MOKONE Leemisa got the exciting news in mid-May 2021. The Public Service Commission (PSC) had appointed him the director of the Education Facility Unit (EFU), a department of the Ministry of Education and Training
This content is for subscribers only. To subscribe, Click Here. Or Sign In
But days before assuming office, Leemisa was ambushed by a lawsuit that stopped him in his tracks.
The lawsuit came from Thebe Tehile, one of the several candidates interviewed for the position now being offered to Leemisa.
Tehile had been the EFU’s acting director for months and had not taken kindly to missing out on the chance to be the substantive director.
So he filed an urgent High Court application in July 2021 seeking to block Leemisa’s appointment.
He argued that his virtual interview with the PSC panel had been sabotaged by a bad internet connection.
That problem with the internet was the linchpin of his court cases against Leemisa, the PSC, the Ministry of Public Service and the Principal Secretary of Education.
Tehile argued that he had failed to get the job because the PSC may have unfairly assumed his incompetence based on the internet connectivity challenges he faced.
He wanted the court to compel the PSC to review, correct and set aside its decision to appoint Leemisa as the director of the FIU.
He pleaded with the court to order the PSC to explain why its decision to declare his application unsuccessful should not be reviewed and corrected for being “irregular, invalid and unfair”.
Essentially, Tehile wanted the court to order the PSC to appoint him the EFU director instead of Leemisa.
Leemisa was now fighting to hold on to a job he had barely started.
Justice Keketso Moahloli heard the case in May 2022 but didn’t deliver the judgement until August 2023. And when he eventually made a ruling his judgement did not have reasons.
He simply ruled in Tehile’s favour by ordering the PSC to set aside its decision to appoint Leemisa. The judge also ruled that the PSC’s decision to declare Tehile’s application unsuccessful was irregular, invalid and unfair.
Leemisa wanted to immediately launch an appeal but could not proceed until Justice Moahloli gave reasons for his ruling.
In the end, he waited until March this year for those reasons.
His appeal stood on three pillars. The first was that the High Court had erred by hearing Tiheli’s case and granting the application because it was a labour-related issue outside the court’s jurisdiction.
The second was that the High Court had blundered in ordering the PSC to set aside the decision that Tiheli’s application for the position had been unsuccessful.
The third pillar was that the court had blundered by entertaining Tehile’s application without including Halieo Pitso, who was allegedly the second-best candidate for the position.
The Court of Appeal ruled that the High Court had the authority to hear the case and that the failure to include Pitso in the case was not fatal because he had not shown an interest in challenging the PSC’s decision.
Leemisa is, however, unlikely to be bothered by the dismissal of those two prayers because the court granted him the prayer that really matters to him.
The apex court set aside the High Court’s decision that blocked Leemisa’s appointment. It said the court was wrong to find that PSC’s decision to declare Tehile’s application unsuccessfully irregular, invalid and unfair.
The court referred the case issue back to the PSC “for reconsideration in light of the principles regarding reasonableness, rationality and adherence to constitutional rights enunciated in this judgment”.
It remains to be seen if the PSC will stick to its 2021 decision to give the job to Leemisa.
Staff Reporter
