Dear Justice Dikgang Moseneke
This is pursuant to the testimony of former Gauteng Health Department HOD Barney Selebano, in which he asserted that he could not stand up to former MEC Qedani Mahlangu during the processes involving the relocation of mental patients from Life Esidimeni to unregistered nongovernmental organisations.
Selebano was given very sound advice by his chief director, Levy Mosenogi, who appealed for more time in order to ensure that all the logistics with associated processes were taken care of prior to the relocation of patients.
However, true to his inability to stand up to the MEC, Selebano ignored the advice and forged ahead as instructed. Your efforts to establish reasons behind his inability to put his foot down, since the law was there to protect him, yielded no substantive response.
I was not shocked by this type of response from Selebano. This is a reality and a daily occurrence in the life of public servants, irrespective of positional occupation or rank.
Justice, public servants receive unreasonable and, in some instances, unlawful instructions from their superiors. Unreasonable instructions may be lawful in nature but practically not actionable, while unlawful instructions are incompatible with the existing laws governing the task at hand.
Procedurally and by law, discretion has to be exercised on each instruction received; whether or not it is reasonable and/or lawful. Pros and cons are looked at with various options explored within the applicable laws, rules and processes, with specific reference to the implication of carrying out the instruction in its form as issued.
Following this necessary analysis, seniors are advised as to whether or not the instruction issued shall be carried out as it is, with or without modification for compatibility with the law or with the extended time frame to accommodate other processes in order to be compliant with the law and/or to prevent unintended consequences.
However, more often than not and for whatever reasons, right or wrong, superiors – be they political principals or senior bureaucrats – ignore advice from their subordinates.
And Selebano is a case in point. He elected to align himself with the MEC’s raw instruction. Had he asserted himself with the MEC and remained firm to the advice received, this would have been viewed as defiance and/or insubordination, the consequences of which may have threatened his continued employment in the department. His working relations with the MEC would have also taken a severe knock, thus paving the way to his joining the ranks of the unemployed.
In carrying out the instruction as issued by the MEC, Selebano mainly sought to protect his job at the time by risking the lives of patients. This he did without being mindful of the envisaged consequences which would not spare him from losing the very job he tried to save – hence his resignation last month. Had he listened and applied the advice received, as you correctly hinted to him, Justice, indeed the law would have been on his side, but only during the arbitration proceedings when fighting for his job. In other words, his refusal to carry out the MEC’s instruction might have saved the lives of patients but led to his dismissal.
Justice, law-abiding public servants in this country are faced with the harsh and painful realities of being forced out of their jobs on the basis of their refusal to comply with unreasonable and/or unlawful instructions from their superiors. And in instances where this occurs, protection by law is not prompt. It is reactionary in nature, thus only coming after the suspension and/or dismissal has been effected. In some instances, and where the courts are involved, to expedite such a protection, financial resources become a necessity to take on the state. Regrettably, not all public servants can financially afford to litigate against the state. Very few can do this and the case of Director-General of Home Affairs Mkuseli Apleni is a classic example.
It is thus my view that to construct a conducive environment for fearless and assertive law-abiding public servants, there is a need to create a public service ombud institution. This would be an intermediary role player to assess and make a determination on whether or not the intended disciplinary action or process against a public servant by the state institution was based on sound and valid reasons which would stand the test of time. In other words, prior to serious disciplinary actions such as suspensions and dismissals being effected, the matter would have to be referred to the public service ombud for an opinion. This would minimise fear, intimidation and threats meted out to public servants when faced with unreasonable and/or unlawful instructions – knowing that prompt protection was available at no cost, while within the system.
The current available mechanisms in the form of structures such as courts, the Commission for Conciliation, Mediation and Arbitration, and relevant sectoral bargaining councils are reactive in nature. They allow internal processes to be completed prior to attending to these matters. A public service ombud would thus deter the malicious intent on the part of the employers, since it would seek to proactively protect employees.
This, however, would require an amendment of the Labour Relations Act.
Maditodi is a public servant