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IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/0008/2023
In the matter between:
MOTLATSI MAPOLA APPLICANT
and
COMMISSIONER OF POLICE 1st RESPONDENT
MINISTRY OF PUBLIC SERVICE, 2nd RESPONDENT
LABOUR AND EMPLOYMENT
ATTORNEY GENERAL 3rd RESPONDENT
Neutral citation : Motlatsi Mapola v Commissioner of Police and 2 Others [2023] LSHC 77 CIV (26 April 2024)
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CORAM : KHABO J.,
HEARD : 13th FEBRUARY 2024
DELIVERED : 26th APRIL 2024
SUMMARY
Employment Law - Compulsory retirement - Applicant ordered to proceed on terminal leave, pending retirement to exhaust outstanding leave - A dispute on the actual date of Applicant’s birth, and by implication his date of retirement - Where the employer’s records, purportedly, revealed that he was born on 08th March, 1968 and he, on the other hand, claiming that he was born on 08th December, 1968 - Court finding on a balance of probabilities that Applicant’s date of birth is 08th December, 1968 implying that his retirement is due on 08th December, 2023 as opposed to 08th March, 2023.
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ANNOTATIONS
Statutes and subsidiary legislation
National Identity Cards Act, 2011
Police Service Act, 1998
Cases cited
Lesotho
Amandus Mpiti Taole v The Deputy Principal Secretary, Ministry of Information and Broadcasting and Another CIV/APN/256/95
Reverend Ramakhuts’oane Lieta v Bishop Joseph Tsubella and Another CIV/APN/139 of 2001
India
Gajanan Badansing Rabde v Chief Administrative Officer, Maharashtra Jeevan Pradhikaran and Another No. 9744 of 2023
Secretary and Commissioner, Home Department and Others v R. Kirubakaran (1994) Suppl. (1) SCC 155
State of Maharashtra and Another v Gorakhnath Sitaram Kamble and Others Civil Appeal No. 9704 of 2010
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Literature
L.H Hoffman and D. Zeffert - The South African Law of Evidence, 4th ed., Butterworths, 1988 reprinted in 1989
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JUDGMENT
KHABO J.,
Introduction
[1] The Applicant was engaged by the Lesotho Mounted Police Service (LMPS) as an Assistant Commissioner of Police on 01st June, 1988. On 19th March, 20211 he was served with a notice to proceed on leave pending his retirement from 22nd March, 2021 to 08th March, 2023, the purported last day of his service, pending retirement on the basis that he had a lot of accrued leave, five hundred and eleven (511) days, which he had to expend before his retirement.
[2] The Applicant disputes this date of retirement insisting that he was born on 08th December, 1968 implying that his date of retirement falls on 08th December, 2023 not 08th March, 2023 as contended by the Respondents. According to the
1 Annexure ‘A1’ to the notice of motion
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Applicant he still had nine (9) more months to stay in the Public Service when he received the said directive. The Applicant proceeded on leave as ordered. It is common cause that the age of retirement in the police service is fifty - five (55) as prescribed by the Police Service Act 1998.2
Facts leading to this dispute
[3] The 1st Respondent relies for his contention that the Applicant is due to retire on 08th March, 2023 on a national identity card (ID) he alleges was submitted by the Applicant to the Human Resource Office and filed in his personal file,3 which depicts Applicant’s date of birth as 08th March, 1968. The Applicant insists, to the contrary, that he never submitted such ID to the Human Resource Office, and that the 1st Respondent had relied on some inadmissible hearsay evidence in computing his age.
2 Act 7 of 1998
3 Annexure ‘MH 1’ to the answering affidavit
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[4] In motivating his case, the 1st Respondent relied, inter alia, on the evidence of SACP Ntsane4 who testified that the Applicant approached his office on 14th November, 2016 and explained that according to his passport his date of birth is 02nd April, 1966 and he wished to have it straightened out when applying for an ID. He says he commissioned an affidavit to which he deposed that his date of birth was 08th March, 1968. 1st Respondent’s position was also confirmed by SUPT Marou, a Human Resource Officer attached to LMPS.
[5] With parties at loggerheads on Applicant’s actual date of birth, and with the Applicant alleging that he engaged with the 1st Respondent on several occasions, to no avail, he says he ultimately sought the intervention of the then Minister of Police and Public Safety (as he then was) through a letter dated 21st July, 20215 to which he avers he never received any response.
4Supporting affidavit to the answering affidavit
5 Annexure ‘A2’ to the founding affidavit
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[6] He says he then decided to write a follow - up letter on 29th September, 2021. He contends that there was no reaction to it as well, and that the only response he received on the issue was from the 1st Respondent on 5th January, 20236 in which he stood his ground that the Applicant was born on 08th March, 1968 as depicted in his ID acquired in 2017.
[7] The 1st Respondent further indicated in the said response that the Ministry of Public Service supported him in his stance. He pointed out that he wrote to the Applicant about his impending retirement on the basis of the material supplied to the office, namely, the ID issued in 2017. He contended that there was no hearing required in respect of this issue.
[8] The 1st Respondent averred that the Ministry responsible for the Public Service, directed that only IDs will be used to determine date of births of Public Officers in determining their retirement age as opposed to a previous practice where records submitted on engagement were used.7 1st
6 Annexure ‘A7’ to the founding affidavit
7 Para 3.4 of the answering affidavit
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Respondents’ Counsel referred this court to the Public Service Circular No. 1 of 2015 reissued in the Public Service Circular No. 12 of 2020 in this respect.
[9] He reiterated that LMPS has in its possession Applicant’s ID issued in 2017 depicting his date of birth of 08th March. 1968, which he says he stands by it as a record available to his office. He further affirmed his position by Section 16 of the National Identity Cards Act, 20118 which provides that access to all services shall be upon the production of an ID issued in accordance with this Act.
[10] Faced with this impasse, the Applicant approached this court to seek the following reliefs, that:
(a)
The decision of the 1st Respondent in terms of which he regards the date of birth of the applicant as 08th March, 1968 be reviewed and set aside on the basis that it is null and void;
8 Act 9 of 2011
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(b)
it be declared that the date of birth of the applicant is 08th December, 1968;
(c)
Respondents be directed and ordered to retire applicant on reaching compulsory retirement on the basis of that date of birth;
(d)
It be declared that the applicant’s date of compulsory retirement is with effect from 08th December 2023 when he will be fifty- five (55) years old;
(e)
The respondents be directed to pay the applicant his monthly salary until he reaches retirement age;
(f)
The respondents be ordered to pay costs of this application and its opposition including the costs occasioned by employment of two counsel;
(g)
The applicant be granted such further and/or alternative relief as the Honourable Court shall deem fit.
[11] The Applicant tenders as proof of his age, that he was born on 08th December, 1968 several documents, namely, a copy
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of a baptismal certificate,9 a national identity card (ID) issued on 21st July, 2021,10 a letter of confirmation of employment to Postbank written by ACP L.C. Ralethoko, ACP Human Resource,11 and an affidavit attested to by his mother.12
[12] It is Applicant’s case that he is highly prejudiced by this decrease in his working months as it deprives him of his monthly salary by nine months; that his salary is his sole source of income and livelihood; that this not only interrupts his investments linked to his salary which he had hoped to finance through his salary until he reached retirement but also affects his pension benefits.
Issue
[13] The issue this court is faced with is whether the Applicant was born on 08th December, 1968 as he claims and not on
9 Annexure ‘A8’ to the founding affidavit
10 Annexure ‘A9’ to the founding affidavit
11 Annexure ‘A3’ to the founding affidavit
12 A supporting affidavit to the replying affidavit
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08th March, 1968 as contended by the Respondents in order in ascertaining his proper date of birth and by implication his date of retirement.
Setting the scene
[14] The following narration will give a clearer perspective of this dispute:
(a)
Applicant’s engagement
According to records in 1st Respondent’s custody the Applicant joined LMPS on 01st June, 1988 and registered his date of birth as 02nd April, 1966, a date depicted in his passport and recorded in his personal file. This the Applicant explained away that he increased his age in order to qualify for employment in South African mines.
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(b)
Acquisition of the initial identity card
This is the ID depicting the date of birth of 08th March, 196813 that the Applicant denies ever submitting to the LMPS Human Resource Office. However, the fact remains that such an ID exists.
(c) Acquisition of an amended ID14
In terms of Section 15 of the National Identity Cards Act an ID may be renewed or replaced. The Applicant avers that he corrected his original ID15 and was re - issued one dating 21st July, 2021 depicting 08th December, 1968 as his date of birth. It is, however, worth noting that this was subsequent to him being served with a letter to proceed on terminal leave. The 1st Respondent avers that he set his eyes for
13 ‘MH 1’ to the answering affidavit
14 Annexed to the founding affidavit as annexure ‘A9’
15 ‘MH1’ supra
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the first time on this ID in court papers. He denies the authenticity of this ID.
The missing link
[15] Many questions remain unanswered in both parties’ pleadings and Counsels’ submissions, hence ‘the missing link.’ For instance, the Applicant does not say how he informed the employer of his purported date of birth. He simply avers in his founding affidavit that he did inform the employer of his proper date of birth but does not say how.
[16] On 29th October, 2020 when the Applicant applied for a loan with the Lesotho Mounted Police Service Savings Scheme16 he used the ID issued in 2017 when he says he never submitted it to the employer, LMPS. Once again, it is inexplicable why he did not submit his baptismal certificate to verify his purported date of birth of 08th December, 1968 to the
16 Annexure “MH4” to the answering affidavit
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employer to clear the air when directed to proceed on leave pending retirement? Or proof from his mother to the employer that he was born on 08th December, 1968. The court pointed out in Reverend Ramakhuts’oane Lieta v Bishop Joseph Tsubella and Another17 that in civil proceedings, proof of age can be furnished by a birth certificate or by the evidence of the mother or by someone who was present at the birth.
[17] One fails to reconcile 1st Respondent’s version that he was not aware of Applicant’s date of birth of 08th December, 1968 in light of the Human Resource Office’s letter of confirmation of Applicant’s employment to Postbank dated 10th June, 2020 coupled with Applicant’s payslip dated 20th October, 2020. These reflect that the LMPS was aware of Applicant’s date of birth of 08th December, 1968. Applicant’s new ID depicting the date of birth of 08th December, 1968 is irrelevant for the purposes of the dispute because it was only
17 CIV/APN/139 of 2001 at p.9 also in L.H Hoffman and D. Zeffert - The South African Law of Evidence, 4th ed., Butterworths, 1988 reprinted 1989 at p. 149
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issued after he had been ordered to proceed on terminal leave.
[18] The letter to Postbank written by ACP Human Resource18 read:
Lesotho Mounted Police Service
Police Headquarters
P.O Box 13
Maseru - 100
Lesotho
10th June, 2020
Ref: CP/C/PF/0008416
MANAGER
POST BANK
MASERU - 100
Dear Sir/Madam,
18 Annexure “A3” to the founding affidavit
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CONFIRMATION: No. 0008416 ACP MOTLATSI MAPOLA
This serves to confirm that the above-named subject is a member of LMPS since his enlistment on the 01/06/1988. He is a permanent and pensionable employee who will retire on the 13th December, 2023 at the age of 55 years. He is stationed at PHQ COMPLAINTS AND DISCIPLINE.
Any service rendered to him will be highly appreciated.
Regards.
SIGNATURE
A.C.P.L.C RALETHOKO
ACP HUMAN RESOURCE
[19] Respondents have attached to their answer Applicant’s payslip dated 20th October, 2020 which depicts 13th December, 1968 as his date of birth. Much as the date is different from what the Applicant purports to his proper age, it at least falls in the month of December not March. Payslips are prepared by the employer, albeit, with information sourced from an employee. Considering these documents,
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one cannot help but conclude that clear LMPS was aware of Applicant’s date of birth of 08th December, 1968.
[20] Applicant’s issue appears to be an issue that could have been easily ironed out through communication between the parties. The Applicant and the 1st Respondent give contradicting versions in respect of communication between each other on the issue. The Applicant avers that the 1st Respondent denied him an opportunity to confer with him to explain the apparent discrepancies. The 1st Respondent contends, on the other hand, that the Applicant never engaged with him. This could perhaps point to the alleged strained relations between the Applicant and the 1st Respondent alluded to by the former.
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Analysis
[21] It is trite that it is not permissible for an employee to change his or her birthdate at “the fag end”19 of his or her career. The court in Secretary and Commissioner, Home Department and Others v R. Kirubakaran20 that courts have to be extremely careful when an application for alteration of a date of birth is done nearer or at the end of an employee’s career. The court stated in this respect that “As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants to raise such a dispute without explaining as to why this question was not raised earlier…”
[22] This court had occasion to determine a matter in which an employee’s retirement age was in issue in Amandus Mpiti
19 State of Maharashtra and Another v Gorakhnath Sitaram Kamble and Others Civil Appeal No. 9704 of 2010 and also Gajanan Badansing Rabde v Chief Administrative Officer, Maharashtra Jeevan Pradhikaran and Another No. 9744 of 2023
20 (1994) Suppl. (1) SCC 155
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Taole v The Deputy Principal Secretary, Ministry of Information and Broadcasting and Another.21 The employee had had waited for twenty - four years, when his retirement was imminent, before stating what he said was his true age. The learned Judge commented that “the question of the date of birth is an essential part of the contract of employment in the public service. Altering this term of employment is a step that should be seriously and formally approached and cogent reasons given.”22
[23] The proof required is on a balance of probabilities as was indicated in Reverend Ramakhuts’oane Lieta (supra)23 in a case where there were two conflicting dates of birth relating to the Applicant as in casu.
[24] This caveat considered, the court, however taking the totality of the evidence tendered, this court cannot help but conclude that on a balance of probabilities when the 1st
21 CIV/APN/256/95
22 Ibid p.12
23 CIV/APN/139 of 2001 at p.9
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Respondent retired the Applicant on 19th March. 2021 he was well aware of his date of birth of 08th December, 1968 considering the letter to the Postbank and the payslip both of 2020.
[25] 1st Respondent also challenged the authenticity of Applicant’s baptismal certificate on the basis of the affidavit of Reverend Father Teboho Khauoe24 who attested that the original baptismal certificate is registered in the name of Bernard Motlatsi ‘Maphola’ not Bernard Motlatsi ‘Mapola.’ A copy of such baptismal certificate was not attached. The court could not interrogate the issue, hence l find this to be unsubstantiated.
Conclusion
[26] On the issue of costs, the court is not pleased with the Applicant being inconsistent with his date of birth. It is not
24 “MH 3” to the answering affidavit
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clear to the court why he did not, when he assumed duty in 1988, give his proper date of birth. It also beats one why he failed to give his proper date of birth when he applied for the ID which was issued in 2017, when he apparently knew that he had a baptismal certificate and that his mother knew his actual date of birth. l find it equitable that each party bear its own costs, as l find him to blame for changing his date of birth several times.
ORDER
[27] In the result, the following orders are made:
(a)
The decision of the 1st Respondent in which he regards the date of birth of applicant as 08th March 1968, is hereby reviewed, corrected and set aside;
(b)
It is declared that, the date of birth of Applicant is 08th December 1968;
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(c)
The Respondents are directed and ordered to retire the Applicant on reaching age of compulsory retirement on the basis of his date of birth;
(d)
It is declared that, the Applicant’s date of compulsory retirement is with effect from 08th December 2023;
(e)
The Respondents are directed to pay Applicant his monthly salary until he reaches compulsory retirement age; and
(f)
Each party shall bear its own costs.
______________
F.M. KHABO
JUDGE
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For the Applicant : Mr M. Letsika KC
For the Respondents : Adv., P.T.B.N Thakalekoala