CIV/APN/111/84
IN THE HIGH COURT OF
LESOTHO

In the Application of :

STEVEN MOKONE CHOBOKOANE Applicant

v THE SOLICITOR GENERAL Respondent

JUDGMENT

Delivered by the Hon. Chief Justice Mr. Justice T.S.
Cotran on the 11th day of September 1984

The applicant is the former Director of Prisons in the
Government of Lesotho. It was common cause that on the 30th September
1982
he was retired from the Public Service.

On the 31st May 1982 the applicant received a letter
from the Permanent Secretary of Justice & Prisons asking him to
show cause
within 14 days why he should not be surcharged M10,149.83,
or part of that amount, allegedly misused by him for personal gain,
from
a fund known as the "Prisons Staff Training School Messing
Account". The Permanent Secretary wrote that an "audit
report" has shown this to be the case (Annexure A of founding
affidavit).

This letter of the Permanent Secretary was written on
behalf of the Minister of Finance after a team headed by Mr. V.K.G.
Nair, the
Controller of Audit, had investigated the Messing Account
in question. Mr. Nair averred (in an annexure to the opposing
affidavit)
that in February/March 1982 he and his team found that the
applicant used moneys from the said account "without the
authority
of the Loans Committee", that the applicant was called
to the Auditor General's office in March and was "briefed about

/the

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the irregularities" but he did not "rebut
the allegations".

The procedure against the applicant on the face of
things conformed with the requirements of s.32(1) and s.34 of the
Finance Act 1978.

These provide:-

$.32(1)

"If it appears to the Minister that by reason of
the neglect or fault of any person who is or was at the time of such
neglect
or fault a public officer the public revenue or public stores
have sustained loss or damage, or improper payments of public moneys
have been made and if within a period specified by the Minister an
explanation satisfactory to him is not furnished with regard to
such
apparent neglect or fault, the Minister may surcharge against the
said person the amount which appears to him to be the loss
suffered
by Lesotho or the value of the property lost or damaged or the amount
improperly paid as the case may be or such lesser
amount as the
Minister may determine".

S.34

"The Minister shall cause the person surcharged
(through the head of the department concerned), the Auditor-General
and the Accountant-General
to be notified of any surcharge made under
section 32."

The applicant replied in writing on the 9th June 1982
denying that he misused M10,149.83 from the Prison Staff Messing
Account and
stated that if he is given the chance to "scrutinise
and study" the audit report referred to "plus the relevant
documents
from which the allegation was framed, the meaning and the
purpose, this negative feeling is designed to convey, would be viewed
differently".
This is rather a strange reply but I suppose it
might mean that if the applicant is shown the audit report and the
documents the
negative attitude of his response to the Minister will
be viewed differently, or put in another way he will be able
to give a satisfactory answer if shown the report and documents but
not otherwise. If Mr. Nair is telling

/the truth

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the truth in his affidavit however the irregularities
were pointed out to the applicant and he was given a chance to rebut
them at
the Auditor General's office and he was unable so to do. The
applicant's answer to the Minister is at best vague. The applicant
was,
as I said, retired in September 1982, and in February 1983 he
was formally informed by the Minister that he will be surcharged
M10,149.83
and the amount recovered "in full" from his
retirement benefits. The action was drastic in that it ruled out any
advantage
the applicant may have had to settle the surcharge
gradually under s.37 of the Act. The applicant on the 3rd March 1983
appealed
against the surcharge of M10,149.83. This he did in terms of
s.36{1) but the result of the appeal, in apparent compliance with
s.37(3)
was that the surcharge has been increased to M13,754.17. This
must mean surely that when the applicant was called upon to explain
the irregularities at the Auditor General's office and failed to
rebut them the team had not yet completed the inspection and a
further
shortage was discovered since then necessitating a further
surcharge.

Mr. Sello submits on behalf of the applicant as
follows:

1. 
   With regard to the surcharge of M10,149.83
   he was
   not given the opportunity to defend
   himself or of being heard by
   the Minister
   and that therefore the audi alteram partem
   rule
   which is "implicit" from s.32 has been
   infringed,

   
   

2. 
   That the second surcharge of M3,604.34 was
   contrary
   to the provisions of s.32 of the
   Act in that prior to it being
   imposed "the
   Minister never sought an explanation"
   which
   makes at least that part of the surcharge
   "null and
   void",

   
   

3. 
   That the funds which the applicant
   allegedly
   "embezzled" were not "public revenue
   or
   monies as contemplated in s.32".

   
   

/The first

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The first and second submissions can be disposed of at
once. The Minister's powers to surcharge a public officer under the
Act are
neither judicial or quasi judicial. They are purely
administrative and are invoked, in the case of a fund manager in the
public service,
by the bringing in an audit inspection team from the
Ministry of Finance to examine the account. It seems to me that the
whole exercise
is one of arithmetic, no more or less, to determine if
there was neglect or fault as defined in s.2(1) of the Act, such
neglect or
fault to be determined by functionaries under the
Minister's jurisdiction but with himself at the top. There is no
obligation on
the part of the Minister himself to give the applicant
any hearing. There is no provision for a hearing even by the
committee. A
hearing has however been afforded to the applicant at
the Auditor General's office when he was shown the irregularities
discovered
by the audit, and failed to "rebut the allegations",
that is, failed to explain the neglect or fault. The applicant's
explanation
must satisfy the Minister and he did not give an
acceptable one. There is no question of the Court substituting its
own view to that
of the Minister. It does not have the material to do
so and I cannot see how, on these papers, the Court can order the
audit report
to be produced to make an assessment whether there

was, or was not, fault or neglect: The applicant made no
such request.

The applicant, as he is entitled to, appealed to the
Minister who accepted the audit report in terms of s.36(1) and acted
in terms
of s.36(2). The committee increased the amount of surcharge.
This increase arose from the audit exercise of the same account above
referred to. It was not a surcharge in respect of any matter
extraneous to the Messing Account and no further recourse to s.32
need
be had. I doubt if the applicant would have taken a different
stance about the latter amount

/from

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from the one he took on the first amount, viz, a stance
of vagueness.

The third submission, however, is interesting and rather
difficult to determine. A history of the Prison Staff Training School
Messing
Fund has been given by the applicant and a copy of its
regulations were made available to me - Exhibit A - by the
respondent. It is not one of the funds named in the schedules of the
Act. It seems to be a fund started by, and for the
benefit of, a
certain junior class of officers just entering the Prisons Service.
The fund's recourses consisted of contributions,
no doubt from salary
or wages of prison trainees, for their maintenance and meals;
donations; and profits made from utilisation of
monies in the fund in
furtherance of its objects, which seem to be somewhat wider than
simply maintenance and meals and include for
example purchasing
welfare equipment and granting of loans to members of the service.

The applicant as the Director of Prisons was the
administrator and manager of the fund (Reg.2); money paid from the
fund must only
be authorised by him (Reg.5) and withdrawals from the
bank will be signed by him and the Service Accountant of the Prison
School.
The Service Accountant, however, is the keeper of records of
receipts and disbursements of the fund which, at the end of the year,
he must submit to the Director.

Mr. Sello's submission on this point is that the
Minister is empowered to surcharge the applicant for neglect or fault
if the money in the fund
was derived from a public source but
not otherwise. The funds in the applicant's charge were money
collected from individuals, (although their pay is from public
funds), donations and profits from operations, they were not due to,
nor did they form part of, state revenue.

/The Crown

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The Crown argues, on the strength of s.2(1)(b) of the
Act, that public money is "any moneys (other than money in the
Trust Fund
for which see s.23) held in his official capacity,
whether temporarily or otherwise, and whether subject to any
specific allocation or not, by an officer in the public
service of Lesotho or by any agent of the Government
either alone or jointly with any other person". Mr. Sello
says that the applicant was not managing the fund "in his
official capacity" but it was administered and managed by him
as
a private individual who happened to be the director, and whatever
the applicant did, even if the auditor's adverse report is
correct,
have nothing to do with his official duties as the director of
Prisons. In other words whilst the members of the fund may
sue the
applicant for negligence, the Minister may not act on their behalf
and exercise his power to surcharge. With respect I find
the
submission rather difficult to follow. The definition is wide and
there is no evidence that the management of that fund could
have been
held by any person outside the Prisons Service. I think the object of
the legislation is to make some senior public servants,
responsible
for funds collected or contributed by other public servants for a
certain object or objects, accountable for neglect
or fault not only
to members, contributories and donors, but to the state. The
intention is to ensure as far as possible that no
fiddling takes
place and that if it does the public servant in charge will have to
pay the price when anything goes wrong if he is,
however remotely,
negligent or at fault in the manner provided by statute.

The relationship between the applicant and respondent is
one of employer and employee albeit of a special kind. At Common law
the
Crown may not be sued by its servant at all. If

/this

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this has been changed by statute, the applicant's
remedy, if he believes that he has not been negligent and is not
responsible for
the loss, is to sue, to recover his entitlements by
way of action (see Monaheng v Clifford Trading (Pty) Ltd. and An.
(CIV/APN/164/84 dated 7th September 1984 - unreported).

The application is dismissed with costs.

CHIEF JUSTICE
11th September 1984

For Applicant : Mr. Sello For Respondent : Miss Tsiu