Phillemon v Minister of Justice (HC-MD-CIV-MOT-REV-2023/00 178) [2024] NAHCMD 100 (8 March 2024)
Facts
The applicant was employed as a personal assistant to the former Executive Director (ED) of the Ministry of Justice, a grade six position, until 1 September 2020. On 27 August 2020, the ED addressed a request to the director that approval was granted for the applicant to be transferred to the Directorate of Legal Aid as a senior legal officer grade five, for a period of 12 months or until she is suitably accommodated, whichever occurs first from 1 September 2020.
On 30 August 2020, the director recommended the appointment of the applicant as legal aid counsel to report to Ms Vetjavi Tjivikua. The minister, thereafter, acting in terms of section 3(1)(b) of the Legal Aid Act, appointed the applicant as legal aid counsel on 2 September 2020.
On Sunday, 2 April 2023, the applicant is alleged to have authored a tweet which allegedly caused public outcry. It is the above tweet that led to the impugned decision of the minister of Tuesday, 4 April 2023 to withdraw the applicant’s appointment as legal aid counsel. Dissatisfied with the withdrawal of the appointment, the applicant instituted review proceedings seeking to set aside the decision of the minister of 4 April 2023. The application was opposed by the respondents.
Issues for determination
Whether or not the minister should have afforded the applicant audi before her decision to withdraw the appointment of the applicant as legal aid counsel.
The court had to also determine the points in limine raised by the respondents:
Whether the review application had become moot as the applicant absented herself from office of official duties for more than 30 days as provided for in the Public Service Act 13 of 1995.
Whether the application had become superfluous since the applicant was only transferred to the Directorate of the Legal Aid for a period of 12 months which had since lapsed.
Discussion
‘Introduction
[1] Suspension from practising one’s trade is a grave invasion in someone’s career, so much that great care and thought should precede such a decision as it may constitute a life altering or threatening event.
Point in limine
[19] An application is moot if the relief sought is academic, and does not present a live dispute between the parties for determination by the court.
[21]… The reading of s 25(1)(o) reveals that a public servant would be permitted to be absent from office or official duties provided that he or she has been granted leave or has a valid cause.
[22] The applicant, in casu, provided sick leave certificates to the employer. She had sufficient leave days to her disposal which she could utilise when booked off sick and that is what she did. In my view, she cannot be faulted for utilising leave days that she is entitled to according to law. On this basis alone, the point in limine raised ought to fail.
[23] There is, however, another basis which renders the point in limine meritless. It is that if the applicant can show that she had a valid cause for her absence from her office or official duties, then she cannot be said to have committed misconduct. Conversely put, if the applicant can demonstrate that she had a valid cause for her absence from office or official duties, she cannot be deemed to have been discharged on account of misconduct.
[25] The respondents raised another ‘technical jab’ at the applicant’s application…, that the applicant was appointed for a period of 12 months, and thus her appointment lapsed on 31 August 2021.
[29] It is apparent from the appointment that no mention is made of the appointment of the applicant as legal aid counsel for a period of 12 months or until such time as she is suitably accommodated. The appointment of the applicant as legal aid counsel is plain and clear as day light. She was appointed as legal aid counsel on the terms that she assists the director to perform the functions and duties entrusted to the director by the Legal Aid Act. The said appointment letter is as silent as a church mouse on the duration of the appointment of the applicant as legal aid counsel. I find that the above conclusions lay bare the fact that the applicant was appointed permanently as legal aid counsel.
[31] I referred to the point raised about the expiry of the appointment as a technical jab due to the fact that the point finds no trace in the decision to withdraw the appointment of 4 April 2023. Notwithstanding the above, the respondents could still rely on the expiry of the appointment of the applicant and even succeed to ward off the application if found to have merit. In casu, however, the point is meritless, and is dismissed accordingly.
The merits
[39] … Audi must be considered in light of the facts and circumstances of the matter.
[40] The minister, in her answering affidavit, lays bare the fact that she did not communicate with the applicant but she relied on the statements made by the director, who is said to have afforded the applicant the opportunity to make representations. In my view, it becomes critical to analyse the version of the director in order to determine whether or not the applicant was afforded audi. A suggestion is also made that before she took the impugned decision, the minister also consulted the ED. There are no established facts that the ED consulted the applicant before the said decision was taken. The one who appears to have engaged the applicant in some form is the director...
[41]The director deposed to a confirmatory affidavit where she confirmed the allegations that related to her made by the minister contained in the answering affidavit. The director did not set out the factual basis of her discussion with the applicant or her attempts to reach the applicant in order to afford her audi.
[42]The only communication from the director regarding the said context within which audi is said to have been afforded to the applicant is a letter dated 6 April 2023, addressed to the applicant by the director.
[44] …, the above letter is the only written communication from the director that forms part of the review record relevant to the issue...
[45] A closer look at the concerned letter reveals that it refers to a telephone conversation made to the applicant by a private secretary on 4 April 2023 to come and see the director. The director also then proceeds to refer to a telephone call made by the applicant to her on 5 April 2023 where the applicant states that she was booked off sick. The letter does not state that on 4 April 2023, the director communicated with the applicant. To the contrary, it appears that the private secretary is the one who contacted the applicant in order to inform her to go and see the director. The private secretary deposed to an affidavit confirming the allegation stipulated in the answering affidavit of the minister.
[46] The minister does not say that the private secretary afforded audi to the applicant, but she says that it was the director who afforded such audi to the applicant. In any event, the private secretary does not say that she afforded audi to the applicant prior to the minister’s decision of 4 April 2023 or any at other time.
[47]… In my view, the conveying of a message to go and see the director cannot be catapulted to affording the applicant the opportunity to make representations regarding the withdrawal of her appointment as legal aid counsel...
[48] presentations regarding an envisaged decision which is likely to have an adverse effect on a person should be clear enough to be understood by the receiver of such notice what it is or what it purports to be and its purpose. The receiver of the notice or invitation to make representations should not be left second guessing as to what such notice or invitation is all about.
[51] … the director states that she received an instruction to engage the applicant in order to inquire about the confirmation of the source of the concerned tweet…This appears to be the time that the director attempted to engage the applicant meaningfully on the subject of the tweet. The difficulty that I have, however, is that no mention is made regarding the minister’s decision to withdraw the appointment of the applicant. What comes out of the letter is that the minister withdrew the applicant’s appointment allegedly in order to protect the integrity of the legal aid system and the public perception of justice given the alleged public outcry.
[52] The director, in the above letter, makes it clear that the investigation referred to in the letter is to determine whether or not the withdrawn appointment of the applicant could be re-instated. This, in my view, has nothing to do with the decision to withdraw the appointment and can, therefore, not be referred to as audi for the decision of 4 April 2023.
[55] From the record, I find that the minister, as stated before, did not afford the applicant audi. This much she states in her affidavit, but she deposed that it is the director who afforded the applicant audi. In view of my findings and conclusions set out hereinabove, I find that neither the director nor the private secretary afforded the applicant audi before the minister took the decision of 4 April 2023.
[57] In casu, I find that the applicant’s appointment as legal aid counsel was withdrawn by the minister without affording her audi. This constitutes a violation of the applicant’s common law and constitutional right to be heard before an adverse decision is taken against one.
[58] It cannot be downplayed that the decision of the minister of 4 April 2023, prejudiced the applicant. The decision of the minister has all the attributes of a suspension from work. Suspension from practising one’s trade is a grave invasion in someone’s career, and can be life threatening. It is protected by Art 21(1)(j) of the Constitution.
[59] The applicant’s career of choice was abruptly paused on 4 April 2023. If one considers the speed at which the decision of the minister was made, the effect of the decision on the applicant becomes imaginable. I find that the decision of the minister had severe adverse effects on the applicant and, therefore, the applicant was entitled, as a matter of law, to be afforded an opportunity to make representations to the minister before the impugned decision could be taken.
Having heard and discussed the matter, SIBEYA J held that:
Held: The applicant cannot be said to have absented herself for more than 30 days from office or official duties as she was booked off sick and she submitted leave forms to her supervisor and she had sufficient leave days available, demonstrating that she had a valid cause to be absent from office or official duties as provided for in s 25(1)(o) of the Public Service Act.
Held that: The applicant’s appointment as legal aid counsel did not lapse after 12 months as she was appointed permanently and her appointment letter made no mention of the duration of the appointment by the minister.
Held further that: the audi alteram partem principle is one of the pillars of justice and it requires that no one must be judged unheard.
Held: that the minister took the decision of 4 April 2023, to withdraw the appointment of the applicant as legal aid counsel despite such decision having severe adverse effect on the applicant without affording the applicant audi. On this basis, the minister’s decision is reviewed and set aside.
As a result, the application succeeded with cost.
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