C of A
(CIV) NO. 22/98
COURT OF APPEAL OF LESOTHO
OF EMPLOYMENT AND LABOUR 1st Appellant
ATTORNEY GENERAL 2nd Appellant
P LEON, J.A.
matter of convenience I shall refer to the parties, as they were
referred to in the Court a quo, as the applicant and the respondents
18th day of October 1995 the applicant brought an urgent application
against the respondents in which she sought an order
in the following
"1. The periods prescribed for service be dispensed with on the
basis of the urgency of this application.
a Rule Nisi returnable on a date and time to be determined by this
Honourable Court calling upon the Respondents herein to
if any, why:
decision of the 1st Respondent to extend the interdiction of the
applicant shall not be declared null and void, and of no
force or effect.
decision of the 1st respondent that applicant should resume her
normal duties shall not be restrained (sic) and confirmed.
applicant shall not be paid her monthly salary from the date of
interdiction to the 11th September 1995.
1st respondent shall not be asked to pay costs of this
31st October 1995 the Rule Nisi was granted as prayed save that the
Court also ordered that none of the prayers should operate
application was opposed; answering affidavits were filed by the 1st
respondent on behalf of both respondents and by one MABOTE
Labour Commissioner employed in the Ministry of Labour. No replying
affidavits were filed.
having heard argument the learned Judge a quo, on the 12th May 1997
granted the following Order in favour of the applicant:
"(a) The disciplinary charges against the Applicant are set
aside as they were preferred against the Applicant without reference
to the Director of Public Prosecutions.
interdiction in question against Applicant had elapsed.
were directed to pay costs of the application". It is against
that judgment that the respondents have appealed.
dealing with the facts of this matter I pause to observe that
paragraph (a) of the Order granted by the learned Judge was
of the orders sought by the applicant nor did it form part of the
Rule Nisi. Furthermore there was no evidence whatsoever
affidavits before the Court a quo as to whether the matter had or had
not been referred to the Director of Public Prosecutions.
was simply not raised on the papers at all. The only reference to the
topic appears from the application to stay execution
of the judgment
where a SAVINGRAM shows that on the 11th July 1995 the Director of
Public Prosecutions authorised the office of
the Labour Commissioner
to proceed with disciplinary proceedings against the applicant and
two others of his department "as
per attached charge sheet".
judgment the learned Judge was plainly wrong in granting paragraph
(a) of his
prelude I turn now to the facts.
common cause that the applicant, a female adult duly assisted by her
husband, was employed by the Ministry of Labour and Employment
1994 after having received promotion while she was working at the
Ministry of Works. She therefore falls under the direct
responsibility of the first respondent.
Nor is it
in dispute that on the 11th April 1995 the applicant received a
letter signed by the first respondent stating that she
interdicted from duty with effect from the 12th April 1995. That
letter, addressed to the applicant, reads as follows:
"Re: NOTIFICATION OF YOUR INTERDICTION Find attached G.P. 144
FORM in which you are notified of your interdiction from performing
your official duties at the NTLAFATSO SKILLS TRAINING CENTRE. Take
note that the interdiction be effective from the 12th April
hereby reminded that when on interdiction you are not supposed to
leave your station of duty without informing your superior,
the Director NTLAFATSO SKILLS TRAINING CENTRE........".
bottom of the letter appears inter alia "cc Cabinet Personnel"
GP 144 would appear to be that appearing at page 8 of the papers. It
is headed NOTIFICATION OF INTERDICTION and reads as
I wish to
advise you that I have, in terms of Public Service Commission Rule
5-21(1) and 5-22(1) decided to interdict you on NO
exercising the powers and performing the duties of your office with
effect from 12th April 1995. I have decided to place
interdiction because you wrongfully and unlawfully contravened
section 36(1) of the Finance Order No. 6 of 1998 and section
Public Service Order No.21 of 1970 and, as a result your continued
presence in office constitutes a threat to PROPER ADMINISTRATION
ACCOUNTABILITY OF PUBLIC STORES AND PUBLIC FUNDS in terms of Public
Service Commission rule 5-21(5).
note, however that you may appeal to the Public Service
against this interdiction with a copy to this office. During your
period of interdiction you -
not assume alternative employment pursuant to Public Service
Commission rule 5-22(6);
notify this office of any change of address".
form appears a reference to the notes on the reverse side thereof.
Those notes read:
(j) The power to interdict is invoked when the Public Interest so
requires it (P.S.C. rule 5-21(4);
(ii) An officer on interdiction is not entitled to emoluments (P.S.C.
(iii) An application to extend a period of interdiction must be
submitted to Cabinet (Personnel) not later than two months after
date of interdiction;
(iv) Departmental personnel Officers shall be held responsible for
non-compliance with (iii) above and surcharges might be recommended".
11th September 1995 the applicant received a further letter from the
first respondent reading as follows:
"Kindly take note that your interdiction has expired. You are
therefore requested to report to work on Monday, 3rd October,
resume your normal duties. Please report to work at Labour Department
We thank you in anticipation"
13th September 1995 the applicant received a further letter from the
first respondent reading as follows:
RE: EXTENSION OF INTERDICTION - NOTICE IN TERMS OF SECTION 5-22(2) OF
THE PUBLIC SERVICE RULES
Please refer to your letter dated 11th September 1995.
You were informed in this letter of the expiry of your interdiction
and that you should resume work on the 3rd October 1995. Although
have resumed work, we still consider your presence in the public
office, a threat to public funds and property. As such you
requested to show cause in writing to the Permanent Secretary,
Ministry of Labour and Employment on or before the 13th October
why your interdiction should not be extended.
By issuance of this letter the provisions of section 5-22(2) of the
Public Service Rules are complied with and enforced.
applicant then approached her present counsel who advised her that it
would be unlawful to extend her interdiction because it
expired and that any subsequent attempt to interdict a person while
the interdiction has already expired amounts to
person de novo, and is not an extension at all. She further draws
attention to note (iii) above that an application
to extend a period
of interdiction must be submitted to Cabinet (Personnel) not later
than two months after the date of interdiction.
she does not aver that it was not so submitted and, as I have pointed
out earlier, it appears from the letter of the 12th
April 1995 that a
copy of that letter was indeed sent to Cabinet Personnel on that
date. I have been unable to find anything in
the Rules which deals
with this topic but nothing turns on that because if it was a
requirement the evidence shows that it was
setting out the aforesaid facts and submissions she sums up her case
in paragraph 10 of her founding affidavit thus:
"I therefore submit with greatest respect the 1st respondent's
failure to comply with the lawful (my underlining) procedure
extension of interdictions renders the decision of the 1st respondent
to extend the interdiction while it has already expired,
the appellant does not refer to it in her founding affidavit, a
document "ML4" which is a letter to the applicant
1st Respondent dated 16thOctober 1995 together with a Charge Sheet,
is annexed to her application.
letter "ML4" reads:-"Dear Madam,
We are in
receipt of your letter in which you tendered your explanations as to
why your interdiction should not be extended.
carefully considered the explanations and do respond thereto as
are not convinced that your presence in the public office will not
be a danger to public property and funds.
light of the above your interdiction is hereby extended with effect
from 16th October 1995. The interdiction will run on
conditions as it was before.
enclose a copy of your charge sheet with which you have already been
served earlier. Your co-operation will be highly appreciated".
Charge Sheet alleges a breach of discipline in contravention of the
provisions of section 10(m) of the Public Service Order
with rules 5-03 and 5-04 of the Public Service Commission Rules 1969.
There follow three counts: Count 1 alleging an
intentional failure to take reasonable care of and improperly use
certain public property or stores; count 2 alleging
intentionally failing to keep proper records of certain official
documents and count 3 alleging unlawfully and intentionally
to account for or make "prompt or true return" of property
for which the applicant was responsible.
opposing affidavit the first respondent alleges that he was informed
at the beginning of April 1995 that the applicant and
involved in the misappropriation of Government property to the value
of approximately M100,000.00.
believed that to be true. That is what gave rise to the interdiction
of the applicant with effect from 12th April 1995. During
of interdiction and within the three months period applicant was
served with the charge of breach of discipline on the
10th July 1995.
His affidavit then proceeds:
the 11th September 1995 another letter was written requesting
applicant to show cause why her interdiction should not be
On the 16th October 1995 a letter purporting to extend the
interdiction of applicant was written.
5 of the first respondent's affidavit reads:
"I had thought that after three months' period whether there was
a charge or not the interdiction by process of law had expired.
not mean or intend to cancel the interdiction. I was not aware that
when there has been a disciplinary charge the interdiction
automatically continued. I now realise with the benefit of legal
advise (sic) that the time I purported to extend applicant's
interdiction it was still continuing and that the exercise I
undertook had no legal effect on the continuing interdiction".
the only point raised by the first respondent in his opposing
affidavit and that was indeed the only issue between the parties
the affidavits in the Court a quo.
understand the judgment of the Court a quo the learned Judge decided
the case on two grounds:
(1) It is
unconscionable and contrary to the letter and the spirit of the
Constitution to interdict a person without pay while she
is a suspect
and has not been heard. Although Rule 5.22(2) is worded in such a way
permissible to interdict a suspect officer, charge him and then do
nothing, such an interpretation cannot be countenananced
for it would
reduce the Rule to an absurdity. It would also give the Principal
Secretary the right to lose sight of the interests
of the interdicted
officer contrary to the provisions of Rule 5.21(6). The learned Judge
held that the Court will only give effect
to an injustice when that
is clearly intended from the wording of the enactment. He refers to
Van Heerden and Others v Owens Hotel
(pty) Ltd 1973(2) SA 14 at 16.
He held further that sub-rules(4), (5) and (6) of Rule 5.21 on
interdiction must be read together
and must be interpreted so as not
to be contrary to the Constitution.
terms of Rule 54.41(1) the disciplinary proceedings were brought
contrary to its terms as the Director of Public Prosecutions
consulted. As I have observed earlier in this judgment this issue is
not raised at all on the affidavits and there is not
a tittle of
evidence that he was not consulted. That is why I observed earlier
herein that paragraph (a) of the judgment must be
now to consider whether or not the learned Judge was correct in
granting (b) of the Order. That Order was that the interdiction
elapsed". On my reading of the affidavits the issue between the
parties was whether an interdiction continues where
charge is brought within three months of the interdiction. The
question of whether an interdiction without pay is
unlawful per se
was not one of the issues before the Court a quo. Indeed, as I have
referred earlier herein, the applicant accepted
in her affidavit that
the obligation on the respondents was simply to comply with the
lawful procedures for extension of interdictions.
That was the only
issue raised in the papers and that, apart from the point relating to
the Director of Public Prosecutions, is
the only issue raised in the
grounds of appeal.
a quo was not called upon to decide whether or not the disciplinary
charges were brought irregularly. What the Court a
quo was called
upon to decide was whether or not the applicant's interdiction had
elapsed. It is pointed out that if the validity
of the disciplinary
charges was an issue this could have been raised in the founding
affidavit or in the replying affidavit. But
it was not raised in the
founding affidavit and no replying affidavit was filed. We were also
informed that the learned Judge a
quo did not even require to be
addressed on this topic.
the applicant's answer to this point is that once the respondents
raised the defence that a charge had been levelled against
applicant the Court was entitled to enquire into and determine
whether the charge was properly brought against the applicant
through the applicant herself did not raise the issue. It is not
suggested in the Heads of Argument filed on behalf of the
(or in argument) that there was anything unconstitutional in the
public Service Commission Rules as was held by the Court
a quo. What
is submitted is that the respondents, having raised the disciplinary
charge as an answer to the applicant's case, were
obliged to show:
Rule 5.41(1) had been complied with by "seeking clearance and
consulting the Director of Public Prosecutions before
the said charge was preferred against respondent within a period of
three months after respondents had been interdicted
with Rule 5.21 read with Rule 5.22(2)."
regard to the question of the time of three months, that is
explicitly dealt with in the Ist respondent's affidavit which makes
it clear that the charge was brought within three months of the
be convenient at this stage to refer to the relevant Rules of the
Public Service Commission. The Public Service Commission
1970 appear in Legal Notice No.12 of 1970. The relevant Rules read as
"5-21 POWER TO INTERDICT
head of department may at any time before or after proceedings
against an officer under Part 6, or before or after an officer
been charged with a criminal offence or with a breach of discipline
interdict him from performing the duties and exercising
of his office and the head of department may at any time cancel that
interdiction whether or not the proceedings are
power to interdict is invoked when the public interest requires that
an officer should cease to exercise the powers and perform
duties of his office.
determining the requirements of the pubic interest the head of
department may have regard generally to the question whether
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, but without prejudice to the
generality of the foregoing, the head of department
whether there is a threat to public funds, a threat to good
discipline, a threat to good relations with the public,
or a threat
to the effective and smooth running of the department.
5.22 EMOLUMENTS DURING INTERDICTION AND RETURN TO
officer who has been interdicted in terms of the preceding rule is
not entitled to any emoluments for the period of his interdiction
but the head of department may in his discretion order payment to
that officer of the whole or portion of his emoluments. The
commission may on the application of the officer and after having
given the head of department an opportunity of having heard,
the Minister to vary, confirm or set aside that order.
no criminal charge or charge of a breach of discipline is preferred
within three months against an officer who has been interdicted
interdiction lapses and he shall be allowed to resume duty and he
shall be paid his full emoluments for the period of his
unless on the application of the head of department and after having
given the officer an opportunity to make representations,
Minister after consulting the Commission orders otherwise."
effect of Rule 5.22 seems to me to be that where a charge of a breach
of discipline is preferred within three months of the
such interdiction will then automatically continue. Indeed it is
specifically stated in the answering affidavit that
charges were preferred within the requisite three month period and
that is the defence raised by the 1st respondent.
refer to Rule 5-41 which refers to the Attorney-General I should
point out that since 1973 the Director of Public Prosecutions
replaced the Attorney-General as the prosecuting authority in the
Kingdom of Lesotho. Rule 5-41 is headed "Consultation
Attorney-General" and reads as follows:
"(1) When a head of department receives information alleging
that an officer
has committed a criminal offence he consults the Attorney-General and
seeks his directions whether a prosecution is to be instituted.
the Attorney-General directs that a criminal prosecution is to take
place the head of department shall report that direction
(Senior Permanent Secretary) and shall not proceed with a
disciplinary charge involving the same facts as the prosecution
until after the conclusion of the proceedings against the officer in
the criminal case. Nothing in this paragraph affects the
interdict the office (sic) under rule 5-21 and 5-22.
the Attorney-General directs that no prosecution is to take place or
if the allegation does not involve a criminal offence,
and if in
either case the allegation does involve a breach of discipline, and
if the head of department proposes to commence
proceedings, he prepares a charge of a breach of discipline against
the officer in accordance with rule 5-42."
It is to
be noted that the need to consult with the Director of Public
Prosecutions relates to the disciplinary proceedings and
does not affect at all the power to interdict the officer.
follows in my view that the automatic extension of the interdiction
is unaffected by the lack of consultation with the Director
Prosecutions or the lateness of such consultation if such be the
the argument on prayer (b) the Court raised with Counsel the question
as to how the letter of the 11th September 1995 should
interpreted. I repeat the letter with the Heading: Re Interdiction
"Kindly take notice that your interdiction has expired. You are
requested to report to work on Monday 3rd October, to resume your
normal duties. Please report to work at Labour Department Maseru".
was focused on the first sentence "Kindly take note that your
interdiction has expired" and the question arose
as to whether
that meant "I am cancelling your interdiction" or whether
it meant that the interdiction had expired by
operation of law.
support of the first possible interpretation it was suggested that a
reasonable person in the position of the applicant on receiving
letter would interpret it as meaning that the first respondent was
cancelling the interdiction. In support of this, reference
to the fact that she would know that under the Rules:-
interdiction would automatically be extended if a charge was laid
within three months of the interdiction which was indeed
(see Rule 5-22(2) and
head of department may at any time before or after an officer has
been charged with a breach of discipline cancel any interdiction
whether or not the proceedings are continued.
such knowledge, so the argument ran, a reasonable person in the
position of the applicant would construe the first sentence
statement by the first respondent that he was cancelling the
myself quite unpersuaded by this argument. There is nothing ambiguous
about the first sentence. As a matter of ordinary grammatical
construction the meaning of the sentence is clear. It means that the
interdiction has expired i.e. come to an end by operation
of law. I
reach this conclusion as a matter of interpretation and not because
indeed the first respondent's intention. The language used is
singularly inappropriate to the other suggested interpretation.
the case of DELMAS MILLING CO LTD v DU PLESSIS 1955(3) SA 447 (A)
dealt with the proper interpretation of a contract the
remarks of Schreiner JA at p454F are instructive:
"Where although there is difficulty perhaps serious difficulty
in interpretation but it can nevertheless be cleared up by
treatment this must be done". ".....................If the
difficulty cannot be cleared up with sufficient
certainty by studying
the language resort may be had to surrounding circumstances".
did not allege that she understood the letter to mean that 1st
respondent had cancelled the interdiction. Nor did she,
by way of a
replying affidavit, dispute 1st respondent's statement that he had
written the letter under a misapprehension that
the interdiction had
lapsed. His explanation is, moreover, a perfectly reasonable one and
there is no basis on which the Court
could reject it.
matter of law i.e. on a proper construction of the relevant Rules,
the interdiction could not have "expired". The
1st respondent wrongly thought it had, and conveyed as much to
Respondent, could not have had the effect of terminating
view once the respondents stated in the opposing affidavit that the
laying of the disciplinary charge against the applicant
months of the interdiction automatically extended the interdiction
they were raising a prima facie defence to the application
paragraph (b) of the Order. It was then open to the applicant to say
that the Rules were unconstitutional or that the proper
had not been followed or
any other matter which might provide an answer to the respondents'
defence. But she chose to remain silent and not file
affidavit at all.
absence of any answer whatever that prima fade case became
conclusive. Where a party produces a prima facie case in the sense
a case which calls for an answer such case will become conclusive in
the absence of an answer because "the prima facie
undestroyed, amounts to full proof. (See the remarks of STRATFORD JA
in ex parte The Minister of Justice in Re Rex
v Jacobson and Levy
1931 AD 466 at 479).
follows that the learned Judge a quo also erred in granting paragraph
(b) of the Order.
judgment the appeal must be allowed with costs and the judgment
altered to read:
" Rule nisi discharged with costs". Delivered at Maseru,
this 8th day of...........October, 1999
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