CIV/APN/17/87

IN THE HIGH COURT OF LESOTHO
In the
matter of:

MPHAPHATHI QHOBELA Applicant
v

2) ATTORNEY GENERAL Respondents

JUDGMENT

Delivered by the Honourable Sir Peter Allen, on the 9th
day of April, 1987.

The Applicant Miss Qhobela, has been a Senior Treasury
Accountant in the Ministry of Finance since 1 April, 1980. She was
interdicted
from duty by her departmental head last year and she has
applied to this Court for an order:

1. 
   Setting aside a letter of notification
   dated 27
   June, 1986

   
   

2. 
   setting aside a charge sheet
   brought against her
   dated 28
   August, 1986.

   
   

The Application was opposed and the Court heard argument
from counsel on both sides.

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The background to this matter is briefly as follows. At
the beginning of January, 1983, the then Permanent Secretary, Cabinet
(Personnel)
wrote to the Applicant informing her that she had been
"transferred" to the Ministry of Foreign Affairs as a Third
Secretary
and posted to the Lesotho High Commission in Nairobi with
effect from the date she assumed those duties.

Somebody must have queried the wording of this letter
because, on 7 March, 1983. another letter, this time signed on behalf
of the
Permanent Secretary, clarified her position. It reads:

"I wish to state unequivocally that in the event of
termination of your secondment appointment you will revert to your
substantive
or similarly graded post in your present parent
ministry on the salary and seniority you would have held had
you not been seconded to the Ministry of Foreign Affairs."

Thus it was made clear to her that she was only seconded
to Foreign Affairs and not transferred, i do not understand why this
should
now be disputed.

Apparently her performance of duties at the High
Commission in Nairobi was not satisfactory and, on 12 May, 1986, a
letter from the
Principal

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Secretary at the Ministry of Public Service (Personnel)
terminated her secondment appointment to the Ministry of Foreign
Affairs with
effect

from 1 May, 1986. It added:

"You will, therefore, revert to your substantive or
similarly graded post on the salary and seniority you would have held
had
you not

been seconded to the Ministry of Foreign Affairs."

On 15 May, 1986, her files were returned to Finance and
on 27 June, 1986, she was served with a notification of interdiction
(Form
GP 144) signed by the Principal Secretary for Finance. This
interdicted her on no pay as from 27 June, 1986, on allegations that
she had contravened various provisions of section 10 of Part 2 of
Public Service Order No.21 of 1970.

This was followed on 22 August, 1986, by service on her
of a charge sheet alleging four breaches of discipline in
contravention

of the above provisions. The Applicant signed receipt of
it on that date and wrote in her plea of not guilty but did not reply
to
the charge.

It is these two documents, the notification of
interdiction and the charge sheet, which the

/.....

-4-Applleant has asked the Court to set aside.

Mr. Hlaoli appeared for the Applicant and he conceded
that there is a power to interdict and charge Government officers for
breach
of discipline. The next move is for an Adjudicator to be
appointed to enquire into the matter and then report to the Public
Service
Commission. Mr. Hlaoli submitted that since the acts
complained of occurred while the Applicant was serving in Foreign
Affairs so
the charges should have been brought by that Ministry.
Further, that since she had moved from the Foreign Affairs to the
Ministry
of Finance there was no need to, interdict her since she was
no longer in a position or place to reject whatever she was accused
of doing. In addition, she had already refunded the sums of money
involved.

It was Mr. Hlaoli's contention that inter­diction
could only be effected by the head of the department in which the
offences were
committed (i.e. Foreign Affairs) and ,so it was
improper for the Applicant to be interdicted by anyone in Finance.
But that could
be said to work both ways. Since the Applicant was no
longer in Foreign Affairs at the time of interdiction, it is
difficult to see
how the head of that department could

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properly havemade an order against her. Presumably what
happened was that the Principal Secretary of Finance received a
report from
Foreign Affairs that they were preparing charges against
her and he then acted to interdict her. As far as I can see, that
would
be normal and proper procedure. I do not consider that it was
at all objectionable.

The next point is whether it was necessary

to interdict her at all. I do not agree with the
Applicant that her mere transfer from Foreign Affairs would obviate
the need to interdict
her. It could be argued that, as an accountant
who was accused of mishandling public funds and accounts in one
department, she could
equally well do the same in another department.
In other words her mere transfer would not solve the problem or
remove the threat
or possibility of further offences.

Mr. Hlaoli referred to rule 5 - 21 of the Public Service
Commission Rules, 1970 which gives the depart­mental head the
power to
interdict an officer charged with a breach of discipline. It
is clear that such a power is only to be invoked in the public
interest
and the depart­mental head is enjoined to "have
regard generally to the question whether it is safe to allow the
officer
to continue to exercise the powers and perform the duties of
his office, or whether there is some danger in allowing him to do so.
In particular ........ the head of department may consider

whether there is a threat to public funds, a threat to
good discipline, and a threat to good relations with the

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public or a threat to the effective and smooth running
of the department." In addition he must consider "the need
to protect
the interest of the officer."

in considering these requirements for what is an
administrative exercise of discretion, a departmental head is always
required by
the courts to act fairly or, as it is often said, in
accordance with the rudiments of natural justice. He is also required
to act
reasonably and in good faith. These are not necessarily the
same since it is possible for someone to do an act in all honesty and
good faith and yet be acting unreasonably in the particular
circumstances.

In the notification of interdiction, the Principal

Secretary of Finance stated that the Applicant's
continued

presence in office constituted a threat to office
operations.

In para.2 of the Applicant's "Main Heads of
Argument" it was submitted that she had not been informed how
the office operations
would be threatened by her continued working
there "under a new Ministry". Further on this point was
reiterated: when it
was complained that there was no threat to
operations "for the Applicant was in a different office from
where the alleged offences
occurred."

But, as I have already pointed out, simply because the
alleged mishandling of funds and accounts by the Applicant occurred
in one
place or department, it cannot

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be presumed that she would not do something similar back
in the Treasury where, in her senior position, there would surely be
even
more opportunity for such activities.

In view of that possibility, which a responsible
departmental head clearly must take into consideration, I am of the
opinion that
he acted properly in interdicting the Applicant.

With regard to the requirement to protect the interests
of the Applicant, I understand that the original order to suspend her
without
pay was later amended to half pay, so clearly her interest
was considered there. In addition, her interest should have been
considered
by appointing an Adjudicator and having the enquiry held
without delay. It could be that by bringing this action in Court the
Applicant
has herself been mainly responsible for the delay in doing
this and disposing of the matter

The last prayer was for the setting aside of the charge
sheet brought against the Applicant. I am unable to understand this
request.
The charges have to be investigated by a properly appointed
Adjudicator in the first instance and not by this Court. I can see
nothing
improper in the charges as they stand and only a thorough
enquiry will reveal whether or not they can be substantiated. It is
hot
the function of this Court to look into this matter at this stage
of the proceedings.

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Consequently the charge sheet must stand and the laid

down procedure for dealing with it must be followed
unless it is withdrawn. 1 can only express the hope that the enquiry
will now
be dealth with promptly and expeditiously.

Accordingly this Application is dismissed with costs.

P.A.P.J. ALLEN

JUDGE

9/4/87.

For Applicant : Mr. Hlaoli
For Respondents : Miss
Bohloa
Judgment delivered.

P.A.P.J. ALLEN JUDGE

9/4/87.