Africa-Press – Lesotho. Suspended Lesotho Communications Authority (LCA) Chief Executive Officer (CEO) ’Mamarame Matela and the fired LCA board chairperson Motanyane Makara’s labour case challenging their sacking has been dismissed. The duo is now left with a hefty legal bill after a cost order was granted against them.
Matela was suspended from her position of CEO on June 3 this year by the then Minister of Communications Science and Technology, Keketso Sello, on allegations of corruption or irregular involvement in the tendering process and award of a tender to an international company, Global Voice Group.
The suspension letter revealed that the LCA board resolved in its meeting allegedly held on June 2 that an investigation into the award of the tender should be conducted and that Matela’s presence in the workplace during the period of investigation would not be viable. The board, therefore, allegedly resolved that she be placed under precautionary suspension pending the outcome of the investigation.
Makara’s membership and chairmanship of the board was on the other hand terminated on May 31, 2021, principally on three grounds – alleged incompetence to act as chairman of the board, irretrievable breakdown of the working relationship with Sello and suspicious relationship with the CEO.
His removal from the board was preceded by a suspension made on May 27, 2021, and subsequently a show-cause letter dated May 29, 2021, according to court papers.
Consequent upon Matela’s suspension and Makara’s removal, Sello appointed Nizan Goolam and Keneuoe Mohale as acting CEO and chairperson, respectively, court papers further show.
Sello was removed from the ministry of communications on June 4, and transferred to the Ministry of Public Service. He was replaced with Tšoinyane Rapapa.
Unhappy with the minister’s decision, the duo approached the Labour Appeal Court on an urgent basis to challenge chiefly Matela’s suspension and Makara’s removal. They also sought a list of reliefs in the form of mandamus and prohibitory interdicts against government.
They wanted, among others, an order reviewing and setting aside the decision of the minister to suspend Matela based on the grounds set out in the letter dated June 3, 2021.
They also wanted an order reviewing and setting aside the decision of the minister to remove Makara from the position of chairman and director of LCA.
They further wanted an order reviewing and setting aside the resolutions of the LCA board taken on its extraordinary board sitting on May 25, 2021, as irregular and of no legal effect.
LCA, its board and the Universal Service Fund, Keneuoe Mohale, Nizam Goolam, the minister and the ministry of communications’ Principal Secretary (PS) opposed the application, taking issue with the jurisdiction of the court.
The essence of their contention was that the dispute falls beyond the scope of Section 38A of the Labour Code (Amendment) Act of 2000 and that the suspension of the CEO is an issue arising out of employment and industrial relations.
For this reason, they argued, it falls to be determined by the labour court. The matter was heard on June 28, 2021, and the judgment delivered on Wednesday this week.
“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 law, we conclude further that it fails to meet the Section 38A requirements,” Justice Polo Banyane said.
“For this reason, the applicant’s claim is not justiciable in this court.
We, however, refrain from expressing any view on the question of whether a decision to suspend an employee made by a functionary pursuant to a specific empowering statute is challengeable the Labour Court,” Banyane added.
She was said this was because no comprehensive argument was made in its 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,” she concluded.
Matela and Makara also wanted the court to declare the submission and presentation of the Communications (Subscriber Identity Module and Mobile Device Registration) Regulations of 2021 to cabinet by Sello and subsequent approval thereof by cabinet as a binding collective decision of the government.
The regulations, which mandate users to register their SIM cards, requiring them to provide a copy of their national identity document and fingerprints for biometric SIM registration, were promulgated by Sello without consulting the public.
The regulations were met with backlash. One of the key concerns among human rights defenders was the risk of users’ identity particulars falling into the wrong hands.
The users’ information, according to the regulations, can be accessed by security agencies – Lesotho Defence Force (LDF) Lesotho Mounted Police Service (LMPS), Lesotho Correctional Services (LCS) and National Security Services (NSS) with ease without the user’s consent.
Prior to the promulgation of these regulations, security services had to be granted a court order before they could access citizens’ private information.
Now they only require authorisation from a senior officer, equal to the rank of assistant commissioner of police, to have access to all subscribers’ information from the database.
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