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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C of A (CIV). No 72/2024
CIV/APN/0332/2023
In the matter between:
MATHABO SUSAN MPHALE APPELLANT
AND
PUBLIC SERVICE COMMISSION 1ST RESPONDENT
PRINCIPAL SECRETARY MINISTRY OF
PUBLIC SERVICE 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
CORAM: MOSITO P
MUSONDA AJA
CHIHNENGO AJA
HEARD: 15 APRIL 2025
DELIVERED: 2 MAY 2025
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FLYNOTE
Public Service – Administrative Law – Rationality – Grading of civil service posts – Whether decision not to upgrade appellant from Grade I to Grade J under Circular No. 7 of 2013 irrational – Whether appellant functioned as Head of Department notwithstanding formal designation – Judicial review – Applicability of rationality standard in constitutional context
The appellant, a Contracts Manager in the Ministry of Finance since 2010, brought an application challenging the Government’s refusal to upgrade her post from Grade I to Grade J following the promulgation of Government Circular No. 7 of 2013. The circular sought to rectify anomalies in civil service grading by upgrading posts of Managers at Grade H and Directors at Grade I who functioned as Heads or Deputy Heads of Department. The appellant contended that she qualified for upgrading as she performed the duties of a departmental head and reported directly to the Principal Secretary. The High Court dismissed the application, holding that the appellant’s position did not fall within the scope of the circular and was not equivalent to that of Chief Legal Officers who had been upgraded to Grade J following a deed of settlement.
Held, allowing the appeal:
The High Court erred in narrowly construing the scope of Circular No. 7 of 2013. Paragraph 2 of the circular required functional equivalence to a Head or Deputy Head of Department, not mere titular designation. The appellant, being the apex officer in charge of contract management and reporting directly to the Principal Secretary, met the functional threshold.
The refusal to regrade the appellant was inconsistent with the treatment of Chief Legal Officers, who were similarly not mentioned in the circular but were nonetheless upgraded on account of their functional role. This disparity, lacking justification, rendered the administrative action irrational and violative of the rule of law.
The Court emphasised that in a constitutional setting such as Lesotho's, where public power is justiciable, irrationality as a ground for review serves as a vital doctrinal safeguard ensuring that
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administrative decisions are logically coherent, internally consistent, and connected to the lawful purposes for which powers are conferred.
Accordingly, the appellant was entitled to be regraded to Grade J with retrospective effect from 1 April 2013 and to receive arrears and salary entitlements accordingly.
Appeal allowed.
JUDGMENT
MUSONDA AJA
Introduction
1.
This is an appeal against the High Court (Banyane J) dismissal of an application seeking an upgrade from Grade I to Grade J. The appellant held the position of Contracts Manager since 16th March 2010.
2.
In 2013, the government revised the grading of positions of Directors and Managers in the Civil Service by Circular No 7 of 2013. The appellant was not a beneficiary of the Normalisation of grades.
3.
The appellant’s gripe was that she ought to have been upgraded to J, because she was performing duties of Directors and she should actually be Director Contracts Management, Ministry of Finance as she reports directly to the Principal Secretary.
4.
The government circular No 7 of 2013 whose passages the appellant relied on read;
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‘it is (was) for general information and appropriate action that there is anomaly on the Civil Service grading structure from Grade H and J whereby some director positions are Grade I and J, while Managers are at Grade H and I. in order to rectify this a revised salary grading (attached) for the effected positions has been developed. The effective date for implementation of this normalisation is 1st April 2013’
The affected positions are those at Director and Managers levels which are currently at Grade I and H respectively. The change will only be effected whereby the incumbent is at head of department Level as 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 Public Service.
5.
The appellant heavily relied on the Deed of Settlement entered into by the Chief Legal Officers at the Attorney General’s chambers, and Ministry of the Public Service, by which Chief Legal officers were regraded to Director Level pursuant to the same circular. She contends that she was similarly circumstanced. She prayed that she be upgraded from I to J, which is a director position.
6.
She tabulated the benefits of the directorship position in the sum of M851604, which is the variance between grade I and J. she be entitled to a secretary, a car, office suitable for a director, and the pension benefits should be adjusted accordingly.
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7.
The Principal Secretary Public Service denied that there was equivalence between appellant’s job description and the director’s position. Her job description annexure TT1, 3.7 reads,
‘coordinates the input for annual report with other sectional heads’. The Principal Secretary went on to aver that appellant’s position did not appear in the circular and therefore did not qualify for upgrading.
8.
He averred that appellant is a Senior Official in her section/ unit designated Manager Contracts and graded at scale I. There is no position of Director in the establishment structure for the Ministry of Finance under the contracts Management section unit. The appellants job description does not assign her any directorship role. Similarly, the position of Financial institutions Manager in the same Department was not upgraded due to the fact that there is no anomaly, despite such Manager being a Senior Official in that section1.
9.
It was the Second Respondent’s position, that appellant cannot be heard to say 1st Respondent acted unfairly, discriminatory and unreasonably under these clear circumstances in relation to the 2013 circular, which clearly specified which positions were to be normalized.
1 Para 8, Answering affidavit
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10.
The learned Judge in her understanding the circular applied only to a Manager grade H and to a director Grade I at the time of issuance of the circular, who was head of department or deputized a head of department.
11.
She dismissed the assertion by the appellant that there was equivalence between her position and that of Chief Legal Officers who had been elevated to Grade J by a deed of settlement after a law suit. In a claim for discriminatory treatment, a reasonably close resemblance of the facts and circumstances of the plaintiff and comparators cases is required, rather than a showing that both cases are identical in other words, the comparator must be similarly situated to the plaintiff in all material respects. The judge relied on the decision of Lesotho Police Association and 2 Others v The Commissions of Police2. She therefore held that the appellant’s position was not comparable to the Chief Legal Officers, who were upgraded to J (directorship) because they performed similar functions as Directors of Legal services.
12.
The appellant in her third prayer prayed that the court a quo creates the position of Director Contracts Management and elevate her to that positions. The existing structure had seven (7) divisions or units, four of which were headed by Directors. These are private sector Development, Pensions, PPAD and Contracts Management headed by
2 Cc|14|2020 para 100
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the appellant. The other two were financial Affairs and National Authorising Office.
13.
Under section 6, of the Public Service Act, 2005, the power to appoint persons to hold or act in an office in the public service, including power to confirm appointments of such persons is vested in the Public Service Commission.
14. Section 10(1), of the same Act, empowers the Minister of Public Service to do what in his opinion is necessary or expedient for giving effect to the objects of the Act. Section 10(2) empowers the Minister to make provision for all or any of the matters there set out, including:
a)
Policy on the establishment or abolition of departments, sub-departments or officer, and transfer of functions and public officers from one department to another
b)
Employment policy and any other policy that relates to human resources, including, but not Limited to promotions, training and development. Public Officers, relations, retirements, control and organization of Ministries and departments.
15. The learned Judge concluded that there was no equivalence between the appellant’s Managerial position and Chief Legal Officers. There was no position of Director, Contracts Management in the organizational structure of the Ministry of Finance.
16. The power to create position and make appointment to those
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positions reside within the Ministry of Public Service and the
Public Service Commission and not the courts. She dismissed
the application and made no order as to costs.
17. Dissatisfied with the Judgment, the appellant noted this
Appeal. The grounds are:
1)
The learned Judge a quo erred and misdirected herself by refusing and denying to enforce normalisation of the appellant’s position, in terms of the Government circular NO 7 of 2013.
2)
The learned Judge misconstrued the true meaning of Government circular No 7 of 2013 to the extent that the learned Judge believed that the appellant does not fall under the ambit of the circular.
3)
The learned Judge erred and misdirected herself by putting much reliance in the legal cadre and decided this case on that basis while the purpose of that communication was only to the extent that, the head of department is not the principal secretary. In this context and in determining the scale, what is important is the work and status and not the nomenclature or tag of the post.
4)
The learned Judge misdirected herself in interpreting the case as the case of discrimination and went ahead to compare the case of the appellant to that of Chief Legal officers and decided the case on that ground.
18. The Appeal
The core argument on appeal is that the appellant despite her being at the level of Head of Department, which position was captured by circular No 7 of 2013, she was excluded in the normalization of salary grade. The appellant ought to have been
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upgraded to J from I in line with other Directors in the Government of Lesotho. The Court should declare that the appellant holds the position of Director with effect from 1st April 2013.
19. In arguing the appeal, appellant resiles from prayer 3. In para 2.11 it is submitted that:
‘the appellant does not demand a promotion from the court, from the position of Manager to the position of Director. The position of Director contracts Management does not exist in the establishment. What the appellants seeks from the court is that as head of department, she be remunerated at Grade J in terms of the circular No 7 of 2013’.
20. And yet prayer 3 was couched in these terms:
‘It be declared that the applicant holds the position of Director with effect from 1st April 2013. As such all her terminal and pension benefits shall be determined in line with Grade J of the Government employment scale’.
21. On appeal it is strenuously argued that the appellant is Head of Department who reports directly to the Principal Secretary. She should be remunerated at grade J, like other heads of department, there being no position tagged Director Contracts Management. She should be graded like all other heads who happen to be designated directors. It was not the appellant’s case that she be designated Director.
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22. The court a quo’s observation that the determination whether an officer is a head of department, is not the designation of the position that is decisive, but the functions they perform was correct. The court however misconstrued the scope of the application of the circular.
23. The appellant did not necessarily advance the case of discrimination, if it were so the application would have been brought under Section 18 of the Constitution, so it was argued. In upgrading Chief Legal Officers to grade J, the Public Service considered the duties performed by Chief legal officers and Director of legal Services not the nomenclature or tag of the post.
24. In support Mokhesi J’s Judgement in Molapo Moshoshoe v Ps Ministry of Communications and Technology was cited, where he said:
‘…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 deputise of head of department’.
25. In a nutshell, the grievance was or is that, in her case, there is no correlation between the duties performed and the grading. The position is undergraded and should be upgraded to grade J.
26. Respondent’s case on appeal
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The respondent put considerable store on discrimination despite the appellant abandoning discrimination in an ambivalent fashion. Clause 2.17 of the heads is couched in these terms:
‘The appellant did not necessarily bring a case for discrimination under section 18 of the constitution. The court misconstrued the argument and reliance of the applicant on the legal cadre.
27. It was argued that the appellant did not prove that she heads a department or deputises the heads of department. The appellant not occupying any of these positions and therefore was ineligible for upgrading. A comparison with those who headed department or deputised was disingenuous.
28. The appellant was only a Senior officer in her section as Contracts Manager. Her position did not have to be normalized. Appellant failed in the court a quo to make out a case to review 2nd Respondent’s decision. This court’s decision in Ntseiche v Public Service Tribunal3 was relied on where we said : One cardinal precept is whether the decision of an administrator is rationally related to the purpose for which the power was exercised. Thus, the test for rationality has to be measured
3 C of A (CIV) NO 11|2019 LSCA at 39
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against the backed up of the pleadings and the substantiation of one’s case.
29. The issues in this appeal are
i.
What was the intent of circular NO 7 of 2013
ii.
Was the appellant a head of department or deputised the head of department
iii.
Was this a proper case for judicial intervention.
30. The law
The beginning is to quote from the circular paragraphs 1 and 2. Which reads:
Para 1 ‘it is notified for general information and appropriate action that there is anomaly on the Civil Servants grading structure from Grade H 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 1st April 2013’.
Para 2 ‘The affected positions are those at Director and Manager levels which are currently at Grade I and H respectively. The change will only be effected whereby an incumbent is at head of department level or deputise the head of department. Ministries are advised to note that some positions have been omitted due to the
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need to change their nomenclature. In such cases Ministries are to prepare proposals accordingly for consideration by the Ministry of Public Service.
31. I will deal with grounds 1 and 2 together, as they both center on the interpretation of the circular. Para 1 of the circular makes it clear that the affected positions were directors and Managers at grade I and H respectively. Excluded are Directors and Managers at J and I respectively. Appellant as Manager at Grade I, was excluded. However, the inclusion of Head of department or deputy, which enabled Chief Legal Officers to be graded to J, is what appears to have solidified the appellants case. What is more is the Attorney General’s opinion. I will have more to say later in the judgement.
32. The circular invited Ministries were advised to note that some positions had been omitted due to the need to change the nomenclature. In such cases Ministries were to prepare proposals accordingly for consideration by the Ministry of the Public Service.
33. Grounds 3 and 4 are similar. They both attack the learned Judge of having anchored her decision on discrimination of the appellant, when compared to the way the Chief Legal Officers were treated. The learned Judge’s view was that the Chief Legal Officers and the Director of legal services, were both heads of
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department doing the same duties. That assertion was supported by the Attorney General. It cannot be plausibly denied that in case of the appellant, she was at the apex of her department and she reported to the Principal Secretary. Her duties and that of a director In the Ministry of Finance were similar, the two grounds have merit.
34. In Matebesi v Director of Immigration and Others4, this Court held:
Judicial review checks lawfulness, procedural fairness and rationality, not the merits of the decision. This court stressed that it is not its role to decide what is ‘right’ or ‘better’ – that’s public official’s domain, provided the decision is legally sound.
35. I have had the opportunity of reading, the President’s Judgment in the case of Molikuoa Sekhonyana and Another v Principal Secretary Ministry of Public Service and Others5 in which case 1 sat with him and brother Van Der Westhuizen, which case arose from the same circular.
36. The president makes a valid point when he draws a distinction on the two approaches in administrative law. The English approach where there is parliamentary sovereignty and ours and South African Jurisdictions, where Constitutions are
4 C of A (CIV) 29/2002
5 C of A (CIV) No 70/2024 (2nd May 2024)
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supreme and justiciable. The rule of law demands a more vigorous and structured framework for controlling public power : As a constitutional norm, irrationality is not a synonym for extreme, espoused in Associated Provincial Pictures v Wednesday Corporation6, it is a litmus test for the internal coherence and lawful foundation of administrative action.
To insist on Wednesday unreasonable as a standard that invites judicial intervention is to give succour to irrationality.
37. In administrative law, irrationality performs a vital constitutional function : ….. policies the outer boundaries of lawful discretion. Public authorities are entrusted with power for lawful purposes, not for whimsical or arbitrary use. Where a decision lacks a rational connection to the purpose for which the power was conferred, it offends the very notion of good administration and undermines public confidence in the integrity of governmental decision-making. In modern constitutional democracies, such as the United Kingdom and the commonwealth jurisdictions that draws upon its tradition, irrationality is to be understood merely as synonym for “bad” or “unfair” decisions. Rather it is a doctrinal control mechanisms that ensures decisions are supported by logic, are internally coherent and are consistent with the public interest the power was meant to service. It prevents the state from acting in a
6 (1948) 1KB 223
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manner that is inexplicable, incoherent, or completely untethered from the objectives of governance per Mosito P7.
38. Consideration of the appeal
It cannot be plausibly denied that internal coherence, logic and consistency are absent in the circular. This has led a number of cases being filed, by those, who perceive the circular as having short-changed them. You have Chief Legal Officers, whose position do not appear in the circular being upgraded. The Chief Legal Advisor to government rendering an opinion that, what is critical is not the nomenclature, but functions.
39. The circular as observed by Mosito P, confines the scope of change to incumbents who serve either as heads of departments or as deputy heads. This is an important qualification and as one that acts as a gatekeeping criterion. It implies that not all “managers”, or “directors” are automatically entitled to upgraded grading, the entitlement is function based, not mere title-based – the inclusion of this proviso is both deliberate and consistent with jurisprudential principle that classification must correspond to duties performed is well established in the decisions of this Court. Titles are easily bestowed, sometimes unevenly distributed, and occasionally out of step with institutional realities. Functions, by contrast, admit objective scrutiny. They speak through reporting lines, decision-making
7 Molikuoa, supra para 26
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authority, supervisory control, and the practical burden borne by those who occupy the relevant posts8.
40. This Court said in Fobo v Ministry of Finance9:
The Public Service Commission’s decision to upgrade and retire the appellant in accordance with circular No 7 of 2013 could not be lawfully ignored unless set aside. The court emphasized that once a benefit is conferred under a formal administrative instrument such as a circular, it attracts legal protection unless lawfully revoked.
41. The failure to assimilate long-serving public officers into a revised structure, while they continue to discharge equivalent functions, constitutes administrative injustice. The court emphasized that the grading must reflect duties and that exclusion from regrading in such circumstances is unlawful.
42. While para 1, of the circular dealt with normalization of manager’s and director’s scales, para 2 ought to have been broadly construed by Banyane J. This is the point Mosito P, makes in para 47 of the Molikuoa judgement. The circular include those who were heads or deputy heads of department regardless of nomenclature; but were functionally equivalent.
43. The learned judge accepted the other similarly placed officers most notably Chief Legal Officers were upgraded to J, and yet
8 Ibid, para 31-32
9 Fobo v Ministry of Finance and Others C of A (CIV) 33/2024)
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their positions was not mentioned in the circular. The test in para 2 of the circular which was interpreted in favour of Chief legal officers ought to have being interpreted in favour of the appellant as well. Herein lies the irrationality.
44. The appellant was head of the management of contracts, functionally she was entitled to regrading of J, it is not the nomenclature of being a manager which was decisive, but functions.
45. Disposition
For the reasons set out above, the appeal succeed. The refusal to regrade the appellant to Grade J under circular No 7 of 2013 constituted unjustifiable act of unequal treatment. In our respectful judgment, it was irrational and inconsistent with the constitutional obligation to act fairly and without bias.
46. Order
Accordingly the following order is made:
1.
The appeal is upheld.
2.
The Judgement of the High Court in CIV/APN/0332/2023 is set aside and substituted with the following:
(a)
It is declared that the refusal to regrade the
applicants from Grade H to Grade J under circular
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No. 7 of 2013 was irrational.
(b)
The respondents directed to regrade the appellant to
Grade J with retrospective effect 1 April 2013.
(c)
The respondents shall pay the appellant within 60
days all arears and salary entitlements due to her at
Grade J from 1 April 2013 to the present.
(d)
The respondents shall pay the applicants' costs.
_________________________
P MUSONDA
ACTING JUSTICE OF APPEAL
I agree
_________________________
K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree
_______________________
CHINHENGO
ACTING JUSTICE OF APPEAL
FOR THE APPELLANT: ADV K J KELEPA
FOR THE RESPONDENTS: ADV M J NKU