The Lesotho Communications Authority (LCA)’s Chief Executive Officer (CEO), ‘Mamarame Matela’s appeal case challenging her suspension has been dismissed with costs.
Matela had lodged an appeal against her ‘unfair’ dismissal by the Minister of Communication, Science and Technology Keketso Sello as he then was, citing jurisdiction that the case was not supposed to be staged before the Labour Court.
Matela cried foul alongside the Chairperson of the LCA Board of Directors Motanyane Makara whose chairmanship was terminated on May 31, 2021 on the grounds of; incompetence, irretrievable breakdown of relationships with the Minister and suspicious relationships with the CEO.
The first applicant (Matela) was appointed to steer the rudders of LCA in the capacity of CEO in 2019 by the then Minister, Thesele Maseribane before Keketso Sello took reigns of the Ministry who was thereafter replaced by Sam Rapapa. She became, by virtue of her designation, a member of the board of directors chaired by the second applicant (Makara).
According to the verdict from the Labour Appeal Court, she was put on the back burner on June 3, 2021, pending the alleged corruption investigations pinned against that point to her irregular involvement in the tendering process and award of a certain tender to Global Group Company SA (the 9th respondent).
She was therefore, replaced by Nizan Goolam (5th respondent) as acting CEO while Makara was substituted by Ms Keneuoe Mohale (4th respondent).
Discontent with the minister’s decision, the applicants approached the labour court on urgent basis to challenge the suspension and membership termination respectively.
“The suspension letter penned by the minister reveals that the board resolved, in its meeting allegedly held on June 02, 2021, that an investigation into the award of the tender must be conducted and that her presence in the workplace during the period of investigation would not be viable. It thus resolved that she be placed under precautionary suspension pending the outcome of the investigations. The suspension, according to this letter was pursuant to section 14 of the Act,” the judgment read.
Their prayers appearing in the originating application are that a rule nisi be issued and the respondents should show cause (if any) why the orders sought by the court shall not be granted.
“The Minister of Communications, Science and Technology is interdicted, prohibited and restrained from; proceeding with the coercive order of suspending the first applicant as contemplated in his letters addressed to second applicant dated May 19, 2021 and May 28, 2021 pending finalisation.
“That allowing Mr Nizan Goolam to carry out any functions of the CEO to the extent of his conflict of interests arising from the contractual relationship with his brother who is the current shareholder in Sekhametsi Consortium that manages Vodacom Lesotho.
“An order reviewing and setting aside the decisions of the minister to suspend first applicant from the position of chairman and director of second respondent, and also an order reviewing and setting aside the decisions of the minister to appoint Nizan Goolam as the acting CEO as irrational, unreasonable and of no legal effect,” the prayers read.
On behalf of the first, second, fourth and fifth respondents, Mr Qhalehang Letsika advanced on a three-pronged argument to substantiate the jurisdictional challenge. His major contention was that the second applicant’s appointment and conversely, removal, is not done pursuant to the Labour Code or any Labour Law but is governed solely by the Communications Act.
He submits that an employer-employee relationship between the corporation and the second applicant does not exist and therefore, any decision pertaining to his removal is not challengeable before Labour Appeal Court.
“The second ground for the jurisdictional challenge relates to the nature of the impugned decision. In his view (Letsika), a suspension amounts to no more than a managerial function, thus falls outside the scope of reviews contemplated under section 38 (A). He contends that suspension of an employee falls squarely within the Labour Court jurisdiction in terms of section 24 (d) of the Labour Code of 1992 (as amended),” the court papers read.
He referred the court to Hoohlo versus Water and Sewerage Company (Pty) Ltd LC 84/20 to support the point that suspension of an employee falls under the definition of industrial relations.
He opposes that in suspending the first applicant… “The minister, being the appointing authority was merely exercising a prerogative of management of the LCA pending finalisation of investigations into the first applicant’s conduct and this suspension amounted to nothing more than a cautionary and temporary managerial step,” the ruling reads.
“His third leg of submissions relates to all other reliefs sought. He contends that this court, being a creature of statutes, does not have the power to deal with the reliefs sought because the issues raised by these, falls outside the scope of section 38 (a),” the paper reads.
On the same note, the sixth and seventh respondents’ representative, Kuili Ndebele shares similar sentiments as Letsika, citing matters falling within the purview of the Labour Court and that other Labour fora can only be brought before the Labour Court under Section 38 (a) (3). He relied on Mapiloko vs Pioneer seeds RSA (Pty) Ltd and others LAC/APN/08/08 to submit that good cause must be shown to justify removal of a matter from such forums into court.
Christopher Jobo Lephuthing on behalf of the applicants conversely argued that the court does have jurisdiction to hear the matter and grant all the reliefs sought. He relied on a case of Matsoso Ntšihlele and 125 others vs IEC and others LAC/REV/12/2019.
He argued that the minister in suspending and removing the first and second applicant respectively and subsequently replacing them, exercised administrative powers or functions under section 14 of the Act, that the action amounts to an administrative action reviewable by this court in terms of section 38 (a).
He further sought to distinguish the matter from Futho Hoohlo vs WASCO (supra)…. “According to him, the distinguishing factor in the two matters is that in the instant case, the minister was exercising public authority while in Futho, this was not the case because the applicant there was suspended by the Board of Directors,” he said.
Justice Banyane’s ruling continued, “I revert now to the facts of the instant matter. The subject matter involved here is suspension of the CEO by the Minister pending investigations into the alleged irregularities in the award of Global Voice Group SA tender.
“The Minister’s source of power is not the employment contract but the communications Act. The impugned decision was made by the minister performing a function in terms of legislation. It cannot be gainsaid that the suspension adversely affects the applicant’s rights because she is temporarily prohibited from rendering services to LCA pending the outcome of investigations on the alleged irregularities.
“Having concluded that the decision under scrutiny amounts to an administrative action, but not taken in the performance of a function under the Labour Code nor any other Labour Law, we conclude that it fails to meet the section 38 (a) requirements. For this reason, the applicant’s claim is not justiciable in this court,” said the Judge.
He said the court does not have jurisdiction to hear such a case and thus dismissed the appeal application with costs.
“We, however, refrain from expressing any view on the question whether a decision to suspend an employee made by a functionary pursuant to a specific empowering statute is challengeable before the Labour Court. This is because no comprehensive argument was made in this regard. It suffices to conclude that this court does not have jurisdiction to hear this matter.
“In the result, the point of law is upheld and the application is dismissed with costs for lack of jurisdiction,” he said.