Justice Minister Mmamaloku Kubayi
ANC firebrand and Human Settlements Minister Mmamokolo Kubayi has said she feels “vindicated” following a scathing ruling against fired deputy director general of corporate services, Nelly Letsholonyane.
In a statement following the court outcome, Kubayi said the judgment served to confirm her assertion that there had been wrongdoing in the department, which exposed it to litigation.
This comes after the labour court found against Letsholonyane for having abused her position by employing nine public liaison officers (PLOs) outside of the legal permits.
The labour court set aside the employment of the PLOs, ruling that their employment constituted illegality and could not stand.
“[B]eing in civil service does not mean a civil servant is at liberty to conduct the affairs of the state, its department, and its state-owned entities contrary to the laws of the Republic. “Civil servants employed in any sphere of government or in any organ of state must not consider themselves beyond the bounds of law but subject to it. Being in civil service is a privilege that must be held in great respect at all times,” the court ruled.
In 2009, the department established the national call centre to render assistance to housing beneficiaries, employing 18 PLOs for a fixed-term.
The department would later consider it prudent to extend the fixed-term contracts until it was established that the work required to be done at the call centre had been drastically subsidised.
During the process of extension of the fixed-term contracts, the department was in the process of establishing a community scheme ombudsman service responsible for dispute resolution involving parties in community schemes.
Nine of the 18 PLOs were employed by the scheme while the other nine who remained in the department could not be absorbed by the department when the assignment at the national call centre drastically diminished.
The court heard that the department of human resources conducted a feasibility analysis to explore the possibility of absorbing the nine staffers permanently into the department, but the human sources division concluded that it was not feasible because their positions were not on an approved organisational structure.
In a department meeting chaired by Letsholonyane, involving employees from the finance division, it was resolved that the PLOs could not be permanently employed by the department.
Letsholonyane is said to have employed the nine PLOs despite the resolution.
Kubayi said the department conducted an internal audit assessment in which the matter was picked up, where the irregular appointments and payments of salaries were
placed in the department’s financial statements under irregular spending, pending the
court judgment.
She argued in court that Letsholonyane had no authority to issue appointment letters and was neither instructed nor authorised by her and the director general of the department.
The acting labour court judge, Smanga Sethene, found that Letsholonyane acted beyond her powers, which constitutes illegality.
Sethene said that case law is replete with authorities where courts have found that acting beyond powers conferred by legislation constitutes illegality.
“I have been vehemently urged to properly consider whether the department created legitimate expectation with its series of extensions of fixed-term contracts. It was submitted that the nine legitimately expected to be made permanent employees of the department however it was never stated on behalf of the nine that the legitimate expectations were created by an official duly authorised by the minister or the minister herself,” Sethene said.
The judge added that in terms of the applicable Act, only the minister is the employer of all employees within the department — except for the director general.
According to Kubayi: “It is my belief that we are on the path to restoring the credibility of the department and ensuring that all public servants understand that compliance with policies and prescripts within public service are not optional. We are playing our part in
professionalisation of public service.”
Kubayi came under fire when she allegedly fired Letsholonyane after she was stuck in the department’s lift. She has denied this, saying that Letsholonyane had transgressed on several occasions.