IN THE HIGH COURT OF LESOTHO
the Application of:
KHOELI BERENG Applicant
THE PRINCIPAL SECRETARY (WORKS 1st
RespondentTHE ATTORNEY GENERAL 2nd Respondent
Delivered by the Hon. Mr Justice M.L. Lehohla on the 2nd
day of July. 1999
On 24th May, 1999 this Court dismissed this
application with costs and undertook to give reasons later.
Here do they now follow below.
The Court is disappointed that during the intervening
period between 24th
2 May and today it has not been favoured with
transcripts that it ordered should be
furnished to help make its task of preparing the
It is about time that the Registrar of this Court gave
her full attention to this phenomenon which is turning into a wayward
By way of Notice of Application moved against the
respondents the applicant sought an order from this Court in the
That the 1st Respondent herein be ordered
and directed to process thepayment of Applicant's salary as
Technical Officer II - Trade Test witheffect from January 1997
to the granting of this order.
That applicant be paid the said salary until his
promotion or termination ofcontract of service.
That 1st Respondent herein pay costs in the
event of opposition.
That this Honourable Court grant applicant further
and/or alternative relief.
The Applicant is a Civil Servant employed in the
Ministry of Works and attached to the Plant Vehicle and Pool Services
(PVPS) at the
Maseru Industrial Area.
He avers that in June 1996 the respondent let him go to
improve his academic and technical knowledge at Lerotholi Technical
so as to
3 enhance his chances of promotion.
At the time when this happened the holder of the post
for which it seems the applicant had an eye was one Mokebe Lekota.
The applicant underwent the training at Lerotholi
Technical Institute (LTI) and was successful as reflected in Annexure
- a Test Certificate for end of training term
released in January 1997. He accordingly submitted this Certificate
to his superiors.
One of his superiors one Mr Tsoene informed the
applicant that the latter was eligible for promotion and appointment
to the position
of Technical Officer II by virtue of that
The applicant reposes reliance on the scribbling made by
Mr Tsoene on "KB1" reading
" is Trade Test "C" certificate which
qualifies the officer for
appointment to Technical Officer II position provided
there is a vacant position.
Sgnd TSOENE 27-01-'97"
This minuted scribbling was forwarded to the office of
the 1st Respondent and in recognition of Tsoene's comment
someone wrote "noted" on the side of that
4 scribbling on 39th May, 1997.
From January 1997 the applicant avers that he worked
with Mr Lekota as an unpaid Technical Officer II until the time when
died in September of that year.
The applicant bemoans the fact that despite that Mr
Lekota's death created a vacancy and that he himself is carrying out
otherwise would have been carried out by Mr Lekota if he
was still alive, he is not being paid for being a Technical Officer
He stresses that as reflected in "KB2" he has all along
been treated as a Technical Officer II. See page 7 of "KB2".
I however regret that what is reflected under C below
where reference is made to Technical Officer II - Trade Test the
is blurred and totally undecipherable. This was
pointed out to Mr Putsoane for the applicant.
The applicant goes on to show that he drew the attention
of the Ministry to the existence of a funded post of Technical
and to the fact that he was already occupying that post
but was not being remunerated for such occupation.
5 In the light of the fact that the Ministry has
been all along aware of the
existence of the funded vacancy coupled with the fact
that it was no secret that Mr Lekota's death had created a vacancy
approached this Court as he did.
Mr Dyke Tarr in a brief answer to the applicant's
depositions pointed out that the applicant went to school in order to
skills without any guarantee that his chances of
promotion would improve thereby. He charges that the applicant's
averments as related
to Mr Lekota sound empty given that no affidavit
has been secured from Mr Lekota to support those. Mr Tarr
emphatically denies that
the training that the applicant underwent
was meant to enhance his promotion chances.
In response to the last point above the applicant first
insists in paragraph 6 of his reply that he went to LTI to further
and that this enhanced his chances of promotion, but in
the same breath in paragraph 8 of his reply he says
" I am not seeking promotion. I have already been
appointed to the post. All
I am asking for is that I be paid".
All this response by the applicant betrays a pathetic
6 what is entailed in appointments and promotions in
the Public Service
First of all he has attached to his papers what appears
to be a reflection of cadres, Duty Schedule and Deployment of
by name in the Maseru Base Workshop.
Barely decipherable under "C" as brought to my
attention by Mr Putsoane and which on my own I cannot say I am able
it out at page 7 is the applicant's name Bereng. What would
have stood the applicant in good stead would have been a letter from
the proper authority i.e. the Public Service Commission addressed to
the applicant informing him that he has been appointed on promotion
to the position of Technical Officer II; informing him as well about
the notch to which the scale in the Establishment List entitles
officers in the position he claims he is holding. Such a document is
one that the applicant can hope to sue on the basis of and be
successful, if at all, at the end of the day.
I am not able to accept the argument that improvement of
one's academic skills per se entitles one to a promotion. It cannot
the applicant that Mr Tsoene in congratulating him went further
to scribble the minute that merely indicated Mr Tsoene's good wishes
towards the applicant. As indicated by Mr
7 Tarr the fact of the matter is that "in
government posts, if funds are available
, persons are called for interview after the post has
been advertised and
after one has applied like other officers".
Indeed the applicant's difficulty as I see it is further
compounded by the fact that there is no evidence to the effect that
the only one eligible for promotion
It is indeed bizarre to say that because Mr Tsoene
jotted down what he did and someone, presumably senior to him, in
the scribblings placed before him in turn jotted down
the word "noted" it should then mean that such actions
applicant to claim that he has been appointed to the
position of Technical Officer II. I wonder if it would make sense
that if someone
says to the applicant that he bids fair to being the
President of the United States, and someone chimes in and says "of
this would entitle the applicant to assume that
position should that President vacate it!
I find it hard to believe that because a senior officer
jots down that he has "noted" the comments of his junior
officer this means he unequivocally means he approves those
Mr Masoabi for the respondent raised an important
question that the Court
was referred to paragraph C at page 7 of "KB2".
Page 1 of the same document reflects members of the Technical staff
"D" and "E" as having been
"redeployed in the vehicle workshop section since plant pool is
no longer operational.".
Paragraph "D" above is listed
as referring to Technical Officers II "Trade Test Certificate".
Mr Masoabi accordingly
demurred at the fact that the learned Counsel
for the applicant having referred the Court to page 7 C where it is
said the applicant's
name appears as Bereng, he failed to say what
paragraph "D" at page 1 now means, thus making it
impossible for anyone to
reconcile what these two things are intended
to mean. Because "KB2" is attached by the applicant to
build his own case
it would not be wrong to interpret the contents of
that document against him where there is lack of clarity. Thus since
refers to Technical Officers II at page 1; and "C"
refers to the same officers at page 7 one can safely say that his own
document shows that the applicant, if he falls under Technical
Officers II class, has been redeployed in the vehicle workshop
to what he is claiming.
Another misapprehension the applicant seems to labour
under is that the staff roll that reflects deployment of the staff in
Base Workshop is an
Establishment List. Unfortunately this error has been
given even greater vigour
9 and impetus by his Counsel who repeated it
forcefully in his heads of argument.
See paragraph 10 and the second paragraph l(d) where it
is argued that the
name is reflected on the establishment list as Technical
Officer II. See also paragraph 3 sub-paragraph 1.
What should be understood as the proper position is that
nobody's name ever appears in an Establishment List.
The applicant's evidence does not establish the basis on
which the grounds for the relief sought can properly be founded.
The grounds for the relief sought are that:
The applicant went to Lerotholi Technical Institute to
improve hisacademic and technical knowledge so as to enhance his
One Mokebe Moketa who had held the position the
applicant claimshe is entitled to died.
The applicant successfully satisfied requirements to
qualify for thepost.
His superiors indicated that he was eligible for
Clearly the above scenario is wanting in the most
essential requirements which at the very least should have been that
The post was advertised
The applicant applied for it
He was interviewed by the proper authority i.e. (PSC)
or asubordinate body authorised by it.
The results of the interview were that he was
authorised to hold thepost
He has a letter to that effect
Such letter was issued on the authority of the Public
For the above reasons the applicant is found to have
failed to discharge the onus cast on him to establish on a balance of
that the Public Service Commission had authorised his
promotion or that what was purportedly done by his superiors amounted
him to the post notwithstanding that the proper
Authority never endorsed their acts. Because he has also failed to
he has been appointed to the post in question he
cannot be heard to say he is entitled to be paid against the funding
The application is dismissed with costs.
J U D G E 2nd July, 1999
For Applicant: Mr Putsoane For Respondents : Mr
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