Nonkululeko Zally V The Prime Minister & 3 Others (CIV/APN/0012/2023) [2024] LSHC 200 (18 October 2024)

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                     CIV/APN/0012/23                

In the matter between:

NONKULULEKO ZALY                                     APPLICANT

and

THE PRIME MINISTER                                   1^st RESPONDENT

MINISTRY OF TRADE, INDUSTRY,                2^nd RESPONDENT

BUSINESS DEVELOPMENT AND TOURISM   

PUBLIC SERVICE COMMISSION                     3^rd RESPONDENT

THE ATTORNEY GENERAL                            4^th RESPONDENT

 

 

Neutral citation:  Nonkululeko Zaly v The Prime Minister and 3 Others [2023] LSHC 200 (18 October 2024)

 

 

 

 

 

 

CORAM             :      KHABO J.,

 

HEARD             :      14 DECEMBER 2023

 

DELIVERED      :      18 OCTOBER 2024

 

 

 

SUMMARY

 

Judicial review - Of an exercise of executive power to terminate an officer’s  contract of employment - Whether the audi alteram partem principle is applicable thereto - Applicant herein seeking the review of the Prime Minister’s decision to terminate her contract of employment in a situation in which she was engaged by the Government of Lesotho as a Principal Secretary on a thirty - six (36) months fixed - term contract  on the basis that such termination was unlawful - In that she had not  been afforded a hearing prior thereto - She contended that the need for a hearing was necessitated by the mentioning by the Prime Minister that the termination was motivated by the then ongoing investigation against her by the Directorate on Corruption and Economic Offences (DCEO) - The Prime Minister claims, to the contrary, that Applicant’s contact of employment had been validly terminated on a no - fault basis and further that he had discharged his contractual obligation by paying her in lieu of notice  -  Court finds  that the Prime Minister’s decision to terminate Applicant’s contract of employment having been based on a  ‘perceived’ misconduct warranted that she be afforded a hearing.

 

ANNOTATIONS

Statutes and subsidiary legislation

Constitution of Lesotho, 1993

Interpretation Act, 1977

Public Service Act, 2005

 

Cases cited

Lesotho

Ntśinyi v Principal Secretary, Ministry of Foreign Affairs and International Relations and Others CIV/APN/92/2018

 

Supreme Furnishers (Pty) Ltd and Another v Molapo LAC (1995 - 1999) 134

 

The President of the Court of Appeal (Justice Michael Mathealira Ramodibeli) v The Prime Minister (Dr Motsoahae Thomas Thabane) and 4 Others Constitutional Case No. 11/2013

 

Tumo Lekhooa v The Prime Minister and 3 Others CONST/17/2017

 

 

 

 

 

Other jurisdictions

South Africa

 

Albutt v Centre for the Study of Violence and Reconciliation 2000 (3) SA 293 (SA)

 

Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC 20

 

Naran v Head of the Department of Local Government, Housing and Agriculture (House of Delegates) and Another 1993 (1) SA 405

 

Literature

Brassey - Employment and Labour Law Vol. 1 JUTA & Co., Ltd 1998

 

Cora Hoexter - Administrative Law in South Africa 2^nd ed., JUTA, 2019

 

Grogan J., Workplace Law 12^th ed., JUTA, 2017

 

 

 

 

 

 

JUDGMENT

 

KHABO J.,

 

Introduction

 

[1]   The Applicant is herein challenging the decision of the Prime Minister,1^st Respondent herein, to terminate her employment with the Government of Lesotho (the Government) by way of review. It is common cause that she was engaged by the Government initially as a Principal Secretary in the Ministry of Local Government but later joined the Ministry of Trade, Industry, Business Development and Tourism where her services were terminated, now forming the gist of the current dispute.

 

 

 

 

Background to the dispute  

 

[2]   The Applicant entered into a fixed - term contract[1] with the Government as a Principal Secretary for the duration of thirty-six (36) months commencing 24^th August 2020 and ending   31^st August 2023.  She was, however, released from her duties on 11^th January 2023[2] and paid three months’ salary in lieu of notice.

 

[3]   She is challenging this decision as null and void and of no force or effect on several grounds, namely, that:

 

1. she was not given an opportunity to respond to the allegations levelled against her in the termination letter;

 

2. the issues raised in the letter were actuated by malice and improper motive; and

 

3. that she had a legitimate expectation that she would remain in employment for the thirty - six (36) months stipulated in the contract of employment.

 

[4]   Aggrieved by this decision, she lodged an application with this court on 15^th January 2023 to challenge this termination of her contract of employment. She moved the court on an urgent basis, but the application was unsuccessful, and the matter was placed on the roll of ordinary matters.

 

Applicant’s case

 

[5]   Relating to how it all started, the Applicant intimated to the court that whilst on sick leave[3] on or about 16^th December 2022, some men stormed into her house without identifying themselves, raided, searched and seized some documents. It is her case that the real reason behind her dismissal was that she was being investigated by the Directorate on Corruption and Economic Offences (DCEO).

 

[6] In further faulting the termination of her employment the Applicant averred that even at the time of instituting this application, no criminal charges had been preferred against her by the DCEO. She, therefore, prays that the decision to terminate her services be reviewed and set aside and further that the court orders payment of her benefits putting her in a position she would have been had the termination not occurred.

 

Reliefs sought

 

[7]   Her substantive prayers, as amended, are couched in the following terms, that a rule nisi be issued returnable on the date and time to be determined by this Honourable court, calling upon the Respondents to show cause (if any) why –

 

1. the 1^st Respondent’s decision to terminate [her] employment contract with the Government of Lesotho as the Principal Secretary of the 2^nd Respondent as set out in his letter of the 11^th January 2023 shall not be reviewed, corrected and set aside;

 

2. upon the granting of [the above prayer], the Respondents be directed to pay [her] for the remainder of her contract in salaries and all benefits which accrued and or would have accrued had [she] remained contracted;

 

3. the Respondents be ordered to pay costs on an attorney and client scale; and

 

4. the Applicant be granted further and/or alternative relief.

 

Respondents’ case

                                       

[8]   The application is opposed with the 1^st Respondent claiming, to the contrary, that Applicant’s employment has been lawfully terminated on a no - fault contractual basis, and further that he duly discharged his contractual obligation by paying her in lieu of notice, which according to him warranted no hearing.

[9]   The 1^st Respondent contends that the termination of Applicant’s contract of employment was a lawful exercise of executive powers vested in him by Section 11 (6) of the Public Service Act, 2005[4] through which he acted in consultation with the Public Service Commission. The said Section provides that:

 

Notwithstanding sub - sections (4) and (5), the power to remove the Government Secretary and a Principal Secretary from office shall vest in the Prime Minister acting after consultation with the Commission.

 

[10]  The 1^st Respondent averred that he duly consulted the Public Service Commission prior to making the decision. The mainstay of his act, he says, was clause 4 of the contract of employment between the Government and the Applicant which gave him the right to terminate Applicant’s contract of employment and imposes no obligation on him to afford her a hearing. He underscored that there was no malicious intent on his part in the termination, as alleged by the Applicant.

 [11] Clause 4 provides that:

 

Each party may give three (3) calendar months’ notice of termination of appointment or cash in lieu of notice.

 

It is 1^st Respondent’s case that this clause may be invoked by either party to the contract who wishes to terminate it.  

 

[12] The 1^st Respondent contended, therefore, that he exercised a contractual right available to either party, not a public or statutory duty and that, in the circumstances, review is not a tenable remedy as the matter is not a review of a public administrative action but is regulated by the law of contract.

 

[13] Respondent’s Counsel relied for this submission on the decision of the apex court in Supreme Furnishers (Pty) Ltd and Another v Molapo[5] which cited with approval the decision of Naran v Head of the Department of Local Government, Housing and Agriculture (House of Delegates) and Another[6]  to the effect that:

 

 the audi alteram partem principle is only applicable in cases where a public body exercises a statutory right. The audi alteram partem principle is not applicable in the exercise of purely contractual rights.

 

[14] This brings to the fore that there is a distinction between the exercise of a purely contractual, administrative and an executive power in the termination of a contract of employment of an employee occupying a position in the public domain.

 

The Law

 

[15] The Applicant was appointed by the Prime Minister in terms of Section 139 (1) of the Constitution of Lesotho, 1993 (the Constitution). It is trite that the power to appoint includes the power to dismiss.[7] Thus, the 1^st Respondent’s power to terminate Applicant’s appointment as Principal Secretary is implicit in the said Section as it has not been explicitly provided for.

 

[16] It is worth mentioning at this juncture that the Applicant elected to challenge her termination of employment from an administrative as opposed to the employment law perspective, hence, this court has no option but to resort to the common law. The concept of ‘dismissal’ is foreign to the common law. The common law recognises ‘termination’ of employment.

 

[17] The Prime Minister in exercising his powers under Section 139 (1) of the Constitution read together with Section 11 (6) of the Public Service Act was not exercising a purely contractual but executive power to run the Government. According to one of the eminent authors in Labour Law, John Grogan in Workplace Law[8] some terminations of employment do not constitute dismissals. He cited termination of employment in the exercise of executive power as one such form of termination of employment that does not constitute a dismissal.

 

[18] The 1^st Respondent is head of the Executive and he took the decision to terminate Applicant’s contract of employment as such. In exercising this power, he exercised executive as opposed to a purely contractual or administrative power.  This court is fortified in this conclusion by the decision of this court sitting in its constitutional jurisdiction in Tumo Lekhooa v The Prime Minister and 3 Others[9] which cited with approval from Masetlha v President of the Republic of South Africa and Another[10] that the power to dismiss is corollary to the power to appoint and does not constitute administrative action particularly for this special category of appointments.

 

[19] The court was here referring to the position of Director General in the Republic of South Africa, analogous to the position of Principal Secretary in Lesotho. We are talking here of high-ranking officers. Grogan, supra, stated that “the termination of such appointments constitute[s] acts of executive as opposed to administrative action and are hence beyond the jurisdiction of courts unless bad faith is proved.”

 

[20] This brings the court to an enquiry whether the 1^st Respondent’s decision in terminating Applicant’s contract smacked of ‘bad faith.’ The answer to this question can be ascertained from the notice of termination, annexure ‘NZ 2” to Applicant’s founding affidavit. Therein the Prime Minister gave the Applicant notice of termination of her contract of employment and offered her three months’ pay in lieu of notice.

 

[21] He, however, not only stopped at that but went further to advance reasons that motivated his decision, namely, that the Government’s trust and confidence in the Applicant had been eroded because he had information to the effect that the DCEO had seized certain documents from her possession evidencing a commission of crime and that she failed to give a satisfactory explanation of the possession thereof.

 

 

Whether 1^st Respondent’s decision in terminating Applicant’s contract of employment was wanting in good faith

 

[22] As aforementioned, the Applicant alleges that the Prime Minister’s decision was motivated by a malicious intent in that he decided to terminate her employment without affording her a hearing in a case in which serious allegations had been levelled against her. He, however, in contrast, contended that he had a contractual right to terminate Applicant’s employment in terms of clause 4 by either giving her three months’ notice or paying her in lieu, normally referred to as a ‘no fault’ termination of employment.

 

[23] ‘No fault’ terminations are possible if there are no underlying issues motivating the dismissal. The mention of a ‘perceived’ misconduct on the part of an employee, implies the finding of fault, a factor which is naturally adverse. It, thereby, attracts a hearing on the natural law principle of the audi alteram partem rule, which is meant to enable a party who could be affected by an adverse decision to give his or her side of the story before any decision can be made.

[24] At the risk of repetition, but for more clarity, in casu, the 1^st Respondent did not just stop at giving the Applicant notice of termination of her employment but went further to level accusations that she was being investigated by the DCEO and that she failed to give a satisfactory explanation of the documents that were allegedly found in her possession.

 

[25] The 1^st Respondent cited erosion of trust in the Applicant as a result of then ongoing investigations by the DCEO. Trust issues imply a breach of one of the implied terms of the contract of employment, namely, mutual trust and confidence. This term of employment arises from an employee’s implied duty to respect the employer’s good name and interest.

 

[26] It is a well-established principle that parties to the employment contract should not conduct themselves in a manner calculated or likely to destroy or damage the relationship of trust and confidence between them. It is one of the implied duties of the employee to respect the employer’s reputation and do nothing that disparages or otherwise brings it into disrepute.[11] 

 

[27] As pointed out above, the exercise of executive power is as a rule not within the purview of courts’ review powers. However, according to The President of the Court of Appeal (Justice Michael Mathealira Ramodibeli) v The Prime Minister (Dr Motsoahae Thomas Thabane) and 4 Others[12] the exercise of executive power may be constrained by the principles of legality and rationality. This case was cited with approval in Tumo Lekhooa, supra.[13]It should be noted that the exercise of executive power is distinguishable from the exercise of administrative power, much as they both relate to the exercise of power by public functionaries.

 

[28] In making this disposition the court relied on Masetlha (supra)[14] where Moseneke DCJ, as he then was, had this to say, that:

 

… the power to dismiss must ordinarily be constrained by the requirement of procedural fairness, which incorporates the right to be heard ahead of an adverse decision.

 

[29] This decision was relied on in Ntśinyi v Principal Secretary, Ministry of Foreign Affairs and International Relations and Others[15] in which the court had an opportunity to interrogate the executive exercise of public power and found it to be reviewable. It confirmed that courts should be slow to interfere with executive power, but that such power is constrained where principles of rationality and legality have been infringed. The Applicant had in this case challenged a decision to recall her from a diplomatic mission in Rome before the end of her tenure. The court, however, found the Executive to have afforded the Applicant sufficient hearing prior to her recall.

 

[30] Echoing the sentiments expressed in The President of the Court of Appeal (Justice Michael Mathealira Ramodibeli) supra) the court in Lekhooa, supra. held that a decision to terminate Applicant’s contract of employment on secondment as a Director General of the National Security Services (he substantively held the rank of Colonel in the Lesotho Defence Force) was an executive one in the name of national security, an area courts are not suited to enquire into because of the  sensitivity of such matters, but that the exercise of such power is constrained by principles of legality and rationality and, therefore, subject to judicial review, where this is alleged. The decision of Albutt v Centre for the Study of Violence and Reconciliation[16] extended procedural fairness to the principle of legality.

 

[31] Powers to appoint and dismiss Principal Secretaries is conferred on the Prime Minister exercising his executive power for the effective running of the Government. Courts cannot dictate to the Executive on how to run its affairs, otherwise, they would be usurping its power contrary to the principle of separation of powers. The authority conferred on the Executive must, however, be exercised lawfully, rationally and in a manner consistent with the Constitution.

 

 

Conclusion

 

 

 

[32] Breach of trust being a form of a misconduct, the 1^st Respondent owed the Applicant a duty to afford her a hearing to answer to the adverse allegations levelled against her. These were allegations that affected her prejudicially, and as such she had to be afforded an opportunity to give her side of the story before the 1^st Respondent, her employer, could take the decision to terminate her contract.  “Natural justice is, after all, an accepted part of the rule of law.”[17]

 

[33] “[T]he audi principle or the right to be heard, which is derived from tenets of natural justice is part of the common law. It is inspired by the notion that people should be afforded a chance to participate in the decision that will affect them and more importantly an opportunity to influence the result of the decision.”

 

[34] Applicant’s contract having lapsed; the court finds it appropriate to order that she be paid her salary and benefits for the remaining months of the contract that she would have earned had the contract of employment not been terminated.

 

ORDER

 

In the result, the following order is made:

 

1. The decision of the 1^st Respondent to terminate Applicant’s employment contract with the Government of Lesotho as the Principal Secretary of the 2^nd Respondent is hereby reviewed, corrected and set aside;

 

2. The Respondents are directed to pay the Applicant for the remainder of her contract in salaries and all benefits which accrued or would have accrued had the Applicant remained contracted; and

 

3.  Applicant is awarded costs on an ordinary scale.

 

 

 

                                                                        ______________

                                                                         F.M.KHABO                                                                                                   JUDGE

 

 

 

For the Applicant            :     Adv., R. Setlojoane

For the …  Respondents  :     Adv., L.D. Molapo