IN THE HIGH COURT OF LESOTHO
In the Application of :
SHADRACK LEBESA . Applicant
THE SOLICITOR-GENERAL 1st Respondent
THE MINISTRY OF RURAL COMMUNITY
AND CO-OPERATIONS 2nd Respondent
THE MINISTER RESPONSIBLE FOR THE
SERVICE 3rd Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on
the 29th day of August. 1986.
The applicant herein filed, with the Registrar of this
court, an application in which he sought, against the Respondents, an
declaring his interdiction and the extension thereof null and
void; reinstating him in his position as accounts clerk in the
of Rural Community Development and Co-operatives; directing
the Respondents to pay him arrears of emoluments from 26th April,
up to the date of his reinstatement; costs of this application;
further and/or alternative relief.
The application was opposed by the Respondents. Both the
founding and the answering affidavits were filed by the parties. No
affidavit was, however, filed by the applicant.
It is common cause from the affidavits that, at all
material time, the applicant was employed as accounts clerk in the
Rural Community Development and Cooperatives. On
26th April, 1983 the applicant was, however, interdicted on no pay on
of complicity in fraud, in that he had knowingly
misrepresented, in payment vouchers, that Motlatsi Hatane and Manoeli
entitled to certain amounts of money therein reflected.
Criminal charges were subsequently preferred against the applicant,
Hatane and Manoeli Ntholi. It was while the criminal
charges were still pending that the applicant
2/ instituted ....
instituted the present application.
According to the applicant his interdiction and the
extension thereof were unlawful in that no disciplinary proceedings
against him within the first three months of the
interdiction; no application by the head of the Ministry of Rural
and Co-operatives was made to the Minister
responsible for the Public Service for the extension of the
interdiction; the Minister
had not consulted with the Public Service
Commission nor had he decided that the interdiction should be
extended; again no disciplinary
proceedings were brought against him
(applicant) before the lapse of the extended interdiction and he was
not afforded the opportunity
to make representations.
In their affidavit, which was deposed to by the
Permanent Secretary for the Ministry of Rural Community Development
the Respondents conceded that no disciplinary
proceedings had been instituted against the applicant during the
initial period of
his interdiction and the extension thereof, the
reason being that the Director of Public Prosecutions had preferred a
against him. Indeed, as has been pointed out earlier,
the applicant himself did concede that following his alleged
fraud, criminal proceedings had been instituted against
him, Motlatsl Hatane and Manoeli Ntholi which criminal proceedings
pending at the time he brought the present application
before this court. If criminal proceedings had admittedly been
the applicant, it seems to me, no disciplinary
proceedings could have lawfully been instituted against him while the
were still pending for that would no doubt, have
constituted a breach of the Public Service Commission Rules 1970 of
which Rule 5-41(2)
clearly provides, in part:
"(2) If the Attorney-General directs that a
criminal prosecution is to take place, the head of department shall
report that direction
to the (Senior Permanent Secretary and shall
not proceed with a disciplinary charge
involving the same facts as the prosecution until
until after the conclusion of the
proceedings against the officer in the criminal case ..."
The applicant cannot, therefore, be heard to say that
his interdiction was unlawful on the ground that no disciplinary
were instituted against him within the first three months
of the interdiction and the extension thereof.
The Respondents further denied the averment that the
head of the Ministry of Rural Community Development and Cooperatives
not, at the expiry of the initial period of interdiction, apply
to the Minister responsible for the public service for the extension
of the interdiction. They annexed a copy of a savingram (annexure
'A') dated 10th June,. 1983 which showed that the head of the
of Rural Community Development and Co-operatives did in fact
apply for the extension of the applicant's interdiction. The
averment that no application was made for the extension
of his interdiction cannot, therefore, hold water.
By his evenly numbered letter (annexure 'B') of the same
date (10/6/83)addressed to the applicant the head of the Ministry of
Community Development and Cooperatives advised him of the
application he had made to the minister and clearly invited the
to submit, by Wednesday, 15th June, 1983, representations,
if he so wished, in accordance with the provisions of Rule 5-22(2) of
the Public Service Commission Rules 1970.
Notwithstanding the opportunity offered to him to sumit
representations, if any, the applicant refused/ neglected to do so
29th June, 1983 the Public Service Commission advised the
Minister, per annexure 'D' to authorise the extension of the
for another period of three months. The extension was
4/ with effect .........
with effect from 25th July, 1983 per savingram
CAB/P/1297 (annexure'c')of 13th July, 1983. The applicant cannot,
therefore, be heard
to say before his interdiction was extended he
was not offered the opportunity to make representations and the
neither consulted with the Public Service Commission nor
authorised the extension of the interdiction.
In the result I am not convinced that the applicant'
has, on a balance of probabilities, proved that his interdiction
extension thereof were unlawful and should, therefore, be
declared null and void. The decision of the other issues in the
of motion depends on whether or not the applicant's
interdiction and the extension thereof can be declared null and void.
decided that question in the negative, it necessarily follows
that the other issues in the notice of motion must also fail.
I would, in the circumstances, dismiss this application
29th August, 1986.
For Applicant : Mr. Mphutlane, For Respondent : Mr.
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