IN THE HIGH COURT OF LESOTHO In the
MOQHALI MOQHALI Applicant
andLESOTHO TELECOMMUNICATIONS CORPORATION Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 6th day of October. 1993.
This is an application for an order in the following
1. That a rule nisi do hereby issue calling upon
Respondent to show cause, if any, on a date to be determined by this
The suspension of Applicant bythe Managing
Director ofRespondent dated January, 1993shall not be
declared null andvoid and of no force and effect.
The intended disciplinaryproceedings against
Applicantbefore the Board of Directors ofRespondent on June
9th 1993 shallnot be stayed pending thefinalisation of
The order declaring that theBoard of Directors
of Respondenthave no right whatsoever to sitas a
disciplinary tribunalcontrary to the provisions ofRespondent's
PersonnelRegulations shall not be granted;
The instructions of the Board ofDirectors of
Respondent toApplicant to return private motorvehicle Ad
643 shall not bestayed and the said motor vehicleshall
not be returned toApplicant pending thefinalization
of this application;
Respondent shall not be directedto pay the costs
Granting Applicant such furtherand\or alternative
relief as thisHonourable Court may deem fit.
1. That rules 1 (b) and (d) should operate with
immediate effect as a temporary interdict and that Applicant's
hereto will be used in support hereof.
On the 8th June, 1993 the rule nisi was issued and made
returnable on the 14th June, 1993. However prayer 2 was not granted.
After several extensions of the rule the matter was
argued before me on the 10th September, 1993. Judgment was reserved.
Prayers 1 (b) and 1 (c) were not opposed by the
respondent. On the 10th September, 1993 those two prayers were
confirmed by agreement
of the parties.
The facts of this application seem to be common cause
and they are as follows;
At all material times the applicant was and still is in
employ of the respondent as a member of the permanent
staff. His terms and conditions of employment were governed by the
Personnel Regulations. He holds the senior position as
the Head of Planning Division of the respondent.
On the 28th January, 1993 the Managing Director of the
respondent suspended the applicant without having invited him to make
before he took that step. The suspension
was with immediate effect pending the outcome of the
disciplinary case which was to be beard by Mr. Mopeli Qhobela of the
On the 24th March, 1993 Mr. Qhobela delivered a written
judgment in which he indicated that he had no jurisdiction to deal
applicant's case as the Personnel Regulations of the
respondent clearly indicated the proper tribunal to hear the
Thereafter the Board of Directors of the respondent
attempted to constitute itself as a disciplinary tribunal to hear the
case. This has also failed because the
respondent's Personnel Regulations indicated who shall
compose the disciplinary tribunal.
In the position he holds, the applicant is entitled to
transport which the respondent provides. At the end of
four years he would be entitled to buy this car from the respondent.
entitled to two hundred litres of fuel per month. This is a
term of his contract with the respondent.
Although the applicant is on suspension he still earns
his full monthly salary. He is still occupying the respondent's house
to him. On the 27th May, 1993 the applicant received a
letter from the respondent that the Board of Directors of the
directed, again without first hearing the applicant,
that he should return the car with immediate effect. The car which is
to the Divisional Head is regarded as a family benefit. His
wife is entitled to use the car. It is for both official and private
use. On the 28th May, 1993 the applicant returned the car under
I propose to deal with the car first.
Mr. Matsau, respondent's attorney, submitted that the
official vehicle has been allocated to the applicant to carry out
therewith. The benefit to use the same for personal
use is ancillary to the main purpose of official use. The applicant
that he is entitled to free two hundred (200) litres of
petrol per month which is charged to the Corporation's account. He
that this benefit is
available to the applicant for as long as he is
performing his duties as an employee of the respondent.
The Board of Directors of the respondent was therefore
entitled to withhold the benefit from the applicant pending
the disciplinary action against him. He further
submitted that the balance of convenience favours the action taken by
the Board of
Directors. He further submitted that the said benefit
cannot be compared with salary and the use of the official residence.
latter, for instances, the balance of convenience would favour
that the applicant should be paid his salary in full in the meantime
and be allowed to occupy the official residence.
I do not agree with Mr. Mataau that the benefit to use
the car for personal use is ancillary to the main purpose of official
It is a very valuable benefit which is enjoyed by the applicant
in terms of his contract with the respondent. As the applicant has
not been dismissed I am of the view that he is still entitled to the
use of the car for his personal purposes. I cannot see any
between the use of the official residence and the payment
of full salary on the one hand and the use of the car for personal
on the other hand. These three things are the benefits which
the applicant must enjoy as long as his contract with the respondent
Be that as it may the crucial question is whether the
respondent was entitled to deprive the applicant of the use of the
affording him a chance to be heard. In other words did
the audi alteram partem rule apply to the case? The respondent is a
organization created by statute. Because of the public
nature of the respondent there is no doubt that the audi alteram
must apply. (See Koatsa v. The National University of
Lesotho, C. of A\15\86 unreported).
Koatsa's case (supra) dealt with termination of
employment without giving the employee a fair opportunity of being
heard on the matter,
especially where it appears from the
circumstances that the employee had a "legitimate expectation"
that he would remain
in employment permanently in the ordinary course
In the present case the applicant's contract with the
respondent provides that he would enjoy the benefit of the use of the
car for private purposes as well as for official duties.
I am of the view that he has a legitimate expectation that as long as
is still in the employment of the respondent that benefit would
not be terminated unilaterally. The act of the respondent is a clear
breach of contract.
I am of the view that this prayer must be confirmed.
In prayer 1 (a) the applicant praye that his suspension
by the Managing Director of the respondent dated the 28th January,
declared null and void and of no force and effect on the
ground that he was not given a chance to be heard before
that drastic step was taken against him.
The authorities seem to differ as to whether before a
suspension from office is made the employee must be heard or not. In
where the employee is suspended without pay the courts
have said that before such a drastic action is taken he ought to be
a chance to be heard. Or if it was not possible to hear him
before the suspension was made to hear him immediately thereafter.
In Administrative Law by Wade, 6th edition at page 565-6
the learned author says:
"Suspension from office as opposed to dismissal may
be nearly as serious a matter for the employee, but the Courts have
between two different views. One is that the employer needs a
summary power to suspend without hearing or other formality as a
operation, pending inquiries into suspicions or allegations.
The other is that suspension is merely expulsion pro tanto. Each is
penal, and each deprives the member concerned of the enjoyment of his
rights of membership or office. Taking the former view in a
controversial decision, a majority of the Privy Council held that a
schoolteacher in New Zealand need not be given a hearing before
suspended without pay pending the determination of a disciplinary
charge against him on which he would be fully heard in accordance
with statutory regulations. Although it
was recognised that suspension without pay might involve
hardship and also a temporary slur on the teacher, it was held that
accepted this possibility in the terms of his employment and
that the disciplinary procedure as a whole was fair. It has been said
also that a police officer need not be heard before being suspended
from duty pending investigation of charges of misconduct.
Favouring the opposite view, the Court of Appeal of New
Zealand has rejected the distinction between suspension and expulsion
has held that natural justice is required equally in both cages;
and there are similarly clear Australian decisions. Suspension
pay, in particular, may be a severe penalty, and even
suspension with pay may gravely injure reputation. In principle the
for a fair hearing are unanswerable; and if for reasons of
urgency it cannot be given before action is taken, there is no reason
why it should not be given as soon as possible afterwards."
In Lewis v. Heffer and others (1978) 3 All E.R.354
(C.A.) at p. 364 C-E Lord Denning, M.R. said:
"Very often irregularities are disclosed in a
government department or in a business house; and a man may be
suspended on full
pay pending enquiries. Suspicion may rest on him
and so he is suspended until he is cleared of it. No one, so far as I
ever questioned such a suspension on the ground of
defending himself, and so forth. The suspension in such a case is
by way of good administration. A situation has arisen in
which something must be done at once. The work of the department or
is being affected by rumours and suspicions. The others will
not trust the man. In order to get back to proper work, the man is
At that stage the rules of natural justice do not apply:
see Furnell v. Whangarei High Schools Board.
In a separate concurring judgment Lane L.J. said (at
368h-j) that where suspension was an administrative action and had to
immediately, pending investigation, it was not only
impossible to hear the subject but natural justice will seldom if
ever at that
stage demand that the
investigation should ... hear both sides. No one's
livelihood or reputation at that stage is in danger. But the further
go and the nearer they get to the imposition of a
penal sanction or to damaging someone's reputation or to inflicting
on someone, the more necessary it becomes to act
judicially and the greater the importance of observing the maxim,audi
alt eram partem."
In Mhlauli v. Minister of Department of Home Affairs and
others 1992 (3) S.A. 635 it was held that the audi
alteram partem principle was applicable when a statute empowered a
or body to give a decision prejudicially affecting an
individual in his liberty or property or existing rights, unless the
expressly or by implication indicated to the contrary.
It was further held that suspension unquestionably
constituted a serious disruption of one employee's rights: the social
implications of being barred from working and of being
seen to have been so barred, and being deprived of pay, were
Accordingly, that the applicant had been entitled to a
hearing prior to his suspension.
In Muller and others v. Chairman, Minister's Council,
of Representatives, and others 1992 (2) S.A. 508 it was
held that it was not the intention of the Legislature in S. 20 (2) of
Act to deny a hearing to a public officer prior to or, in extreme
cases, immediately after his suspension without pay
pending the hearing of disciplinary charges against him. The same
applies to the absence of any reference to a hearing, or
to the denial of a hearing, in Reg. A25.1. According, such a
, if imposed without giving the public officer a hearing,
Article 28.5 of the respondent's Personnel Regulations
provides that 'if it appears necessary or desirable an employee may
from duty with or without pay from one to three
months at the discretion of the MD pending the
completion of the investigations.'
There is no doubt that the Managing Director of the
respondent has the power to suspend from office any employee of the
The Regulation makes no reference to the hearing or the
denial of a hearing before the M.D. decides to suspend an employee of
respondent. As there is no specific reference to the exclusion of
a hearing before suspension then the audi alteram partem rule must
apply to the present case.
If the MD of the respondent found that this was an
extreme case in which he had to take quick action by way of good
i.e. maintenance of good discipline amongst the
staff, he ought to have given the applicant a hearing immediately
after the suspension.
For this reason alone I am of the view that the
suspension is invalid.
The applicant has now been on suspension for about eight
(8) months. 'The further the proceedings go and the nearer they get
imposition of a penal sanction or to damaging someone's
reputation or to inflicting financial loss on someone, the more
it becomes to act judicially, and the greater the
importance of observing the maxim, audi alteram partem'. The
applicant is now suffering
a financial loss because the official car
which he used for private or personal purpose has been taken from
him. His reputation is
at stake inasmuch as for the last eight (8)
months people are aware that he is not going to work. If he drinks
he may develop a bad habit of drinking at daytime
when other people are at work. This may seriously affect his
character and reputation.
The suspension has become illegal for another reason.
The M.D. of the respondent is empowered to suspend an employee for a
of from one to three months. That period expired on the 28th
April, 1993. The applicant is entitled to go back to work. Public
should not be used to pay an employee whose suspension has
The long delay in prosecuting the charges against the
applicant before a proper tribunal is due the lack of knowledge by
of its own disciplinary machinery when an employee has
committed an offence. The respondent is on a fishing expedition - It
appointed the Adjudicator in the Public Service Commission who
rightly pointed out that he had no jurisdiction. Thereafter the
purported to establish the Board of Directors of the
respondent as a disciplinary tribunal. This attempt has been
abandoned. It is
not clear from the papers what the respondent
intends to do. This confusion and an appalling lack of knowledge of
of its own disciplinary procedures is pathetic and
costing it a lot of money unnecessarily.
In the result the rule is confirmed with costs.
JUDGE 6th October, 1993.
For Applicant - Mr.Pheko For Respondent - Mr.
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