IN THE HIGH COURT OF LESOTHO In the Application
KHAUHELO 'MAMOKOENA RAMODIBEDI Applicant
THE ATTORNEY-GENERAL Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
2nd day of August. 1993.
On 13th October, 1989 the applicant herein filed, with
the Registrar of the High Court, notice of motion in which she moved
for an order framed in the following terms:
"1. Setting aside the notice of interdiction served
by the Respondent on the Applicant herein on the 18th September, 1989
of which is annexed hereunto;
2. Directing that the Applicant be reinstated to
her post forthwith;
Directing Chat Respondent pay the costsof this
Granting the Applicant such further oralternatiave
relief as this Honourablecourt deems fit."
The Respondent intimated his intention to oppose this
application. The founding and the answering affidavits were duly
filed by both
the Applicant and the Respondent, respectively. No
replying affidavit was filed.
It is common cause from the affidavits that the
Respondent was, at all material times, employed by the Lesotho
Government as a Prosecutor
in the Subordinate Court of Maseru. On
14th February, 1989 the Respodnent, as the head of the Applicant's
ministry, addressed to
her a letter (annexure "A" to the
founding affidavit) in which he advised the Applicant that she was
without pay, pending the determination of
disciplinary proceedings to be instituted against her in terms of the
provisions of rule
5-21 of the Public Service Commission Rules.
It is, however, significant that the intended
disciplinary proceedings were never instituted against the Applicant.
Rule 5-22(2) of
the Public Service Commission Rules 1970
provides, in part:
"(2) If no criminal charge or charge of abreach
of discipline is preferredwithin three months against an
officerwho has been interdicted, theinterdiction lapses "
It follows, therefore, that when three months of her
interdiction expired, on 14th May, 1989, without any disciplinary
being prefered against her, the Applicant's interdiction,
which had not been extended, automatically lapsed.
According to her, on 12th September, 1989, the Applicant
instituted, and rightly so in my opinion, CIV/APN/225/89 seeking,
her re-instatement as public prosecutor. Before
CIV/APN/225/89 could be heard, the Respondent, however, addressed, to
the letter dated 18th September, 1989 (annexure "B"
to the founding affidavit) by which he re-instated her to her post,
with retrospective effect from 15th February, 1989. She was
admittedly paid her full emoluments for the period of her
i.e. from 15th February, 1989 up to 18th September,
On the same day, 18th September, 1989, the Respodent
addressed, to the Applicant, annexure "C" to the founding
by which he agaisnt interdicted her without pay pending the
determiantion of disciplinary proceedings to be instituted against
The interdiction was to operate
with effect from 21st September, 1989. It is the latter
interdiction of 21st September, 1989, that prayer 1 of the notice of
is aimed at.
As it has been stated earlier, in terms of rule 5 -22(2)
of the Public Service Commission Rules. 1970. an interdiction
ie valied for 3 months unless, of course, it has been extended. The
Applicant's interdiction was issued on 14th
February, 1989, It was
never extended and automatically lapsed at the end of three months
i.e. on 14th May, 1989. It seems to me
that on this technicality the
Applicant was on 18th September, 1989, re-instated to her position as
In her submission, the Applicant contends that the
ground upon which the interdiction of 21st September, 1989 is based
is the same
as the ground upon which the interdiction of 14th
February, 1989 was based. Having reinstated her on 18th
September, 1989, the
Respondent was not empowered, in law, to
interdict her further, as he puported to do, on 21st September, 1989.
The submission made
by the Applciant is denied by the Respondent
according to whom the interdiction of 21st September, 1989 was made
pursuant to the
provisions of the Public Service Commission Rules.
1970 and its legal validity could not, therefore, be challenged.
It would appear from the answering affidavit that in her
founding affidavit the Applciant omitted to disclose material facts
that on 19th September, 1989,the Reapodnent initiated, before
the Public Service Commission, proceedings for her dismissal from
(annexure 1 to the answering affidavit),in terms of the
provisions of rule 6 - 01 of Part 6 of the Public Service
Commission Rules. 1970, On 5th October, 1989 the
Respondent addressed, to the Applicant, notification of interdiction
(annexure II to the answering affidavit)
on the ground that
proceedings for her dismissal had been initiated before the Public
Service Commission. The notification of interdiction
(annexure II to
the answering affidavit) was sent to the applciant per covering
letter dated 9th October, 1989 (annexure III to the
affidavit). The covering letter explained clearly, to the Applicant,
that annexure "C" to the founding affidavit
amended by annexure II to the answering affidavit.
The applicant has decided to file no replying
affidavit. There is, therefore, nothing to gainsay the Respondent's
averments in this
regard. That being so, annexure II to the
answering affidavit has, in my finding, euperceded annexure "C"
to the founding
It is clear from the affidavits that the ground upon
which the applicant was, on 14th February, 1989,
interdicted was that disciplinary proceedings were to be
instituted against her in terms of the provisions of rule 5 - 21(1)
of thePublic Service Commission Rules 1970. The ground upon
which she was interdicted on the second occasion, 21st September,
1989 was however, that the proceedings for her
dismissal in terms of
rule 6 - 01 of the Public Service Commission Rules. 1970 had
been initiated before the Public Service Commission. The applicant's
contention that the grounds upon which she was interdicted
on the two
occasions was the same cannot, therefore, be quite correct.
Assuming the correctness of my finding that annexure "C"
to the founding affidavit has been superceded by annexure II to
answering affidavit it must be accepted that the applicant cannot be
heard to say annexure "C" to the founding affidavit
set aside, for the simple reason that the annexure has been
superceded and, therefore, non-existant.
In the result, I come to the conclusion that the first
prayer in the notice of motion cannot succeed. The remaining prayers
the first prayer in the notice of motion. Likewise they
I would, therefore, dismiss this application with costs
to the Respondent.
JUDGE 2nd August, 1993.
For Applicant : Mr. Nakane For Respondent: Mr.
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