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Masule ruling in two weeks 

2020-09-11  Roland Routh

Masule ruling in two weeks 
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The ruling in the matter in which Anti-Corruption Commission chief investigator Phelem Masule is suing Prime Minister Saara Kuugongelwa-Amadhila over his unceremonious removal as chief of investigations and prosecutions barely a few days after he attained the promotion, will be delivered on 28 September. 
This was announced yesterday afternoon by Windhoek High Court acting Judge Eileen Rakow after hearing oral arguments from advocates Dennis Khama and Ramon Maasdorp on behalf of the parties. Khama is representing Masule on instructions of Shakwa Nyambe and Maasdorp the respondents on the instruction of the government attorney.  Masule was promoted to the position on recommendation of the Public Service Commission after applying for the advertised position and attending interviews. However, shortly after he occupied his new position, Kuugongelwa-Amadhila, set aside the promotion without reasons being advanced.   He then lodged a two-fold application. First, he wants 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. In the meantime, he is asking the High Court for an order reinstating him in the position of chief of investigations and prosecutions in the ACC pending the outcome of the review proceedings. 

The respondents raised two objections namely that the matter is enrolled in the wrong court as it is a labour matter and that it is not urgent. According to Maasdorp, the matter is purely a dispute between an employee and its employer and therefore is inherently a legal matter that belongs in the Labour Court. In addressing the objection, Khama argued that the matter is a constitutional one as it seeks to address an impugned decision made by the prime minister in accordance with her powers as bestowed upon her by the constitution. 

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. He further said that Masule was never given an opportunity to be heard before the decision was made by the prime minister and that is a violation of the Article 18 of the Constitution and the common law right to be heard. With regards to urgency, Khama said that it is important to note that the application is centred around a violation of a fundamental right in particular Article 18 of the Constitution and that makes it urgent. He further said that the court has to accept for the purpose of urgency that the applicant has a strong case and will be prejudiced if the situation is not remedied immediately pending the review application. Maasdorp said that Masule did not prove any irreparable harm or that he does not have other satisfactory remedies available to him and prays that the application must fail in its entirety. Both counsels asked for costs on the scale of one instructing and one instructed counsel.  

2020-09-11  Roland Routh

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