Tsebo Fobo V Ministry of Finance & 4 Others (C of A (CIV) No 33/2024) [2024] LSCA 28 (1 November 2024)

 

LESOTHO

                                                                                                                           

 

IN THE COURT OF APPEAL OF LESOTHO

 

HELD AT MASERU                                  

C of A (CIV) 33/2024

CIV/APN/0335/2023

 

In the matter between:

 

TSEBO FOBO                                                          APPELLANT

 

AND

 

MINISTRY OF FINANCE                                   1^st RESPONDENT

PUBLIC SERVINCE COMMISSION                    2^nd RESPONDENT

PRINCIPAL SECRETARY PUBLIC SERVICE      3^rd RESPONDENT

OMBUDSMAN                                                  4^th RESPONDENT

ATTORNEY GENERAL                                     5^th RESPONDENT

 

 

CORAM:                  MOSITO P

                               MUSONDA AJA

                                VAN DER WESTHUIZEN AJA

 

HEARD:                   14 FEBRUARY 2024

DELIVERED:           01 NOVEMBER 2024

 

                                      SUMMARY

Judicial review – A recommendation is a suggestion, the recipient can accept or reject a recommendation – 3^rd respondent to be held to a promise to upgrade appellant – Decision by the 2^nd respondent to retire and upgrade the appellant with effect from 1^st April 2013 from grade G to H cannot be resiled from unless set aside by the court of competent jurisdiction – the relief of legitimate expectation available to the appellant – respondents cannot resile from the Public Service Commission decision – appeal allowed.

 

JUDGMENT

MUSONDA AJA

Introduction

[1]     This is appeal against the High Court (Makhetha J) dismissal of an application for judicial review. The appellant sought a declaratory order, a writ of Mandamus. She averred that she legi- timately expected to be treated similarly to other occupants of the like position in other Ministries.

 

[2]    The appellant was promoted to the position of Senior Systems Support Office in the year 2000.  On 30^th July 2020 she wrote to Principal Secretary Finance requesting that her position be normalized by upgrading the position from Grade G to H.  Her request was made retrospectively from 1^st April 2013.  She anchored her request on the Ministry of the Public Service Circular Notice No. 7 of 2013.  Paragraph two of the circular stated the affected positions as those of Director and Manager level, which were at that time at Grade I and H respectively.

 

[3]    The appellant did not approach the authorities to normalize her positions until the 30^th July 2020.  Her request was supported by the Principal Secretary Finance in a Savingram dated 10^th September 2020 addressed to the Principal Secretary Public Service.  On 22^nd April 2021 she approached the office of Ombudsman who recommended her upgrading in a Memorandum dated 12^th November 2021.  When there was inaction the appellant approached the court on 28^th November and sought the following orders:

 

1. An order declaring that the appointment of applicant to the post of Senior Systems Support Officer complied with Section 137(1) of the constitution and the imperatives of Public Service Act 2005, to an extent that the Ministry of Finance is bound to normalize the position of SSSO from Grade G to H with effect from 1^st April 2013.

 

2. An order declaring that the Ministry of Finance to normalize the position of SSSO from Grade G to H gives effect to the right of applicant under the doctrine of substantive legitimate expectations to be paid and treated in the same way as her counterparts in other departments of the state pursuant to Section 18 of the Constitution.

 

3. An order directing Public Service Commission to implement and process the prescripts of the Savingram from the Ministry of Finance dated 14h January 2022 and accordingly pay the salary underpayments of Appellant for the upgraded position with effect from 1^st April 2013.

 

4. An order that Applicant is to be guaranteed the full measure of the Benefits due to Grade H in establishment list as her property pursuant to Section 17 of the Constitution.

 

5. An order reviewing the conduct, proceedings and or views of the Principal Secretary (Mr Thabo Motoko) as contemplated in the Savingram dated 12^th November 2020 or irregular and of no legal force.

 

6. An order reviewing and setting aside the decision to withhold the due salary of applicant as Grade H from 1^st April 2013 to date as unlawful.

 

7. An order that interest be paid to salary arrears of Appellant at the rate of 12 percent per annum.

 

8. The costs of this application at an attorney and own client scale.

 

Background

[4]     Appellant’s gripe was that colleagues performing same responsibilities as herself in other ministries were graded at Grade H.  She attached her duties to the request.  She further attached a list of her innovations and achievements in the Ministry of Finance to justify her request.

 

[5]     The 2^nd and 3^rd Respondent opposed the application. They were represented by the 5^th Respondent, Attorney General.

 

[6]     On the date of the hearing of the application the Respondents graciously abandoned a point in limine raised in the answering affidavit. In terms of Section 6 of the Government Proceeding and Contracts Act No. 4 of 1965, the action had prescribed. The court a quo proceeded to hear the merits.

 

[7]     The appellant’s core argument is that circular No. 7 of 2013, has been used by legal advisors in government to upgrade their positions and were paid arrears. The deponent attached Judge Peete’s order D1 in support. She argues that the Ombudsman had ruled that appellant be regraded to Grade H[1]. The Ministry of Public Service therefore cannot be allowed to go behind the opinion of Principal Secretary Finance. It is apposite to state that in a Savingram dated 17^th November 2020, the Principal Secretary Public service stated:

 

‘Please be informed that Ministry of the Public Service has discovered that there are a lot of discrepancies within the MIS structure as such the structure has to be reviewed in order to address the inconsistencies holistically. Therefore, the issue at hand will be solved by the review. Hope you find this in order.’

 

[8]    The Public Service Commission on 24^th August 2023 directed the Head of Department to implement the recommendation of Ombudsman and the Principal Secretary in the Ministry of Finance with respect to normalization of the officer’s position to facilitate computation of her benefits[2].

 

[9]    The appellant’s counsel sought production of the above memo in court[3].  There appear to have been resistance by the Principal Secretary Public Service, who averred that he was not aware, as he was not informed officially, of the developments by his subordinates[4].

[10]  The Principal Secretary Finance recommended to the Secretary – Public Service Commission, that since the matter was before a court of law since October 2022 and the case has not been finalized to date, her terminal benefits will be calculated based on her current grade and later be adjusted accordingly with the outcome of the court’s judgment[5]

       

[11]     In a nutshell the application in the court a quo was anchored on circular No. 7 of 2013, reinforced by the recommendations of the Principal Secretary Finance and Ombudsman. The decision of Principal Secretary Public Service not to implement the recommendations of her eligibility to Grade H was irregular and should be reviewed[6]. The appellant uses regrading and promotion interchangeably. The appellant projects a view that there is equivalence between a recommendation and the decision.  She cites section 18, of the Constitution which proscribes discrimination.

 

[12] High Court

The learned Judge a quo followed a trilogy of grounds laid down by Lord Diplock in Council of Civil Service Unions v Minister of the Civil Service[7].  The issue was whether there was illegality, irrationality and procedural impropriety or could the court issue a declarator.  Legitimate expectation as an emerging ground was no discussed a quo.

 

The learned Judge agreed with the respondent that it was neither the ombudsman nor Principal Secretary Finance to normalize and grade or regrade positions in the civil service, it is the Ministry of Public Service through its designated section or department. She agreed that the upgrading of a position is dependent on tasks not nomenclature as was suggested by the appellant. It is the duties and functions attached to the position, that determine at which grade to place the position such determination require a level of expertise, which only resides in the Ministry of Public Service[8].

 

[13]    Mokhesi J’s Judgement in Moshoeshoe Molapo v Principal Secretary Ministry of Communication and 3 others[9] was cited with approval by court a quo, where he said:

 

‘I have already determined that the appellant together with above- mentioned individuals occupied managerial positions, but did they occupy analogous or similar positions despite being graded similarly? Put differently, did the appellant prove personal characteristic which places him in the similarity bracket with his other colleagues whose upgrading he is aggrieved about?

 

‘The answer to this question should be in the negative. As much as the appellant and the upgraded individuals were graded similarly, their positions were not analogous, because in terms of circular No. 7 of 2013, people who were eligible to benefit from upward adjustment were those who are, head of department level or deputize head of department…’. Therefore, the personal characteristic which the appellant must establish is whether she was head of a department or deputises the head of department. The appellant did not occupy any of these positions, and therefore, was ineligible for upgrading. For the appellant to argue for his upgrading, simply because he was previously similarly graded with these other individuals who either deputized or headed departments whilst himself, admittedly, held neither position, is disingenuous’.

 

[14]     Para 4.8 of the founding affidavit, the appellant averred that the Ombudsman and Principal Secretary Finance have the power to normalize or re-designate the grading of appellant’s position[10], she went on.

 

“The correct process, looking at the broader schematization of the constitution in relation to the functions of the Public Service Commission is that when the recommendation to escalate any position to Grade H is presented before it[11], it is bound to execute its constitutional mandate as it may be expected to comply with the recommendations of the Ombudsman’’

 

[15]     The appellant emphatically averred that she was relying on circular Notice No. 7 of 13^th March 2013, to prosecute her case. Her contention was that the Principal Secretary Public Service was ill-advised by resisting the implementation of the Ombudsman and Principal Secretary’s recommendations.

[16]     The Court a quo quoted the relevant parts of the circular couched in these terms:

 

“RE: NORMALIZATION OF GRADING FOR POSITIONS FROM MANAGER TO GOVERNMENT SECRETARY LEVELS

It is notified for general information and appropriate action that there is anomaly on the civil Servants grading structure from grade I to J, whereby some director positions are at Grade I and J while managers are at grade H and I. in order to rectify this a revised salary grading (attached) for the affected positions has been developed. The effective date for implementation of this normalization is 1^st April 2013.

 

“The affected positions are those at Director and Manager levels which are currently at Grade I and H respectively. The change will only be affected whereby an incumbent is at head of department level or deputize head of department. Ministries are advised to note that some positions have been omitted due to the need to change their nomenclature. In such cases Ministries are to prepare proposals accordingly for consideration by the Ministry of the Public Service.”

 

[17]     There was absence of the appellant’s grade ‘G’ in the circular. The court a quo faulted the ombudsman as having improperly relied on the circular which did not capture the appellant’s position, in recommending the upgrade.

 

[18]     The power of the court to issue declaratory order is derived from the provisions of s2 (1) of the High Court Act, 1978. The High Court has discretion to enquire and determine the existence of future or contingent right or obligation upon application.

 

[19]     This court’s decision in Dr Kananelo Mosito and 6 others v Qhalehang Letsika and 3 others[12] in which we cited with approval the case of Rumdel Cape v S.A. National Roads Agency and we said:

“… In order to entertain an application for declaratory relief, a court must be persuaded that the appellant has an interest in an existing, future and contingent right or obligation that will be determined by the declarator and its order will be binding upon other interested parties. If it is so satisfied, the court then exercises discretion whether to grant or refuse the order sought. In doing so the court may decline to deal with the matter where there is no actual dispute, where the question raised is, in truth, hypothetical abstract or academic, or where the declarator sought have no practical effect’’

 

The court a quo declined to issue a declarator and appellant’s prayers 1, 2 and 4 present no actual infringement of a right worthy of protection by a declarator as sought.

 

[20]    Dissatisfied with the dismissal of the application, the appellant filed two grounds of appeal.

 

1. The learned Judge a quo erred in remaining silent on the precise manner in which she deviated from the recommendations of the ombudsman except to say such recommendations have no legal force.

 

2. The learned Judge erred in holding that there existed no basis for normalizing the position of appellant based on Ministry of Public Service Circular Notice No. 7 of 2013.

 

[21]   The issues on appeal

         (1)  What was the status of the recommendation of the Ombudsman and the Principal Secretary Finance.

 

         (2)  The Savingram from Principal Secretary Public Service to Principal Secretary Finance

        

3.    What was the effect of Public Service Commission memorandum of 24^th August 2023, which allowed appellant to retire and to be upgraded from G to H.

 

 

 

 

 

[22]   The Law

A recommender has no sway.  In Minister of Information and Broadcasting Services & Another v Chembo & Others[13] briefly facts were:

 

“The Minister of Information and Broadcasting Services did not appoint the names recommended by the Adhoc Appointments Committee of the Independent Broadcasting Authority (IBA) in terms of Act No 17 of 2002 and the Zambia National Broadcasting (Amendment Act No 20 of 2002.  The adhoc Appointments Committee applied for judicial review.  The Zambian Supreme Court held: That a “recommendation” as a “suggestion” or “advice” as to what course of action to take can never be binding to a person to whom it is made.  The person can reject or accept a recommendation

 

[23]      In Noria Margarett Mashabane v Minister of Defence and Military Veterans and Others[14].  The appellant sought an order directing the Minister of Defence and Military Veterans to issue out direct command to the Chief of the South African National Defence Force to comply and implement the recommendation of the Military Ombudsman in a period of ten (10) days of the date of the order.  Sethusha-Shongwe AJ held:

“When one looks at prayer 1 of the notice of motion, the first impression I get is that it is impracticable, ineffective and unenforceable.  I fail to fathom on what basis a court can declare respondent’s failure to implement a recommendation unlawful and set it aside.  What the court is asked to do is to declare a failure to implement a recommendation unlawful.  Is it feasible?  With all the due respect, I don’t think it is feasible.  I therefore, agree with the respondents’ submissions that the applicant has failed to make out a case.  Courts loathe to issue out ineffective and impracticable orders; orders must make sense to the ordinary reader and to enable the sheriff to execute them efficiently and effectively.”

 

[24]   The status of the Savingram, at p37 of the record was that it was a promise to the appellant.

 

[25]    The doctrine of substantive legitimate expectation in Administrative law arises when a public authority makes a representation or promise to an individual, creating a reasonable expectation that a benefit or advantage will be granted.  If the authority later deviates from that expectation, the individual may challenge the decision.

 

[26]    In R v North and East Devon Health Authority ex parte Coughlan[15]

In this case the court upheld the substantive legitimate expectation of a disabled woman that she would be allowed to remain in a care facility, as the health authority had previously promised her this right.

 

 

[27]    In R (Bibi) v Newham London Borough Council[16]

The Court emphasized that a substantive legitimate can arise when there is reliance on a promise, provided the authority has the legal capacity to fulfill it.

 

[28]    The Attorney General who is fifth respondent did not agree with the resolution of the Public Service Commission Annexure K1 at page 100 of the record.  This is why it was not brought to court until Advocate Lephuthing, got an Order of discovery.  Nor has there been an attempt to set it aside.  However, during oral argument Adv Nku conceded that the Public Service Commission had power to act in the manner they did.

 

[29]    The Oudekraal[17] principle was first afforded judicial imprimatur by the Constitutional Court in Kirkland[18].  In that case, the question was whether a decision of a state official may be set aside by court even when the government has not applied for the court to do so.  The majority held (at para 64) that: Even where the decision is defective the government should generally not be exempted from the forms and processes of review.  It must apply formally for a court to set aside he defective decision.  It explained that the essential basis of the Oudekraal principle is that an invalid administrative action may not simply be ignored, but may be valid and effectual, and may continue to have legal consequences, until set aside by proper process.  the sole power to pronounce that the decision is defective and therefore invalid lies with the courts.

 

[30]    The 5^th respondent can therefore not ignore the decision by the Public Service Commission.  However, during oral argument Adv. Nku was magnamous by conceding that the Public Service Commission had made a decision to retire the appellant and normalize her grading.

 

Appellant’s case

[31]    Quite frankly when I read the appellant’s Heads one could not comprehend what was the argument.  The condensed version of the appeal had to be distilled from oral questions.  In the first ground the court a quo is faulted for not deferring to the Ombudsman and that of Principal Secretary Finance recommendations.  The Principal Secretary Public Service ought to have complied with the recommendations and the learned judge a quo ought to have so found.

 

[32]    During oral argument Advocate Lephuthing valiantly argued that the appellant approached the Principal Secretary Finance to grieve about the anomaly in her grading.  Principal Secretary Finance wrote to her counterpart the Principal Secretary Public Service, who admitted the existence of discrepancies in the management information systems.  Advocate Lephuthing put stock on the resolution of the Public Service Commission resolution dated 24^th August 2023, which according to him was determinative of the reliefs sought in the matter.

 

[33]    Advocate Lephuthing’s strongest point, was the Public Service Commission had decided to retire and upgrade the appellant.  Which decision was binding on government functionaries.

 

[34]    Respondent’s case

Advocate Nku, for the 1^st, 2^nd, 3^rd and 5^th respondents started by graciously admitting that having not received appellant’s heads, he was unable to react accordingly.  He supported the court a quo’s reasoning and orders.  He supported the test as laid in the case of Moshoeshoe supra.  It was Adv. Nku’s submission that, the appellant’s position did not feature in circular No. 7 of 2013.

 

[35]    In Tsela v Principal Secretary Ministry of Justice Mokhesi J said:

 

“It is trite that a mandamus may only be granted in circumstances where the public official has a clear duty to perform the action ordered.  In other words, the judicial officer may only order the administrator to perform a duty which falls clearly within the ambit of the enabling statute.  For example where a statute confers discretionary power on a public official, the judicial officer can compel the functionary to exercise its discretion but not to determine the manner in which the discretion should be exercised.

 

[36]    During hearing Adv. Nku graciously conceded that the Public Service Commission had made a decision to retire and normalize.  The repository of power regarding employment had made a decision.  The concession came after oral argument when Adv. Nku realized that decisions were made during the currency of the litigation.                                                    

 

[37]    Consideration of the Appeal

The appeal falls to be decided on substantive legitimate expectation and the principle of regularity of decisions by government officials.  The presumption of regularity has humble origins, as with many legal principles, its roots live with a latin phrase:  omnia praesumuntur rite et solemniter esse acta, donec probeturin contrarium.  The above passage can be distilled in the cases of United States v Chemical Foundation, Inc[19], National Archives & Records Admin v Favish[20].  It follows that the promise to regularize or upgrade appellant from G to H is valid in law, so is the decision to retire and upgrade the appellant’s position by the Public Service Commission whose regularity was conceded to by Adv Nku who represented the 1^st, 2^nd, 3^rd, 4^th and 5^th respondents.  Legitimate expectation is intended to hold public Officers to their promises.  There should be predictability, consistency and integrity in running public affairs.  Once a public official makes a decision like the Public Service Commission did to retire and upgrade the appellant such a decision can only be set aside by the courts.   That is the tenor of cases of Ouderaal and Kirkland supra.

 

[38]    Conclusion

The recommender holds no sway, his/her recommendation can be accepted or rejected.  The Savingram from Principal Secretary Public Service to Principal Secretary Ministry of Finance was an undertaking that the appellant’s position was going to be regularized.  The decision of 24^th August 2023 settled the matter.  This decision is valid and must be actualized.  Consequently, the two grounds of Appeal were destitute of merit.  The decision is solely based on Public Service Commission decision of 24^th August 2023.

 

[39]    Dispositions

The appeal is allowed

 

[40]    Costs

The appellant asked for Attorney client costs.  The justification being the reluctance to produce the resolution of the Public Service Commission.  The appellant asked for interest from 1^st April 2013.  The appellant slept on her right for about 7 years, the court cannot put premium on her delay.  The costs will follow the event at ordinary scale. 

 

 

 

[41]    Order:

          1.   The order of the Court a quo is set aside in substitution thereof, the following order is made:

 

                (a)    The is appeal allowed with costs at ordinary scale as appellant bears the blame too, by sitting on her rights until when retirement was knocking on her door.

         

                (b)    The re-grading from G to H is effective from 1^st April 2013.

 

                (c)    Interest is payable from the date of the filing of the application in court, at 12% until payment

 

 

 

 

_____________________________

P MUSONDA

ACTING JUSTICE OF APPEAL

 

 

 

 

 

 

 

 

 

 

 

 

I agree

_____________________________

K E MOSITO

PRESIDENT OF THE COURT OF APPEAL

 

I agree

______________________________

J VAN DER WESTHUIZEN

ACTING JUSTICE OF APPEAL

 

 

FOR THE APPELLANTS:         ADV. C. J LEPHUTHING

 

FOR THE RESPONDENT:        ADV. M. J NKU