IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV) N0. 23/2011
In the matter between
KEKELETSO BOTSANE APPELLANT
COMMISSIONER OF POLICE FIRST RESPONDENT
THE ATTORNEY GENERAL SECOND RESPONDENT
CORAM: RAMODIBEDI P
HEARD: 10 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
Employment law – Dismissal – The appellant discharged/retired from the police force in terms of s29 (c) of the Police Order 1971 – Appeal against the dismissal of the appellant’s claim for reinstatement and payment of arrears of salary – Appeal dismissed with costs.
 In January 2004, and pursuant to his discharge/retirement from the police service in April 1988, the appellant issued summons in the High Court against the respondents for the following relief:-
(1) that his “dismissal” be set aside.
(2) that he should be reinstated with immediate effect.
(3) payment of his arrears of salary from the date of his dismissal.
(4) interest thereon at the rate of 18% per annum.
(5) Costs of suit.
(6) Further and/or alternative relief.
 The High Court (Chaka-Makhooane J) dismissed the appellant’s claim with costs. Hence this appeal.
 It is a strange feature of this case that no evidence at all was led before the High Court. I find this incomprehensible, having regard to the fact that the bedrock of the appellant’s case on the pleadings was itself disputed, namely, the allegation that he was not given an opportunity to make representations in terms of s 29 (c) of the Police Order 1971 (“the Police Order”). This allegation was contained in paragraph 13 of the appellant’s declaration in these terms:-
“I maintain that my dismissal as per Annexure “A” is unlawful because it was done in contravention of the provisions of the aforesaid S.29 (c) of the Police Order 1971 and its successor S.31 (1) (d) of the Police Service Act 1988, in that I was never given any opportunity to make representations to the Commissioner of Police prior to his invocation of the action to dismiss me as aforesaid.”
 In paragraphs 5 and 6 of their plea the respondents averred in effect that the appellant was discharged lawfully following a recommendation of the Medical Board, Annexure “B” written by Dr Siddique and dated 7 January 1988. I shall revert to the contents of this annexure in due course.
 It is convenient to digress here to consider the provisions of s 29 (c) of the Police Order on which the appellant relies. The section provides as follows:-
“29. The Commissioner may, in the case of any member of the Force of or below the rank of subordinate officer, at any time, without consultation with the Public Service Commission but after having given that member an opportunity to make representations:-
(c) retire such member if a board of Government medical officers appointed by the Chief Medical Officer finds that he is mentally or physically unfit for service and that such unfitness is likely to be permanent.”
 Now, it is both a basic and fundamental principle of our law, following Pillay v Krishna and Another 1946 AD 946 which has consistently been followed in this jurisdiction, that he who alleges must prove. See, for example, Qhobela and Another v Basutoland Congress Party and Another 2000 – 2004 LAC 28; Khaka and Another v Pelesa and Others 2000 – 2004 LAC 986. Accordingly, the onus burdened the appellant to prove his allegation that he was not given an opportunity to make representations in terms of s 29 (c) of the Police Order and that his dismissal was accordingly unlawful. It is common cause that he failed to discharge such onus. As pointed out earlier, he did not lead any evidence at all on this issue. There is not even a statement of agreed facts on record.
 Despite the appellant’s failure to lead any evidence at all the court a quo made the following finding in paragraph  of its judgment:-
“I find that plaintiff at no time, was ever called to make representations before he was discharged.”
The court a quo repeated that finding in paragraph  of its judgment in these terms:-
“Plaintiff was not afforded an opportunity to be heard before he was discharged in terms of section 29 (c) of the Police Order.”
As can be seen, that finding was not based on any evidence on record. This is indeed common cause. It was therefore incompetent for the court to make the finding in question. In these circumstances I am driven to the inescapable conclusion that the appellant failed to prove that his discharge from the police service was unlawful.
 The appellant’s claim for reinstatement is hit by a further hurdle. Apart from the inordinate delay of 16 years from April 1988 when the appellant was discharged to January 2004 when he issued summons in the matter the recommendation of the Medical Board, annexure “B”, referred to in paragraph  above clearly shows that it would be dangerous and indeed irresponsible to reinstate the appellant for the simple reason that he [was] clearly mentally unfit for service in the Police Force as contemplated in s 29 (c) of the Police Order and no evidence shows that his condition has changed sufficiently for the better. This annexure was, as indicated above, signed by Dr M.A. Siddique reads as follows:-
“TROOPER KEKELETSO BOTSANE
Mr. Botsane has been suffering from mental illness and does become aggressive and uncontrollable. He has been under psychiatric treatment since January 1985 and was admitted few times in the hospital. He has been irregular in his treatment which has not improved his condition.
He was reviewed by Medical Board on 26.11.86. In light of his persistent illness, non-compliance to the treatment and risk to the general public, the Board recommended that he is not fit for his duties as traffic officer.
I am told today that he has been transferred from traffic department to police department. I am at a loss to understand how a person can be fit for police duties when he is not capable of traffic duties. In police duty where he will have easy access to firearm he will be much more dangerous to the public than before.
Mr. Botsane has told me that he had a relapse of his illness and he was in mental hospital from January 1987 till June 1987 and he is still not feeling well. This all indicates that Mr. Botsane’s illness is not curable and he is likely to have relapse and he can perform some dangerous acts during his mental illness for which he may not be responsible.
In my opinion Medical Board report of 26.11.1986 should be taken as that he is not fit for traffic, police, or military duties and he should be retired on Medical grounds. In our report it was not suggested that he should be transferred from traffic department to police.
I hope this will [clarify] the matter and urgent action will be taken to protect his colleagues and public as a whole.
Grateful you expedite.”
 It is instructive to recall that this Court has held in such cases as Commissioner of Police and Another v Ntlo-Tšoeu 2005 – 2006 LAC 156 at 159; Maopela Makhetha and Another v The Commissioner of Police and Another C of A (CIV) No. 2/08 that there are no statutory provisions in the police service regulating either reinstatement or arrear payment. These issues are determined on the basis of the common law as laid down in such cases as Schierhout v Minister of Justice 1926 AD 99 at 107; Francis v Municipal Councillors of Kuala Lumpur  3 All ER 633 (PC). See also Chobokoane v Attorney-General and Another 1990 – 1994 LAC 224 at 227; Lesotho Telecommunications Corporation v Rasekila 1990 – 1994 LAC 261 at 268 – 269; Maopela Makhetha and Another v The Commissioner of Police and Another, supra. The bottom line is that the court will generally not decree specific performance by way of reinstatement unless it is equitable to do so in the particular circumstances of each case. This is so because the court retains a judicial discretion whether or not to grant specific performance by way of an order for reinstatement. As was said in Schierhout’s case “no Court could by its order compel a servant to perform his work faithfully and diligently.”
 Similarly, the appellant’s claim for payment of arrear salary is hit by the fact that there is no evidence on record to show that he tendered his services during the 16 years since his discharge.
 In all the circumstances of the case, therefore, the appeal is dismissed with costs.
PRESIDENT OF THE COURT OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
For Appellant: Adv. M.V. Khesuoe
For Respondent: Mr. R. Motsieloa
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