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.

2

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

3

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

6

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

7

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.