HIGH COURT OF LESOTHO
MINISTRY OF FINANCE
ATTORNEY GENERAL Respondents
by the Honourable Sir Peter Allen, on the 9th day of April, 1987.
Applicant Miss Qhobela, has been a Senior Treasury Accountant in the
Ministry of Finance since 1 April, 1980. She was interdicted
duty by her departmental head last year and she has applied to this
Court for an order:
aside a letter of notification dated 27 June, 1986
aside a charge sheet brought against her dated 28 August, 1986.
Application was opposed and the Court heard argument from counsel on
background to this matter is briefly as follows. At the beginning of
January, 1983, the then Permanent Secretary, Cabinet (Personnel)
wrote to the Applicant informing her that she had been "transferred"
to the Ministry of Foreign Affairs as a Third Secretary
and posted to
the Lesotho High Commission in Nairobi with effect from the date she
assumed those duties.
must have queried the wording of this letter because, on 7 March,
1983. another letter, this time signed on behalf of the
Secretary, clarified her position. It reads:
"I wish to state unequivocally that in the event of termination
of your secondment appointment you will revert to your substantive
similarly graded post in your present parent ministry on the salary
and seniority you would have held had you not been seconded
Ministry of Foreign Affairs."
was made clear to her that she was only seconded to Foreign Affairs
and not transferred, i do not understand why this should
her performance of duties at the High Commission in Nairobi was not
satisfactory and, on 12 May, 1986, a letter from
at the Ministry of Public Service (Personnel) terminated her
secondment appointment to the Ministry of Foreign Affairs
from 1 May, 1986. It added:
"You will, therefore, revert to your substantive or similarly
graded post on the salary and seniority you would have held
not been seconded to the Ministry of Foreign Affairs."
May, 1986, her files were returned to Finance and on 27 June, 1986,
she was served with a notification of interdiction (Form
signed by the Principal Secretary for Finance. This interdicted her
on no pay as from 27 June, 1986, on allegations that
contravened various provisions of section 10 of Part 2 of Public
Service Order No.21 of 1970.
followed on 22 August, 1986, by service on her of a charge sheet
alleging four breaches of discipline in contravention
of the above
provisions. The Applicant signed receipt of it on that date and wrote
in her plea of not guilty but did not reply
to the charge.
these two documents, the notification of interdiction and the charge
sheet, which the
has asked the Court to set aside.
Hlaoli appeared for the Applicant and he conceded that there is a
power to interdict and charge Government officers for breach
discipline. The next move is for an Adjudicator to be appointed to
enquire into the matter and then report to the Public Service
Commission. Mr. Hlaoli submitted that since the acts complained of
occurred while the Applicant was serving in Foreign Affairs
charges should have been brought by that Ministry. Further, that
since she had moved from the Foreign Affairs to the Ministry
Finance there was no need to, interdict her since she was no longer
in a position or place to reject whatever she was accused
In addition, she had already refunded the sums of money involved.
Mr. Hlaoli's contention that interdiction could only be effected
by the head of the department in which the offences
(i.e. Foreign Affairs) and ,so it was improper for the Applicant to
be interdicted by anyone in Finance. But that
could be said to work
both ways. Since the Applicant was no longer in Foreign Affairs at
the time of interdiction, it is difficult
to see how the head of that
havemade an order against her. Presumably what happened was that the
Principal Secretary of Finance received a report from
that they were preparing charges against her and he then acted to
interdict her. As far as I can see, that would
be normal and proper
procedure. I do not consider that it was at all objectionable.
point is whether it was necessary
interdict her at all. I do not agree with the Applicant that her mere
transfer from Foreign Affairs would obviate the need to
her. It could be argued that, as an accountant who was accused of
mishandling public funds and accounts in one department,
equally well do the same in another department. In other words her
mere transfer would not solve the problem or remove
the threat or
possibility of further offences.
Hlaoli referred to rule 5 - 21 of the Public Service Commission
Rules, 1970 which gives the departmental head the power
interdict an officer charged with a breach of discipline. It is clear
that such a power is only to be invoked in the public
the departmental head is enjoined to "have regard generally
to the question whether it is safe to allow
the officer to continue
to exercise the powers and perform the duties of his office, or
whether there is some danger in allowing
him to do so. In particular
........ the head of department may consider whether there is a
threat to public funds, a threat to
good discipline, and a threat to
good relations with the
a threat to the effective and smooth running of the department."
In addition he must consider "the need to protect
of the officer."
considering these requirements for what is an administrative exercise
of discretion, a departmental head is always required by
to act fairly or, as it is often said, in accordance with the
rudiments of natural justice. He is also required to act
and in good faith. These are not necessarily the same since it is
possible for someone to do an act in all honesty and
good faith and
yet be acting unreasonably in the particular circumstances.
notification of interdiction, the Principal Secretary of Finance
stated that the Applicant's continued presence in office
a threat to office operations. In para.2 of the Applicant's "Main
Heads of Argument" it was submitted that
she had not been
informed how the office operations would be threatened by her
continued working there "under a new Ministry".
this point was reiterated: when it was complained that there was no
threat to operations "for the Applicant was
in a different
office from where the alleged offences occurred."
But, as I
have already pointed out, simply because the alleged mishandling of
funds and accounts by the Applicant occurred in one
department, it cannot
presumed that she would not do something similar back in the Treasury
where, in her senior position, there would surely be even
opportunity for such activities.
of that possibility, which a responsible departmental head clearly
must take into consideration, I am of the opinion that
properly in interdicting the Applicant.
regard to the requirement to protect the interests of the Applicant,
I understand that the original order to suspend her without
later amended to half pay, so clearly her interest was considered
there. In addition, her interest should have been considered
appointing an Adjudicator and having the enquiry held without delay.
It could be that by bringing this action in Court the Applicant
herself been mainly responsible for the delay in doing this and
disposing of the matter
prayer was for the setting aside of the charge sheet brought against
the Applicant. I am unable to understand this request.
have to be investigated by a properly appointed Adjudicator in the
first instance and not by this Court. I can see
nothing improper in
the charges as they stand and only a thorough enquiry will reveal
whether or not they can be substantiated.
It is hot the function of
this Court to look into this matter at this stage of the proceedings.
the charge sheet must stand and the laid down procedure for dealing
with it must be followed unless it is withdrawn.
1 can only express
the hope that the enquiry will now be dealth with promptly and
this Application is dismissed with costs.
Applicant : Mr. Hlaoli
Respondents : Miss Bohloa Judgment delivered.
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