must abide by that regime”.
“It is inimical to the conduct of a proper foreign policy by the executive branch of Government of Lesotho that its diplomats should be in a position to question its conduct in matters such as recall,” he argues.
“Worse still, that they should enlist the judicial branch in thwarting the conduct of the executive in regard to its foreign policy,” he says.
Surh argues that “the fundamental duty of a diplomat is to obey the recall without questioning its validity”.
“Recall is a universal and well-known feature of diplomatic life that every diplomat accepts when he or she enters the foreign service,” he argues.
The diplomats’ lawyer, Advocate Monaheng Rasekoai, has also told the court in his heads of argument that it is wrong for the contracts to be terminated before their expiry dates.
Tsikoane’s contract is supposed to end on July 3, 2016, Letooane’s on January 29, 2017, Sekamane’s on May 30, 2016, Moorosi-Molapo’s on June 12, 2017, Monyane’s on July 5, 2016 while Tšosane’s contract will end on May 14, 2016.
Rasekoai says the “recall and or termination of engagement is driven by sheer and open malice premised on ill-founded political considerations”.
He says throughout his pleadings, Sekhamane has attempted to draw a distinction between “recall and termination of engagement” which leads to what is evidently “the same difference for want of a better word or phrase”.
He says the malice manifested itself in show cause letters when the government said to them: “Please allow me to thank you for the services you rendered to the government of Lesotho while serving abroad.”
When they challenged the letter in the High Court, the government withdrew it and replaced it with another letter which said they had been appointed by the former government and that the current one had no faith and confidence in them.
“Is this clearly a ground for terminating a contract of employment of a public officer under the auspices of either common law or the legislative regime?” Rasekoai asks.
“It is safe to conclude that the withdrawal of the earlier letters of recall was nothing but a stratagem geared towards moulding the basis for the termination” of the diplomats.
High Court judge Justice ’Maseshophe Hlajoane criticised the government’s conduct in her judgement but the government went ahead and wrote another letter recalling them.
Rasekoai says the “recall” is a diplomatic way of terminating their engagement.
The High Court issued yet another interim order stopping the recall.
Quoting Justice Hlajoane’s judgement, Rasekoai says “these letters are geared towards undermining the authority of the Honourable Court to resolve disputes between the parties, either as individuals and or state functionaries”.
“It is evident from these letters that whatever the decision is going to be reached by this Honourable Court the respondents will terminate our engagement notwithstanding as the respondents have already threatened to deprive us of diplomatic status if we do not return to Lesotho.
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