The second appellant is a local court president and as such a member of Lesotho’s judicial branch in terms of s 133 of the Constitution. Aggrieved by her transfer by the first respondent who is her supervisor from her current duty station to another, she objected to her transfer and the objection was overruled. Not only was her objection overruled but her remuneration was also suspended on account of her failure to report for work.
The second appellant, instituted review proceedings to have reviewed and set aside her transfer and suspension of her remuneration. She was joined in the proceedings by the first appellant which is a trade union representing the interests of public servants falling within the purview of the Public Service Act 1 of 2005. The second appellant alleged that her transfer was contrary to law without pleading the law she claimed was breached. The High Court upheld the respondents’ in limine objection that the first appellant lacked standing and that the applicants did not disclose any cause of action. The High Court held that as a judicial officer second appellant could not be represented by first appellant whose mandate was confined to public servants and not judicial officers who fell under the jurisdiction of the Judicial Service Commission.
On appeal to the Court of Appeal, the High Court’s conclusions on points in limine upheld. Held further held that the applicant’s failure to plead the law and irregularities was fatal and that on that basis alone, the appeal fell to be dismissed. Further held that the High Court’s finding that the suspension of the second appellant’s remuneration was lawful, was correct and that in in the absence of proof of irregularity or unlawfulness in the transfer, the transfer was not invalid. Accordingly, appeal dismissed, with costs
IN THE COURT OF APPEAL FOR LESOTHO
C of A (CIV) 63/2019
HELD AT MASERU
In the matter between:-
LESOTHO PUBLIC SERVICE
STAFF ASSOCIATION 1ST APPELLANT
MONONO TEBA-MOLOMO 2ND APPELLANT
THE CHIEF MAGISTRATE –
NORTHERN REGION 1ST RESPONDENT
THE ACTING REGISTRAR
OF THE HIGH COURT 2ND RESPONDENT
THE RESIDENT MAGISTRATE –
LERIBE 3RD RESPONDENT
THE MINISTER OF JUSICE &
AND CORRECTIONAL SERVICE 4TH RESPONDENT
THE HUMAN RESOURCE OFFICE-
MAGISTRACY 5TH RESPONDENT
THE ATTORNEY-GENERAL 6TH RESPONDENT
THE JUDICIAL SERVICE COMMISSION 7TH RESPONDENT
CORAM : DR. K.E. MOSITO, P
P.T. DAMASEB, AJA
M. CHINHENGO, AJA
DATE ENROLLED : 15 MAY 2020 (For determination by way of written submissions in terms of the CA President’s COVID 19 PD 2020).
DATE DELIVERED : 29 MAY 2020
PT Damaseb AJA:
Common cause facts
I am directed to inform you that it has been decided that you be transferred from Sefikeng local court to Setleketseng Local court following expiry of contract of CP Fanie Masoabi.
Your transfer will be effective from 1st October, 2014.
‘it is not possible to transfer you to the courts you have mentioned as there are Court Presidents who have recently been placed, transfers are made to fill vacancies where they exist.’
This is a follow-up letter regarding your previous transfer letter to Setleketseng Local Court dated on the 19th September 2014. However reconsideration was made that you rather be transfer to Rampai Local court due to not reporting to your new station which was Setleketseng local Court. This reconsideration is made by the Chief Magistrate Office –North Region. This letter serves to inform you of your transfer from Sefikeng Local Court to Rampai Local Court with effect from the 2nd of march 2015. If your preference is still at Setleketseng Local Court, please do so on the mentioned date and also be aware that replacement on your behalf will be found to Rampai Local Court. Not reporting to your duty station on the above mentioned date or rather not finding a replacement in time would be considered as absconding from your duties on your part.
With due respect, we wish to mention that everything that has happened to our client, being the transfer, the salary stoppages and eviction is unlawful regard being had to all laws regulating the entire public service.
Having carefully considered your representations against your transfer to Rampai by the learned Chief Magistrate North, I direct that you should transfer to the destination reflected on your letter of transfer by the learned Chief magistrate on or before the 1st April, 2016.
That the [Human Resource office of the magistracy be] ordered to reinstate [Teba-Molomo] monthly salary for the months of March and April 2015 respectively and salaries from January 2016 to date.
That [the Chief Magistrate for the Northern Region’s] decision to transfer [Teba-Molomo] from Pitseng Local Court to Rampai Local Court [should] be reviewed, corrected and set aside as null and void.
That the [chief magistrate, resident magistrate for Leribe and the Human Resource office of the magistracy] be directed to accept [Teba-Molomo] at work without loss of benefits, remuneration resulting from employment.
fails to comply with the laws governing the transfers of public employees which have comprehensively outlined a procedure to be followed when conducting a transfer of public employees, that is, they precisely stated who has the powers of transfer over another public officer and how to do it. It is my believe that work place procedures are set to and meant to be adhered to in order to avoid a situation where either party may find itself suffering a great deal of prejudice either due to abuse of power or ill-discipline.
The High Court’s approach
She is obliged to accept the decisions to be deployed to any court where there is need for a judicial officer of her rank. The only issue that could be up for debate is whether the principle of audi alteram partem applies, and if so, whether it was observed in the decision-making process to transfer her…
This Act does not apply to the offices specified in section 137(3) of the Constitution to the extent therein specified.
It is common cause that [Teba-Molomo] remained obdurate and did not comply with the decision to be transferred. This was even after the Registrar had heard her in the matter and endorsed the decision of the Chief Magistrate. She did not render any judicial services from 4 October 2014 to February 2015 and after her transfer took effect on 13 October 2015 to date. She was sufficiently warned about her absenteeism and threatened to have payment of her salary stopped and hauled before a disciplinary body. She was not bothered.
Since Teba-Molomo refused to work and the respondents’ version is accepted that she had no good reason not to work in the interest of the employer, she was lawfully denied remuneration.
No cause of action disclosed
If the applicant is able to make out at least a prima facie case of illegality, the respondent authority will then bear the onus of refuting it, also known as the burden of rebuttal.
ACTING JUSTICE OF APPEAL
DR K.E. MOSITO
PRESIDENT OF THE COURT OF APPEAL
For Appellants: Adv B M Masiphole
For Respondents: Adv L P Moshoeshoe
 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para .
 MNM Construction Co. (Pty) Ltd v Southern Lesotho Construction Co. (Pty) Ltd and Others LAC (2005-2006) 112, 116 E-F; Monnanyane v SOS Children’s Village and Others LAC (2005-2006) 416 para .
 Swissborough Diamond Mines (Pty) Ltd v Government of the RSA 1999 (2) SA 279 (T) at 324G.
 See paras  and  above.
 Davies v Chairman, Committee of the JSE 1991(4) SA 43 at 47H.
 Hoexter, Cora. 2007. Administrative Law in South Africa. Juta; Cape Town, p 483.
 Compare, Dorland v Smith 2002 (5) SA 374 (C).
 Ketteringham v City of Cape Town 1934 AD 80 at 90; Botha v Guardian Assurance Co Ltd 1949 (2) SA 223 (G) 227.
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