HIGH COURT OF LESOTHO
GENERAL 1st RESPONDENT
SERVICE COMMISSION 2nd RESPONDENT
by the Honourable Mr Justice S.N. Peete on the 27th June, 2001.
26th October 1998 the applicant lodged an urgent application on
notice to the respondents in which he sought an order couched in the
second respondent to deliver within fourteen (14) days of service
upon hereof, a full record of its proceedings, decision and reasons
for its refusal to accept the applicant's retirement from the Public
Rule Nisi be and is hereby issued returnable on the date and time to
be determined by this Honourable Court calling upon the respondents
to show cause (if any) why:
retirement of applicant from the Public Service shall not be
declared to have been lawful and effective as of the 31st of March
30 (6) of the Public Service Act 1995 shall not be declared
unconstitutional as being ultra vives section 136 (11) of the
Constitution of Lesotho 1993.
applicant shall not be declared pensionable as from the 31st March
shall not be directed to pay applicant's pension with effect from
the 31st day of March 1998.
shall not be directed to pay costs hereof.
shall not be awarded such further and/or alternative relief
purported dismissal of applicant from Public Service be declared
null and void and of no force and effect."
founding affidavit the applicant states that he was first employed as
a public officer on the 13th February 1967 and has since held various
government positions including those of Principal Secretary and
Director of Sports.
that on the 18th February 1998 he wrote a letter tendering his
retirement from the civil service. He was fifty-four (54) years old
then having been born on the 12th March 1954. His letter reads:-
BOX 52, MASERU 100 18 February 1998
of Tourism Sports and Culture,
FROM THE CIVIL SERVICE
to Section 30 (3) of the Public Service Act of 1995 I hereby tender
my early/optional retirement from the civil service.
sixty-eight (68) days of leave due to me. I will be on leave starting
from 19th February 1998 to the 31st March 1998.
my other thirty (30) days of leave in lieu of one month notice for my
retirement starting from 1st April 1998.
MOTAUNG DIRECTOR OF SPORTS."
that he went on leave and had no response from the second respondent
until the 28th May 1998 when he received a letter from the Principal
Secretary - Tourism which informed him that his retirement under
section 30 (3) of the Public Service Act 1995 had not been accepted
and that since his leave ending March 31 had expired he was expected
to be on duty. The letter reads as follows:-
Motaung P.O. Box 52 MASERU
is made to your letter dated February 18, 1998 in connection with
proposed retirement from the Public Service in terms of Section 30
(3) of the Public Service Act No. 12 of 1995.
out of the 4004th Minutes dated May 4, 1998, Item 1029/98, the
Commission having looked into the legal opinion from the Ministry of
Law and Constitutional Affairs, the Commission resolved that your
retirement under Section 30 (3) of the Public Service Act 1995 has
not been accepted.
further reminded that your leave/annual Holidays which started from
February 19th 1998 up to and including March 31, 1998 has expired,
but you have not reported for duty.
MOHAPELOA PRINCIPAL SECRETARY"
further states that according to the minutes of the Public Service
Commission at its 4004th Meeting held on the 4th May 1998, the
Commission held that "Arising out of the 3978th minutes, item
579/98, having looked into the Legal Opinion from the Ministry of Law
and Constitutional Affairs...... resolved that the officer's
retirement under section 30 (3) of the Public Service Act 1995 be not
"Legal Opinion" stated in part-
"... I would advise that where officers are facing disciplinary
proceedings and they apply for an early retirement (between 45 and
55) during the pendency of such proceedings, such application should
be refused on the same ground that there are disciplinary proceedings
pending against them. Thus Mr Motaung's application for early
retirement should be refused accordingly. Even if permitting his
early retirement would have no effect on the disciplinary proceedings
against him (question which is debatable at this stage) I consider
that it is better to err on the side of caution."
It is not
in dispute that when he tendered his retirement on the 18th February
1998, the applicant knew that was facing certain disciplinary charges
involving some monies allegedly used by him without authority.
on the same day 28th May 1998 he again received a letter from
Principal Secretary -Tourism which read as follows:-
I wish to
refer you to my letter of 7th May, 1998 in which I informed you that
your application for early retirement has not been accepted by the
Public Service Commission and that your leave period comes to an end
on 31st March 1998.
that up to now you have not reported to work or even provided us with
any explanation for your absence. Neither have any arrangements been
made for this absence.
further note your continued involvement in politics as a Civil
Servant and it this respect I would like to remind you of the
provisions of Section 14 (I) (K) (i) (ii) (iii) and (iv) and Section
14 (1) (d) of the Public Service Act 1995.
contents of paragraphs 2 and 3 above you are required to respond
within 7 days why disciplinary action cannot be taken against you.
MOHAPELOA PRINCIPAL SECRETARY"
maintains in his affidavit that the resolution by the second
respondent not to accept his retirement is unlawful in that it
violates the spirit of section 30 (6) of the Public Service Act 1995
in that upon its own admission the second respondent acted
basis of a "legal opinion they had received from the Ministry of
Law and Constitutional Affairs" and not having looked into "the
conditions in the Public Service" as required by section 30 (6)
of the Public Service Act. He further states that the resolution was
actuated by malice and sought to victimise him for having engaged in
party politics and standing as a candidate for the Basotho National
Party at the Lithabaneng Constituency No.35.
further contends that the second respondent omitted to call upon him
to make representations in contradiction to the legal opinion upon
which the commission based its decision.
on to state that on the 18th August 1998 he received yet another
letter which . read as follows:-
MORAPELI MOTAUNG C/O MINISTRY OF TOURISM, SPORTS & CULTURE P.O.
BOX 52 MASERU – 100
letter dated 18th February 1998, you had applied for an early
retirement, simultaneously taking leave which was to end and did end
on the 31st March 1998. You are aware that at the end of your said
leave you failed to report for duty notwithstanding that the results
of your application for early retirement were still pending and
now started to be seen and heard in public places in the country
vehemently campaigning under the banner of a political party to be
elected to the National Assembly in the past general elections. Thus
you eventually contested the elections standing as a party candidate
in the Lithabaneng Constituency.
On the 07
May, 1998, you were notified of the refusal of your application for
early retirement and warned to attend to your official duties. To -
date you have ignored the warning and you continue unabated your said
political activities, without any word whatsoever as to your
responsibilities as a public officer.
above considered, I am considering making a proposal to the Public
Service Commission to remove you from office in the public interest.
If you have anything to say in relation to the above proposal, do so
in writing and submit the same to my office within three (3) days of
the receipt hereof.
response to these allegations, the respondents filed their notice of
intention to oppose the application and attached the answering
affidavits of Mr Mohapeloane Teboho Mohapeloa (Principal Secretary -
Tourism) and Mr Lillo Mosala, the Chairman of the Public Service
Commission. In his lengthy affidavit, the Principal Secretary states
that the applicant, having applied for an early retirement in March,
deserted the civil service even before he got a response from the
Public Service Commission and (a) failed to resume his duties when
his leave expired at the end of March, thus repudiating his contract
and (b) began active party politicking as Basotho National Party
Candidate in contravention of the Public Service Act 1995 Section 14
(1) (k) which reads:-
a public officer shall not
an active member of a political party,
in public on any party political matter
an active part in the support of any candidate in an election,
anything by word or deed which is calculated to further the party
political interests of any political party."
that in view of the fact that the applicant knew that at the time of
lodging his notification to retire, there were serious disciplinary
charges "of the nature of embezzlement of public funds,"
notice to retire was a mere ruse to escape and evade those
disciplinary proceedings then pending against him.
that before it exercised its discretion under section 30 (6) of the
Public Service Act 1995, the Public Service Commission was entitled
to seek legal opinion which opinion it could consider in applying its
mind to the issue of retirement of the applicant. He states that the
decision for rejecting the early retirement was, in all the
circumstances reasonable; he refutes the applicant's contention that
he ought to have been granted a hearing before the commission come to
a decision on the retirement issue because, so he argues, the
decision not to accept retirement in no way prejudiced the applicant
vis-a-viz his status as a Director of Sports or his emoluments.
supporting affidavit, Mr Lillo Mosala, the Chairman of the Public
Service Commission briefly states:-
"Basically, the driving force behind the Commission's decision
to turn down applicant's retirement was considerations of public
policy and national interest, in that as the Commission we viewed it
as undesirable that applicant should be allowed to retire in
circumstances where he was facing such serious disciplinary charges
involving substantial public funds. We considered that if we had
allowed applicant's retirement in all the circumstances, we would
have set a very dangerous precedent as it would open a way to
delinquent public officers taking refuge into early retirement when
facing disciplinary charges. Simply put, applicant's early
retirements was viewed, in all the circumstances of the case, as
clearly fully stated in the answering affidavit, as an attempt to
defeat the ends of justice and to avoid facing disciplinary
proceedings. We could not be a party to that. Consequently, the
application was rejected. Experience has taught us that once in
retirement, an officer's whereabouts and guarantee that he will
attend to disciplinary cases pending against him become a problem, in
as much as there is no machinery in the law to ensure attendance in
such circumstances. Incidentally it was not revealed in the
application the reasons for early retirement. We arrived at this
decision in good faith as the Commission. The Ministry of Tourism,
where applicant was attached, was accordingly informed of the
decision and they in turn informed applicant."
on to state that-
"once legally advised, we had a choice either to take the advise
or to reject it. We had debated the opinion and the advice and the
matter generally and at the end of the day adopted it and decided
accordingly. We acted wholly within our rights."
replying affidavit the applicant contends that-
"The conduct of second respondent in keeping quiet until today
has been of such a character as to lead me to believe that he had
accepted my suggested retirement ... thus, the second respondent is
estopped by conduct from raising the issue that I just took a French
"...It was in law incumbent upon the second respondent to advise
me timeously, that is before I retired whether or not they accepted
or had a problem with my retirement for early retirement.... I must
emphasise, I was not applying for early retirement but I was
notifying the commission of my said retirement. The Commission having
not objected to my said notification, I was entitled to proceed on
retirement as I did."
to the applicant therefore he began his retirement on the 1st April
1998 and that he did so before and without knowing whether the second
respondent had come to any decision (negative or positive) upon his
notification for retirement.
The Law -
Public Service Act No. 13 of 1995
at prescribed ages or in prescribed circumstances
Subject to the provision of this section, a public officer shall
retire from the public service, and shall be so retired, on
attaining the age of fifty-five years.
public officer who has attained the age of forty-five years may in
the discretion of the Commission be retired from the public service.
public officer may at any time before or after attaining the age of
forty-five years retire from the public service and shall give
written notification to the relevant Principal Secretary of his wish
to be retired from the public service.
notification is given under subsection (3)-
least six calender months prior to the date on which the officer
attains the age of forty-five years, the officer shall be retired
on attaining that age; or
than six calendar months prior to the date on which the officer
attains the age of forty-five years, the officer shall be retired
on the first day of the seventh month following the month in which
that notification is received.
subsection (2), the Commission may having regard to the conditions
of the public service and after consultation with the Minister,
retire a public officer from the public service before or after the
public officer attains the age of forty-five years.
Commission may, having regard to the conditions of the public
service, not allow a public officer from retiring from the public
service under subsection (3).
in the opinion of the Minister it is in the public interest to
retain a public officer in office beyond retiring age, the officer
may if willing, be retained from time to time by the Commission for
further periods that shall not exceed in the aggregate five years."
view the following position obtains:-
reaching the age of fifty-five a public officer shall retire from
the public service unless retained under subsection (7) of section
30 of the Public Service Act 1995.
officer who has attained the age of forty-five and above (but below
fifty-five) may in the discretion of the Public Service Commission
be retired from the public service.
officer who has attained the age of forty-five who wishes to retire
from public service must give a written notification to his
officer who wishes to be retired on his attaining forty-five must
lodge his notification six (6) months prior to his retirement date.
officer who gives his notification less than six months before his
attaining forty-five, shall be retired on the first day of the
seventh month following the month in which that notification is
Public Service Commission at its discretion and after consultation
with the Minister (Public Service) retire a public officer from
public service before or after the officer attains the ages of
regard to the conditions of the public service, the Commission may
not allow a public officer from retiring from the public service
under section 30 (3).
to the facts of the instant case the following are salient features:-
applicant was fifty-three (53) years 11 months when he tendered his
would turn fifty-five on the 12th March 1999.
were pending disciplinary proceedings against him at the time. -see
Motaung vs Principal Secretary - Tourism - 1997-98 LLR 317.
was informed of the decision of the Commission not to accept his
retirement on the 28th May 1998 (some 99 or 100 days after his
February letter for retirement)
the Commission in resolving not to accept the applicant's retirement
"looked into the legal opinion from the Ministry of Law and
Constitutional Affairs". No mention being made of "having
regard to the conditions of the public service."
Mosito, for applicant, contends that in paying regard to the legal
opinion as it purported to do, the Commission misdirected its
discretion and considered a non-jurisdictional fact. He submits
therefore that in failing to have regard to the "conditions of
the Public Service," the resolution was improperly arrived at
and must be struck down as null and void as being ultra vires section
30 (6) of the Public Service Act 1995.
opinion which was looked into by the Commission opined that
applicant's retirement should be refused because applicant was then
facing disciplinary charges and this was adopted by the Public
Service Commission. Was this consideration a condition of the public
service? The 1995 Act does not define what these conditions are.
Concise Oxford Dictionary defines "condition" as
"state of being or fitness of a person".
"Circumstances esp. those affecting the functioning or existence
other hand, conditions of public service in my view must necessarily
and purposively mean circumstances pertaining to the employment
status of the public servant. See Wholesale Coal Supplies vs Goodman
- 1933 TPD 330; Goodwin vs Minister of Labour 1951 (2) SA 611; Dental
Association of South Africa vs
1970 (3) SA 733 A.D; 1970 (1) SA 537. If a public servant is facing
disciplinary charges which are already pending, his employment status
is in balance and that fact must certainly be taken into
consideration in deciding whether to retire him or not. Whilst the
applicant had at his age, an equitable right to expect that he could
be retired, things being normal, he knew that serious disciplinary
proceedings were pending against him at the time. Until these
disciplinary proceedings were finalised, the Public Service
Commission had a legitimate interest to see that the applicant
continued being a civil servant in order that if found guilty,
appropriate punishment could be prescribed. This is so because
section 137 of the Constitution of Lesotho vests in the Commission
the power to exercise disciplinary control over
servants and an early retirement would pre-emptively defeat the
exercise of the disciplinary proceedings. I am also of the view that
the provisions of section 23 of the Public Service Act do not apply
to cases of retirement, but only to those of resignation. Resignation
is a somewhat unilateral act of the employee (Ex Parte Moodley - 1968
(4) SA 622) whereas retirement requires by law acceptance of the
Public Service Commission.
in the circumstances of this case, hold that the second respondent in
exercising its discretion not to accept the applicant's retirement
acted wrongly or improperly or was actuated by malice towards the
applicant nor can it be said that regard to the legal opinion
misdirected the exercise of its discretion under Section 30 (6) of
the Act. "Conditions of public service" are multitudinous
and indeed, in my considered view, include discipline of the public
servants. To retire a public servant against whom the Commission had
preferred charges (as yet not adjudicated upon) would be an exercise
in futility because section 23 of the Act would not come to the aid
of the Commission after applicant had retired. In fact the applicant
could successfully challenge the jurisdiction of the adjudicator in
any post-retirement proceedings. Retirement per se involves the
drastic alteration; it is in fact an extinction of conditions or
terms of employment. On retirement, a civil servant relinquishes his
status as such, along with its rights and duties, he becomes eligible
to pension and other benefits. Indeed he ceases to be under the
effective control of the Public Service Commission, and no
disciplinary punishments can be meted to him.
view, the Public Service Commission is by law the constitutional and
statutory repository of the discretion to determine the conditions of
the public service or its
affairs. (SA Defence and Aid Fund vs Minister of Justice 1967 (1) SA
think it is the function of the court to determine whether the
requisite conditions of service or state of affairs existed in an
objective sense without usurping the functions of the Commission. But
if, for example, the Commission based its refusal upon the fact that
the applicant was engaged in party politicking, I would say it acted
mala fide or perhaps unreasonably. But that is not the case here.
Retirement, unlike resignation, is not a unilateral act and in the
circumstances of this case, the applicant could only lawfully retire
after the Commission had accepted his retirement. That the Public
Service Commission delayed its final decision, while not worthy of
any praise, could not entitle the applicant to assume that his
retirement had been accepted. He took no active steps to ascertain
the position and individually came to assume that he had been
retired. It was a risk that he took whereas prudence could have made
him to inquire from the Commission the outcome of his case so that he
could begin a new life elsewhere.
that his retirement was not as effective as from the 31st March 1998
- as he claims - the retirement of the applicant could only have
begun on the 13th March 1999 when he turned fifty-five. By that date
the applicant was, through his own choice and election, no longer in
the civil service.
remains next to be determined is whether the summary dismissal of the
applicant by the Commission on the 17th November 1998 was in the
circumstances of the case lawful. The relevant letter reads-
of Tourism, Sports & Culture,
informed that the Commission resolved that you be removed by way of
dismissal without disciplinary proceedings with effect from 1st July
1998 in terms of Public Service Commission Rule 6-01 (e) of 1970
reads together with section 14 (1) (d) of the Public Service Act
A head of department may propose in writing to the (Government
Secretary) for reference to the Commission the removal of an officer
from office or his reduction in rank or salary on one or more of the
the public interest so requires"
Public Service Order was repealed by the Public Service Act 1995
whose Section 14 (1) (d) reads-
rules of conduct
public officer shall comply with the following general rules of
public officer shall not be absent from official duties during
office hours without leave or valid excuse."
27 of the Act states-
The following punishments may be imposed on a public officer who has
been proved to have committed a breach of discipline.
from office by compulsory retirement;
imposition of a punishment under subsection (1) may be postponed for
a period not exceeding 6 months."
It is not
in dispute that when the applicant's leave holiday expired on March
31,1998, the applicant never again reported for duty since 1st April,
also not in dispute that the letters dated 7th May 1998 and 22nd May
1998 were received by the applicant, and that the latest letter was
written on 18th August 1998 advising applicant that a proposal would
be made to the Commission to remove him from office in the public
interest and was invited to respond in writing within three days. He
did not make any response.
to me that dismissal from office can only come about under section 27
of the Public Service Act of 1995 and that the breach of discipline
must be proved under Part 3 of the Act dealing with disciplinary
proceedings which involve a charge
19), and an inquiry (section 21) during which the officer shall have
present and to be heard either personally or through his
representative, to cross-examine any person called as a witness in
support of the charge and to give evidence himself or call other
persons as witnesses. In the present case, none of these occurred in
the summary dismissal of the applicant. He was not served with the
charge upon which his ultimate dismissal was premised. He only
received the letter of dismissal dated 17th November 1998. I cannot
sensibly reconcile the provision of Rule 6-01 of the Public Service
Commission Rules 1970 with the clear provisions of the Public Service
Act 1995. The applicant, despite his absence from office, could still
be contacted and should have been served with a formal charge. He
ought to have been given a fair hearing as mandated under section 21
of the 1995 Act - See Nthejane vs National Motors Co.- 1991-96(2) LLR
833: Bongani Tsotsi vs IDM -1985-1990 LLR 384.
excuse" under section 14 (1) (d) imports an explanation of some
kind from the absconding officer. See Matebesi vs Director of
Immigration - 1997-98 LLR 455 which however considered the repealed
Public Service Order 1970 (section 6 (3) thereof). It is clear
however that in the 1995 Act there is no clause limiting the right to
be heard before being dismissed.
about section 6 (3) of the 1970 Public Service Order Gauntlett JA had
this to say-
"This provision would appear to be underpinned by the practical
difficulty which will often arise in an instance of protracted
absenteeism or desertion. Either undermines the capacity of the
employer to investigate the situation properly and expeditiously. The
ability of the employer conveniently and swiftly to ascertain from
the absentee employee why she is absent must nearly always be
difficult; if not impossible. On the facts of this matter, that was
indeed the case here."
Public Service Act of 1995, it seems to me, that an absconding or
deserting officer cannot be summarily dismissed without a hearing as
was the case under the 1970 Public Service Order. I therefore hold
that the purported summary dismissal of the applicant under Public
Service Rule 6-01 was inconsistent with the provisions of the Public
Service Act of 1995. In passing it must be mentioned that the
Minister responsible for the Public Service should be advised to make
appropriate regulations under the Public Service Act of 1995. Old
rules and regulations made under a repealed legislation are usually
not always consistent with a new legislation. This is important
because the 1995 Public Service Act was passed after the promulgation
of the 1993 democratic Constitution of Lesotho.
I do not
find it necessary to make a declaration on the constitutionality or
otherwise of section 30 (6) of the Public Service Act 1995 because
the section in no fetters the powers and discretion of the Public
Service Commission. It is a general sub-section which seeks to
facilitate the work of the Commission. It is advisory and permissive
and in no way seeks to direct or control the Commission in the
exercise of its functions (Section 137 (11) of the Constitution).
application is therefore dismissed with costs regarding prayers 2 (a)
(b) (c) (d). Prayer 2 (g) of the application succeeds with costs.
Applicant : Advocate Mosito
Respondents : Advocate Masoabi
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