Moumakwa wins against PEEPA

The Judge President of the Industrial Court, Goemekgabo Tebogo-Maruping, has ruled that the dismissal of former Public Enterprises Evaluation and Privatisation Agency (PEEPA) Chief Executive Officer (CEO), Ezekiel Moumakwa, was not only substantively unfair and unlawful but was also procedurally unfair and wrongful. Consequently, the government must pay him P153,015 in compensation. Moumakwa’s five-year contract was terminated prematurely by then Minister of Presidential Affairs, Governance and Public Administration, Nonofo Molefhi, on 22 October 2019. Before his untimely dismissal, Moumakwa had found himself entangled in several allegations of misconduct, including unauthorised use of PEEPA’s credit and debit cards in the amount of P418,880.74. [ihc-hide-content ihc_mb_type="show" ihc_mb_who="1,2,3,4" ihc_mb_template="1" ] He was also accused of purchasing a more expensive official vehicle than what was budgeted for, buying a Range Rover Sport that cost P1,442,000. Court papers show that upon accepting his terms of employment, PEEPA had budgeted P1.2 million for the purchase of Moumakwa’s official vehicle and he was to submit quotes to the Board of PEEPA for approval to purchase the car. However, he is said to have gone ahead, together with PEEPA staff, to buy his official vehicle without the input of the board. It was then that the Chairperson of the PEEPA Board, Tiny Kgwatlwane, asked for clarity from the CEO regarding this procurement and in the process asked him to provide proof of comparison of prices or quotes made prior to purchasing the vehicle. However, according to Kgatlwane in court papers, Moumakwa failed to provide the required proof. Evidence provided by Kgatlwane in court is that on 19 June 2019, and in light of what she considered to be possible transgressions by the CEO in the purchase of the vehicle, the board took a decision to suspend him from duty. In his judgment, Justice Maruping said an interesting aspect of Moumakwa’s letter of suspension was that he was also informed that during the period of his suspension, he would receive his full salary and all other benefits. “However, his entitlement to the use of the agency official car was withdrawn with immediate effect,” the judge said. “There is no indication in the letter that an alternative means of transport or car would be provided to maintain his agreed benefits.” Another interesting aspect of the letter, which Justice Maruping said was referred to by Moumakwa in his written and oral submissions, was that the letter did not give details of any specific conduct or incident that caused the suspension. A day after his suspension, on 20 June 2019, the car in question was involved in an accident near Riverwalk Mall along the Tlokweng-Zeerust Road. The PEEPA board is said to have sought authority from the relevant minister to engage a private investigator to look into the CEO’s conduct reported in the media, as well as to look into or investigate his alleged or possible breaches of PEEPA conditions of service and policies. The investigation was to cover issues such as the purchase of the official vehicle which exceeded the original budget by P242, 000, the budget and the alleged misuse of funds by the CEO for personal benefit based on his alleged failure to submit receipts justifying funds used by him through PEEPA’s funded credit and debit card, contrary to provisions of the Agency’s financial policy. The investigation was to also cover human resource issues relating to how Moumakwa had increased the salaries of certain employees despite there being no evidence of performance measures. Further, the probe was to also focus on the external travels undertaken by the CEO despite not having obtained permission from the Permanent Secretary of the parent ministry in the absence of the board chairperson or from the board after the board was appointed. On 19 September 2019, Moumakwa was hauled before a disciplinary hearing and was subsequently found guilty of wilful disobedience/refusal to obey lawful instructions in contravention of PEEPA Conditions of Employment. The chairperson of the Disciplinary Enquiry then recommended that the CEO be dismissed from his employment. After the board had notified Moumakwa about the outcomes of the hearing on the 8 th October, 2019. Following this letter, Minister Molefhi wrote to Moumakwa informing him that he had accepted and approved both the Investigative and Disciplinary Enquiry Reports from the PEEPA Board and invited the CEO to show cause in writing why he should not summarily dismiss him as CEO of PEEPA. Moumakwa was to submit his written representations by 12 noon on Friday 18 October 2019. But on 17 October, a day before the stipulated deadline, Moumakwa wrote a letter to the minister notifying him that he was not feeling well and requesting to change the submission date for his show-cause letter. However, on 22 October 2019, the Minister, as the appointing authority, terminated the CEO’s contract. This is one of the reasons that Justice Maruping said there was no procedural fairness in the dismissal of Moumakwa. “The evidence, in this case, is that the responsible minister extended an invitation to the applicant to make representations to him showing cause, if any, why the adverse decision of dismissal should not be implemented as recommended by the PEEPA board,” the judge noted. “The undisputed evidence is that before the applicant could make such representations for reasons of ill health, the minister terminated his employment.” Justice Maruping emphasised that this was a clear denial of the right or opportunity given by the minister. Moumakwa had approached the court to seek reinstatement with back pay and as an alternative, compensated equivalent to the balance of his five-year contract which was left with 39 months before it elapsed. The Judge President said Section 27 94) of the Trade Disputes Act (CAP. 48:02), Act No.6 of 2016 provides that in assessing the amount of compensation to be paid subsection 27 (1) the court may take the factors listed under (a) to (g) into account. These factors include future loss likely to be suffered by the employee as a result of wrongful dismissal; the age of the employee; the prospects of the employee in finding other equivalent employment; the circumstances of the dismissal; and the employer’s ability to pay. Given the circumstances of this case, Justice Maruping said the court has determined that a fair and appropriate award of compensation for Moumakwa would be the equivalent of his salary for three months. His monthly salary at the time of dismissal was P51, 005.00, and Justice Maruping said he was therefore entitled to P153, 015.00. [/ihc-hide-content]

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Moumakwa wins against PEEPA

Judge orders that he be paid the equivalent of three months’ salary

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Moumakwa wins against PEEPA

Judge orders that he be paid the equivalent of three months’ salary

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