CIV/APN/448/98
IN THE HIGH COURT OF LESOTHO
In the matter between
Selikane P. Selikane 1st Applicant
Maholela Mandoro 2nd Applicant
K. Theko Lerotholi 3rd Applicant
Thabo Sekonyela 4th Applicant
Elizabeth Khutlang 5th Applicant
Rose Khoete 6th Applicant
Sekhefu Monaphathi 7th Applicant
Albert Lesaoana 8th Applicant
Liako Ntšekhe 9th Applicant
Ramotšelise Lephoto 10th Applicant
Bofihla Maphatšoe 11 th Applicant
Hubert Lelimo 12th Applicant
Thabo Moshoeshoe 13th Applicant
Puseletso Baholo 14th Applicant
'Matumisang Ramabele 15th Applicant
Nicodemus Phalime 16th Applicant
Blyth Baholo 17th Applicant
Ntsoaki Morie 18th Applicant
Ntloko Mokhesi 19th Applicant
Thapelo Mobe 20th Applicant
'Mamoleboheng Moleleki 21 st Applicant
'Mateboho Ranooe 22nd Applicant
'Matlali Mpitso 23rd Applicant
Tlantli Leballo 24th Applicant
Mohale Mahloane 25th Applicant
Baile Seakhoa 26th Applicant
Leteka Ramashamole 27th Applicant
Phakiso Fosa 28th Applicant
Lebohang Sekhoahla 29th Applicant
'Makuenane Mahlomola 30th Applicant
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Ntoile Kolane 31 st Applicant
Tlalane Makepe 32nd Applicant
Bokang Thamae 33rd Applicant
Thato Masithela 34th Applicant
And
Lesotho Telecommunications Corporation 1st Respondent
E.M. Mahakoe 2nd Respondent
Paul Tohlang 3rd Respondent
Mofolo Matasane 4th Respondent
Kotsana Mathealira 5th Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice M.M Ramodibedi On the 18th day of February 1999.
The main facts which give rise to the litigation in this matter can be briefly collated and 1 should like to point out at the outset that it has undoubtedly been a long drawn legal battle between the First Respondent (LTC) and some of its employees including the Applicants. The whole litigation has indeed been an emotional cut-throat affair which was best summed up by Browde JA in the following words in Lesotho Telecommunications Corporation and Thamahane C.F.D. Rasekila v Makhobotlela Nkuebe and 313 others including the Applicants) C of A (Civ) No. 5 of 1998 and C of A (Civ) No. 12 of 1998 (unreported) at page 24:
"The result of the present proceedings and the fact that others are pending between the parties (including not only that referred to in the proceeding
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paragraph, but another matter that was sought to be advanced belatedly,
and the appeal against the judgment of Guni J which is still pending) can only serve to exacerbate the chaos that the parties have created by their legal manoeuvres. Litigations so far has served the interests of neither party but only of the lawyers. It would be in the interests of all concerned that emotions be controlled and wise heads put together to find a solution. We have already suggested mediation. We are not aware of reasons which may have delayed or permanently derailed that process. If wisdom does not prevail and no solution other than by continued litigation is sought, so be it. It is however fair to predict that the relationship between the parties will be further soured, only the lawyers will reap rewards for their services at the expense of their clients, and the clients may receive no true benefit whatsoever in the long run."
It is pertinent however to bear in mind that in the said case Nos. C of A (Civ) No 5 of 1998 and C of A (Civ) No.l2 of 1998 the Court of Appeal on the 17th July 1998 specifically upheld the High Court Order of reinstatement of the Applicants into First Respondent's (LTC) employ. A total of 314 employees had been dismissed by the First Respondent for having allegedly engaged in illegal strike.
What then followed is that on the 2nd September 1998 and pursuant to the Court of Appeal decision on reinstatement of the Applicants and their colleagues the Respondents' attorney Webber, Newdigate addressed the following letter Annexture "C" to Applicants' legal representatives K.E.M. Chambers:-
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"KEM Chambers
P.O. Box 0412
Maseru West
Dear Sirs
M NKUEBE AND 313 OTHERS/ LTC
We refer to the content of our letter of 24 August 1998 and more particular the re-integrating process of your clients in to LTC.
As mentioned in our above letter, our client's intention is to take your clients back in batches to be dealt with (sic) weekly intervals.
We now enclose herewith a list of your clients specifying the date on which they should report at our client's Maseru offices on the dates indicated in the right hand column.
They should report at the Tele-bureau office of our client at 9.30 am on the dates opposite to their names.
Will you please again prevail upon your clients that the re-integration process is a difficult one and that they should act responsible (sic) and with the necessary patience during the period of re-integration.
We invite you to write to us should you need to clarify any of the issues refened to above.
Yours faithfully WEBBER NEWDIGATE."
The right hand column of the list referred to in this letter indicates that the Applicants and their colleagues were to be reinstated in batches on the following different dates: 7/9/98, 14/9/98, 21/9/98, 28/9/98, 5/10/98 and 12/10/98. This letter apparently elicited no response from the Applicants or
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their legal representatives.
On the 2nd October 1998 the First Respondent (LTC) addressed the following letter Annexture "D" to each of the Applicants and their colleagues (the 15th Applicant 'Matumisang Ramabele's letter was dated 13/10/98):-
"RE: TRANSFER TO ....(place indicated)
The Management of the Lesotho Telecommunications Corporation wishes to welcome you back into the workforce and expresses its sincere hope and wish that you shall endeavour with care and diligence in assisting the Corporation achieve its main objective viz to provide
telecommunications services both to as well as for the Basotho Nation.
In the spirit of ensuring that the telecommunication services are, as much as possible, made available to all Basotho throughout the country and improving on the currently poor tele-density/penetration and services in other parts of the country, the Management has decided to re-enforce its operations in the Regions.
You are therefore informed that you are transferred to post number ....(indicated)... in the .....(indicated.... Region and that your new duty station shall be ...(indicated)... with effect from the 5th October 1998. Please report to your new Divisional Manager
immediately.
You shall, in accordance with article 19.5 of LTC's Personnel Regulations, be paid transfer allowance to facilitate re-settling in your new duty station. Your terms and conditions of service will otherwise remain the same. Regards P. TOHLANG A/GM2"
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This letter immediately elicited a response from Applicants' legal representatives in their letter Annexture "E" dated 6th October 1998 to the following effect:-
'THE MANAGING DIRECTOR THE LTC MASERU 100
Dear Sir
RE: TRANSFER OF SOME OF THE RECENTLY REINSTATED EMPLOYEES
The above subject refers. We are and have been the legal representatives of clients in C of A (CIV) No.5 of 1998 as respondents therein.
We have received instructions that your Corporation is carrying out some purported transfers of some of the said clients to other posts and giving them unreasonable notices and with unfair treatments. Our considered view is that you cannot avoid reinstating clients by frustrating them with immediate transfers to far-away places.
It is our instructions to demand from you as we hereby do, to immediately seize (sic) the unfair and malicious transfers that your LTC is carrying out against clients. Our instructions are that these letters of transfer should have been withdrawn latest by the 12th day of October 1998. If not, we have instructions to make an urgent application to the court on or about the 13th day of October 1998 challenging the said purported transfers and all the consequences flowing therefrom. And indeed, your clients will as usual pay heavily for these ill-advised actions.
We also note with concern that most of the purported transferees are those employees, who were employee representatives in all discussions and relations with your management, and that the transfers are nothing but a form of victimization. This can certainly not be tolerated or let to go unchallenged. It is urged very strongly that these actions must stop as they are illegal and constitutes (sic) an act of unfair labour practice. A fortiori. these flies (sic) in the face of reason in as much as it has all along been the wish of your LTC that there must be mediation. It baffles one as to why LTC should frustrate this by scattering the workers representatives all over
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the country, instead of addressing this thorny issue first. Please react.
We remain
Faithfully yours
K.E.M. CHAMBERS."
I should like to digress a little at this juncture to make a pertinent observation that in their letter Annexture "E" the Applicants' legal representatives do not make the case that the Applicants were not given pre-transfer hearing. As I read the letter their complaint is confined to short notice of the transfers, unfair treatment and victimization. More about this later.
In response to Annexture "E" the Respondents' attorneys addressed the following letter Annexture "F" dated 13th
October 1998 to the Applicants' legal representatives:-
"K E M Chambers
P O Box 0412
MASERU WEST
105
re -TRANSFER OF SOME OF THE RECENTLY RE-INSTATED EMPLOYEES
Your letter of 6 October 1998 concerning the above subject has been referred to us for reply.
We are instructed to reply thereto as follows:
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Our client confirms that some of the recently re-instated employees have been transferred. The circumstances in which these employees have been transferred is as follows.
During October 1997 the LTC dismissed some 300 employees. The Appeal Court held that those dismissals were wrongful and it ordered our client to re-instate the effected (sic) employees. This Order was made on 31st July 1998,that is virtually I year after the dismissals were effected.
In the year between the dismissals and the re-instatements our client managed to operate effectively and successfully with only 400 employees. In order to do so our client had to re-organise and restructure and redeploy staff. Now that all the dismissed staff have been re-instated our client has 700 employees instead of the 400 it previously had. Obviously this substantial increase in staff has again necessitated a re-organisation and restructuring of the LTC including a re-deployment of staff. It is in this context that certain of the re-instated employees have been transferred. As stated this has become necessary and inevitable by reason of the reinstatement of all the dismissed employees and has to be effected in the interests of the LTC.
Our instructions are to prevail upon you to convey the above to your clients and explain to them that our client has no choice but to transfer certain employees. As stated this is part of the restructuring exercise that our client is carrying out.
We are further instructed to convey to you that the transfers are in no way intended to be malicious or to constitute victimisation. We repeat that our client has to deal with the present staff problem as effectively and responsibly as possible. It is to this end that the transfers have been effected.
We are furthermore expressly instructed to convey to you that the transfers are not unfair and do not constitute victimisation of anybody. At the time management made its decisions, possible accusations of unfair treatment and victimisation were carefully considered. This is not management's intention. The position is that management has no choice but to manage a very difficult staff problem and to this end certain transfers have become inevitable and necessary. Obviously not everybody can be accommodated where they are happiest and most comfortable. Management has effected the transfers in terms of the Telecommunications Act, No. 12 of 1979 and also in terms of LTC's regulations.
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We finally are instructed to deny the contention made in the last paragraph of your letter where you suggest that most of the purported
transferees are those employees who were employee representatives in all the discussions and relations with management at the time of the past problems and that the transfers are nothing but a form of victimisation. The above is not true at all. Persons other than employee representatives have been transferred. In addition certain employees who formed part of the 400 employees that our client got by with after the mass dismissals, have also been transferred.
We once again urge you to prevail upon your clients to act responsibly and sensibly in the management of this very difficult problem,
particularly in these politically uncertain times. Your responsible advice to your clients concerning the above will not only be in the best interests of LTC and your clients but also the country as a whole.
Finally our client has instructed us to request you not to write directly to LTC. Instead all matters of this nature must henceforth be directed directly to us. This is to avoid delays, misunderstandings or confusion.
Yours faithfully
WEBBER NEWDIGATE"
Again on the 14th October 1998 the Respondent's attorney once more addressed the following reassuring letter Annexture "R5" to the Applicants' legal representatives:-
"K E M Chambers PO Box 0412 MASERU WEST 105
TRANSFER OF SOME OF THE RECENTLY REINSTATED
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EMPLOYEES / LTC
We have replied to your abovementioned letter and you will have received our reply by now.
After preparing our reply referred to above for consideration by client and before serving it upon you the writer discussed the above issue with Mr Mosito tor K E M Chambers:- In this conversation Mr Mosito mentioned— that the problem concerning the transfers related not so much to the fact that reinstated employees are being transferred but instead to the fact that the effected (sic) employees are being transferred on very short notice. Mr Mosito pointed out that at a practical level the transferred employees would have extreme difficulties in complying with the transfer instructions in circumstances where the effected (sic) employees have shoolgoing (sic) children and the likes.
We have taken instructions on this aspect of the matter. Client can see that in some instances the transfers may give rise to practical
difficulties. We are instructed to convey to you that all effected (sic) transferees will be dealt with in a responsible and reasonable
way. Our client is concerned to dispel any suggestions of victimisation. In furtherance of this aim each transferee who has problems is to report to his new divisional head who will consider his/her concerns and make practical arrangements to accommodate all reasonable requests. Please be advised that all effected (sic) transferees will also be paid the usual transfer allowances.
We await your reply. Yours faithfully
WEBBER NEWDIGATE" (emphasis added).
I observe once more that there was simply no response to this very important letter Annexture "R5" and the seemingly reasonable
suggestions contained therein. I shall return to this aspect later.
Instead of either querying or complying with the suggestions contained
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in the letter Annexture "R5" the Applicants filed the present application with the Court on the 11th November 1998 seeking an order couched in the following terms:-
" Dispensing with periods of service as prescribed by the Rules of the Court.
A Rule Nisi be and is hereby issued returnable on the date and time
to be determined by this Honourable Court calling upon the respondents to show cause (if any) why:
The purported transfers of the applicants by respondents shall not be declared null and void and of no forceand effect.
The demotion of seventh to eleventh applicants shall not be declared null and void.
The said purported transfers of applicants by respondents shall not be stayed pending the outcome of this application.
The respondents shall not be directed to pay costs of this application
Granting applicant such further and/or alternative relief.
That prayer I and 2(c) operate with immediate effect as an interim court order pending the finalisation of this application."
I should mention however that at the hearing of the matter before me on the 3rd February 1999 Ady Rakuoane for the Applicants informed the Court that the Applicants were duly abandoning prayer 2(b) of the Notice of Motion. Argument before me was therefore mainly confined to prayer 2(a). I should perhaps also mention that on the 11th November 1998 when the matter first appeared before me ex parte I declined to grant prayer 4 in the
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particular circumstances of the case bearing in mind the letter Annexture "R5" and ordered that the papers be served on the Respondents.
Before dealing with the merits of the application in terms of prayer 2(a) of the Notice of Motion it is perhaps convenient to consider two points in limine raised by Adv Woker for the Respondents namely whether the First Applicant Selikane Pheneas Selikane who deposed to a founding affidavit in the matter was duly authorised to represent the other Applicants and to depose an affidavit on their behalf. The other point raised in limine is whether the matter qualified to be treated as one of urgency.
First Applicant's Authority to Act.
In paragraph 1 of his founding affidavit the First Applicant avers that the other applicants in this matter have authorised him to depose to the founding affidavit on their behalf. Presumably it is sought to imply that they have authorised him to act in these proceedings on their behalf. Yet only the 10th Applicant Ramotšelisi Liphoto in fact filed a confirmatory affidavit in the founding papers.
It is significant that First Applicant's authority to act on behalf of the other applicants is denied and placed squarely in issue in terms of paragraph 4.2 of the opposing affidavit of the Acting Managing Director of First Respondent namely Thamahane C.F.D. Rasekila.
In particular the deponent Thamahane C.F.D. Rasekila makes the
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following telling points in paragraph 4.4 of his opposing affidavit:-
"4.4 Applicants numbers 5, 6, 7, 8, 9, 10, 13, 14, 15, 18, 19, 20, 22, 23, 24, 26, 29, 32, 33 and 34 have taken up their positions
in their new posts in terms of their transfers. Those that are entitled thereto have also taken their transfer allowances which
varies from transferee to transferee but the minimum is M2000.00. I have not received any complaint either directly or indirectly- from the mentioned Applicants that they are in any way unhappy with their transfers. I do not understand why the mentioned applicants have been cited in these proceedings. I deny that they have authorised the First Applicant to act on their behalf alternatively I verily believe that they have been improperly influenced into joining the remaining Applicants in bringing the application by a few Applicants who are opposed to their transfers for personal reasons and whoare using the abovementioned Applicants to create the impression that everybody who has been transferred is dissatisfied. I point out that of the # 300 employees who were re-instated by the Appeal Court approximately 34, being the Applicants, have been transferred and it is noteworthy that every one of them is an applicant in these proceedings, even those who have been promoted through their transfers."
In his replying affidavit the First Applicant Selikane Pheneas Selikane merely hides behind the phrase that he has "no knowledge"
that the named applicants 5, 6, 7, 8, 9, 10, 13, 14, 15, 18, 19, 20, 22, 23, 24, 26, 29, 32, 33 and 34 have taken up their new posts in terms of their transfers. Furthermore he avers that he has "no knowledge" whether these applicants have been improperly influenced.
In dealing with a similar situation Aaron JA stated the following in Chobokoane v Solicitor General 1985-89 LAC 64 at 65:
"In motion proceedings it is not an adequate answer to say 'I put the applicant to the proof thereof. The affidavit made by the appellant
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constitutes and contains not only his allegations but also his evidence, and if this evidence is not controverted or explained, it will usually be accepted by the Court. In other words the affidavit itself constitutes proof, and no further proof is necessary. The position is different where pleadings are filed; these contain no evidence, and the evidence will be led later at a trial. An admission by defendant will obviate the need for plaintiff to call evidence. But there is also room for one party to plead that he has no knowledge of an allegation made by the other party, and that he does not admit it; in this way, he requires the other party to prove his allegation by evidence at the trial. But this is not competent in motion proceedings, and as there has been no denial, the matter must be approached on the basis that these allegations by appellant are proved."
I respectfully associate myself with the remarks of the learned Judge of Appeal as they are apposite to the instant case.
Significantly the First Applicant Selikane Pheneas Selikane and his co applicants have failed to controvert the Respondents' version as contained in Thamahane C.F.D. Rasekila's affidavit to the effect that the named applicants 5,6, 7, 8, 9, 10, 13,14,15, 18, 19, 20, 22, 23, 24, 26, 29, 32, 33 and 34 have taken up their new posts in terms of their transfers and that they have not complained either directly or indirectly. Moreover the Respondents' version that the applicants have been "improperly influenced into joining the remaining Applicants in bringing the application by a few Applicants who are opposed to their transfers for personal reasons and who are using the abovementioned Applicants to create the impression that everybody who has been transferred is dissatisfied" has also remained uncontroverted. Accordingly I proceed on the basis of the correctness of the Respondents' version as fully set out above. I do so on the authority of Plascon Evans Paints (Pty) Ltd. v Van Riebeeck Paints (Pty) Ltd. 1984 (3) S.A. 623 at 634 15 635.
See also Supreme Furnitures and Another v Letlafuoa Hlasoa Molapo 1991-96 LLR 1476 at 1477.
It proves useful to mention at this stage that in his replying affidavit the First Applicant Selikane Pheneas Selikane has for the first time attached confirmatory affidavits of 14 applicants namely applicants numbers 2, 6, 7, 8, 12, 15, 16, 17,18, 22, 30, 32, 33 and 34. Amazingly some of these applicants are those who, as stated above, took up their positions in their new posts in terms of their transfers and who did not raise any complaint. These are applicants numbers 6, 7, 8, 15,,18, 22, 32, 33 and 34. This may well be a classical case of running with the hare and hunting with the hounds as far as these applicants are concerned or it may be a typical example of confused people who have probably been improperly influenced as stated above. It does not matter which. In fairness to the First Applicant I am prepared, even if I do so reluctantly, to assume in his favour that he was authorised to act for and to depose an affidavit on behalf of the following Applicants numbers 2, 6, 7, 8, 10, 12, 15, 16, 17,18, 22, 30, 32, 33 and 34.
It follows from the aforegoing that I am satisfied from the facts of this case as fully set out above that the First Applicant Selikane
Pheneas Selikane has no authority to act for and to depose an affidavit on behalf of the remaining applicants numbers 3, 4, 5,9,
11, 13, 14, 19,20,21,23,24,25,26, 27, 28, 29 and 31. Accordingly I am inclined to the view that these applicants are not properly before the Court and that their applications stand
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to be dismissed on this ground alone. In arriving at this conclusion I have of course taken into account the fact that, as earlier stated, these applicants have actually taken up their positions in their new posts in terms of their transfers and have admittedly not raised any complaint. In fairness to Adv Rakuoane. he properly conceded in my view that the case for these applicants cannot survive beyond the preliminary point as fully discussed above.
URGENCY
As to urgency the First Applicant Selikane P. Selikane stated the following in paragraph 13 of his founding affidavit:-
I submit the matter is urgent as respondents are threatening to effect disciplinary enquiries."
I hasten to mention that it was precisely because of the alleged threat for disciplinary action that the Court was led to believe that the matter was urgent but as it turned out, this allegation which is denied by the Respondents has remained unsubstantiated to date. There is no iota of evidence in the papers before me that the Respondents have ever threatened the applicants with disciplinary enquiries. On the contrary and as indicated in Annexfure "R5" the Respondents remained open to accommodate all reasonable requests by Applicants. Accordingly I am driven to the inevitable conclusion that this allegation by the Applicants was but a ruse designed to mislead the Court into believing that the matter was urgent and therefore to allow the Applicants to
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jump the que of litigants awaiting their turn to have their cases disposed of. The Court takes a very dim view of this underhand tactic by the Applicants and, as a mark of its displeasure, the Court is disposed to discharge the Rule with costs on this ground alone.
I proceed then to deal with the merits of the application in terms of— prayer 2(a) of the Notice of Motion.
APPLICANTS' COMPLAINT : APPLICANTS WERE NOT AFFORDED A PRE-TRANSFER OPPORTUNITY TO BE HEAD.
It is common cause that the Applicants were not given a hearing before the decision to transfer them was taken. It is submitted on behalf of the Respondents, however, that the Applicants had no right to a pre-transfer hearing in terms of the statute law of Lesotho or in terms of the common law.
As far as the statute law is concerned it is true to say that labour law in Lesotho is presently governed by the Labour Code Order No. 24 of 1992. Yet as I read this Code there is nowhere that the Code confers a pre-transfer hearing on employees (Applicants). The only stipulation made in terms of section 66 (4) of the Code is that an employee is entitled to a hearing "at the time of dismissal" but even then it is pertinent to observe that there is a proviso making allowance for non observance of a hearing at the time of dismissal if in the light of the circumstances and reason for dismissal, the employer "cannot reasonably be expected to provide this opportunity" (for
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hearing).
I have again examined the Telecommunications Act 1979 and the LTC Regulations but regret to say that there is nothing which confers on the Applicants a right to pre-transfer hearing.
Adv Woker for the Respondents has referred me to a number of South African decisions concerning the right to a hearing prior to transfer. I observe with amazement that those decisions are far from harmonious. A few illustrations will suffice.
In Van Coller v Administrator. Transvaal 1960 (1)S.A. 110 (T) a case which involved a transfer of a teacher, the transfer was set aside because the applicant was not afforded "a fair opportunity of stating his case" prior to the decision to transfer him. I observe however that the main reason why the Court adopted this view was that the transfer involved a diminution in status for the teacher and was also intended to be a disciplinary measure. It was manifestly prejudicial to the Applicant. Accordingly I find that this case is distinguishable from the instant case in which the question of diminution in status or disciplinary measure does not arise.
Ngubane v Minister of Education and Culture 1985 (3)S.A. 160 which again involved the transfer of a Rector of a College of Education to a junior post as principal of a school pending the outcome of a disciplinary hearing was also decided along the same lines as Van Coller v Administrator,
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Transvaal (supra). The decision to transfer him without hearing was accordingly set aside inasmuch as it was one which prejudicially affected his rights.
Hlongwa v Minister of Justice. Kwazulu Government (1992) 13 ILJ 338 (D) was a case in which a prosecutrix was transferred without hearing from a city to a rural town. The Court held, as a general rule, that a transferee should be afforded an opportunity to consult before the decision to transfer is taken. It was recognised, however, following Administrator. Transvaal and Others v Traub and Others (1989) (4) S.A. 731(A) that dictates of natural justice may be satisfied by affording the individual concerned a hearing after the prejudicial decision has been taken and that whether this is fair or not will depend on the facts of each case.
On the particular facts of Hlongwa's case the transfer in question was set aside on the ground that the applicant should have been given an opportunity to influence the decision to transfer her because she was asthmatic and moreover she was about to be married to a person who lived and worked in the city where she was based and who could not move to the rural area.
It is useful to bear in mind that the Court assumed in Hlongwa's case that a hearing could have taken place after the decision to transfer had been taken. However, the Court decided, on the facts of the case, that a subsequent proper hearing had not taken place.
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Then followed Ngema/Chule v The Minister of Justice Kwazulu and Another 1992 (4) S.A. 349 (N) which was a decision of the Full Bench of Natal Provincial Division. Both applicants in this matter (a Senior Administrative Clerk and a Magistrate respectively) were transferred without pre-trial hearing. They both complained that the decisions to transfer them flouted the principles of natural justice and were thus unfair The Court accepted the principle that where a transfer does not affect the transferee's existing rights (such as salary) or status the decision to transfer does not confer a right to be heard. Accordingly the Court held that "the applicants do not enjoy rights not to be transferred." The Court went on to express the view that in the final analysis the applicants' right to relief depends on whether they have established that their cases fall within the ambit of the doctrine of legitimate expectation which must however be responsibly managed by the courts for as was pointed out by Corbett CJ in the Appellate Division decision of Administrator, Transvaal and Others v Traub and Others (supra) at page 766 F-G "unless carefully handled [the legitimate expectation doctrine] could become an unruly horse."
It is pertinent to bear in mind that without expressly saying so in so many words the Full Bench held that the Hlongwa case was wrongly decided and went on at page 360 to state the following remarks which because of their importance merit repetition here:-
"I do not think it was established in the Hlongwa case supra that a promise was made or that a practice existed. Indeed, on the papers before us in the present applications it has not been proved that there is such an established
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longstanding practice in the KwaZulu Public Service or indeed in any other public service in this country which requires that there be consultation with the proposed transferee prior to the decision to transfer him. In fact I would think that everyone who joins the public service must realise that the possibility of transfer is, as it were, an occupational hazard and it may occur during his career. I am fully conscious of the inconvenience and in some cases, hardship which a transfer can cause. The particular official may have settled down comfortably in a particular district and become firmly established there when a transfer will simply have the effect of uprooting him and his family. There may even be health considerations. The official may have become proficient in a particular field of expertise, such as Miss Ngema in the present case who specialised in personnel work. As a result of the transfer she is now called upon to perform general administrative duties. To my mind, none of these considerations establish a legitimate expectation in the sense that a firm practice has arisen or that an undertaking has been given to the official concerned that because of the length of his stay at a particular station or other factors, he may remain on at that station. There may be great practical difficulties in deciding which public servants fall into the category of those who have a legitimate expectation and those who do not. Some public servants are fortunate enough to remain at one station at the same rank for substantial lengths oftime, even perhaps for the duration of their careers,and others may have a different experience. It is difficult to say that the first-mentioned category is entitled to a hearing while other persons in a different category may not be so entitled.
In my judgment there is no room for the invocation of the doctrine of legitimate expectation in the present cases. The duty to act fairly, which is alluded to by Corbett CJ in the passage to which I have referred to above, was not in my opinion intended by the learned Chief Justice to extend the light to a hearing to all persons who may be adversely affected by a particular administrative decision, as opposed to those who enjoy the legitimate expectation as that principle has been explained."
I respectfully associate myself with these remarks which in my view are apposite to the instant case.It is important to mention also that the Court in the Ngema/Chule cases concluded that the respondent (the Minister of Justice) in the applications in
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question did not act unlawfully when he decided to transfer the respective applicants without hearing. This was clearly a policy decision which I find myself mainly attracted to in as much as it blends the dictates of natural justice with the practical realities of each case. That is how it should be.
The Common law position in Lesotho"
Regrettably there is no case directly in point in this country on the question of pre-transfer hearing. As far as I am aware the nearest case on this point is the Court of Appeal case of Justina Kepa v Anglican Church and Another 1995-96 Lesotho Law Reports and Legal Bulletin at page 163. That case was however based on unlawful dismissal and not transfer as such. The Appellant had refused to comply with a directive by her employer to be transferred to a different primary school at Setleketseng on the ground that no substantial reasons had been furnished for the transfer. It appeared that the only reason cited for the proposed transfer was "Re-organization." In upholding the Appellant's appeal the Court of Appeal held, on the facts, that the Appellant was never confronted with the true reason for her purported transfer namely that the respondent was motivated by "some form of misconduct on Appellant's part and the behaviour of her children and animals in relation to the school garden and the tensions this had caused." More importantly the Court of Appeal held on the facts that the transfer in question was prima facie a matter that could cause the Appellant grave prejudice.
Indeed the Court of Appeal took a very dim view of respondent's conduct in the following words at page 172:-
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"In the first case Appellant's purported transfer was falsely represented to her as being motivated by a need to reorganize.
Secondly, she was untruthfully informed that the sanctioning authority had in fact already approved her transfer. Thirdly, the
transfer in this case was prima facie a matter that could cause her grave prejudice and almost undoubtedly would have done so in the circumstances described above."
The Court of Appeal then concluded that the process to which the Appellant had been subjected was not fair and that without laying down general rules the facts of the matter made it imperative for the 1st respondent to have acted in accordance with natural justice. Thus the Appellant's conduct in refusing to obey the directive to be transferred was held not to be unreasonable in any way. Nor could her refusal have been relied upon by 1st respondent to justify her subsequent dismissal.
For my part I should like to state that there is no magic power about the term "pre-transfer hearing." In my judgment what I think it all comes to is this namely that if a decision to transfer is prejudicial to the transferee's rights (such as liberty and status) then the person making the decision is bound to observe the principles of natural justice including the audi alteram partem Rule. In the same breath I consider that if it can be established on the facts of each individual case that the transferee has a legitimate expectation to be heard prior to a decision to transfer him/her is taken then such transferee is obviously entitled to a hearing. But whether such hearing must be before or after the decision to transfer is taken must obviously depend on the facts and exigencies and practical realities of each case.
So much for the law. I return then to the facts of the instant case and in doing so I observe at the outset that Regulations 3.1 and 3.7 of the First
Respondent's Regulations provide as follows:-
"3.1 All employees shall be subject to these regulations and these regulations shall be regarded as supplementary to all existing
employment and labour legislation valid in the Kingdom of Lesotho, as amended from time to time. Where the statutes are silent on issues these regulations shall prevail. Where, however, these Personnel Regulations conflict with any provision of any exsiting (sic) legislation, then the legislation, shall prevail over the conflicting provisions in these Regulations."
"3.7 The employees shall be obliged to accept permanent or temporary transfers within or out of the normal assignment and duty station in Lesotho" (emphasis added).
It follows from a proper reading of this regulation therefore that the First Respondent's employees including the Applicants do not enjoy rights not to be transferred.
As 1 read these regulations I am satisfied that they do not provide First Respondent's employees with a pre-transfer hearing. This must be by design for otherwise 1 am of the view that if it had been the intention of the law maker to provide a pre-transfer hearing it would have said so either expressly or impliedly. It must also be borne in mind that the relationship between the First Respondent and its employees is contractual and that the terms of such contract are to be found in the statute establishing First Respondent (The Telecommunications Act 1979) as well as the LTC Regulations.
See Jockey Club of South Africa v Forbes 1993 (3) S A 649 AD at 25 654
On the doctrine of legitimate expectation I find that the Applicants have failed to allege facts to establish a case that they had a legitimate expectation of a pre-transfer hearing. But even if I am wrong in the conclusion which I have arrived at in this regard it is my considered view that the Applicants were duly afforded an opportunity to be heard after the decision to transfer was taken and that in the particular circumstances and practical realities of this case this was sufficient. This is so because, as stated above, the First Respondent did not, in terms of the letter Annexture "R5", close its mind but kept the decision to transfer open to further negotiations in so far as individual employees including the Applicants were concerned. It will be recalled that this letter contained the following all-important sentence which merits repetition here if only for convenience:-
"We are instructed to convey to you that all effected (sic) transferees will be dealt with in a responsible and reasonable way. Our client is concerned to dispel any suggestions of victimisation. In furtherance of this aim each transferee who has problems is to report to his new divisional head who will consider his/her concerns and make practical arrangements to accommodate all reasonable
requests. Please be advised that all effected (sic) transferees will also be paid the usual transfer allowances."
It is indeed common cause that those employees including some Applicants who did have a problem with their transfers and who followed the First Respondent's invitation to come forward have actually been accommodated in every reasonable respect. This, in my view, certainly enhances the bona fides of the First Respondent in the matter. I should state
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for that matter that even the background leading to the decision to transfer has on the facts, left me in no doubt about the First Respondent's bona fides. Indeed I accept that the First Respondent was dealing with a very difficult staff problem of having to reinstate close to 300 employees after they had been away from work (albeit unlawfully dismissed) for more than a year during which time the First Respondent had effectively replaced them with other employees (a smaller contingent of 400 employees) who admittedly boosted the services of the corporation in the main areas of Lesotho. I am not persuaded that it would have made practical sense to serve notices and conduct pre-transfer hearings of about 300 employees.
It is for that matter not denied that the First Respondent was engaged in a restructuring process since 1995 and that such restructuring
continued during the Applicants' absence from work. It is not disputed that such restructuring was still going on at the time of
the reinstatement of the Applicants.
Against the above mentioned background it is important to note that not only have the Applicants failed to establish that they had any rights which were affected by the decision to transfer, they have also failed to allege and prove prejudice. On the contrary I find that the transfers in question were effected conscientiously with the Applicants being offered substantial transfer allowances of not less than M2000-00 each for that matter. Thus, in my view, Justina Kepa's case (supra) cannot assist them as that was a case in which prejudice had been established on the facts.
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In sum therefore I have come to the conclusion that the Applicants had no right to pre-transfer hearing and that even if 1 am wrong in the view that I take of the matter such opportunity for hearing was duly and properly provided after the decision in question.
As earlier stated the Applicants' case is one'for a declaration of rights. Now Section 2 (1) (c) of the High Court Act 1978 significantly provides as
follows:-
"2. (I) The High Court of Lesotho shall continue to exist and shall, as heretofore, be a superior court of record, and shall have,
................
in its discretion and at the instance of any interested person, power to inquire into and determine any existing future or continent (sic) right or obligation notwithstanding that such person cannot claim any relief consequential upon the determination." (my underlining)
1 have underlined the word discretion to highlight my view that the Court has a discretion in the matter. It is however not an arbitrary
discretion but a judicial one that must be exercised fairly upon a consideration of all relevant factors.
In the case of Lawrence Motlhokoa v St. Patrick's High School Managing Board and 7 others (CIV/APN/17/981 (unreported), I had occasion to state the following at page 15 thereof:-
"The question whether or not a declaration of rights should be
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granted in terms of this section must therefore be examined in two stages namely:
the jurisdictional facts such as the requirement that the applicant must have a direct interest in the matter and a clear
right (either existing, future or contingent) or obligation which becomes the object of inquiry, must first be established..
After the jurisdictional facts have been established the Court must then decide whether on he facts, the case before it is a proper one for the exercise of its discretion.
See Family Benefit Friendly Society v Commissioner For Inland Revenue 1995 (4)S.A. 120 at 124"
Applying these principles to the instant case I am satisfied that the Applicants have failed to establish the two requirements as set out above. They have failed to establish a clear right in the matter and I am of the view that this is not a proper case for the exercise of the Court's discretion. 1 have mainly been influenced in this regard by the letter Annexture "R5" which as I have stated above, has left the decision to transfer open to negotiation as far as individual employees and Applicants are concerned.
A declaration of rights would therefore either be premature or serve no purpose and would accordingly merely be hypothetical, abstract and academic. That courts are disinterested in academic situations admits of no doubt. It is indeed not the function of courts to give legal advice.
See Phakiso Molise and 8 others v Commissioner of Police and 2 others C1V/APN/27/97 (unreported) at p. 13 confirmed by the Court of
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Appeal in Phakiso Molise and 8 others v Commissioner of Police and 2 others C of A (Civ)No. 4of 1998 (unreported).
In all the circumstances of the case therefore the Rule is discharged and the application dismissed with costs to be paid by the Applicants jointly and severally the one paying the others to be absolved.
M.M. Ramodibedi
JUDGE
18th February 1999
For Applicants : Adv Rakuoane
For Respondents : Adv Woker
