CIV/APN/11/98

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

PETER
MOHAU MARABE APPLICANT

AND

THE
COMMISSIONER OF POLICE 1ST RESPONDENT

THE
ATTORNEY GENERAL 2ND RESPONDENT

JUDGMENT

Delivered
by the Honourable Mrs. Justice K.J. Guni on the 17th day of August
1999

This
applicant was a member of Royal Lesotho Mounted Police. He was
stationed at the charge office in Botha-Bothe district from
1987. His
rank was that of a trooper. On the 27th June 1997 this applicant was
tried by a disciplinary Tribunal presided upon by
a senior officer -
NTLAMA - who was at that time the Officer Commanding Police in the
district of Berea.

The
applicant was charged with contravention of Regulation No. 24 (37) of
Legal

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Notice
No.24 of 1972 - schedule of offences as amended under Regulation 5
and punishable under Regulation 11 of Legal Notice No.
72 of 1994 of
Defence Commission "Royal Lesotho Mounted Police Regulation
1994". The precise terms of the charge are
as they appear on the
charge sheet - Annexure 'A' -attached to the Founding Affidavit. This
applicant was found guilty of misconduct
and accordingly sentenced in
terms of the penalty section cited on the charge sheet. In addition a
recommendation, for dismissal
from the force, was made to the
commissioner. This applicant must have appealed. That appeal must
have failed because he has now
approached this court where he seeks
an order of this court to quash and set aside the decision of the
BOARD OF OFFICERS IN A DISCIPLINARY
APPEAL.

On the
Charge Sheet - Annexure 'A' the section which creates the alleged
misconduct was cited together with the section which provides
the
penalties. Once the applicant was convicted and sentenced in terms of
those sections cited on the charge sheet, the recommendation
to the
commissioner for dismissal from the force, was made in addition to
the sentence.

is this
recommendation to the commissioner for dismissal from the force,
which this applicant claims the senior officer who was
presiding over
the case

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of
misconduct against this applicant, was not entitled to make, on the
ground that the section under which this senior officer acted
to make
such recommendation, was not cited on the charge sheet.

This
being the position the applicant was therefore in those circumstances
not properly and fully informed of the likely consequences
of
conviction. This, omission, to include the section authorising the
senior officer to recommend dismissal, denied the applicant
his
constitutional right to a fair hearing according to the argument of
his counsel.

That
recommendation for dismissal from the force was made by the senior
officer after conviction, in terms of section 15 of Legal
Notice No.
72 of 1994. This section deals mainly with recommendations to the
commissioner for reduction in rank in case of a subordinate
officer
or non-commissioned officer to a lower or lowest rank culminating to
a complete dismissal from the force. The section reads
as follows:-

"15. Upon conviction by a senior officer, a subordinate officer
in charge of a district, a Board or a Subordinate Court, such

officer, Board or Court may, in addition to or in lieu of any of the
penalties provided in the Police Order 1971 and these Regulations

recommend to the

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Commissioner that the person convicted be dismissed from the Force or
be reduced, in the case of a subordinate officer or non­commissioned

officer to a lower or the lowest rank."

It is
argued on behalf of the applicant that the recommendation made by
that 'court' - presiding senior officer, was incompetent,
because it
is not one of the penalties stipulated in section 11 Legal Notice No.
72 of 1994. According to the argument the senior
officer was confined
only to act in terms of section 11. This argument is countered on
behalf of the respondent by equally strong
argument, that the
presiding officer was not confined to apply only those sections cited
on the charge sheet. He was entitled to
apply section 15 as
stipulated in the said statute.

The most
important consideration is whether or not the applicant suffered any
prejudice as alleged. The procedure followed appears
to be in two
parts. If it is one whole, it is in series. The first tribunal dealt
with the trial in the case of misconduct. The
applicant was found
guilty and sentenced. He appealed to the higher tribunal. The appeal
failed. Thereafter, the second part was
commenced. The whole
procedure consisted of different and separate fora. Before each

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forum the
applicant was given an opportunity to present his case.

This
applicant was served with the charge sheet prior to the commencement
of the trial. In his affidavit, the senior officer who
presided over
the misconduct proceedings avers that he specifically asked the
applicant if he had been served with the charge sheet
on 24th June
1997. The answer was in the affirmative. This applicant was in
possession of the charge sheet at least from the 24th
June 1997.
There was no space where the proceedings could be conducted. The
matter was postponed to 27th June 1997. It is further
averred that
there was another adjournment at the request of the 'prosecutor'
whose witness was out of the country and needed time
to enable that
witness to attend. This adjournment was almost towards the close of
the prosecution's case as this was the last
witness. This afforded
the applicant yet another opportunity to prepare his defence. At this
stage almost all the evidence against
him had been led. He was
therefore assisted greatly in the preparation of his defence by that
fact of having heard almost the entire
evidence against him.

At this
hearing before the senior officer, the charge sheet, fully and
properly informed the applicant of the alleged offence and
the likely
punishment under section 11. It is an established rule of law, that
the section creating an offence,

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must be
read with the section providing the penalties. This was done. The
matter was concluded.

What
happens after conviction is a different and separate matter. This
senior officer who presided over the disciplinary proceedings
at the
first instance, considered and saw it fit to recommend to the
commissioner the dismissal from the force of this trooper.
This
recommendation could have been made by the magistrate if the
applicant appeared before a subordinate court. The consideration
for
the making of the recommendation occurs or should occur only after
conviction. The mere making of the recommendation does not
per se
result in a prejudice (actual or potential).

Prejudice
may be suffered at the stage consideration is made to act upon the
recommendation. That consideration can be made only
by the
commissioner. The discipline of the police force is the
responsibility of the commissioner. The constitution of Lesotho
makes
special provisions of imposing such responsibility on the
commissioner. Section 147(2) of the constitution reads "The

command of the Police shall be vested in the Commissioner of Police,
........., the commissioner of Police shall be responsible
for the
administration and discipline of the Police Force".

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Having
been convicted the applicant had acquired a status or a condition for
which the commissioner must decide whether or not he
is a fit and
proper person to remain in the Police Force. Once a policeman has
been convicted, there appears a need for further
action where
necessary to proceed against the type of a 'convict'. Section 15,
Legal Notice No. 72 of 1994 authorises the presiding
senior officer
or the court, which has convicted an accused policeman, to recommend
to the commissioner the reduction in rank or
dismissal from the
force.

The
recommendation does not form part and parcel of the charge. It is the
consequence of the conviction. The consideration to recommend
to the
commissioner, the dismissal or reduction in rank, arises at the end
of the trial. It is not the consideration by the prosecutor
but that
of the court or the senior officer presiding over the misconduct
proceedings.

efore the
commissioner acted upon the recommendation made by the senior officer
who presided over the misconduct inquiry in respect
of the applicant,
the letter was written to the applicant (Annexure T.K.I attached to
the Answering Affidavit by Tsokolo Koro)
inviting him to make his
representations for consideration by the commissioner when he deals
with the said recommendation.

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This
invitation to make representations was in accordance with the
dictates of natural justice that a person must be given an
opportunity
to be heard before any adverse action is taken against
his or her interests. This applicant did not accept that invitation.
He
is free to accept and act accordingly. He chose not to make any
representation. The applicant denied himself an opportunity to be

heard by the commissioner before he acted upon the said
recommendation. It was at this stage, when this applicant was invited
to make representations that he should have acted to challenge the
recommendation made for his dismissal.

The
reply, to the letter asking this applicant to make representations,
was most unhelpful to everyone including this applicant
(See Annexure
T.K.2) This applicant did not show the commissioner any reason why
his service with Royal Lesotho Mounted Police
should not be
terminated. The applicant indicated in his reply that the matter
should be referred to his lawyer Mr. Khasipe. No
particulars nor
address of the said lawyer were given. It is the responsibility of
the applicant, as much as it is his right to
instruct a lawyer of his
choice. He should have taken the letter to his lawyer if he wished
his lawyer to make representations
on his behalf. This lawyer may
have represented this applicant at the hearing of the inquiry of his
misconduct. I do not think
he appeared there because the police went
to look for him. He must have appeared because accused himself
brought

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him
there. If the applicant failed to show cause why his services with
Royal Lesotho Mounted Police cannot be terminated, it was
his
deliberate choice.

Another
issue raised was the competency of the tribunal before which this
applicant appeared to answer those charges of misconduct
against him.
At paragraph 7 of his Founding Affidavit the applicant avers that the
presiding officer Mr. NTLAMA had no authority
to preside over his
case of misconduct, on the ground that senior officer NTLAMA was the
officer commanding Berea district and
had no authority to preside
over the cases in Butha-Buthe district. Reliance is placed on
Annexure'B' ROYAL LESOTHO MOUNTED POLICE
ORDER, FORCE ORDER for the
week ending 08.01.1994.

The
determining factor in this issue will be whether or not the applicant
suffered any prejudice when the case was presided over
by a senior
officer from another district rather than by the one under whom this
applicant worked? There is no allegation in the
Founding affidavit
that this applicant was in any way prejudiced. It appears to me that
it was in accused's favour (this applicant)
to bring a senior officer
from a different district altogether rather than have the senior
officer under whom this applicant performs
his daily duties preside
over his case. The averments in the Answering affidavit show this
court that the order relied on was

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made in
terms of the repealed statutes. Like that main statute which
authorised the making of the said order, the order ceased to
have
authority when that status under which it was made was repealed.
There is no replying affidavit; therefore all those allegations
made
in the answering affidavit remain unchallenged. This court is
therefore entitled to accept them.

In short
the procedure adopted at the initial inquiry, appeal and later by the
commission was in accordance with the law. There
were no
irregularities which could justify quashing and/or set aside the
decision of the Board of Disciplinary Appeal. This application
must
therefore fail. It is dismissed with costs.

K.J. GUNI

JUDGE

17th
August 1999

For
Applicant: Mr. Khasipe

For
Respondent: Ms. Lebona