Relebohile Maqelepo V The Principal Secretary, Ministry of Tourism, Environment and Culture (CIV/APN/0324/2022) [2024] LSHC 216 (7 November 2024)

 

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

 

HELD AT MASERU                                CIV/APN/0324/2022

    

In the matter between:

 

 

RELEBOHILE MAQELEPO                             APPLICANT

 

 

and

 

 

THE PRINCIPAL SECRETARY, MINISTRY     1^st RESPONDENT

OF TOURISM, ENVIRONMENT AND

CULTURE

 

THE SECRETARY, PUBLIC SERVICE            2^nd RESPONDENT

COMMISSION

       

THE DIRECTOR, HUMAN RESOURCE,          3^rd RESPONDENT

MINISTRY OF TOURISM, ENVIRONMENT

AND CULTURE

 

THE PRINCIPAL SECRETARY, PUBLIC          4^th RESPONDENT

SERVICE

                               

THE PUBLIC SERVICE COMMISSION            5^th RESPONDENT

                       

THE PRINCIPAL SECRETARY, MINISTRY     6^th RESPONDENT

OF FINANCE

ATTORNEY GENERAL                                   7^th RESPONDENT

 

THATO NYAPISI                                             8^th RESPONDENT

 

TS`OLO MATS’ABA                                        9^th RESPONDENT

 

MALILIMALA PHOMANE                                10^th RESPONDENT

                                       

 

Neutral citation  :   Relebohile Maqelepo v The Principal Secretary, Ministry of Tourism, Environment and Culture and 9 Others  [2022] LSHC 216 Civ (07 November 2024)

 

 

CORAM              :       KHABO J.,                              

HEARD              :       22 MARCH 2024                               

DELIVERED       :       07 NOVEMBER 2024

 

SUMMARY

 

Recruitment and selection - Review - Of the decision by the Principal Secretary, Ministry of Tourism, Environment and Culture’s decision not to short - list the Applicant to a position she had applied for and felt she qualified and ought to have been short - listed  - Court finds no irregularity, on a balance of probabilities, in the short - listing process – As a general principle, courts will not interfere with an administrative decision unless it is arbitrary, capricious or irrational.

ANNOTATIONS

 

Statutes and subsidiary legislation

Basic Conditions of Employment for Public Officers, 2011

Public Service Act, 2005

Public Service Regulations, 2008

 

Cases cited

Lesotho

Beukes v Beukes CIV/T/02/2016

Rets’elisitsoe Leshapa v Lisebo Leshapa and 4 Others CIV/APN/434/2020

 

Ramohalali v Commissioner of Lesotho Correctional Services and 5 Others (Constitutional Case 2 of 2016) [2017] LSHC 34 (12 September 2017)

 

Roma Taxi Association v Officer Commanding Roma, Police Station and 6 Others C of A (CIV) No. 20/2015

 

Other jurisdictions

South Africa

Basson v Provincial Commissioner (Eastern Cape) Department of Correctional Services [2003] 24 ILJ 803 (LC);[2003] 4 BLLR 341 (LC)

 

Benjamin v University of Cape Town [2003] 12 BLLR 1209 (LC)

National Commissioner of the South African Police Service v Safety and Security Sectoral Bargaining Council and Others (2005) 8 BLLR, 808 (LC)

 

Pillay v Krishna and Another 1946 AD 946

University of Cape Town v Auf der Heyde (2001) 22 ILJ, 2647 (LAC)

Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC)

 

Literature

 

 

Concise Oxford English Dictionary Oxford, 10^th ed., 2002

 

Hoffman and Zeffertt - The South African Law of Evidence, 4^th ed., Butterworths, 1988 reprinted in 1989

 

Zeffertt, Paizes and Skeen (formerly Hoffman and Zeffertt) - The South African Law of Evidence, Lexis Nexis, Butterworths, 2003

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

KHABO J.,

 

Introduction

 

 

[1]   The Applicant, engaged as a Tourism Officer, in the Ministry of Tourism, Environment and Culture applied unsuccessfully for the position of Tourism Manager, Grade I. She has approached this court to seek the review of the decision of the Principal Secretary of the said Ministry to short - list, to her exclusion, the 8^th to the 10^th Respondent for the position as advertised in the Ministry’s Circular No.5 of 2021, MTEC/5/3 dated 31^st December, 2021.[1] Her complaints are two - fold, namely, that:

 

1. she met the job requirements for the job and ought to have been short - listed;

 

2. that the short - listing was irregular in that it was not preceded by a mandatory competency test as prescribed by the law.

 

She, therefore, prays that the entire recruitment process be nullified, and start de novo.

 

[2] Her prayers are couched in the following terms that the:

 

1. Rules of this Court relating to forms, service and time frames be dispensed with on account of urgency hereof;

 

2. upcoming/pending interviews and/or their results scheduled for the 13^th October, 2022 and/or any date for the position of Manager Tourism (Grade I) be stayed pending finalization of this Application and/or the interviews be declared null and void ab initio;

 

3. 1^st and 2^nd Respondents be directed to jointly and/or severally dispatch the docket and all its contents relating to 8^th to 10^th Respondents’ disputed shortlisting/interviews/selection and appointment on or before the 14^th day following the service hereof;
4. entire process relating to the “shortlisting” and the ensuing interviews and “appointment” of either of the 8^th, 9^th and 10^th Respondents for the position of Manager Tourism (Grade I) be reviewed and set aside as nullity for skipping the mandatory competence assessment.

 

5. process of shortlisting, (preceded by competency assessment test), interviews, selection and appointment for the position of Manager Tourism (Grade I) should start de novo [to accommodate] and/or in consideration of the Applicant.

 

Alternatively, that:

 

6. the entire disputed process of recruitment and selection i.e. job advertisement, lodging of applications, “shortlisting” and resultant “appointment” of either the 8^th, 9^th to 10^th Respondents for the position of Manager Tourism (Grade I) be declared null and void and to start de novo before different bearers of the Public Service Commission and/or due delegates or agents for skipping the competency assessment test;

 

7. Respondents pay costs of this application only in the event of contesting same.

[3]   The application is opposed with the Respondents contending that it is moot. It is common cause that the Applicant launched her application on 14^th October 2022 when interviews for the three short - listed candidates had been held the previous day on 13^th October 2022 and the position been awarded to the 9^th Respondent. Indeed, most of these prayers were already overtaken by events, and, therefore, moot.

 

[4]   With an appointment already made, the only viable prayer is part of prayer (d) above that the “appointment” of whoever had been appointed (and by now we knew it was the 9^th Respondent) be reviewed and set aside as a nullity for skipping the mandatory competency assessment.

 

1^st to 7^th and 9^th Respondents’ case

 

[5]   It was argued on behalf of the 1^st to the 7^th Respondents that the 1^st Respondent received a large pool of applicants some of whom possessed a Master’s Degree in Tourism Management or in Social Sciences coupled with three years minimum experience. It is 1^st to 7^th Respondents’ case that those who had this requisite qualification were subjected to a competency assessment which informed the short - listing of the three candidates who were invited for interviews by the Public Service Commission, the 5^th Respondent herein.

 

[6]   The argued that as a practice, only successful candidates from the initial selection process are invited to interviews. 1^st to 7^th Respondents dispute that the Applicant was a suitable candidate for the job, hence, Counsel submitted that there was no irregularity committed in the recruitment process as all the due processes were followed. She, therefore, prayed that the application be dismissed with costs.

 

[7]   Counsel for the 9^th Respondent argued along similar lines with Counsel for the 1^st to 7^th Respondents, inter alia, that the Applicant failed to meet the primary requirement for the position, namely, a Master’s Degree in Tourism Management, which she does not possess. She, therefore, prayed in the same vein that the application be dismissed with costs.

 

The relevant law

 

[8] The fundamental principle in the recruitment and selection of candidates in the public service in the Kingdom is as enunciated in Section 8 (1) of the Public Service Act, 2005[2] that:

 

Entry into and advancement within the Public Service shall be based on merit, namely: ability, qualifications, knowledge, skill and aptitude after a fair and open competition which assures that all citizens of Lesotho receive equal opportunity.

 

[9]   In carrying out this noble mandate, Section 4 (1) of the Basic Conditions of Employment for Public Officers, 2011[3] provides that all positions graded at H and above must undergo a competency test. The Section reads:

 

Applicants who meet the job requirements for positions graded H and above shall undergo a competency assessment which shall only be done by professionals and qualified assessors.

 

[10] This provision, couched in the same terms as the Basic Conditions of Employment for Public Officers, is repeated in Section 24 of the Public Service Regulations, 2008.[4] The requirement for a preliminary assessment is further underscored in Regulation 25 (1) and (2) which provide in respect of short - listing of candidates that:

 

1. A short - list of applicants, based on a preliminary interview and/or assessment results, shall be prepared by the Human Resources Department, in consultation with the Line Manager and approved by the Head of Department and the relevant Minister;

 

(2) The approved short - list shall be submitted to the Commission for determination.

 

[11] That a competency assessment is a pre - requisite for candidates who wish to compete for positions graded at H and above is settled in the law as it stands. It is common cause that the advertised position of Tourism Manager is graded above grade H, and candidates had to undergo a competency assessment, otherwise, known as a psychometric test.

 

[12] Based on the prescripts of Sections 4 (1) of the Basic Conditions of Employment for Public Officers and 24 of the Public Service Regulations, the starting point is, whether the Applicant met the requirements of the job of Tourism Manager. The two Sections state that it is “Applicants who meet the job requirements” who shall undergo a competency assessment. The first enquiry is, therefore, whether the Applicant met the requirements of the job, a factor that can be ascertained from the advertisement itself. 

 

Whether the Applicant met the requirements of the job

 

[13] It is Applicant’s case that she satisfies all the requirements for the position, and feels she has been unfairly excluded from the short - list. The job specifications for the position as outlined in the Circular Notice No.5 of 2021, MTEC/5/3 were a:

 

Master’s Degree in Tourism Management/Social Sciences obtained from a recognised university plus three (3) years working experience in a related field

 

          OR

 

A Degree in Tourism Management/ Social Sciences obtained from a recognised university plus five (5) years working experience in a related field.

 

[14] The test as stated in Woolworths (Pty) Ltd v Whitehead[5] is that there must be a causal connection between the alleged irregularity and the harm suffered. To do that the Applicant has to show that but for the alleged irregularity, she would have been short - listed or appointed to the position. This case was followed in the University of Cape Town v Auf der Heyde,[6] National Commissioner of the South African Police Service v Safety and Security Sectoral Bargaining Council and Others.[7]

 

[15] The Applicant averred in her founding affidavit that she possessed a Social Sciences qualification, namely, a B.A. Degree in Public Administration and Political Science as well as a Post Graduate Diploma in Public Policy. She stated that in addition she has twelve (12) years’ experience as a Tourism Officer and five (5) years’ experience as a Senior Hotels and Restaurants Officer.

 

[16] A degree in Social Sciences appears after the word “or.” What does “or”’ mean? According to the Concise Oxford English Dictionary[8] the word “is used to link alternatives.” A closer look at the job specification: it specified a Master’s degree in Tourism Management/Social Sciences. Considering the meaning of the expression “or” it follows that the Applicant qualified in the “alternative” when the preferred qualification was a Master’s degree in Tourism Management/Social Sciences, a qualification she did not possess. She, clearly, did not meet the ‘preferred’ criterion.

 

[17] The 8^th to 10^th Respondents were not the only candidates who had applied for the position, and the Applicant has not shown that were it not for the alleged irregularities, she would have been preferred over the rest of the candidates. Furthermore, she does not mention what qualifications the three short - listed candidates possess or lack that made her more deserving. She simply avers that the final short - list “included Master’s Degree holders and at least one Bachelor’s Degree holder.”[9] This statement is not helpful to the court.

 

[18] The ‘Social Sciences’ Degree would only be resorted to if the 1^st Respondent had failed to get any candidates meeting the preferred qualifications. The onus of proof is on the Applicant to prove that she is better qualified than the 8^th to 10^th Respondents or at least than one of them to have been short - listed.

 

Conclusion

 

[19] One of the cardinal principles on the burden of proof is that “he who asserts must prove” a notion enunciated in the much-celebrated case on the issue, Pillay v Krishna.[10]  The court held per Davis AJA that:

 

… the only correct use of the word ‘onus’ is that which l believe to be its true and original sense … namely the duty which is cast upon the particular litigant, in order to be successful, of finally satisfying   the court that he is entitled to succeed on his claim, or defence, as the case may be…

         

[20] The principle has been applied in a number of cases in this jurisdiction including Beukes v Beukes,[11] Rets’elisitsoe Leshapa v Lisebo Leshapa and 4 Others,[12] Ramohalali v Commissioner of Lesotho Correctional Services and 5 Others[13] albeit put as “he who alleges must prove.” As aforesaid, Applicant’s complaint is that she was unfairly excluded from the recruitment process, when it appears that she only qualified in the alternative. She failed to prove that he was better qualified than the three short – listed candidates or at least one of them. Having analysed the evidence tendered by the parties, the court discerns no flaws in the short - listing process.

 

[21] On the second complaint that the process was not preceded by a mandatory competency test as prescribed by law, it is the court’s view that any irregularity, procedural or substantive, if any, committed by the Respondents after the 1^st Respondent eliminated the Applicant following the initial process of determining whether the Applicant met the requirements of the job has no relevance to the Applicant. Be that as it may, Counsel for the 1^st to the 7^th Respondent denied the alleged irregularity that the competency test was not undertaken prior to the short - listing.

 

[22] The court wishes to underscore and reiterate that as far as it is concerned the first step in the selection process is to ascertain whether “Applicants met the job requirements” as prescribed in Section 4 (1) of the Basic Conditions of Employment for Public Officers, and Section 24 of the Public Service Regulations, 2008 referred to above. The 1^st Respondent averred in their answer that there was a “pool of suitably qualified candidates to choose from for the said competency test.”[14] The process was, therefore, competitive and a selection had to be made among those who met the job requirements.

 

Review

 

[23] The court will not interfere with an administrative decision unless it is arbitrary, capricious or irrational.[15] As put in Basson v Provincial Commissioner (Eastern Cape) Department of Correctional Services:[16]

 

administrative decisions shall only fall within the purview of judicial review and be set aside, where they are found to be patently arbitrary or capricious, objectively irrational, or actuated by bias or malice, or by other ulterior or improper motive.

 

 

[24] In line with this principle regulating judicial reviews vis á vis administrative action, the apex court held in Roma Taxi Association v Officer Commanding Roma, Police Station and 6 Others[17] that unless the four grounds exist, namely, illegality, procedural impropriety, unreasonableness and disproportionality, any ‘curial intervention’ by courts of law will be impermissible. On costs, there appears to be nothing to persuade the court to deviate from the general rule that “costs follow the result.”

 

ORDER

 

[25] In the result, the following order is made:

 

       The application is dismissed with costs.

 

 

 

                                                                                                                        ___________________                                                                                                                                                                                                                                                                  

                                                                                                                           F.M.KHABO                                                                                                         JUDGE

 

For the Applicant                     :       Adv., M.B. Mohlabula

For the 1^st to 7^th Respondents   :       Adv., K. Khoboko

For the 9^th Respondent             :       Adv., M. Thelisi

 

 

There was no representation for the 8^th and the 10^th Respondents.