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:
Setting aside a letter of notificationdated 27 June, 1986
setting aside a charge sheetbrought against her dated 28August, 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
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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
