By Staff Reporter
Former Permanent Secretary in the Health ministry Andreas Mwoombola has come out to claim that for as long as “an unlawfully constituted disciplinary hearing is still hanging over my head” his chances of successfully applying for future jobs will be out in jeopardy.
He made this claim in arguments presented by his lawyer in the Windhoek High Court this week.
This is in spite of the fact that Mwoombola has since resigned from public service and the secretary to Cabinet George Simataa now wants the court case removed from the court’s roll.
According to Simataa, the resignation of the former PS makes his challenge of the constitution of a disciplinary committee tasked to deal with corruption allegations against him, no longer relevant. Simataa’s camp is being represented in court by lawyer Appolos Shimakeleni of Appolos Shimakeleni lawyers.
Simataa said Mwoombola’s decision to resign from the Public Service before the disciplinary proceedings against him were finalized, activated the provisions of section 26(19), read together with section 27(5), of the Public Service Act.
“By a legal fiction, he was automatically deemed discharged from employment,” he said.
Mwoombola’s case, in other words, is now moot and more academic than practical, as far as Simataa is concerned.
“We submit that applicant’s resignation disposes of his case entirely. It renders the issues raised by the application moot, making it inappropriate to render a decision on them. More importantly, it prevents this Court from treating the disciplinary process as ‘incomplete’ when the law, albeit by a fiction, says it is finalized,” Simataa said.
Coup de grace
However, the resignation of Mwoombola from public office has brought against him trouble. Firstly, Simataa contends that the resignation exhaustively concluded the disciplinary hearing against Mwoombola.
Secondly, Simataa submitted that his resignation ‘is deemed to be an admission of misconduct justifying a discharge’. “He is ‘in as bad a position as he would have been if the charges had been found proven and he had been dismissed on account of them’,” said the secretary to Cabinet.
But Mwoombola, who is represented by lawyers George Coleman and Elize Angula, is adamant. “Contrary to the assertion on behalf of 1st respondent (Simataa) there is a fundamental public interest component here.
The Secretary to the Cabinet is accused of abusing power and acting unlawfully. An unlawfully constituted disciplinary hearing is hanging over applicant’s head.
This will affect every job application applicant launches. Therefore this issue is not academic. In fact no unlawful administrative action can ever be academic because unless challenged it exists as a fact and may provide the basis for lawful acts pursuant to it,” he submitted.
Mwoombola has told the court that in law unlawful action which still has practical effect cannot and should not be considered moot. “It is submitted that this matter is by no stretch of imagination moot. It involves unlawful administrative action that has to be redressed. The fundamental principle underlying mootness is that courts are not inclined to pronounce on abstract questions of law when there is no dispute to be resolved.
Courts are designed to resolve real infringements of rights. However, the fact that a matter may be moot is not an absolute bar.
Ultimately, courts exercise discretion and public interest is an important factor,” he explained.
He also challenged Simataa for claiming to have acted on an investigation report, which, according to him, has to date not been produced.
As far as he is concerned, the chair and members of the disciplinary committee were all civil servants and his juniors and not ‘suitable persons’ as contemplated in section 27(4) of the Act.
“They lack independence, impartiality and competence for the job. Applicant was a permanent secretary – the highest rank in the civil service. Traditionally the Secretary to Cabinet was the only official permitted to chair disciplinary proceedings against a permanent secretary.
Also 1st respondent initially suspended applicant unlawfully and subsequently withdrew the suspension when applicant’s legal practitioners challenged it. The conduct of the committee on Tuesday 12 September 2017, Monday 9 October 2017 and 13 November 2017 bears out applicant’s concerns of bias, incompetence and lack of impartiality.
For example, they dismissed applicant’s objections without much ado, did not order further particulars requested to be given and simply pushed ahead with the hearing. This clearly shows a pre-determined conclusion,” he claimed.
He also submitted that the review record reflected that there is no documented process of how Simataa went about selecting this particular committee and determined their individual suitability.
Mwoombola said this is a clear indication that he did not apply his mind to the decision in issue
“It is also applicant’s case that 1st respondent did not comply with section 27 of the Act in that he had no basis to believe applicant was guilty of misconduct and he did not consult with the Prime Minister as he was supposed.”