. . . drags Minister and PS into beneficiaries’ camp
MASERU – The government should set up a commission of inquiry to establish circumstances surrounding illicit sale of duty-free alcohol by Lesotho diplomats in South Africa. The investigation would help identify key role players and government officials who participated in the scam believed to have cost the South African Revenue Authority (SARS) millions in tax income.
These are sentiments of one of the disgraced former Lesotho envoys who allegedly participated in the illegal practice and were, as a result, kicked out of South Africa. Lekoro Ralebese states this in an affidavit accompanying his court application to have his dismissal nullified. The former diplomat was dismissed from the Public Service after he was declared persona non grata and is contesting the matter in court.
He was declared an unwanted person in the republic after his wife was found to have abused diplomatic privileges. South Africa’s department of International Relations and Cooperation on June 10 ordered the couple, along with 11 others and their dependents to leave the country. The other 11 were also declared persona non grata.
Ralebese was working as a Consular Attaché in Johannesburg but had to quit his job. Government subsequently recalled him in a letter served on June 29 and asked him to surrender his diplomatic passports and Identity Documents to the Ministry of Foreign Affairs upon arrival in the country.
He says he contested the recall arguing he had never abused his diplomatic privileges but was advised that his wife had and was informed that a disciplinary inquiry would be set up.
Instead of the inquiry, Ralebese says he was later asked to ‘Show Cause’ why his employment contract could not be terminated.
“Please be advised that the government intends to terminate your appointment with the Ministry of Foreign Affairs on behalf of the Government of the Kingdom of Lesotho, the basis for the intended termination of your employment contract is that the government of the Republic of South Africa declared you Persona Non Grata.
“You have abused your diplomatic privileges contrary to duties stipulated in your contract of employment, thereby bringing the country and Public Service into disrepute,” Foreign Affairs Principal Secretary, Tanki Mothae said in a letter to Ralebese.
He responded to the letter and listed numerous grounds including that it is not him but his wife who was declared persona non grata, that he was not afforded a hearing in violation of the natural justice principle when a decision was made to recall him.
“. . . had I be given an opportunity before you made the decision to recall me, I could have invited and drawn your attention to the fact that my name does not appear in the list of persons declared persona non grata by RSA.”
Ralebese also argued that he was not called to a disciplinary hearing as per provisions of the Public Service Act and Regulations. However, his response did not convince government otherwise as his contract was terminated on July 12.
“This serves to inform you that your contract appointment with the Ministry of Foreign Affairs and International Relations on behalf of the government of Lesotho is terminated with effect from July 12 2021, the reasons you advanced in your response dated June 29 in which you were requested to make representation why your contract could not be terminated were not convincing,” the termination letter reads in part.
According to Ralebese, Mothae and the Minister of Foreign Affairs, Matšepo Ramakoae, terminated his contract in haste so as to prevent the disciplinary enquiry they contemplated after realising that their names featured prominently “in the enquiry of suspects in criminal activities for abuse of their offices.”
In an affidavit, Ralebese brings to the attention of the court that Mothae admits to having also benefited from the scheme in an interview he had with a local publication but says he cannot be faulted because the alcohol was not for resale.
The Principal Secretary is quoted as having said: “I only bought M 18 500 worth of alcohol for household consumption, for me it was not meant for resale. So, I really don’t see how I am involved in this matter.
‘The matter that is on trial is the abuse of privileges by diplomats for their own business purposes and it has nothing to do with what they bought for other people…”
On the other hand, minister Ramakoae is quoted as saying those implicated were found to be buying tax-free alcohol and reselling.
“We must take disciplinary measures against them in order for us to keep our warm diplomatic relations with South Africa…once we have all the necessary information and documents, we will go ahead with the disciplinary proceedings and the media will duly be informed of the outcome,” she said.
The narrowing of the inquiry into the offence of reselling alcohol to liquor stores under the pretext that others did not sell but consumed or entertained friends, he contends, is unfair. Ralebese says the matter should be investigated beyond reselling alcohol to liquor stores.
“When this matter is ripe for investigations, witnesses are probably going to disclose considerations in return for abiding instructions of buying them alcohol in the verifiable quantities, not these imagined figures narrated to the media personnel,” he states.
According to Ralebese, once ministers became implicated in the doubtful transactions with South Africa’s Department of International Relations, and that the prime minister ought to have dealt with the allegations like he dealt with the Frazer Solar Energy saga by establishing a commission of inquiry given millions of money allegedly defrauded SARS in taxes.
“In view of his decision to isolate Honourable Temeki Tšolo for signing deals of Mr Fraser and leaving aside Honourable Ramakoae who benefited from illegal alcohol trade, the PM had indirectly allowed 2nd Respondent (Minister) to be a judge in her own case.
“She had taken upon herself to take tough disciplinary measures against officials implicated in illegal alcohol trade as an ad hoc appointee of enquiring notwithstanding that she too is a person of interest in the abuse of diplomatic privileges.”
For that, he is asking the court to declare not only the minister but also the principal secretary conflicted in handling the disciplinary inquiry.
“It must be accepted, in my respectful view that the raising of these issues of corruption in relation to illegal alcohol trade in violation of diplomatic privileges has surely caused uncertainty and anxiety in the minds of ordinary citizenry in relation to equality before the law and equal protection of the law. “When the minister and her principal secretary are implicated in wrongdoing, unless necessary proceedings are taken at law to establish the cause of their involvement in illegal alcohol trade, the government remains compromised.
“It is for this reason that I invoke provisions of Section 2 of the High Court Act of 1978 to declare them conflicted in handling my matter of discipline.” In terminating his employment, Ralebese states that the Public Service Commission was not informed and did not participate in the decision-making process and was thereby at odds with the rule of law.
He maintains that the decision to terminate his employment amounts to self-help and that it invites a vortex of uncertainty, unpredictability and irrationality. “It would not be proper for the respondents to terminate my employment for the alleged misconduct without following the due process of the law as prescribed in the Public Service Act.
“It would not be proper for them to form an opinion about me which had been influenced by the Department of International Relations and Cooperation of the Republic of South Africa without conducting an enquiry to establish the harmful effects of the alleged illegal alcohol trade as felt by the government of Lesotho,” he argues.
The notice by South Africa, he contends, contains opinions and conclusions set to discredit him yet it is the sole basis by which government terminates his employment.
Ralebese argues that Mothae has no business terminating his employment without the recommendation from the Public Service Commission.
He continues: “In the present circumstances where I have not been detailed before a disciplinary inquiry and where there is no recommendation from the Public Service Commission, the decision to terminate my appointment is unlawful and invalid. It taints 1st and 2nd Respondents with bad faith.”
He wants the court to order the minister and her principal secretary to furnish the court with a record of their views, findings and conclusions expressed in their letter of termination of his employment.
Ralebese also wants an order reviewing and setting aside the decision of the Foreign Affairs and International Relations to make “the so-called international delict of defrauding SARS of tax incidental and connected to sales of duty-free alcohol as a ground for termination of appointment in the Public Service.”
Further, he has asked the court to review and set aside the decision by the ministry to implement the declaration of persona non grata in South Africa as a ground for termination of the employment of a public officer as irrational, unreasonable and of no legal effect and that his removal as Consular Attaché is unlawful.
On top of that, Ralebese has asked the court to interdict the Public Service Commission from proceeding with the implementation of the decision terminating his contract appointment and that the commission be prevented from implementing the decision to recruit any other person to his position as Lesotho-Johannesburg Consulate.