CIV/APN/31/84.
IN THE HIGH COURT OF LESOTHO.
In the application of:
PALESA PAULINA SAKOANE Applicant.
VS.
THE ADJUDICATOR (PSC) Mr.MOPELI QHOBELA 1st Respondent.
THE SOLICITOR GENERAL 2nd.Respondent.
THE MINISTER RESPONSIBLE FOR THE PUBLIC
SERVICE 3rd.Respondent.
THE MINISTRY OF AGRICULTURE 4th.Respondent.
JUDGMENT.
Delivered by the Hon. Mr. D. Levy (Acting Judge) on the 14th day of October, 1985.
In this matter the applicant was charged departmentally in terms of the Public Service Order of 1970 on two counts, the one concerning the possession or presence in her office, of certain mealie-cobs and watermelons, and the other concerning a statement allegedly made by her to an investigating official or her department which was said to be misleading or inaccurate and so an offence under the Public Service Order.
A hearing was conducted by an adjudicator under the provisions of the Public Service Order and the evidence was heard of various officials of the department and of the applicant herself and her witnesses. In the result, the adjudicator found her guilty of both counts and made an order for reduction of her salary by one notch and also that she pay a fine of M500-00 being the damages allegedly caused to research crops.
The applicant is an official employed at the Research Trial Fields of the Ministry of Agriculture where she resides as well. The evidence that was adduced before the adjudicator was to the effect that certain officers saw her removing maize and watermelons from the fields of
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the Research Station and transport these to her office, and on investigation by the officers, the mealie-cobs and watermelons were
found in a cupboard in her office secured by screws and bolt.
The second charge arises out of the fact that when the officers asked for the keys of the cupboard, she had said that there were no keys and was unable to produce them as they had been missing for some time.
It was perfectly clear from the evidence before the adjudicator that in fact the officers themselves were obliged to open the cupboard by removing the bar and the screws securing it to the cupboard and by no stretch of imagination could it be found that he officer charged had made any false statement at all. The first count, that is, the theft of the property in question, finds its support in somewhat vague evidence of some of the witnesses to the effect that the samples, if they were samples, had been wrongly taken. The evidence was that mealie-cobs are not sampled by merely removing the cobs from the stalk, but that the whole stalk would normally be cut. There was no evidence of this nature in regard to the watermelons. But some of the maize and the watermelons were not recently cut. That is difficult to understand because the evidence of the driver himself and of officers who kept the applicant Under observation was to the effect that it was within a very short time of her arrival at her office bearing the maize in question and the watermelons that the cupboard was opened and the contents seized. If they were not fresh then they were not fresh in the field when they were harvested.
The adjudicator also apparently relied upon statements made by witnesses that the officer charged had been under observation because of suspicions concerning her previous conduct. This evidence should not have been allowed at all and one cannot avoid the possibility once it is on record that the adjudicator may well have been influenced by the hearsay, nebulous and unconfirmed reports of the character of the applicant.
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Having said that, it is clear that there was no evidence whatsoever, other than mere suspicion, that the applicant had taken this produce from the fields of the Research Station for any purpose other than in obedience to the instructions of her senior, that she sample the produce. Whether she took such samples properly or not, or whether she delayed in delivering those samples to the proper quarters, may, as counsel for the applicant has said, be an infringement of her instructions in regards to the handling of samples but in no way can be regarded as evidence of any intention to steal these samples or to put them to her own private purposes.
I am also puzzled to see the purpose of the applicant in collecting such samples if she did not then immediately put them to the use which it is said was inteded by her, that is, for her personal consumption. If some of the mealies showed signs of having been in her office for some time, then that would suggest that there was never any intention on her part to eat those mealies. The same consideration would appear to apply to all the produce found in her possession.
A further aspect of the matter which leads one to consider with greet reservation the findings of the adjudicator, is that he found the applicant responsible for damage to the crops which apparently had been caused by a vehicle used to enter the fields and to harvest a very large quantity of mealies. In evidence it was said that a whole section of mealies had been harvested in this fashion. Well, that could scarcely be the responsibility of the applicant and there is no evidence to connect her with removal of such a large quantity. The finding of the adjudicator that she was responsible for this is totally without evidence and is on a par with the finding on the first count that she inteded to steal the few mealie-cobs and watermelons found in her cupboard, particularly having regard to the fact that she had been given instructions to take these samples and that they were therefor properly removed by her from the fields and brought into her office. What happened thereafter could found
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only the merest suspicion of an intention to steal and it is in no way proof of it.
In the result therefore I am driven to the conclusion that there was no evidence whatsoever on which a reasonable man could have come to the finding that the applicant was guilty on either count and that being so, it is clear that a gross irregularity has been committed by the tribunal in finding her guilty on evidence which in no way supports the charges. I therefore have jurisdiction to set aside such finding which I do.
I order that the dicision of the first respondent, the adjudicator, be set aside. The Minister responsible for Public Service in reliance upon that decision, dismissed the applient from the Public Service of the Lesoth Government. Having regard to my findings in regard to that decision, it is therefore a necessary corollary thereof that the dismissal of the applicant should also be set aside and I so order.
To avoid any ambiguity in the order I have made, I wish to make it clear that I am in no way endeavouring to bind the hands of the Ministry of Agriculture in regard to the particular post to which the applicant is to be re-appointed on her reinstatement in terms of this order. The purpose of the order which I have made that she be reinstated in the position she held in the Ministry of Agriculture prior to her dismissal relates solely to her status as an officer and her level of pay and emoluments which she enjoyed prior to her dismissal.
This order is to be in no way interpreted as meaning that the hands of the Ministry are in any way tied or its discretion fettered in regard to the area or nature of employment of the applicant. There seems to be no reason why the respondents should not be ordered to pay the costs of this application and I order that they pay such costs jointly and severally.
14th. October, 1985.
For Applicant: Mr. S. Mphutlane.
For Respondents: Mr. E.D. Moguluma.
