Africa-Press – Botswana. The courts concluded that the process is inconsistent with previous promotions by the PSP where officers at the D1 level were promoted directly to the E1 level post of Deputy District Commissioner without being subjected to a competitive application process.
The Industrial Court has stopped Permanent Secretary to the President (PSP), Emma Peloetletse, from continuing with a recruitment process that has been flagged as unfair pending a full hearing on the matter.
The court’s decision follows an urgent application by Boamogetswe Ngozomela, who is challenging the manner in which the Ministry for State President advertised and conducted recruitment for the position of Deputy District Commissioner.
Ngozomela has taken issue with the use of an internal advertisement inviting officers on the E2 salary scale to apply for the post.
According to court documents, Ngozomela argued that the process is inconsistent with previous promotions made under Peloetletse’s leadership where officers on the D1 level (Assistant District Commissioners) were promoted directly to the E1 level post of Deputy District Commissioner without being subjected to a competitive application process.
“My colleagues were appointed from D1 to E1 without (the) new, stringent and inflexible requirement that is being introduced by the internal advert and should I not interdict this recruitment at this stage, I will not be considered for this position retrospectively because there will be no vacancy then. The skies are literally falling on my head,” Ngozomela protested.
He also argued that he stands to suffer irreparable harm if the interdict that he seeks is not granted and that such harm will pose an external threat to his career and progression in the public service.
Handing down her judgement, Justice Anna Mphetlhe of the Industrial Court in Gaborone said she was not persuaded by the state’s argument that Ngozomela does not stand to suffer any harm as he can always apply for an E2 position in other ministries and departments.
The judge said Section 7 confers substantive and procedural rights on all public servants, including the applicant. These are the right not to be subjected to arbitrary or capricious administrative decisions, the right to be treated fairly, and the right not to be discriminated against.
The court said three of the applicant’s colleagues were promoted from D1 to E1, and it is common cause that at the time when they were promoted, they were not subjected to apply for promotion via an internal advert.
“The court has already made a finding that the applicant has a clear right under Section 7,” said Justice Mphetlhe. “It therefore follows that if he (is) not afforded the opportunity to protect that right, he stands to suffer prejudice.
“In an instance such as this, the applicant need not wait for infringement to happen; it suffices that he demonstrate a reasonable apprehension of injury, which he has done.
“My interpretation of Section 7 is that before any administrative body can make any decisions that may be prejudicial to an employee, such an employee must be afforded an avenue to air his or her grievances against any unreasonable administrative decision that has the potential of adversely affecting them.”
The court issued an interim interdict halting the recruitment process until the case is fully ventilated. The decision effectively stops the appointment pending a determination of whether the ministry’s actions amounted to unfair labour practices.
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