CIV/APN/271/84
IN THE HIGH COURT OF LESOTHO
In the matter of :
MATHOANTSI MAPUTSOE Applicant
v.
DISCIPLINARY BOARD & ANOTHER Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice D.S. Levy on the 30th April, 1985.
This application is brought by the applicant who was a serving officer of the Lesotho Mounted Police with the rank of Lieutenant-Colonel and arises firstly out of the hearings of a Disciplinary Board which heard a complaint against the applicant and secondly out of the disappearance of an amount of Five Thousand and Five Rand (R5,005-00) from cash monies which were in the possession and under the control and in the care of the applicant while he was a serving officer.
On the first issue,it appears that the applicant had been charged in a Subordinate Court with an offence and was acquitted of that offence. Thereafter, a Disciplinary Board was convened to investigate the same charge against the applicant arising out of the same circumstances and the Board sat to a conclusion when finally it imposed a fine of two months pay on the applicant for the breach of discipline which it found he had committed.
However, although these proceedings before the Disciplinary Board were commenced before the applicant went on retirement, the applicant's
retirement ensued while the proceedings were still pending with the result that when the proceedings were completed and an adverse
decision handed down by the Disciplinary Board and a fine imposed upon him, the applicant was no longer a serving member of the Police Force.
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The application before me today proceeds on this issue,namely on the question whether the Board had power or jurisdiction to allow the prosecution before it to continue notwithstanding the fact that the applicant had terminated his service by retirement. The relevant statute governing the situation is the Police Order of 1971 as amended by Act 10 of 1983. Section 12 of that Order as amended provides that where a member of the Force commits an offence triable under this section and subsequently ceases to be a member of the force he shall be tried by a Subordinate Court of competent jurisdiction. The question that therefore arises is whether as a result of his retirement, the applicant had ceased to be a member of the force and whether the Board therefore could continue the trial against him under Section 12. It appears that the proceedings were actually commenced against the applicant at a time when he had gone on retirement leave, so that the Board should have been aware of the actual date when the applicant would have ceased to be a member. With that knowledge, the Board nevertheless continued its investigations and suffered a number of postponements of the proceedings at the request of the applicant. These postponements were granted on a number of grounds amongst which were the inability of his counsel to appear on a particular day and his own illness with the result that while the hearing was still continuing, the applicant ceased to be a member and certainly by the time of judgment, the applicant was no longer a member of the Police Force.
There is only one provision of the Act which assists me in the task of interpreting Section 12(5) of the Police Order, that is, to detemine whether it governs the case of a Disciplinary Board hearing which commences before retirement and continues after retirement of the police officer concerned. I refer to Section 18 of the Police Order which provider that on the trial by the Board in the case of a senior officer, the maximum punishment that is allowed is two Hundred Maloti (M200.00) or three months pay. This suggests to me that a fine of three
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months pay can only be imposed upon a serving member. If he has already retired then there is no applicable scale of pay which can be used to determine the quantum of the fine that is to be imposed.
In the result, I understand from the papers that the applicant had an amount of one thousand, five hundred and ten Rand (R1,510-00) deducted from the benefits due to him on his retirement which would in fact have been the amount of two months of his pay Which I am informed was then R755.00 per month before tax.
It seems to be a contradiction in terms to say of a retired police officer that he can be fined two months pay, because if he is retired, he is no longer in receipt of any pay and there is no reason to accept that the amount of two months' pay should be determined by the salary that had been paid to him at the time of his retirement.
it seems to me that there is a hiatus in Section 12 of the Police Order and that the statute has not taken into account the situation where the proceedings, having been instituted, are not yet concluded at a time when the officer charged before the Board has ceased to be a member of the Force. In my view, therefore, I am satisfied that I am bound to find that in such a case the jurisdiction of the Board to continue with the proceedings against him ceases.
In the result of course since the applicant had been charged already by a Subordinate Court, before these proceedings began and was acquitted in that Court, there can be no reference back to the Subordinate Court for a prosecution on the same facts but that is as it may be. I am satisfied that the Board's jurisdiction terminated when the applicant ceased to be a member and accordingly had no power to fine him two months' pay as it did.
I, therefore, uphold the applicant's contention that the respondent should not have deducted the equivalent of two months' salary, that is, the amount of R1,510.00 from his salary, and to the extent that it has already been deducted from money due to him by respondent. I order that it be repaid to him.
4
The second issue before the Court concerns the surcharge of R5,005-00. This is a totally different matter and arises out of the circumstance that the applicant, while in charge of the Police Station at which he was stationed had a shortfall of R5,005-00 in the funds under his care. Letters have been placed before me which contain the explanation of the applicant as to how the money came to disappear. These letters, which are Annexures C and D to the application, show that the amount of R5,005.00 was actually in his possession and kept by him in an office safe of which he had the key and in a Cash Box locked in the safe of which he also had the key.
The applicant has stated that on the day in question, he had opened the safe containing the cash box to put some money in an envelope into a compartment of the safe and that he was diverted by a telephone call while he was in the process of locking the safe; that he believes that he pulled out the safe key without locking the safe to take the telephone call or after he had taken the telephone call. At any rate, he left the office that evening or after work believing that the safe was firmly locked. The next morning, however, his attention was directed to the safe by one of his subordinate officers, and he found that the safe had not actually been locked and that the cash box itself was missing. Despite a search for the box or the contents, these could not be found and so an amount of R5,005-00 of public money was lost.
Now, while one has sympathy for a busy serving officer in charge of a Police Station who by a mental aberration thinks he has locked a safe when in fact he has not, one is driven nevertheless to the inevitable finding that his failure to lock the safe and to take the key out and so leave the safe door unlocked was an act of negligence and that the loss of the money consequently is ascribable only to the fault of the applicant.
5
The applicant was subsequently surcharged by the Minister of Finance under the powers vested in him by Section 32 of the Finance Act 1978 which provides that :
"If it appears to the Minister that by reason of neglect or fault of any person who is or was at the tide of such neglect or fault a public officer, the public revenue or public stores has sustained loss or damage or improper payment of public moneys has been made add if in a period Specified by the Minister an explanation satisfactory to him is not furnished with regard to such apparent neglect or fault the Minister may surcharge against the said person the amount which appears to him to be the loss suffered by Lesotho for the value of property lost or damaged or the amount improperly paid as the case may be or such lesser amount as the Minister may determine."
The applicant as a result of the submission of his explanation to which I have already referred and which as I have found clearly
established negligence against him in the care of public money was surcharged by the Minister with the amount of R5,005-00.
It appears from the letter of 18th April, 1984 that the Minister has in terms of his powers under Section 32 of the Act surcharged the applicant with that sum and he was ordered to pay that money in monthly instalments of One Hundred Rand each.
The Minister, however, had further directed that in the event of the applicant going on retirement his compulsory savings must be
appropriated in full towards recovery of the loss, and that in fact was done.
There has been complaint by applicant's counsel that the long delay from the submission by the applicant of his explanation of the missing money or of how it came to be missing and the imposition of the surcharge by the Minister has prejudiced him and that accordingly I should infer from that that the surcharge was some form of additional punishment imposed upon the applicant with reference to this loss or perhaps to the proceedings before the Disciplinary Board. I must say at once that
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there is no justification whatsoever for any such inference even being considered. A year's delay is not serious, and in any event, there is no time limit imposed upon the Minister as to when he may act under the provisions of the Finance Act.
No appeal to the Minister appears to have been made by the applicant and accordingly the last word had been said by the Minister when the surcharge was imposed.
The money as I have already indicated was deducted in full apparently from the applicant's compulsory savings. Section 37 provides that :
"No such deduction shall exceed One Sixth of a person's monthly salary or pension as the case may be unless the Minister has
reasonable ground to assume the State will suffer a loss unless a greater portion is withheld."
In fact, the money was not deducted from any salary or pension of the applicant but from his compulsory savings. While these savings are savings from his salary, once they are deducted from his salary for the purpose of retention as compulsory savings, they no longer bear the character of salary and 1 am satisfied that Section 37 1(b) of the Finance Act has been properly applied by the Minister in ordering the whole of the surcharge to be deducted from the applicant's compulsory savings.
In the result, therefore, I dismiss the application in so far as it concerns the deduction of the surcharge from his compulsory savings or other benefits, that is, other than pension or salary.
It remains now to consider the question of costs. I had in mind to allow the applicant his costs on the scale appropriate to the division of the Subordinate Court which would have had jurisdiction in respect of the amount on which the applicant has been successful and I am informed that the Senior Resident Magistrate would have jurisdiction in matters concerning an amount of R1,510-00. However, I do think that this application is not that simple that it should inevitably have been dealt
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with by a Subordinate Court and I recognize that the matte of interpretation of Section 12 of the Police Order merits the attention of a High Court. However, the applicant has succeeded only in part under one claim for the recovery of R210-00 and has failed on the second part, that is, on a claim for R5,005-00 and I think it would be fair and equitable and a proper exercise of my discretion if I award the applicant half his taxed costs of the whole application including the application for condonation.
D.S. LEVY
ACTING JUDGE
30th April, 1985.
For Applicant : Mr. S. Mphutlane
For Respondent : Mr. Moguluma.