HIGH COURT OF LESOTHO
PRINCIPAL SECRETARY (WORKS 1st Respondent
ATTORNEY GENERAL 2nd Respondent
by the Hon. Mr Justice M.L. Lehohla on the 2nd day of July. 1999
May, 1999 this Court dismissed this application with costs and
undertook to give reasons later.
they now follow below.
is disappointed that during the intervening period between 24th
today it has not been favoured with transcripts that it ordered
should be furnished to help make its task of preparing the
about time that the Registrar of this Court gave her full attention
to this phenomenon which is turning into a wayward problem.
By way of
Notice of Application moved against the respondents the applicant
sought an order from this Court in the following terms
the 1st Respondent herein be ordered and directed to process the
payment of Applicant's salary as Technical Officer II -
with effect from January 1997 to the granting of this order.
applicant be paid the said salary until his promotion or termination
of contract of service.
1st Respondent herein pay costs in the event of opposition.
this Honourable Court grant applicant further and/or alternative
Applicant is a Civil Servant employed in the Ministry of Works and
attached to the Plant Vehicle and Pool Services (PVPS) at
that in June 1996 the respondent let him go to improve his academic
and technical knowledge at Lerotholi Technical Institute
so as to
his chances of promotion.
time when this happened the holder of the post for which it seems the
applicant had an eye was one Mokebe Lekota.
applicant underwent the training at Lerotholi Technical Institute
(LTI) and was successful as reflected in Annexure "KB
a Test Certificate for end of training term released in January 1997.
He accordingly submitted this Certificate to his
superiors. One of
his superiors one Mr Tsoene informed the applicant that the latter
was eligible for promotion and appointment
to the position of
Technical Officer II by virtue of that Certificate.
applicant reposes reliance on the scribbling made by Mr Tsoene on
".............is Trade Test "C" certificate which
qualifies the officer for appointment to Technical Officer II
position provided there is a vacant position.
Sgnd TSOENE 27-01-'97"
minuted scribbling was forwarded to the office of the 1st Respondent
and in recognition of Tsoene's comment someone wrote "noted"
on the side of that
on 39th May, 1997.
January 1997 the applicant avers that he worked with Mr Lekota as an
unpaid Technical Officer II until the time when Mr Lekota
September of that year.
applicant bemoans the fact that despite that Mr Lekota's death
created a vacancy and that he himself is carrying out duties
otherwise would have been carried out by Mr Lekota if he was still
alive, he is not being paid for being a Technical Officer
stresses that as reflected in "KB2" he has all along been
treated as a Technical Officer II. See page 7 of "KB2".
regret that what is reflected under C below where reference is made
to Technical Officer II - Trade Test the entire type-script
blurred and totally undecipherable. This was pointed out to Mr
Putsoane for the applicant.
applicant goes on to show that he drew the attention of the Ministry
to the existence of a funded post of Technical Officer
II and to the
fact that he was already occupying that post but was not being
remunerated for such occupation.
light of the fact that the Ministry has been all along aware of the
existence of the funded vacancy coupled with the fact
that it was no
secret that Mr Lekota's death had created a vacancy the applicant
approached this Court as he did.
Tarr in a brief answer to the applicant's depositions pointed out
that the applicant went to school in order to improve
without any guarantee that his chances of promotion would improve
thereby. He charges that the applicant's averments
as related to Mr
Lekota sound empty given that no affidavit has been secured from Mr
Lekota to support those. Mr Tarr emphatically
denies that the
training that the applicant underwent was meant to enhance his
response to the last point above the applicant first insists in
paragraph 6 of his reply that he went to LTI to further his education
and that this enhanced his chances of promotion, but in the same
breath in paragraph 8 of his reply he says
"..........I am not seeking promotion. I have already been
appointed to the post. All I am asking for is that I be paid".
response by the applicant betrays a pathetic misunderstanding of 6
what is entailed in appointments and promotions in the
First of all he has attached to his papers what appears to be a
reflection of cadres, Duty Schedule and Deployment
mentioned by name in the Maseru Base Workshop.
decipherable under "C" as brought to my attention by Mr
Putsoane and which on my own I cannot say I am able to
make it out at
page 7 is the applicant's name Bereng. What would have stood the
applicant in good stead would have been a letter
from the proper
authority i.e. the Public Service Commission addressed to the
applicant informing him that he has been appointed
on promotion to
the position of Technical Officer II; informing him as well about the
notch to which the scale in the Establishment
List entitles officers
in the position he claims he is holding. Such a document is one that
the applicant can hope to sue on the
basis of and be successful, if
at all, at the end of the day.
I am not
able to accept the argument that improvement of one's academic skills
per se entitles one to a promotion. It cannot avail
that Mr Tsoene in congratulating him went further to scribble the
minute that merely indicated Mr Tsoene's good wishes
applicant. As indicated by Mr
fact of the matter is that "in government posts, if funds are
available .................., persons are called for
the post has been advertised and after one has applied like other
the applicant's difficulty as I see it is further compounded by the
fact that there is no evidence to the effect that he
is the only one
eligible for promotion
indeed bizarre to say that because Mr Tsoene jotted down what he did
and someone, presumably senior to him, in recognition
scribblings placed before him in turn jotted down the word "noted"
it should then mean that such actions entitle
the applicant to claim
that he has been appointed to the position of Technical Officer II. I
wonder if it would make sense that
if someone says to the applicant
that he bids fair to being the President of the United States, and
someone chimes in and says
"of course", this would entitle
the applicant to assume that position should that President vacate
I find it
hard to believe that because a senior officer jots down that he has
"noted" the comments of his junior about
an officer this
means he unequivocally means he approves those comments.
Masoabi for the respondent raised an important question that the
Court was referred to paragraph C at page 7 of "KB2".
1 of the same document reflects members of the Technical staff in
"C", "D" and "E" as having
"redeployed in the vehicle workshop section since plant pool is
no longer operational.". Paragraph "D"
above is listed
as referring to Technical Officers II "Trade Test Certificate".
Mr Masoabi accordingly demurred at the
fact that the learned Counsel
for the applicant having referred the Court to page 7 C where it is
said the applicant's name appears
as Bereng, he failed to say what
paragraph "D" at page 1 now means, thus making it
impossible for anyone to reconcile
what these two things are intended
to mean. Because "KB2" is attached by the applicant to
build his own case it would
not be wrong to interpret the contents of
that document against him where there is lack of clarity. Thus since
to Technical Officers II at page 1; and "C"
refers to the same officers at page 7 one can safely say that his own
shows that the applicant, if he falls under Technical
Officers II class, has been redeployed in the vehicle workshop
what he is claiming.
misapprehension the applicant seems to labour under is that the staff
roll that reflects deployment of the staff in the
Workshop is an Establishment List. Unfortunately this error has been
given even greater vigour
impetus by his Counsel who repeated it forcefully in his heads of
paragraph 10 and the second paragraph l(d) where it is argued that
the applicant's name is reflected on
list as Technical Officer II. See
also paragraph 3 sub-paragraph 1.
should be understood as the proper position is that nobody's name
ever appears in an Establishment List.
applicant's evidence does not establish the basis on which the
grounds for the relief sought can properly be founded.
grounds for the relief sought are that:
applicant went to Lerotholi Technical Institute to improve his
academic and technical knowledge so as to enhance his chances
Mokebe Moketa who had held the position the applicant claims he is
entitled to died.
applicant successfully satisfied requirements to qualify for the
superiors indicated that he was eligible for promotion.
the above scenario is wanting in the most essential requirements
which at the very least should have been that :-
post was advertised
applicant applied for it
was interviewed by the proper authority i.e. (PSC) or a subordinate
body authorised by it.
results of the interview were that he was authorised to hold the
has a letter to that effect
letter was issued on the authority of the Public Service Commission.
above reasons the applicant is found to have failed to discharge the
onus cast on him to establish on a balance of probabilities
Public Service Commission had authorised his promotion or that what
was purportedly done by his superiors amounted to
appointing him to
the post notwithstanding that the proper Authority never endorsed
their acts. Because he has also failed to establish
that he has been
appointed to the post in question he cannot be heard to say he is
entitled to be paid against the funding existing
in that post.
application is dismissed with costs.
Applicant: Mr Putsoane
Respondents : Mr Masoabi
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