By Poloko Mokhele
Chief Justice Sakoane Sakoane has berated some principal secretaries of acting unilaterally and arbitrarily when transferring civil servants, emphasizing that there is a clear demonstration of lack of knowledge of the laws, procedures and policies by transferring powers.
Justice Sakoane said this when delivering judgement in a case in which eight civil servants of the ministry of foreign affairs and international relations were suing the ministry for transferring them to other ministries.
The eight are David Theola transferred to the forestry ministry, Khotso Mabaso to public works, ‘Nyane Moeti to tourism, Ngaka Ramoroke to labour and employment, Lebohang Tlhoriso to public service, ‘Mapuleng Mokitimi to communications, science and technology, Thakane Thene to mining and ‘Mathapelo Kanono to defence and national security. They are part of 17 civil servants who are suing the ministry for allegedly overlooking them in recruitments to foreign missions.
“This case is a clear demonstration of lack of knowledge of the laws, procedures and policies by the transferring authority. The abrupt manner in which the applicants were purportedly transferred without adequate notice and with no reasons for the hasty decision to transfer is a testament to the jeopardy in which public servants find themselves at the hands of some of the principal secretaries,” Chief Justice Sakoane said.
The applicants had sued the ministry on the grounds that “they have been specially trained as career diplomats in the ministry of Foreign Affairs and for this reason; they are not transferable to other ministries.
They should have been given an opportunity to be heard before the implementation of the decision to transfer them.”
They also articulated that the transfers were done without compliance with the procedure in regulation 32 (1) of the Public Service Regulation, 2008 which obliges the Principal Secretary of Public Service to get the occurrence of the Minister of Public Service and to consult with the heads of department of the ministries to which they were being transferred.
In his judgement, Chief Justice Sakoane indicated that “the power to transfer public servants serves the interest of ensuring that adequate and competent human resources are deployed for effective service delivery. The power to transfer, like any public power, is hedged around with restrictions such as the principle of legality. This ensures that the power is exercised for lawful purpose and for the advancement of sound administration.
The exercise of the power to transfer should also be sensitive to the individual circumstances of public servants. They must be treated fairly at all times.”
The principal secretary of the ministry of foreign affairs had contended that “when the applicants were transferred, they were simultaneous transfers of other public servants to take the positions of the applicants in the ministry of foreign affairs. The transfers in the public service are always for effective and efficient functioning of the public service and for no other reason.
Chief Justice Sakoane stated that the transfer of the applicants was not done in observance of the transfer policy as contained in the human resources and development policy manual approved by cabinet on 1 November 2007.
“This manual stipulates that a public officer must be given three months’ notice unless operational requirements dictate an immediate transfer. The applicants’ letters of transfer are dated 28 April 2021and directed them to be at their respective ministries on 3 May. They only had two weekdays and a weekend to move. No reasons are given in the letter for the immediate transfers,” he said.
Setting the transfers aside, Chief Justice said “the applicants have succeeded in persuading me that their purported transfers are contrary to the law and should be reviewed and set aside, as I hereby do; the following order is made, the applications are granted. The transfers of the applicants per the letters of the principal secretary of public service dated 28 April 2021 are reviewed and set aside and the respondents must pay the costs.’’
The respondents in the case were the principal secretary ministry of public service, attorney general, principal secretary ministry of foreign affairs and international relations, ministry of foreign affairs, ministry of defence and security, ministry of public service and the public service commission.
