IN THE HIGH COURT OF LESOTHO
In the matter of :
Bakhethiloe Mafa - Applicant
Minister in charge
the Public Service - 1st Respondent
The Solicitor General - 2nd Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Acting Judge, Mr. J L. Kheola on the
17th day of October 1983
An application is made for an Order in the following
1.(a) Calling on the Respondents to stop the
proceedings before the "Adjudicator" set up in terms of the
Commission Rules; and there and then on a date to be
determined by the above Honourable Court to show cause why:
(b) An Order setting aside the proceedings beforethe
"Adjudicator" should not be granted.
(c) An order setting aside the Applicant's
purportedinterdiction by Respondents and also the
indefinite,compulsory and unpaid leave and also
directingRespondents to forthwith reinstate applicant on
his position should not be granted.
(d) An order directing the Respondents to pay to
the Applicant all the Applicant's arrear salary
calculated from the month of April, 1982 should not be granted.
That prayer 1(a) operates with immediate effect asan
Directing respondents to pay the costs of suit.
Granting such further and/or alternative reliefas
the above Honourable Court permits.
On the 26th October, 1982 Rooney, J, granted an interim
interdict as prayer in prayers 1(a), (b) and 2. The other issues
be argued at a later stage and costs were to be costs in the
It is common cause that on the 23rd April, 1982 the
applicant was interdicted from performing the duties of his office as
Livestock Assistant. The letter of interdiction reads.-
Mr. Mafa, B.J., Box 24, Maseru.
u.f.s. Director of Livestock. Sir,
I have received a report to the effect that you have
been under police interrogation because of your involvement in
2. In exercise of the powers conferred on me by the
Public Service Order 1970 read with Part 5 of the
Service Commission Rules, I hereby interdict
you from performing the duties and exercising the powers
of your office with effect from to-day's date.
3. I am of the opinion that the public interestrequires
that you should immediately cease to exercisethe powers and to
perform the duties of your office.
I have taken this decision after carefully weighing both
your interest and the public interest and I am satisfaied that it is
public interest that I interdict you immediately.
I have determined that during your interdictionyou
shall be paid half of your normal emoluments.
Lastly, you are not to leave your duty stationwithout
consultation with your immediate supervisor.This last directive
is intended purely to enable meknow your whereabouts as I plan
to dispose of thismatter as early as possible.
S. J. KAO
Permanent Secretary for Agric & Marketing
Copy : Cabinet (P) Audit Treasury D.C. D.A.O. Berea
On the 22nd September, 1982 the interdiction was
extended for a further period of three months with effect from the
24th July, 1982.
/On the ...
On the 29th September, 1982 the applicant received a
letter which subjected him to an indefinite, compulsory unpaid leave
of Section 4 (1)(x) of the Public Service Order 1970.
On the 15th October, 1982 the applicant was served with
a charge sheet in which he is charged with collaborating with the
I have already stated that on the 26th October, 1982
this Court granted an interim interdict and the disciplinary
the adjudicator were temporarily terminated. The
learned judge found that the Permanent Secretary had not complied
with the provisions
of Rule 5-41 of the Public Service Commission
Rules 1970 which provide that when the head of department received
that an officer has committed a criminal offence
he consults with the Attorney General and seeks his directions
whether a prosecution
is to be instituted. The allegations against
the Applicant show that he has committed High Treason.
The papers before me do not show that the Respondents
made any attempt to comply with the provisions of Rule 5-41 of the
Commission Rules because if they had done so the
Director of Public Prosecutions would have indicated whether or not
he is brininging
a criminal charge against the Applicant, Rule 5-41
/"If the ...
"If the Attorney General directs that no
prosecution is to take place or if the allegation does not
involve a criminal offence,
and if in either case the allegation does
involve a breach of discipline, and if the head of department
proposes to commence disciplinary
proceedings, he prepares a charge
of a breach of discipline against
the officer in accordance with the provisions of rule
I now come to the letter of the 22nd September, 1982
(hereinafter referred to as Annexure B) which purports to extend the
interdiction by a further period of three months
retrospective to the 24th July, 1982. The Applicant has contended
that the Permanent
Secretary had no powers to extend the interdict
which had long expired according to Rule 5-22(2). On the other hand
Secretary for Personnel in the Cabinet Office argues
that the extension of the period of interdiction was in accordance
Rule because on the 15th June, 1982 a letter was written to
the Applicant to inform him that the period of his interdiction was
to be extended by a further period of three months. Rule
"(2)If no criminal charge or charge of breach of
discipline is preferred within three months against an officer who
interdicted the interdiction lapses and he shall be allowed
to resume duty and he shall be paid his full emoluments for the
of his interdiction unless on the application of the head of
the department and after having given the officer
/an opportunity ...
an opportunity to make representations, the Minister
after consulting the Commission orders otherwise.
It is common cause that the period of the original
interdiction expired on the 23rd July, 1982 and that Annexure A
written on the
22nd September, 1982 purported to extend the period of
three months restrospective to the 24th July, 1982. The Rule makes
clear that every interdiction against an officer lapses
after three months if no criminal charge or charge against breach of
is preferred within the period of three months. On the
24th of July, 1982 the Respondents had preferred no charge against
and unless the Permanent Secretary for Agriculture and
Marketing had made an applicantion and the Minister had decided
after consulting the Commission, the period of interdiction
against the Applicant must be taken to have lapsed on the 23rd July,
1982. In his opposing affidavit the Permanent Secretary for
Personnel in the Cabinet Office says that on the 15th June, 1982 a
was written to the Applicant to the effect that the period of
his interdiction was going to be extended and the Applicant was
to make representations in terms of Rule 5-22 (2). The
applicant has filed no replying affidavit to deny or admit the
such letter but I shall take it that he did receive that
letter and made no representations.
The question to be decided is: did Applicant's failure
to make representations entitle the Minister
to take action within "three months" till the period
of interdiction lapsed on the 23rd July, 1982? To my
mind Rule 5-22 (2) requires that the actions to be taken by the head
and the Minister must be within the first three months
of the interdiction. If they fail to take action and decide
the end of the first three months the period of
interdiction must lapse. In this application the head of department
wrote a letter
to the Applicant on the 15th June; that was about a
month and fifteen days before the interdiction was due to lapse. In
by the 15th of June the head of department had already
decided that the period of interdiction would have to be extended.
written that letter wo do not know what he did till the 23rd
July when the period of interdiction lapsed. It was about three
after the lapse of the interdiction that he wrote Annexure A
in an attempt to revive the interdiction that had already lapsed.
The other Question is whether or not the Minister or the
head of department had the power to make the interdiction
the 24th July. Section 4 of the Public Service
Order 1970 under which the Minister made the Public Service
Commission Rules gives
him no power to make rules or regulations with
retrospective effect, and I see nothing in Rule 5-22 which allows the
make orders which have retrospective effect. We know that
there is a presumption against interpreting a statute in such a
way as to make it apply retrospectively (See Interpretation of
Statutes by G.M. Cockram page 65).
/I come ...
I come to the conclusion that Annexure A could under no
circumstances revive an interdiction that had lapsed and it was,
null and void.
It has been printed out in a number of cases of this
Court that the 1st Respondent is empowered by the Public Service
Order 1970 to
make rules and regulations in terms of Section 4 and
that once he has made such rules and regulations he is bound by them.
In Solicitor General v. Michael Mocasi C. of A. (CIV)
No.11 of 1982 Van Winsen, J.A. said:
"The Minister responsible for the Public Service
saw it fit to prescribe rules governing the circumstances under which
servant could be removed from office(Rule 6-01) and the
wording of that rule leaves no doubt that the grounds for removal
must objectively exist before the Minister becomes vested
with the discretion to remove a public servant from office. The
by the Rules ho himself has formulated, has set out the
conditions under which he acquires and may exercise the discretion to
a public servant from office and be is accordingly himself
bound by such Rules."
In the present application the Respondents decided that
they were going to interdict the Applicant in terms of Rule 5-21,
are bound to follow the procedures prescribed by
those Rules and if they fail to do so, their actions shall be set
illegal and null and void. I have stated earlier in this
judgment that in my view the attempt by the Permanent Secretary
for Agriculture ana Marketing to extend the period of
Applicant's interdiction after it had legally lapsed
was illegal because he failed to comply with Rule 5-22
but that is not the end of the matter.
I now turn to the letter written to the Applicant by the
Acting Permanent Secretary lor Personnel, Cabinet Office. It is
27th September, 1982 and reads.
Mr. J. S. Mafa
P. O. Box 24,
u.f.s. P. S. Agriculture.
I wish to inform you that the Honourable Minister
responsible for the Public Service, in exercise of the powers
conferred on him under
Section 4(1)(x) of the Public Service Order
1970, has decided to place you on an indefinite, compulsory and
unpaid leave pending
finalisation of investigations into your alleged
involvement in matters affecting the security of Lesotho.
This decision supercedes your interdiction and shall
come into effect on 1st October, 1982.
Permanent Secretary Cabinet (Personnel)
c.c. ACCEN AUDIT
COMPOL (NSS) LEGAL
/Section 4 ...
Section 4 of the Public Service Order 1970 is the
enabling Act which gives the Minister the powers to make rules and
regulations governing the
public servants and conditions of their
employment. Before I consider the conflicting interpretations placed
by the Applicant and
Respondents of Section 4 I wish to quote it
fully, it reads:
4.(1) "Subject to the provisions of this or any
law relating to the public service, the Minister
may (subject to the prior concurrence of the Minister responsible for
Finance in respect of anything involving the expenditure
funds) do all things that are in his opinion necessary or expedient
for giving effect to the purpose, principles and provisions
Order or for enabling effect to be given thereto, and in particular
but without prejudice to the generality of the foregoing
may make, alter or revoke provision for all or any of the following
matters by means of rules or regulations published
in the Gazette, or
by. other means:-
(i) (ii) (iii) (iv)
(v) (vi) (vii) (viii) ....
(x) All matters relating to or arising out of
the employment generally of public officers."
In his opposing affidavit the Permanent Secretary,
Cabinet (Personnel) says that only rules and regulations
have to be published in the Gazette but "other
means" need not be so published. The Applicant contends that
the Minister has acted ultra vires because he has
regulations under the said section.
I must say that I am unable to agree with the
Respondents' interpretation of the said section on the ground that
the Minister is empowered
to make rules for the public service as a
whole and not for a particular public servant when he has a dispute
with the Honourable
Minister. In other words, the Minister is
empowered to make rules and regulations of general application to
every public servant
who happens to be faced with a charge of breach
of discipline or a criminal charge similar to the charges now facing
If I am right in the view I take that the
rules and regulations made by the Minister must be of general
application to the public service as a whole,
then they must be
published in the Gazette so that all the public servants may know
them. Even if the Minister decides to make the
regulations or rules
by other means - such as writing Cabinet Circular to all
public servants or writing letters to each and every public servant
in the public service
- I am of the opinion that some publication has
to be made to emphasize the point that the rule or regulation is of
to all civil servants. The Minister must not
create the impression that whenever he is faced with a problem he
will resort to Section
4 and make an ad hoc rule or regulation
against a civil servant who finds himself facet) with a criminal
charge or charge of breach of discipline.
/On the ..
On the 23rd April, 1982 the Applicant was interdicted
under Part 5 of the Public Service Commission Rules because there was
report that he (Applicant) was involved in matters affecting
security. On the 15th October, 1982 was served with a charge sheet
breach of discipline and the case was set down for hearing on the
27th October, 1982. This means that by October lest year the
concerning the Applicant's involvement in the matters
involving security were complete. The judgment of Rooney, J,
was delivered on the 26th October, 1982 in which the learned judge
granted the interdict applied for on the ground that
there was no
indication in the papers before the Court that the Permanent
Secretary for Agriculture and Marketing had complied with
by making consultations with the Law Officer concerned. Up to now
there is still no evidence before me to show that such
have been done.
It seems to me that the finalisation of this matter has
been unduly delayed because by the 15th of October last year all the
had been completed and disciplinary proceedings had
already been instituted. It must be borne in mind that the Applicant
been receiving his emoluments from the 1st of October last
year; as he is still a civil servant he is not supposed to look for
For the reasons stated above I make the following order:
(i) The Respondents are given a period of twenty-one
days within which they must either bring a criminal charge against
in terms of Rule 5-41 or proceed with the charge of
breach of discipline in terms of Rule 5-41 (3).
(ii) The period of 21 days shall run from the 18th
(iii) Upon failure of the Respondents to proceed or act
as provided in paragraph (i) above within 21 days from the 18th
the Respondents must reinstate the Applicant to his
position of district livestock officer. The Respondents must pay the
all his arrear salary calculated from the 1st October,
(iv) The Respondents must pay costs of suit,
For the Applicant : Mr. Maqutu For the Respondents :
IN THE HIGH COURT OF LESOTHO In the matter of :
Samson Ramahomana Matlanyane - Applicant
Minister in charge of Public Service - 1st
RespondentThe Solicitor General - 2nd Respondent
Filed by the Hon. Acting Judge, Mr, J. L. Kheola on the
14th day of October 1981
The Applicant has applied for an order in the following
1. Setting aside the Applicant's purported
interdictionby Respondents and also the indefinite,
compulsotyand unpaid leave and directing the Respondents
to forthwith re-instate Applicant in his position.
Directing the Respondents to pay to the Applicantall
the Applicant's arrear salary calculatedfrom, and including the
month of April, 1982.
Directing the Respondents to pay the costs ofthis
Granting the Applicant further and/or
alternativerelief as the Court may determine.
The events which led to the making of this application
may be summarised as follows:
/The Applicant ...
The Applicant is employed as a manager in the Livestock
Products Marketing Services in the Ministry of Agriculture and
On the 23rd April, 1982 he was interdicted from
performing the duties and exercising the powers of his office in
terms of the Public
Service Order 1970 read with Part 5 of the Public
On the 15th June, 1982 the Permanent Secretary for
Agriculture wrote a letter to the Applicant informing him that he
intended to extend
the interdiction period by a further period
of three months in order to enable the National Security Services to
inquiries. The period of interdiction was in fact
extended by a letter dated the 22nd September, 1982.
On the 27th September, 1982 the Permanent Secretary,
Cabinet (Personnel) wrote a letter to the Applicant informing him
that the Honourable
Minister responsible for the Public Service had
decided to place him (the Applicant) on an indefinite, compulsory and
in terms of Section 4 (1) (x) of the Public Service
In his founding affidavit the Applicant says that he is
prejudiced by the fact that there is a blanket reference to the
Order 1970 and Part 5 of the Public Service Commission
Rules. He says that the letter of interdiction should have been more
There is altogether no substance in
this argument because the powers of the head of
department to interdict are defined in Rule 5-21 of the Public
Rules and no other Rule deals with that subject.
The letter of interdiction is so clear that no reasonable man could
with a charge sheet.
On the 20th October, 1982 the Respondents filed a Notice
of Intention to Oppose but they never filed an opposing affidavit.
22nd November, 1982 the Applicant and Respondents signed a
deed of settlement which was made the Order of this Court. It reads
"Before Mr. Justice Mofokeng of the High Court of
Lesotho on the 22nd November, 1982 at 9.30 a.m.
Order of Court
Having heard Mr, M. Qwentshe, advocate for Applicant and
having heard Mr. Mafisa, attorney for Respondent :
It is ordered that :
Respondents pay to the Applicant all theapplicant's
arrear salary calculated from,and including the month of April,
Respondents pay the costs of this application.
The rest of the issues in dispute betweenthe
parties be resolved by the above
A. The ...
4. The Solicitor General be directed to submit an
answering affidavit in twenty-one days.
By Order of Court"
The Solicitor General did not comply with the provisions
of paragraph 4 of the Order, On the 29th December, 1982 Mr.
Maqutu, who appeared for the Applicant, applied for a default
judgment in terms of prayer 1 of the Notice of Motion. Mr.
Mafisa, who appeared for the Respondents, submitted that the 2nd
Respondent did not file an affidavit because the matter had been
a long time ago.
The default judgment was granted as prayed in prayer 1
of the Notice of Motion with costs.
For the Applicant : Mr. Maqutu For the Respondents :
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