CIV/APN/229/85
IN THE HIGH COURT OF LESOTHO
In the Application of :
MPHO QHOBELA Applicant
v
ATTORNEY GENERAL First Respondent
P.5. (AGRIC) Second Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice J.L. Kheola on the 13th day of December, 1985.
The Applicant had been employed as a clerk in the Ministry of Agriculture and Marketing. On the 7th November, 1984 she received a letter from the Second Respondent dated the 7th November, 1984 notifying her that she had been interdicted on no pay from exercising the powers and performing the duties of her office with effect from the 1st November, 1984. The reason for the interdiction was that she had contravened the provisions of section 10 (i) (m) of the Public Service Order No.21 of 1970. The letter further stated that the Applicant's continued presence in her office constituted a threat to "defeat the ends of justice." It was signed by a certain Mr. Ntlaloe for the Permanent Secretary for Agriculture.
The Applicant is now applying to this Court for an order setting aside the letter of the notification of the interdiction dated the 7th November, 1984 and an order directing the Second Respondent to re-instate the Applicant in her employment with the Ministry of Agriculture and
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Marketing. She avers that the letter was null and void in that it purported to have a retrospective effect and was based on malice. Her second ground is that the person who signed the letter had no authority to do so because he was not the Head of Department nor was he authorized by the Head of Department. I shall first of all deal with the second ground as it appears to be the most important. The head of department derives his powers to interdict a public officer from Rule 5-21 (1) (2) of the Public Service Commission Rules 1970 which reads as follows:
" A head of department may at any time before or after proceedings against an officer under Part 6, or before or after an officer has been charged with a criminal offence or with a breach of discipline interdict him from performing the duties and exercising the powers of his office and the head of department may at any time cancel that interdiction whether or not the proceedings are continued,,
In this rule a reference to a head of department is a reference to the officer holding or acting in that office and not to an officer appointed under rule 5-61 or to any other officer."
The definition of "head of department" appears in The Public Service Order No. 21 of 1970 and it was conceded by Miss Tsiu, for the Respondents, that Mr. Ntlaloe who signed the letter of interdiction was not the head of department in the Ministry of Agriculture and Marketing. He is a Senior Executive Officer. However, it was submitted on behalf of the Respondents that Mr. Ntlaloe was authorised by the head of department and did indeed sign for the Principal Secretary, Agriculture, who is the head of department. I think the crucial question in this matter is whether the enabling act i.e. The Public Service Order 1970 gives the head of department the power to delegate his powers to other junior public officer. There is no such provision in the Order of 1970. It is therefore immaterial
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that Mr. Ntlaloe alleges that the Principal Secretary for Agriculture and Marketing had authorised him to sign the letter. The Principal
Secretary cannot delegate his powers under Rule 5-21 of 1970 to any other officer. The reason for not giving him authority to delegate
his powers is obvious. Interdiction without a pay is a very serious matter which may adversely affect the lives of the officer and his family if the salary is the only income of the family. In some cases interdiction may lead the Government into unnecessary litigation if the officers do not get legal advice before taking such a step. So the law places the discretion to interdict in the most senior officer in the department.
The Principal Secretary for Agriculture and Marketing has made no affidavit to confirm that he gave authority to Mr. Ntlaloe to sign the letter on his behalf after he (the Principal Secretary) had decided that the Applicant should be interdicted. In any case even if he had made the affidavit his power to do so would still be found to be lacking. The letter of interdiction begins with the following words:
"I wish to advise you that I have, in terms of Public Service Commission rule 5.21 (1) and 5-22 (1), decided to interdict you on no pay......" (My underlining).
It is clear from the wording of the letter that it was Mr. Ntlaloe who made the decision. He had no power to do that (See Lebenya Makakole v. Commissioner of Police and another CIV/APN/54/82 dated the 31st March, 1982, Barnard v. National Dock Labour Board (1953) 2 Q.B. 18, Vine v. National Dock Labour Board (1957) A.C. 488). In Vine's case supra, a registered clock worker was dismissed, the House of Lords granted a declaration that the dismissal was invalid because the Board, instead of deciding itself, had entrusted the whole matter to disciplinary committee. In the instant if the decision had been taken by the Principal Secretary the opening words of the letter ought to have read as follows:
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"I have been instructed (by the Principal Secretary) to interdict you on no pay."
If that had been the case, it could well be argued that the Permanent Secretary took the decision to interdict the Applicant and merely instructed his subordinate officer to pass the message to the Applicant.
I have come to the conclusion that Mr. Ntlaloe had no right to decide to interdict the Applicant. The letter he signed for the head of department is therefore null and void.
It has also been submitted that the letter is null and void on the ground that it purported to have a retrospective effect. The letter is dated the 7th November, 1984 but the effective date of the interdiction is the 1st November, 1984. If the legislaturehad intended that the head of department should have the power to interdict an officer retrospectively, it would have said so in the Public Service Order 1970. On the 7th November, 1984 the Applicant had already worked for seven days and was entitled to her salary for that . period. It is a well recognized rule that statutes should be interpreted, if possible, so as to respect vested rights (Hough v. Windus (1884) 12 Q.B.D. 224 at p. 237). I agree with the submission that the letter is null and void on the ground that it has a retrospective effect.
The application is granted as prayed in terms of prayer (a),(b) and (c) of the Notice of Motion.
J.L. KHEOLA
JUDGE
13th December, 1985.
For Applicant : Mr. Hlaoli
For Respondents : Miss Tsiu.
