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ACC investigator loses legal battle over promotion

2020-09-29  Maria Amakali

ACC investigator loses legal battle over promotion

Maria Amakali

Anti-Corruption Commission (ACC) investigator Phelem Masule has lost the legal battle in which he was suing Prime Minister Saara Kuugongelwa-Amadhila for his unceremonious removal as chief of investigations and prosecutions at the anti-graft agency, barely a few days after he attained the promotion.

High Court acting Judge Eileen Rakow who ruled the court declined jurisdiction over the matter. She then struck the matter from the court roll and ordered that Masule pays legal fees for the proceedings.

The reasons for the court’s ruling were not available at the time of going to print yesterday.Masule had approached the High Court seeking an order on an urgent basis, interdicting the prime minister from implementing her decision of setting aside his promotion – and secondly, a review of the decision in due time. 
Masule was further asking the High Court for an order reinstating him in the position of chief of investigations and prosecutions within the ACC pending the outcome of the review proceedings.

Masule was promoted to the position of chief of investigations and prosecutions in July on recommendation of the Public Service Commission (PSC) after applying for the advertised position and attending interviews. However, shortly after he occupied his new position in August, Kuugongelwa-Amadhila set aside the promotion.

In a letter directed to Masule, Kuugongelwa-Amadhila indicated that she set aside the promotion due to irregularities that occurred within the recruitment process. 

She explained that ACC shortlisted candidates who failed to provide required documents with their applications. In addition, ACC allegedly communicated with the candidates after the application period has ended – which is against the rules.

Thus, Kuugongelwa-Amadhila ordered the commission to restart the process of recruiting a new chief of investigations and prosecutions. 
In a supplementary affidavit, the head of the ACC, Paulus Noa, stated he was aware of the irregularities in the recruitment process.

According to him, he was informed that some of the applicants submitted incomplete or wrong documents with their application, but that it was “agreed” that this may be rectified during the vetting process for the shortlisted candidates. One of those that submitted incomplete documents was one Iyambo, who initially scored the highest during the interviews. 

However, he said, the PSC felt that Masule, who scored insignificantly less than Iyambo, was the preferred candidate because of his long-standing history with the ACC.  

During oral arguments, Masule’s lawyer Dennis Khama argued that Masule was never given an opportunity to be heard before the decision was made by the prime minister and that was a violation of the Article 18 of the Constitution and the common law right to be heard.

According to him, the notice to inform Masule of the setting aside of his promotion was made in terms of the Public Service Act. 

This, he said, made it an administrative decision and needs to be reviewed and set aside in a competent court. 

“We contend that her decision, despite its apparent unlawfulness, still needs to be reviewed and set aside by this court, central as it is, and it remains an act in fact, and its mere factual existence may provide the foundation for legal validity of later decisions or acts,” said Khama.

Ramon Maasdorp, the respondents’ lawyer raised two objections, namely that the matter was enrolled in the wrong court, as it was a labour matter and that it was not urgent. 

According to Maasdorp, the matter is purely a dispute between an employee and its employer; therefore, it is inherently a legal matter that belongs in the Labour Court.

Maasdorp said Masule did not prove any irreparable harm or that he does not have other satisfactory remedies available to him and prayed for the application’s failure.



2020-09-29  Maria Amakali

Tags: Khomas
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