- Employee of Ministry of Education was dismissed based on statement by DIS -Court orders ministry to reinstate employee, pay arrears from dismissal date of July 2022
The High Court has dismissed and set aside a decision by the Ministry of Education to dismiss an employee based on a statement by the Directorate of Intelligence and Security Services(DISS).
The Applicant, Bigani Oitsile was employed by the Ministry in the Department of Technical Services. The Applicant approached the court seeking an order that the decision of the Permanent Secretary contained in a letter dated 29th July 2022, dismissing him be reviewed and set aside as the decision is illegal, irrational, unreasonable and unlawful and of no effect. That consequently, the Applicant be reinstated with full benefits forthwith, including arrears from date of dismissal; Ordering that the Respondents pay costs of this application; Granting the Applicant further and/or alternative relief."
“This case clearly shows the unreasonableness and unfairness of a disciplinary process where incriminating evidence that was not lawfully obtained was used to find the Applicant guilty. The decision of the Permanent Secretary was clearly unfair. Applicant's application succeeds. It is ordered that: The decision of the Permanent Secretary contained in the letter dated 29th July 2022, is hereby reviewed and set aside. The Respondents pay costs of the application. The Applicant be reinstated with full benefits forthwith, including arrears from the date of dismissal,” ruled Justicce Christopher Gabanagae.
According to the background of the case, Oitsile was dismissed from work through a letter authored by the Permanent Secretary, Ministry of Basic Education, Mariam Maroba. Prior to the dismissal, he was on the 26th August 2021, suspended from duty pending allegations of his involvement in the award of Works Contract WOR 7/12/8. The letter of suspension was authored by Simon Coles.
He then received a show cause letter dated 8th February 2022, making allegations that he disclosed confidential information and received bribes. He responded to the letter on the 15th February 2022, indicating that he was not guilty of the allegations levelled against him. He received a charge sheet containing the charges of communicating confidential information and soliciting bribes from a certain Benjamin Kametse.
A disciplinary hearing was conducted on the 26th April 2022. He was subsequently found guilty and dismissed on the 29th July 2022. He avers that the decision to dismiss him was unlawful, unreasonable and contrary to the law.
He avers that the decision to dismiss him was unlawful as he was wrongly charged with a provision that does not create an offence. Further that Section 27 (3) does not create an offence but is a definition clause. Further that he was dismissed on a provision that he was not charged with. He avers that the letter says he was dismissed on account of Section 27(1) which he was not charged with. The Applicant further avers that he was never charged with accepting a gift without declaration but rather soliciting a bribe. The Applicant avers that it is for this reason that he never dealt with the offence of accepting a bribe in the letter dated 8th March 2022. He says he challenged the statement he made before the Directorate of Intelligence and Security (DIS) as same was taken under duress. He says the Chairperson however ignored his complaint. The Respondent opposed the application.
Said Justice Gabanagae: “I take the view that the real issue that is dispositive of this matter is whether the statement that was deposed to in the Directorate of Intelligence and Security (DIS) letterhead was issued under duress or not. And if issued under duress, whether it can be relied upon to found a charge against the Applicant and to also find him guilty on its strength. The disciplinary Chairperson relied on the statement made to the DIS to find the Applicant guilty.”
According to the judge, the Chairperson did not ask the complainant to lead evidence other than what was contained in the statement which was disowned by the Applicant. He said clearly, the statement was not a confession statement made before a judicial officer indicating that it was made voluntarily. Even if the statement was a confession statement it could still be challenged. No other effort was made to interrogate the charges, said the judge. Justice Gabanagae stated that the person whom the bribe was allegedly solicited from was not called to testify. He indicated that in the answering affidavit, the Respondent says something that is at odds with the record. It says the Applicant failed to demonstrate that the statement was taken under duress.
The Respondent's case is that the Applicant wrote the statement under oath. No evidence has been led outside the purported confession statement. Evidence of the bribe itself or solicitation of the bribe should have been led. In support of the duress claim, the court was directed to the minutes of the disciplinary hearing. The court was referred to relevant extracts in the minutes. The Applicant throughout the disciplinary hearing denied the charge and maintained that he was made to write the statement implicating himself under duress by DIS. The Applicant maintained that the statement that was used to find him guilty was in his handwriting but he did not make it voluntarily.
According to the extract of the minutes of the hearing, Oitsile said: “I said the statement was not prepared voluntarily, I was under duress. I was told basically what to write. I believe it was a script by the DIS which they came with to force me to write a narrative of theirs, therefore I had to write what they told me to write so that I can earn my freedom. I was threatened to indefinite detention, so this thing might be my handwriting but that's not mine.”
Oitsile went on to say that the statement was made in the presence of the DIS personnel who had tortured him.
Justice Gabanagae said he agrees with Oitsile's submission that evidently, the statement was prepared by the DIS in its letterhead and was taken to the police only for commissioning. It would seem the DIS did not want to leave anything to chance, in case the Applicant changed his version, said the judge, adding that they simply had to make sure. No evidence against this damning allegations was led.
Oitsile was represented by Uyapo Ndadi of Ndadi Law firm while the ministry was represented by Leatile Sengwatse from the Attorney General.
The Applicant, Bigani Oitsile was employed by the Ministry in the Department of Technical Services. The Applicant approached the court seeking an order that the decision of the Permanent Secretary contained in a letter dated 29th July 2022, dismissing him be reviewed and set aside as the decision is illegal, irrational, unreasonable and unlawful and of no effect. That consequently, the Applicant be reinstated with full benefits forthwith, including arrears from date of dismissal; Ordering that the Respondents pay costs of this application; Granting the Applicant further and/or alternative relief."
“This case clearly shows the unreasonableness and unfairness of a disciplinary process where incriminating evidence that was not lawfully obtained was used to find the Applicant guilty. The decision of the Permanent Secretary was clearly unfair. Applicant's application succeeds. It is ordered that: The decision of the Permanent Secretary contained in the letter dated 29th July 2022, is hereby reviewed and set aside. The Respondents pay costs of the application. The Applicant be reinstated with full benefits forthwith, including arrears from the date of dismissal,” ruled Justicce Christopher Gabanagae.
According to the background of the case, Oitsile was dismissed from work through a letter authored by the Permanent Secretary, Ministry of Basic Education, Mariam Maroba. Prior to the dismissal, he was on the 26th August 2021, suspended from duty pending allegations of his involvement in the award of Works Contract WOR 7/12/8. The letter of suspension was authored by Simon Coles.
He then received a show cause letter dated 8th February 2022, making allegations that he disclosed confidential information and received bribes. He responded to the letter on the 15th February 2022, indicating that he was not guilty of the allegations levelled against him. He received a charge sheet containing the charges of communicating confidential information and soliciting bribes from a certain Benjamin Kametse.
A disciplinary hearing was conducted on the 26th April 2022. He was subsequently found guilty and dismissed on the 29th July 2022. He avers that the decision to dismiss him was unlawful, unreasonable and contrary to the law.
He avers that the decision to dismiss him was unlawful as he was wrongly charged with a provision that does not create an offence. Further that Section 27 (3) does not create an offence but is a definition clause. Further that he was dismissed on a provision that he was not charged with. He avers that the letter says he was dismissed on account of Section 27(1) which he was not charged with. The Applicant further avers that he was never charged with accepting a gift without declaration but rather soliciting a bribe. The Applicant avers that it is for this reason that he never dealt with the offence of accepting a bribe in the letter dated 8th March 2022. He says he challenged the statement he made before the Directorate of Intelligence and Security (DIS) as same was taken under duress. He says the Chairperson however ignored his complaint. The Respondent opposed the application.
Said Justice Gabanagae: “I take the view that the real issue that is dispositive of this matter is whether the statement that was deposed to in the Directorate of Intelligence and Security (DIS) letterhead was issued under duress or not. And if issued under duress, whether it can be relied upon to found a charge against the Applicant and to also find him guilty on its strength. The disciplinary Chairperson relied on the statement made to the DIS to find the Applicant guilty.”
According to the judge, the Chairperson did not ask the complainant to lead evidence other than what was contained in the statement which was disowned by the Applicant. He said clearly, the statement was not a confession statement made before a judicial officer indicating that it was made voluntarily. Even if the statement was a confession statement it could still be challenged. No other effort was made to interrogate the charges, said the judge. Justice Gabanagae stated that the person whom the bribe was allegedly solicited from was not called to testify. He indicated that in the answering affidavit, the Respondent says something that is at odds with the record. It says the Applicant failed to demonstrate that the statement was taken under duress.
The Respondent's case is that the Applicant wrote the statement under oath. No evidence has been led outside the purported confession statement. Evidence of the bribe itself or solicitation of the bribe should have been led. In support of the duress claim, the court was directed to the minutes of the disciplinary hearing. The court was referred to relevant extracts in the minutes. The Applicant throughout the disciplinary hearing denied the charge and maintained that he was made to write the statement implicating himself under duress by DIS. The Applicant maintained that the statement that was used to find him guilty was in his handwriting but he did not make it voluntarily.
According to the extract of the minutes of the hearing, Oitsile said: “I said the statement was not prepared voluntarily, I was under duress. I was told basically what to write. I believe it was a script by the DIS which they came with to force me to write a narrative of theirs, therefore I had to write what they told me to write so that I can earn my freedom. I was threatened to indefinite detention, so this thing might be my handwriting but that's not mine.”
Oitsile went on to say that the statement was made in the presence of the DIS personnel who had tortured him.
Justice Gabanagae said he agrees with Oitsile's submission that evidently, the statement was prepared by the DIS in its letterhead and was taken to the police only for commissioning. It would seem the DIS did not want to leave anything to chance, in case the Applicant changed his version, said the judge, adding that they simply had to make sure. No evidence against this damning allegations was led.
Oitsile was represented by Uyapo Ndadi of Ndadi Law firm while the ministry was represented by Leatile Sengwatse from the Attorney General.
