Judge Mahlangu provides reasons for historic judgment that could send Mathae to jail

Staff reporter

Bloemfontein – The Free State high court acting Judge Mahlangu has provided reasons for judgment handed on the 16 August 2024.

Mahlangu confirmed the rule nisi issued a week earlier, 8 August 2024, by Judge Molitsoane who ordered Free State Premier, Joyce Mathae to reinstate Mosa Masemene as head of department: Human Settlement with immediate effect.

Below are reasons provided by acting judge Mahlangu yesterday.

Lack of Consent for Transfer:
The court found that the transfer of Ms. Mosa Mary Masitha from her position as Head of the Department of Human Settlements to the Department of Social Development was unlawful because it was done without her consent. The Public Service Act of 1994 requires that a Head of Department (HOD) must consent to their transfer, or the transfer must be justified as being in the public interest after considering any representations made by the HOD. The court did not find sufficient evidence that Ms. Masitha consented to the transfer or that it was in the public interest.

Silence Does Not Equal Consent:
The court rejected the argument from the Premier and Thumelo Phahlo that Ms. Masitha’s silence during the meeting on 30 July 2024 could be interpreted as consent to the transfer. The court emphasized that complete silence, in the absence of a duty to speak, cannot be taken as a tacit acceptance. This principle was supported by case law, which the court referred to in its judgment.

Potential Contempt of Court:
The court acknowledged the seriousness of the allegations that the Premier and Tumelo Phahlo may have acted in contempt of its earlier order. It accepted a supplementary affidavit from Ms. Masitha providing evidence that suggested the respondents continued to act as though the transfer was valid, despite the court’s order to restore the status quo. The court allowed this evidence to be considered and scheduled a further hearing to determine whether the respondents were indeed in contempt.

Conclusion:
The court concluded that the transfer of Ms. Masitha was unlawful due to the lack of consent and that her rights were sufficiently strong to justify granting the interim interdict. The court also indicated that the actions of the Premier and Thumelo Phahlo in potentially ignoring its previous order were serious enough to warrant further investigation, leading to the decision to call them back to court to explain why they should not be held in contempt.

The date set is 5 September 2024 and one important aspect which Masemeneis likely to use in her case is the internal memo sent out by Phahlo.

Masemene allegedly sent out the text below after the memo was issued.

Just like the Premier having publicly asked a staff member at Bongani Regional Hospital be given a written warning, the Premier has been located by karma.

This is developing till judgment in contempt is finalised.

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