The Government of Lesotho’s (GoL) failure, amongst others, to comply with Reg.32(1) of the Public Service Regulations 2008 requiring the principal secretary of the Public Service to consult receiving ministries when a transfer of a public officer is contemplated was held by the High Court to be unlawful and therefore reviewed and set aside. On appeal the GoL argued that the regulation was not mandatory in every case and that the High Court erred in so concluding.
Held on appeal that the High Court did not err, and the appeal dismissed with costs.
IN THE APPEAL COURT OF LESOTHO
HELD AT MASERU C of A (CIV) No.: 47/2021
C of A CIV/APN/146/2021
C of A CIV/APN/149/2021
In the matter between:
PRINCIPAL SECRETARY MINISTRY OF
PUBLIC SERVICE 1ST APPELLANT
ATTORNEY-GENERAL 2ND APPELLANT
KOTSO MABASO 1ST RESPONDENT
DAVID NTHEOLA 2ND RESPONDENT
THAKANE THENE 3RD RESPONDENT
THATO ‘MAPULENG MOKITIMI 4TH RESPONDENT
‘NYANE MOETI 5TH RESPONDENT
LEBOGANG TLHORISO 6TH RESPONDENT
NGAKA RAMOKOKE 7TH RESPONDENT
MATHAPELO KANONO 8TH RESPONDENT
PRINCIPAL SECRETARY-MINISTRY OF
FOREIGN AFFAIRS AND INTERNATIONAL
RELATIONS AND 6 OTHER APPELLANTS
‘MATHAPELO KANONO RESPONDENT
CORAM: P.T. DAMASEB
N T MTSHIYA
J v d WESTHUIZEN
HEARD: 21 April 2022
DELIVERED: 13 May 2022
PT Damaseb, AJA:
The Mabaso matter
‘1. The applications are granted.
2. The transfers of the applicants per the letters of the Principal Secretary of Public Service dated 28 April 2021 are reviewed and set aside.
3. The respondents must pay the costs.’
‘Kindly be informed that it has been decided to transfer you from the [MFAIR] to the Ministry of Labour and Employment to assume full duty and responsibility of the position of Administrative Officer, Grade, with effect from 03rd May 2021. Your conditions of service will in other respect remain the same’.
The applicable legislative framework
‘13(2) Without limiting the generality of sub-section (1), the Principal Secretary is responsible for-
(e) transferring and rotating officers from one department to another, within, and reorganizing the Ministry under the Principal Secretary’s supervision’.
‘(1) The Principal Secretary may transfer a public officer to work anywhere within the public service with the concurrence of the Minister and in consultation with the Head of Department of the receiving Ministry, department or agency.
(2) The Head of Department may transfer a public officer within the Ministry, department or agency.
(3) In instances where the transfer is to another ministry, department or agency the Head of Department shall consult with the Head of Department of the receiving ministry, who shall also seek the concurrence of the relevant Minister, and such transfer shall be authorised by the principal Secretary.
(6) Notwithstanding sub-regulation (1) an officer is liable to immediate transfer if it is necessary for operational requirements.’
‘A public officer shall be liable to be transferred to any public office from one service to another inside and outside Lesotho’.
High Court’s approach
‘ The purpose served by these two jurisdictional facts is to make the process of transfer smooth, coordinated and orderly. This is to avoid misunderstandings and friction between the Principal Secretary as the administrative head and the Minister as the political authority on the one hand, and between the Principal Secretary and Heads of Departments (sic) of receiving ministries on the other.
 Transferring ‘’with the concurrence’’ and ‘’in consultation’’ obliges all three functionaries to engage in a meaningful dialogue to reach an agreement on the necessity to make transfers. The dialogue also constitutes a system of checks and balances of the power to transfer.
 Where the decision to transfer is non-compliant with the regulation 32(1) procedure, there is no room for an argument that the exercise of the power is unlawful. The exercise of a power contrary to law is void ab initio. A letter of transfer issued thereby is pro non scripto. In my judgment, a public officer affected thereby is within his or rights to challenge same.’
‘The disputed fact on consultation must be resolved in favour of the respondents. The reason is that the Principal Secretary could easily have produced evidence of the consultative process he engaged in once the applicants challenged his averments.
As to when and how the consultations were made, the court is none the wiser.’
‘The applicants have made good their cause of action of non-compliance with regulation 32(1). On the authority of Lloyd (supra), the transfers of the applicants stand to be reviewed and set aside.’
‘. . . [I]t is well established that when a statute has conferred on anybody the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness’.
‘It is not proper for a party in motion proceedings to base an argument on passages in documents which have been annexed to the papers when the conclusions to be drawn from such passages have not been canvassed in the affidavits.’
‘. . . erred . . . in holding that concurrence of the receiving Ministry is mandatory in every case where transfer of a Public officer is effected by the Principal Secretary under regulation 32(1) of the Public Service Regulations 2008’.
‘Where legislation has been enacted in the interests of a particular or individual or class of persons, the courts will presume that a violation of the legislation will automatically affect the interests of such individual or class and anyone falling within the protected category will have standing to challenge actions taken in violation of the legislation without having to establish that his interests are in fact affected.’
The appeals against the judgement and order of the High Court in CIV/APN/ 146/2021 and CIV/APN/149/2021 are dismissed, with costs.
ACTING JUSTICE OF APPEAL
J V D WESTHUIZEN
N T MTSHIYA
For the appellants: adv L Letompa
For the respondents: MR Q. Letsika and
Adv. R J Setlojoane
 Lloyd v McMahon  2 WLR 821 at 878.
 Minister of Land Affairs and Agriculture and Others v D &F Wevell Trust and Others 2008 (2) SA 184 (SCA) para 43. See also Swissborough Diamond Mines (Pty) Ltd and Others v Government of the RSA and Others 1999 (2) SA 279 (T) at 323G-J.
 Patz v Green & Co 1907 TS 427 at 433; Roodeport – Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933 AD 87 at 96.
 L. Baxter Administrative Law (1984) at p 659-660.
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