CIV/APN/154/95
IN THE HIGH COURT OF LESOTHO
In the matter between:
SECHABA TOLOANE APPLICANT
and
THE ATTORNEY-GENERAL 1ST RESPONDENT
COMMISSIONER OF POLICE 2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo on the 20th day of December. 1999
The applicant Sechaba Toloane has applied to this court for an order:-
That the purported dismissal of applicant by the 1st respondent be deemed to be of no legal force and unlawful;
That applicant be re-instated to his substantive post as a member of R.L.M.P. with his services;
That applicant be paid all monies due to him accruing from his service but for the unlawful dismissal;
2
That application CIV/APN/154/95 be consolidated with this application for purposes of determination thereof;
That applicant be awarded costs of this application;
That applicant be granted such further or alternative relief
The application was launched on 30th September, 1996. The other application bearing the same number appears to have been launched on 26th April, 1995 and it is not clear why this application did not proceed. However, in this application the applicant had asked
re-instatement to his substantive rank of a sergeant in the Police Force; repayment of monies that were deducted from his remuneration
as a result of the said demotion; the purported disciplinary proceedings alleged to have taken place against applicant be set aside and judgment thereat be quashed; costs of suit and alternative relief. Mr. Khasipe for the applicant having applied that the
applications be consolidated, they were accordingly consolidated.
The facts of the case in brief would appear to be that applicant was transferred to Mokhotlong C.I.D. in an effort to give the applicant
better exposure to criminal investigation. According to papers before this court, the applicant refused the transfer.
The result thereof was that disciplinary proceedings had been instituted against the applicant as a result of which he was found guilty and the punishment was. 'according to the savingram of 16 January, 1995, a fine of M30-00.'
Although applicant had been transferred to Mokhotlong and had been
3
punished for disobeying the transfer to Mokhotlong, it appears that he continued working as if he had not been transferred. It was while he was so working that, according to the papers before me, the applicant is also claimed to have refused 'to obey the transfer orders to Maseru Uniform Branch and for this reason it was recommended that he be retired from the force. It is also claimed by Col. M.V Mpopo in his affidavit that a letter written by Col. Molapo requesting the applicant to show cause why he should not be retired from the Force is a letter that afforded the applicant the opportunity to make representations as determined by sec. 22 of the Defence Commission (RLMP) Regulations, 1994 and as the applicant had not answered the letter the Commissioner of Police ordered his retirement on 18 May, 1995 as per notae on page 2 of 'MVM6'
This court is to emphasise that Mr. Khasipe for the applicant applied for consolidation of the applications aforesaid and there having been no objection to the consolidation the court allowed the consolidation and the applications were treated as one. The earlier application being an ordinary application had not been opposed. However, no judgment was asked for on this basis and it appears that at the hearing of the application counsel for the 1st respondent was unaware that the application was not opposed. The result is that what was canvassed by affidavit in this application went unchallenged including the allegation by the applicant at paragraph 4 of his Founding Affidavit that:
'I was only surprised when 1 received a letter dated 20th December, 1994 from Mr. S.P. Molapo the Divisional Commander, Maseru Central telling me that 1 had refused transfer to Mokhotlong-----.
4
I must state that the alleged transfer had never been officially communicated to me and 1 never signed for same as is usually the
practice.'
Since the 1st respondent has not joined issue with this allegation or denied it, it would appear the court has no option but to hold that applicant was not informed of the transfer to Mokhotlong and perhaps the reason why, although the applicant was demoted, there was no insistence to go to Mokhotlong. It was argued before me that the disciplinary hearing centrering on applicant's refusal to go to Mokhotlong was fraud with irregularities in that applicant was not informed of the transfer. From the papers it would appear applicant was not informed of such transfer as the court has observed above. As the court sees things, in the unlikely event of the applicant having been informed of the transfer to Mokhotlong, can it be said that the disciplinary proceedings brought against the applicant were substantively in accordance with the law and procedure? The problem in this application is that proceedings which this court is asked to set aside are not before court. A related question is; who should have produced them?
As it is, applicant has not come to court by way of review for had he done so, he would have cited the Adjudicator or officer in charge of the disciplinary enquiry with a prayer that the adjudicator or such officer produce a record of proceedings within a specified period. Instead, the applicant has proceeded along similar route as that taken by the applicant in Michael Mocasi v. Solicitor General LLR 1982-84 p123 where the applicant approached the court seeking an order to set aside his purported retirement and to be re-instated in his former position -; exactly what the applicant in the instant case is seeking plus the setting aside of the disciplinary proceedings.
5
Annexure "MvM1' a savingram dated 16 January, 1995 from Divpol Central to Compol A.C.P., P & T. by Mr. S. Molapo has the heading.
'Disciplinary Proceedings Against No.3332 D/Sgt. Toloane R.C.T.S Maseru.'
The first paragraph of the savingram reads:-
These are disciplinary proceedings against No.3332 D/Sgt. Toloane of Maseru Central attached to R.C.T.S.'
Then follows what sounds to be paraphrasing of the proceedings. I am saying it is paraphrasing because if they were original proceedings
it would have been stated before whom, when and where the proceedings were held and what transpired in the course of the trial before Lt. Col. Morahanye who, at the end of it all would have appended his signature to signify that proceedings were before him. If, on the other hand the paragraph:
He was duly informed about his transfer by his supervisors and he also knew about the date to move him to Mokhotlong.---------the case which all proved that the defaulter D/Sgt. Toloane knew about his transfer to Mokhotlong is a quotation from the original judgment it would have been in open and close inverted marks. Even if it were, it would not be a complete record of the proceedings. Certainly annexure MVM' dated 16th January, 1995 is not a record of proceedings against the applicant. The next question which arises is why a proper record was not produced? This court without hesitation reaches the
6
conclusion that a proper record was not produced because there was never such a record of proceedings against the applicant. Even were the record produced, it would not take this matter any stage further because Lt. Col. Morahanye 'appointed as the Presiding Officer in the disciplinary case against the applicant' says in his Supporting Affidavit:
'Motsi proved that day in court that the applicant was served with the charge sheet.' Again;
'On 19 December, 1994 I sent the prosecutor, Second Lieutenant Motsi to the applicant to urge him to come and state his case. The
applicant refused.'
To start with, these assertions are not borne out by the so-called 'Disciplinary Proceedings' against the applicant comprising annexure
'MvM' What's more Lt. Motsi has not deposed to an affidavit thus rendering the communication between him and Lt. Col. Morahanye
inadmissible in evidence.
Mr. Mapetla for the 1st respondent has submitted that there is conflict of fact in this application to an extend where the applicant should have proceeded by way of action for the applicant knew or ought to have known that a dispute of facts would arise. I could not disagree more. All that this court has to decide is whether:
the applicant was informed of the transfer to Mokhotlong. Even if he was informed whether it can be said that the disciplinary proceedings against him were above board.
7
whether applicant was properly demoted.
whether applicant was duly transferred from the C.I.D., Maseru to uniform branch, Maseru and
whether applicant before being retired in public interest was given an opportunity to make representation in terms of regulation 22 (f) of Government Notice No.72 of 1994.
Regarding (a) above, in his original application regarding the transfer to Mokhotlong, in his Founding Affidavit the applicant says; "I must state that the alleged transfer had never been officially communicated to me and I never signed for same as is usually the practice. Col. Mpopo in his Opposing Affidavit has not denied this and it appears to this court applicant's version is to be preferred. I have already said that it is doubtful whether disciplinary proceedings were held against the applicant and that even if they were, there was hearsay evidence rendering the proceedings a nullity.
As to (b) above, the demotion was the result of disciplinary proceedings which never were or were flawed. Moreover, while effectively the applicant was demoted per annexure 'D' dated 23 January, 1995, the demotion was back-dated to 19 January, 1995 making the demotion bad for having had a retroactive effect. According to Baxter in his Administrative Law at p.355 quoting from Hahlo and Kahn pp.206 - 8 and Steyn 82 -97, 'there is strong presumption in South African law that legislation is not intended to operate with retrospective effect or in such a manner as to interfere with existing rights and liberties, nor indeed can administrative decisions be allowed to interfere with individual rights and liberties.
8
As for © above, Col. Tlali has deposed in his affidavit:
'— I called the applicant with his previous commanding officer Captain Mokolatsie, Lieutenant Mohau and Captain Raleaka (Officer
Commanding Maseru C.I.D.) to my office. I told the applicant that he is transferred to Uniform Branch, Maseru and that he should assume duties as a uniform policeman the next day. I invited him if he had a problem with this transfer, that he should come to me after reporting for duty so that we can address his grievances along proper channels—--.'
In the event, it appears Col. Tlali's version is to be preferred. Concerning (d) above, Regulation 22 of Legal Notice No.72 of 1994 reads;
'The Commissioner may, in the case of a member of the force of or below the rank of subordinate officer, at any time, without consultation with the Defence Commission but after having given that member an opportunity to make representation vide sub-regulation (f) retire in the public interest any such member who displays an habitual inattention or orders, or general incompetence, or fails to obey orders, or fails to co-operate with other members of the force, or manifests a quarrelsome disposition or want of courage, ability or zeal, although he may not be guilty for a specific offence.'
9
On 20 December, 1994 the Divisional Commander, Central, Col. S.P. Molapo wrote to the applicant chiding the latter for his refusal to go to Mokhotlong, that applicant had refused to attend a disciplinary inquiry and was asked to show cause in writing within seven days after receiving this letter why your service cannot be terminated and your salary suspended as you have become uncooperative to the management.' In his savingram of 18 January, 1995, Col. Molapo repeated what was contained in his letter of 20 December, 1994 adding as the 'presiding officer had been very lenient over the disciplinary case of this officer I strongly recommend that D.Sgt. Toloane be retired in Public Interest in terms of section 22 (f) of Legal Notice No.72 of 1994. In applicant's founding affidavit to his original application, it appears the applicant received letter of 20 December, 1994 for he says 'I was only surprised when I received a letter dated 20th December, 1994 from Mr. S.P.
Molapo----telling me I refused transfer to Mokhotlong —'. It appears applicant did not heed contents of this letter possibly because he was in any event going to contest his demotion and retirement. In any event, it does appear he was given an opportunity to make representation. Although I have disposed of (b) above, the question must still arise whether applicant was heard before the purported demotion. According to regulation 13(2) though, it appears the Commissioner may, in addition to any sentence imposed, order the reduction of a subordinate officer or noncommissioned officer to a lower or the lowest rank. It would appear this is statutory requirement excluding, as it were, the need to be heard before the Commissioner acts.
Importantly though, the crux of the matter is whether there were disciplinary proceedings against the applicant for all and any other consequences flowing from
10
these proceedings are valid or invalid depending on whether the disciplinary proceedings were themselves valid. I am saying if the
disciplinary proceedings were valid the applicant could have been demoted; by the same token if they were valid applicant could
justifiably have been transferred from the C.I.D. to uniform. While retiring in public interest has something to do with individual
performance or non-perfonnance, it has nothing to do with individual transgression of the law.
These considerations were subject to court decisions in a number of cases. A similar situation arose in Michael Mocasi v. Solicitor-General,
quoted above. In this case the applicant had been retired in public interest and the applicant challenged the purported retirement in public interest claiming it was unlawful and therefore null and void on the ground that such retirement constituted imposition of punishment on him without first proving him guilty of a breach of discipline. Relief prayers had been substantially the same as those asked for in the instant application.
In Mocasi's case supra it had been argued on behalf of the applicant that factors referred to in the sub-section (retiring in public
interest) were to be determined objectively and not be subject-matter of the opinion of the officer who is entrusted with the exercise of the power of requiring or permitting the retirement of a public officer. It was also said the distinction relating to jurisdictional
facts is stated in South African Defence Force and Aid Fund and Another v. Minister of Justice, 1967 (1) S.A. 31 C.P.D. by Corbett,
J. at page 34 H to the effect, amongst other things that 'upon proper construction of the legislation concerned, a jurisdictional fact may fall into one or other of two broad categories' consisting of 'a fact or state of affairs which objectively speaking must have existed before the
11
statutory power could validly be exercised.' On the other hand, if the court found the fact did not exist objectively it may declare invalid the purported exercise of power as was the case in Kellerman v. Minister of Interior, 1945 T.P.D. 179; Tefu v. Minister of Justice and Another, 1953 (2) S.A. 61 (T). It was also said the exercise of power may fall into the category comprised by instances where the statute itself has entrusted to the repository of power the sole and exclusive function of determining whether in its opinion the pre-requisite facts or state of affairs existed before the exercise of power and it was said in the event the jurisdictional fact was, in truth, not whether the prescribed fact or state of affairs existed in an objective sense but whether, subjectively speaking, the repository of the power had decided that it did. It was also said the court can interfere and declare the exercise of power invalid on the ground of non-observance of the jurisdictional fact only where it is shown that the repository of the power in deciding that the pre-requisite fact or state of affairs existed, acted mala fide or from ulterior motive of failed to apply his mind to the matter.
The line of thinking adopted by the trial court in Mocasi's case supra came under fire on appeal by Van Winsen, J.A. notwithstanding that the appeal was dismissed. The learned Appeal Court Judge could not agree and quoting form the judgment of Corbett, J. in the case of South African Defence and Aid Fund and Another v. Minister of Justice, 1967 (1) S.A. 31 (c) said the test was not 'the sole and exclusive function of determining whether — the prerequisite fact — existed.' According to the learned Judge of the Appeal Court, the Minister responsible for the Public Service saw fit to prescribe rules governing the circumstances under which a public servant could be removed from office and, according to wording of the Rule
12
no doubt is left that the grounds for removal from office must have objectively existed before the Minister becomes vested with the discretion to remove a public servant from office. It was said the Minister was bound by such Rules. In the instant case, the Defence Commission saw it fit to promulgate Legal Notice No. 72 of 1994 by which the Commissioner of Police is bound.
I am to repeat that on 20th December, 1994 applicant was give an opportunity to make representation it being claimed the reason or the proposed termination of his service was because
he refused transfer to Mokhotlong;
he failed to attend a disciplinary inquiry.
Although applicant did not react to the letter of 20 December, 1994, Col. S. Molapo wrote another savingram dated 18 January, 1995 in which he re-iterated (a) and (b) above and lamented that the presiding officer having been lenient I strongly recommend that D/Sgt. Toloane be retired in Public Interest in terms of Section 22 (f) of Legal Notice No. 72 of 1994'. It is of interest to note that instead of the applicant being retired in public interest the Commissioner of Police per his Personnel Officer Captain Koro by letter of 23 January, 1995 demoted the applicant 'from the rank of Sergeant to that of Trooper with effect from 19/1/95'. Hereafter further correspondence followed. In the savingram of 19 April, 1995 apart from (a) and (b) above, another allegation was added by the Divisional Commander, Central to the effect that 'he even refused the transfer to uniform branch, etc. and another recommendation was urged to retire him from the service 'as he is presently
13
showing no respect and control and the only solution would be to get him free through retirement under section 22 (f) of Legal Notice No.72 of 1994'. The last two lines of the savingram read: 'This officer failed to make his representation per my letter CP/C/PF/3332 dated 20th December, 1994 paragraph 3 of it.' We have, however, seen that as a result of the letter of 20 December, 1994 applicant was punished by being demoted. It cannot therefore be said that the opportunity to make representation was made in the light of the intended retirement of the applicant from the police force.
And yet another savingram dated 9 May, 1995 followed whose recommendation was 'retirement with public interest No.3332 Tpr. Toloane.' A letter of 20 December, 1994 is referred to and the disciplinary charges brought against the applicant. The letter further alleges 'on 19th April, 1995 I wrote him another letter to show cause once again why his service cannot be terminated as he has become unco-operative with the management.' I must repeat that nowhere in the body of the savingram of 9th May, 1995 is applicant asked to show cause why his service cannot be terminated. The last three lines of the savingram are to the effect that that was a clear indication that this officer is no more prepared to work with other members of this force and he should be cleared from our units so that he should not pollute others.' This record is not paginated and following the first page of Col. Tlali's supporting affidavit is 'I strongly recommend that this officer be retired from the service in terms of section 22(f) of Legal Notice No.72 of 1994.' As 1 have remarked above, if it was the intention to retire the applicant in terms of Legal Notice No.72 of 1994 section 22(f), then it was necessary to give the applicant an opportunity to make representation before terminating his service in
14
public interest. This was not done. The Commissioner of Police has no discretion in the matter for the pre-requisite is to give 'that member an opportunity to make representation'.
There is no latitude or discretionary power given the repository of power in the instant case having regard to the peremptory provisions of regulation 22 of the statute. If the repository of power intended to exercise his power in terms of regulation 22(f), he was bound to give 'that member' (the applicant) to whom the sub-regulation (vide (f)) was going to apply 'an opportunity to make representation.' As I have said, this is a pre-requisite of the legislation whose provisions are applicable or effective provided the pre-requisite is complied with -; otherwise the exercise of power under the statute is invalid and of no legal force or effect for the jurisdictional facts having existed before the exercise of power, their exercise outside these facts is of no effect.
What is at stake in this case is that in demoting the applicant not only is there no evidence that he had been informed of the transfer to Mokhotlong, (there was no copy of the radio message nor did anybody testify by affidavit that the applicant was served or received the message). In fact it would have been easier if applicant's superior Captain Mokolatsie had been informed and had deposed by affidavit to the effect. Even were there such notice, I have already said that there was no disciplinary hearing and even were there such, it was flawed. As for the applicant's demotion,, it cannot be said that applicant was heard before the demotion notwithstanding that in terms of regulation 13 (I) of Legal Notice NO. 72 above the Commissioner may "alter, reverse or confirm the conviction, or increase, reduce,
15
vary or confirm the sentence and in terms of sub-regulation (2) 'may, in addition to any sentence imposed order the reduction of a subordinate officer or noncommissioned officer to a lower or the lowest rank.' This is discretionary power conferred by legislation on the Commissioner of Police. Although this court has rejected the contention that there was a disciplinary hearing and that even if there was it was flawed, it is doubtful as I have said whether in acting staturorily the Commissioner of Police should have heard the applicant before demoting him.
In Holgate v. Minister of Justice, 1995 (3) S.A. 921 (BCD), held amongst other tilings that these was a duty on an administrative decision - maker to act fairly and rationally when exercising public power whenever a decision was made which determined a person's rights. Held further that a person whose contractual rights might be affected by the exercise of an administrative discretion after the conclusion of the contract between himself and a statutory authority should be afforded a right to a hearing before such a decision was taken, especially so in the case of a contract of employment between an employee and a public authority. As I have said, the Commissioner of Police was not exercising his discretion but acting statutorily.
The applicant is an employee of government and the Commissioner of Police as an officer of government who acted pursuant to the statute to demote the applicant for disobedience of orders in terms of Regulation 13(1) read with sub-regulation (2). In doing so the Commissioner of Police was exercising power vested on him by legislation. However, in doing so he made a decision that was bound to determine and affect applicant's rights. Since the decision-maker is to act fairly and rationally in exercising public power, it might seem the Commissioner of Police
16
should have afforded the applicant a right to be heard. For the statute does not seem to excludes this.
In so far as applicant's retirement is concerned, in this court's view letter of 27 April, 1995 appears decisive. Both Col. Mpopo and Col. Molapo have referred to this letter (Col. Molapo by associating himself with contents of Col. Mpopo's affidavit). The applicant has not specifically denied the existence of this letter or that he has not received it. Accordingly, this court finds that applicant was, in terms of the law, 'given an opportunity to make representation' before he was retired in public interest.'
Having regard to the fact that there were no disciplinary proceedings or if there were, were flawed plus, the fact that on being demoted it might seem the applicant should have been given an opportunity to be heard, this court was inclined to order a re-hearing on specific issues not dealt with failing which applicant to be re-instated in his former position. Unfortunately, the first application could well have been lodged with the Registrar of this court on 25 April, 1995 if the Law Office stamp is a guide. I do not know why this application was not moved expeditiously. From a stamp of the Law Office it also appears the second application was lodged on 1 October, 1996 more than a year since the lodging of the first application so that this application has been at large for more than four (4) years. Even if the police are tardy in working out pension and gratuity benefits for its retired officers, I doubt they can take more than four years before paying these benefits to retired officers. Courts of law are the last to cause administrative uncertainty and confusion, less so to make irrational judgments.
17
In Myburgh v. Danielskuil Munisipaliteit, 1985 (3) S.A. 335 (NC), the applicant was a nurse working for the municipality. It had come to respondent's notice that applicant regularly assisted at a shop in black residential area during working hours and there were complaints. At a meeting of the Town Council applicant's services had been terminated in terms of a law which prohibited municipal
employees from performing certain acts without the authority of the municipality, In her case it was found that she'd been involved in a business venture in a black residential area for gain. Applicant had admitted allegations against her but stated it was not for remuneration and that in any event that did not interfere with her work as a clinic nurse. She had applied for re-instatement as if no action to terminate her services had ever been taken. The application was, inter alia, based on:
that the respondent had failed to give effect to rules of natural justice in that it had not applied the audi alteram partem rule before dismissing her;
that as her conduct constituted a form of misconduct an inquiry into her conduct was necessary.
Held amongst other things that:-
the respondent had exercised a discretion in taking the decision to dismiss applicant and that the rights of the applicant were affected thereby;
further, that since the legislature has provided for an inquiry to be held in cases of misconduct of a less serious nature which did not necessarily justify summary
18
dismissal— that it was inconceivable that it should not be done in cases where a summary dismissal could follow;
that accordingly the respondent was obliged to have given effect to the rules of natural justice and to have given applicant an opportunity to state her case before dismissing her.
further as to (b) that the use of the word 'misconduct' meant that in terms of the operative law respondent was thus obliged to suspend applicant in her duties and thereafter to have conducted an enquiry to ascertain whether applicant had indeed contravened the relevant statute.
further, in respect of the relief claimed by the applicant that the court did have a discretion to order applicant's reinstatement, but, since the circumstances indicated that the parties mutual trust in each other had been irreparably damaged, such an order should not be made.
Indeed an enquiry into applicant not attending the disciplinary hearing was called for much as was the inquiry for refusing transfer from the C.I.D. to uniform branch was a necessity for these are forms of misconduct however mild they may be deemed.
As I have said much favours the applicant but given the tenor of Col.
19
Molapo's notes to the applicant and in particular that contained in his savingram of 9th May, 1995 to the effect 'that was a clear indication that this officer is no more prepared to work with other members of the force and should be cleared from our units so that he should not pollute others' this is clear indication of the dim view Col. Molapo took of the applicant and shows convincingly that mutual trust has not only deteriorated to zero levels between the applicant and top echelons of the Police Force, but that mutual trust has not only been undermined, but irreparably damaged.
Accordingly, this application is dismissed. I do not think that this court should express its displeasure by punishing respondents with costs. At the same time this court is of the view that this is not a fitting case to award costs. In the result there will be no order as to costs.
G.N. MOFOLO
JUDGE
13th December, 1999.
For the Applicant: Mr. Khasipe
For the Respondent: Mr. Mapetla
