HIGH COURT OF LESOTHO
TELECOMMUNICATIONS CORPORATION Respondent
by the Honourable Mr. Justice J.L. Kheola on the 6th day of October.
an application for an order in the following terms:
a rule nisi do hereby issue calling upon Respondent to show cause,
if any, on a date to be determined by this Honourable
suspension of Applicant by the Managing Director of Respondent
dated January, 1993 shall not be declared null and void and
force and effect.
intended disciplinary proceedings against Applicant before the
Board of Directors of Respondent on June 9th 1993 shall not
stayed pending the finalisation of this application;
order declaring that the Board of Directors of Respondent have no
right whatsoever to sit as a disciplinary tribunal contrary
provisions of Respondent's Personnel Regulations shall not be
instructions of the Board of Directors of Respondent to Applicant to
return private motor vehicle Ad 643 shall not be stayed
and the said
motor vehicle shall not be returned to Applicant pending the
finalization of this application;
shall not be directed to pay the costs hereof.
Applicant such further and\or alternative relief as this Honourable
Court may deem fit.
rules 1 (b) and (d) should operate with immediate effect as a
temporary interdict and that Applicant's affidavit attached
will be used in support hereof.
8th June, 1993 the rule nisi was issued and made returnable on the
14th June, 1993. However prayer 2 was not granted.
several extensions of the rule the matter was argued before me on the
10th September, 1993. Judgment was reserved.
(b) and 1 (c) were not opposed by the respondent. On the 10th
September, 1993 those two prayers were confirmed by agreement
of this application seem to be common cause and they are as follows;
material times the applicant was and still is in the
the respondent as a member of the permanent staff. His terms and
conditions of employment were governed by the respondent's
Regulations. He holds the senior position as the Head of Planning
Division of the respondent.
28th January, 1993 the Managing Director of the respondent suspended
the applicant without having invited him to make any
before he took that step. The suspension was with immediate effect
pending the outcome of the disciplinary case
which was to be beard by
Mr. Mopeli Qhobela of the Public Service Commission.
24th March, 1993 Mr. Qhobela delivered a written judgment in which he
indicated that he had no jurisdiction to deal with
case as the Personnel Regulations of the respondent clearly indicated
the proper tribunal to hear the respondent's
the Board of Directors of the respondent attempted to constitute
itself as a disciplinary tribunal to hear the applicant's
has also failed because the respondent's Personnel Regulations
indicated who shall compose the disciplinary tribunal.
position he holds, the applicant is entitled to the
which the respondent provides. At the end of four years he would be
entitled to buy this car from the respondent. He is
entitled to two
hundred litres of fuel per month. This is a term of his contract with
the applicant is on suspension he still earns his full monthly
salary. He is still occupying the respondent's house allocated
him. On the 27th May, 1993 the applicant received a letter from the
respondent that the Board of Directors of the respondent
directed, again without first hearing the applicant, that he should
return the car with immediate effect. The car which is
given to the
Divisional Head is regarded as a family benefit. His wife is entitled
to use the car. It is for both official and
private use. On the 28th
May, 1993 the applicant returned the car under protest.
to deal with the car first.
Matsau, respondent's attorney, submitted that the official vehicle
has been allocated to the applicant to carry out official
therewith. The benefit to use the same for personal use is ancillary
to the main purpose of official use. The applicant
has stated that he
is entitled to free two hundred (200) litres of petrol per month
which is charged to the Corporation's account.
He submitted that this
to the applicant for as long as he is performing his duties as an
employee of the respondent.
of Directors of the respondent was therefore entitled to withhold the
benefit from the applicant pending finalisation
of the disciplinary
action against him. He further submitted that the balance of
convenience favours the action taken by the Board
of Directors. He
further submitted that the said benefit cannot be compared with
salary and the use of the official residence.
In the latter, for
instances, the balance of convenience would favour that the applicant
should be paid his salary in full in the
meantime and be allowed to
occupy the official residence.
I do not
agree with Mr. Mataau that the benefit to use the car for personal
use is ancillary to the main purpose of official use.
It is a very
valuable benefit which is enjoyed by the applicant in terms of his
contract with the respondent. As the applicant
has not been dismissed
I am of the view that he is still entitled to the use of the car for
his personal purposes. I cannot see
any distinction between the use
of the official residence and the payment of full salary on the one
hand and the use of the car
for personal purposes on the other hand.
These three things are the benefits which the applicant must enjoy as
long as his contract
with the respondent still subsists.
as it may the crucial question is whether the respondent was entitled
to deprive the applicant of the use of the car without
a chance to be heard. In other words did the audi alteram partem rule
apply to the case? The respondent is a parastatal
created by statute. Because of the public nature of the respondent
there is no doubt that the audi alteram partem
rule must apply. (See
Koatsa v. The National University of Lesotho, C. of A\15\86
case (supra) dealt with termination of employment without giving the
employee a fair opportunity of being heard on the
where it appears from the circumstances that the employee had a
"legitimate expectation" that he would
remain in employment
permanently in the ordinary course of events.
present case the applicant's contract with the respondent provides
that he would enjoy the benefit of the use of the respondent's
for private purposes as well as for official duties. I am of the view
that he has a legitimate expectation that as long as
he is still in
the employment of the respondent that benefit would not be terminated
unilaterally. The act of the respondent is
a clear breach of
I am of
the view that this prayer must be confirmed.
1 (a) the applicant praye that his suspension by the Managing
Director of the respondent dated the 28th January, 1993
null and void and of no force and effect on the ground that he was
not given a chance to be heard before that drastic
step was taken
authorities seem to differ as to whether before a suspension from
office is made the employee must be heard or not. In most
the employee is suspended without pay the courts have said that
before such a drastic action is taken he ought to be
given a chance
to be heard. Or if it was not possible to hear him before the
suspension was made to hear him immediately thereafter.
Administrative Law by Wade, 6th edition at page 565-6 the learned
"Suspension from office as opposed to dismissal may be nearly as
serious a matter for the employee, but the Courts have wavered
between two different views. One is that the employer needs a summary
power to suspend without hearing or other formality as a
operation, pending inquiries into suspicions or allegations. The
other is that suspension is merely expulsion pro tanto.
penal, and each deprives the member concerned of the enjoyment of his
rights of membership or office. Taking the former
view in a
controversial decision, a majority of the Privy Council held that a
schoolteacher in New Zealand need not be given a
hearing before being
suspended without pay pending the determination of a disciplinary
charge against him on which he would be
fully heard in accordance
with statutory regulations. Although it
was recognised that suspension without pay might involve hardship and
also a temporary slur on the teacher, it was held that he
accepted this possibility in the terms of his employment and that the
disciplinary procedure as a whole was fair. It has been
that a police officer need not be heard before being suspended from
duty pending investigation of charges of misconduct.
Favouring the opposite view, the Court of Appeal of New Zealand has
rejected the distinction between suspension and expulsion and
held that natural justice is required equally in both cages; and
there are similarly clear Australian decisions. Suspension
pay, in particular, may be a severe penalty, and even suspension with
pay may gravely injure reputation. In principle the
arguments for a
fair hearing are unanswerable; and if for reasons of urgency it
cannot be given before action is taken, there is
no reason why it
should not be given as soon as possible afterwards."
v. Heffer and others (1978) 3 All E.R.354 (C.A.) at p. 364 C-E Lord
Denning, M.R. said:
"Very often irregularities are disclosed in a government
department or in a business house; and a man may be suspended on
pay pending enquiries. Suspicion may rest on him and so he is
suspended until he is cleared of it. No one, so far as I know,
ever questioned such a suspension on the ground of defending himself,
and so forth. The suspension in such a case is merely
done by way of
good administration. A situation has arisen in which something must
be done at once. The work of the department
or office is being
affected by rumours and suspicions. The others will not trust the
man. In order to get back to proper work,
the man is suspended. At
that stage the rules of natural justice do not apply: see Furnell v.
Whangarei High Schools Board.
In a separate concurring judgment Lane L.J. said (at 368h-j) that
where suspension was an administrative action and had to be effected
immediately, pending investigation, it was not only impossible to
hear the subject but natural justice will seldom if ever at that
stage demand that the
investigation should ... hear both sides. No one's livelihood or
reputation at that stage is in danger. But the further the
go and the nearer they get to the imposition of a penal
sanction or to damaging someone's reputation or to inflicting
loss on someone, the more necessary it becomes to act
judicially and the greater the importance of observing the maxim,audi
Mhlauli v. Minister of Department of Home Affairs and others 1992 (3)
S.A. 635 it was held that the audi alteram partem principle
applicable when a statute empowered a public official or body to give
a decision prejudicially affecting an individual in his
property or existing rights, unless the statute expressly or by
implication indicated to the contrary.
further held that suspension unquestionably constituted a serious
disruption of one employee's rights: the social and personal
implications of being barred from working and of being seen to have
been so barred, and being deprived of pay, were substantial.
Accordingly, that the applicant had been entitled to a hearing prior
to his suspension.
and others v. Chairman, Minister's Council, House of Representatives,
and others 1992 (2) S.A. 508 it was held that it
was not the
intention of the Legislature in S. 20 (2) of the Act to deny a
hearing to a public officer prior to or, in extreme
immediately after his suspension without pay pending the hearing of
disciplinary charges against him. The same necessarily
applies to the
absence of any reference to a hearing, or to the denial of a hearing,
in Reg. A25.1. According, such a suspension
, if imposed without
giving the public officer a hearing, is invalid.
28.5 of the respondent's Personnel Regulations provides that 'if it
appears necessary or desirable an employee may be suspended
with or without pay from one to three months at the discretion of the
MD pending the completion of the investigations.'
no doubt that the Managing Director of the respondent has the power
to suspend from office any employee of the respondent.
makes no reference to the hearing or the denial of a hearing before
the M.D. decides to suspend an employee of the
respondent. As there
is no specific reference to the exclusion of a hearing before
suspension then the audi alteram partem rule
must apply to the
If the MD
of the respondent found that this was an extreme case in which he had
to take quick action by way of good administration,
of good discipline amongst the staff, he ought to have given the
applicant a hearing immediately
reason alone I am of the view that the suspension is invalid.
applicant has now been on suspension for about eight (8) months. 'The
further the proceedings go and the nearer they get to
of a penal sanction or to damaging someone's reputation or to
inflicting financial loss on someone, the more necessary
to act judicially, and the greater the importance of observing the
maxim, audi alteram partem'. The applicant is now
financial loss because the official car which he used for private or
personal purpose has been taken from him. His
reputation is at stake
inasmuch as for the last eight (8) months people are aware that he is
not going to work. If he drinks intoxication
drinks he may develop a
bad habit of drinking at daytime when other people are at work. This
may seriously affect his character
suspension has become illegal for another reason. The M.D. of the
respondent is empowered to suspend an employee for a period
one to three months. That period expired on the 28th April, 1993. The
applicant is entitled to go back to work. Public
moneys should not be
used to pay an employee whose suspension has expired.
delay in prosecuting the charges against the applicant before a
proper tribunal is due the lack of knowledge by the respondent
own disciplinary machinery when an employee has committed an offence.
The respondent is on a fishing expedition - It first
Adjudicator in the Public Service Commission who rightly pointed out
that he had no jurisdiction. Thereafter the
respondent purported to
establish the Board of Directors of the respondent as a disciplinary
tribunal. This attempt has been abandoned.
It is not clear from the
papers what the respondent intends to do. This confusion and an
appalling lack of knowledge of the respondent
of its own disciplinary
procedures is pathetic and costing it a lot of money unnecessarily.
result the rule is confirmed with costs.
Applicant - Mr.Pheko
Respondent - Mr. Matsau.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law