CIV/APN/132/86

IN THE HIGH COURT
OF LESOTHO
In the application by

ATTORNEY GENERAL Applicant

vs
BEN ALOTSI Respondent

JUDGMENT

Delivered by the Hon. Acting Mr. Justice D. Levy on
the 30th day of May, 1986

Applicant as representative of the Minister of
Agriculture has brought this application for the ejectment of the
Respondent from certain
house No. 604/C and for pay­ment of an
amount of M276.80 as rent from June 1984 to April 1986.

It appears that this house had been allocated to
Respondent on 9th January 1979 in his capacity as a civil servant he
having been
appointed as a Conservation Officer in the employ of the
Ministry of Agriculture on 30th August 1979.

On 19th September, 1984, as appears from Annexure A5,
proceedings were initiated against the Respondent for his removal
from office
under the Public Service Commission Order 1970 Sections
6(1)(a) and 6(3) and 10(1)(i) on the grounds that he absented himself
from
his office without leave or valid excuse from 22nd May 1984
onwards.

On 17th October 1984, as appears from Annexure A6 the
Commission advised under Section 6(3) of the Public Service Order
1970 that
the Respondent be removed from

office by way of dismissal without disciplinary
proceedings.

/On

-2-

On 7th November 1984 the Respondent was notified by the
Permanent Secretary Cabinet (Personnel) that it had been decided
under Section
6(3) of the Public Service Order 1970 that he be
dismissed from office with effect from 22nd May 1984 On 17th
December 1984 and
on 23 September 1985 and again on 29 November 1985
letters were addressed to the Respondent requiring him to vacate the
house consequent
on his dismissal, all of which notices the
Respondent says that he ignored

On 7th April 1986, acting under the provisions of Public
Service Regulations 1985, the Applicant through its officials,ejected
the
Respondent and his property from the premises This let to an
application for a mandament van spolie which was
granted by Mofokeng J, on 18th April 1986 shortly before his untimely
death.

Consequent on his order the Respondent was restored to
his former position in occupation of the premises in question

I have carefully perused the reasoning of Mofokeng J, in
CIV/APN/124/86. I regret to say that I am unable to agree with his
judgment
and indeed I am constrained to add that I consider the
judgment to be clearly wrong and not one which I should follow. I
say this
for the following reasons

Mofokeng J, found that the present Respondent was no
longer a public official and threfore no longer amen­able to the
provisions
of the Public Service Regulations which he found applied
to public officials and nobody else.

He found accordingly that the powers vested in the
Applicant by the Regulations themselves to eject dismissed officers
did not extend
to ex-officers who, although they

/occupied .....

-3-

occupied their houses as public officers, continued to
occupy them only as private individuals once dismissed and that the
invocation
by the Applicant of its powers under the regulations to
evict dismissed officers would amount to an act of spoliation against
them

Regulation 64(b) of the Public Service Regulations 1985
which were published on 20th December 1985 provides that

" An officer who . (b) is dismissed from the
Public Service . shall vacate his quarter with effect from the date
of dismissal."

Regulation 65(1) provides that

" When an officer is required to vacate his
quarters under Regulation 64(6) . . the following shall apply

(a) the appropriate authority shall give notice

in writing to the officer to vacate his quarters and to
remove his personal effects therefrom within seven days from the date
of the
notice,

(b) Upon failure to comply with paragraph (a)
the
appropriate authority may enter the
quarters, eject the officer
and his personal
effects therefrom and take possession of
the
quarters "

These Regulations were duly made by the Prime Minister
as Minister responsible for the Public Service and published in
exercise of
the powers conferred by Section 4(1) of the Public
Service Order 1970 inter alia (v) to exercise disciplinary
control over persons holding or acting in such offices and
interdicting and removing such persons from
office and (x) make
provisions for all matters relating to or arising out of the
employment generally of public officers.

The Public Service Regulation 1969 as amended in 1971,
1972, 1973 and 1983 were probably the effective

regulations at the date of Respondent's dismissal in
1984.

/But .....

-4-

But since Regulation 605(c) of these Regulations as
amended by Government Notive 71 of 1983 is in virtually identical
terms with Regulation
65 of the 1985 Regulations, nothing turns on
the question of which set of Regulations is applicably in the instant
case.

These Regulations have been given the force of law by
their enabling statute and are not said to be either ultra vires
or unreasonable There can be no doubt therefore that there is
appropriate legislation (by way of regulation) enabling Applicant
itself through its officers to eject the Respondent from the premises
after his dismissal and after notice duly given. Cf Moroka v
Germiston City Council 1961(3) S.A 573(A) where it was held that
power of demo­lition of unlawful immovable structures may by
bye-law be vested in a
local authority without recourse to Court for
a demolition order). That he is no longer a serving officer is
irrelevant. It is the
very essence of this regulation that the
officer to be ejected has already been dismissed and he is clearly
subject to its provisions
after dismissal nor do the powers of the
Ministry to eject him cease upon his dismissal To say otherwise
would be to reduce a reasonable
and proper provision to an absurdity
and to deprive it of all effect or utility.

That a mandament van spolie was issued by
Mofokeng J, is not decisive of any issue in the instant case. It
leaves untouched the question whether the Applicant
has any right to
eject the Respondent and by its very nature it restores the parties
simply to the status quo ante leaving it to a subsequent
action to determine the substantive rights of the parties to the
spoliation So even if not clearly wrong
Mofokeng J's judgment is not
decisive of any present issue between the parties.

/Of course,

-5-

Of course, the power to eject or of this Court to order
ejectment turns upon the question whether the Res­pondent
has in fact been lawfully dismissed.

But before answering this question I must deal with an
objection to the jurisdiction of this Court taken by Respondent's
Counsel at
the end of his argument and without any notice to the
Applicant. The objection so taken is that Section 6 of the High
Court Act
provides that no civil cause or action within the
jurisdiction of a Subordinate Court shall be instituted in the High
Court save
-

1. 
   by a Judge of the High Court acting of his own
   motion,
   or

   
   

2. 
   with the leave of a Judge upon application made
   to
   him in Chambers and after notice to the other
   parties

   
   

The Applicant took exception to the late notice of this
objection to the jurisdiction and I agree that such an objection
should be
taken by way of notice on the papers before any further
affidavits are filed and at the earliest possible moment. The
Applicant
then applied orally for the appropriate leave.

In my view this is a proper matter to be entertained in
the High Court Respondent sought and obtained a remedy for
spoliation in
this Court in the previous case between the parties
making it reasonable that further proceedings should continue in this
Court.
Further the matter in issue is one of some complexity and
substance making it proper for a decision by the High Court The fact
that the objection was made only late in the day after most of the
argument had been concluded seems to me to invite a ruling that
the
case should continue where it has begun. It also seems implicit

/in ....

-6-

in Section 6(a) of the High Court Act that the case must
have already commenced before a Judge who would otherwise not know
that he
should assume jurisdiction of his own motion I therefore
ruled that the case should continue in this Court

Was Respondent's dismissal lawful?

Section 6(3) of the Order provides that if an officer
has contravened the provision of this part in respect of absence from
his office
or from his official duties he may without delivery of a
formal charge or any other proceedings prescribed in these rules be
removed
from office by way of ( dismissal or other termination
of appointment Section 10(1)(i) provides that a public officer
shall not absent

himself from his office without leave or valid excuse >

The Respondent alleges that a charge had been brought
against him and that this charge had to go through the procedure of
formal investigation
by an appointed adjudicator in terms of the
Public Service Commission Rules 1970 (See Section 5-42 and onwards).
No charge sheet
has been produced by the Respondent and there is
nothing to indicate that any procedural steps had been taken which if
taken would
have entitled the Respondent to continue in office until
the determination of proceedings.

Instead, the Applicant has produced documents which show
that the procedure set out in Rule 6-01 which may govern proceedings
for
the removal from office of public officers dealt with under
Section 6(3) of the Order has been complied with.

Annexure A5 contains the written proposal of
Res­pondent's head of department, whose signature it bears, to
the Permanent Secretary
for reference to the Public Service

/Commission ......

-7-

Commission for the dismissal of the Respondent in terms
of Section 6(3) read with Section 10(1)d) of the Order. This Annexure
states
that the information in support of the proposal is attached
and directions are requested in terms of that rule That the
Commission
sat on the matter and came to a determination on the
proceedings appears from Annexure 'A6 That document shows that the
Commission
advised that the Respondent be dismissed without
dis­ciplinary proceedings in terms of Rule 6-01(3)(c).

The decision of the Minister is expressed in Annexure A
dated 7th November 1984 that the Respondent be dismissed with effect
from
22nd May 1984.

It seems to me that there has been substantial
com­pliance with the requirements of the Rules and I do not
consider that the failure
of the Applicant to produce any further
documents such as the information attached to Annexure A5 or such
written directive as may
have been given thereon in any way detracts
from this finding. These are requirements which ox facie the
documents produced appear to have been satisfied

See Mocasi v Solicitor General C of A (CIV)6/84

I entertain some doubt whether the provisions of Rule
6-01 of the Rules apply to the exercise of the power to dismiss an
officer under
Section 6(3) on the grounds of absence from office.
This section states that dismissal may take place without any formal
charge
or other proceedings pre­scribed in the rules This
section would therefore appear to vest in the Ministry the power to
dismiss
an officer who has committed a breach of discipline by
absenting himself from office in contravention of Section 10(1)i) of
the Order

/However

-8-

However, I have found that there has been substantial
compliance with the provisions of Rule 6-01 notwithstanding that the
grounds
recited therein for removal from office do not include a
breach of discipline such as is expressed in Section 10(1)(i) of the
Order
Nor, apart from a formal statement that procedural
requirements have not been followed does the Respondent allege any
flaw an the
proceedings against him save that a charge, presumably
under Rule 5-01 had been brought but which was not proceeded with. I
have
already indicated my view that the bringing of such a charge and
its discontinuance before any further steps are taken (it is not
even
alleged that a written charge sheet was served on the Respondent)
does not prevent disciplinary action under Section 6(3) of
the Order.

In these circumstances I am compelled to find that the
Respondent was lawfully dismissed and that he is obliged ta vacate
the house
occupied by him as a condition of his employment which has
ceased in terms of Public Service Regulations

Respondent's Counsel has further argued that the
Minister, whose notice of dismissal is dated 7th November, 1984,
exercised his authority
retrospectively by declaring the effective
date of dismissal to be 22nd May 1984 I have found that the
Minister was entitled to
dismiss the Respondent I cannot agree that
an attempt to exercise powers of dismissal retrospectively in this
fashion can vitiate
the act of dismissal itself An employer who
dismisses his employee on the grounds of non-attendance over a period
may well and properly
say that the dismissal is effective from the
commencing date of non-attendance because from that date the employee
is no longer entitled
to the payment of any salary or other benefits
of his employment which would otherwise have been

/earned .

-9-

earned during the period of non- attendance. The
statement, therefore, that the effective date of dismissal in
Respondent's case
was 22nd May 1984 meant no more than that he has
earned no salary or other benefits from that date on.

The Respondent also argued that there is no allegation

that Applicant is the owner of the house occupied by
Res-

pondent and is not entitled to rei vindicatio in
the absence

of such proof of ownership By way of a corollary he
also argued that such an action may not be brought in motion
proceedings I think
the better view of the matter is firstly that a
tenant may not dispute his landlord's title to property since he
occupies the property
only with the leave and licence of the landlord
from whom he received occupation, secondly the action of rei
vindicatio may well be brought in motion proceedings and not
necessarily by way of rou actie where the material facts are
not in dispute. Thirdly, in an action for ejectment the lessor of
property has the right of possession
of the property which he has
voluntarily parted with to the lessee. On breach by the lessee the
lessor is entitled to recover possession
by a possessory remedy and
not necessarily by the rei vindicatio For the success of the
former remedy proof of ownership is not necessary, indeed, in many
cases a lessor is not the owner of the property
leased but he is
entitled to enforce his right to possession of the property against
the world including his lessee and the owner
in a proper case. See
Pretoria Stadsraad v Ebrahim 1979(4) S A 193(1)

Applicant also claims payment of a sum of money alleged
to be arrear rent since May 1984 and said to be calculated at the
rate M12
per month from the date of dismissal to the present time
The Respondent has not

/alleged ...

-10-

alleged payment of any portion of the rent due and
whether the amount claimed be claimed as rent or as damages for
wrongful holding
over the amount of R12 per month from at latest 1st
June 1984 to date is owing by Respondent, that is, an amount in total
of R12
x 23 - R276.

The Respondent is ordered to vacate house No. 604/C
forthwith and to pay the amount of M276. The Respondent is ordered
to pay the
costs of these proceedings

D LEVY ACTING JUDGE

30th May, 1986

For the Applicant Mr. Mpopo For the Respondent MR.
PHEKO