HIGH COURT OF LESOTHO
SERVICE COMMISSION 1st RESPONDENT
OF HEALTH AND
WELFARE 2nd RESPONDENT
GENERAL 3rd RESPONDENT
by the Honourable Ms Acting Justice N. Majara on 25th November 2004
approached this court for urgent relief in the following terms:
the purported transfer of applicant of the 26th March 2004 to be
unlawful, unfair and of no force and effect.
respondent to pay costs of this application in the event of
and/or alternative relief as the court may deem fit.
which brought about this application are common cause. Applicant is
employed by 2nd respondent as a nurse. On or about
the 23rd March
2004, applicant received a letter from the Human Resource Office
informing her of her new transfer from Family Health
Queen Elizabeth II Hospital. The transfer was to be effective from
the 1st May 2004. It is this transfer that applicant
before this court.
letter of the said transfer which was attached and marked annexure J
was couched in the following terms:
"I am directed to inform you that you have been transferred from
FHD-LSMI to Queen II with effect from 1st May 2004. I wish
the best at your new duty station,"
letter was signed by one Mrs Clara Matla whose designation is that of
Executive Officer- Human Resource Department.
date of hearing both Ms Thabane, Counsel for applicant and Ms Pali,
Counsel for respondents informed the
that by consent both the answering affidavit filed by M Moji and the
replying affidavit thereto should be struck out of the
said affidavits were accordingly struck out.
grounds of applicant's challenge of the purported transfer were
firstly that applicant was entitled to a hearing before
she could be
transferred. Secondly, that the Principal Secretary did not have
powers to transfer applicant and lastly that the
transfer was unfair
papers, applicant averred that on the basis of past practice with
regard to how and by whom transfers relating to her were
the past, some legitimate expectation had been established on her
part. She further averred that since her assumption
of duty she has
been under the authority of the Chief Nursing Officer who has always
been responsible for her transfers within
the Ministry. She attached
annexures 'B', 'C', 'D', 'E' and 'F' all of which are letters of
communications between herself and
the Chief Nursing Officer with
regard to her different transfers within the Ministry.
paragraph 8 of her founding affidavit, applicant avers that all her
transfers have been the responsibility of the Chief Nursing
She went further to state;
has been an established practice within the Ministry. And as such I
have a legitimate
that transfers are to be effected by the Chief Nursing Officer."
also averred that on or about the 17th August 2001 she received
another letter of transfer signed by the Chief Nursing
Queen II Hospital to a Programme Five Family Health Division. The
transfer was effective from the 1st September 2001.
The letter was
attached and marked annexure 'G'.
applicant's case that when she initially assumed duty in 1981 she was
merely a bedside nurse and her duties were restricted
to that of a
service provider whereby she was under constant supervision of her
superiors. She averred that at the Family Health
Division, her duties
had been enhanced and elevated whereby she also had to attend special
training sessions in order to reach
the standard expected of her as a
new officer of the division. Applicant further stated that she
encountered a lot of administrative
problems in her new duty a fact
which she brought to the attention of the Director General through a
letter marked annexure 'H'
but never received a response. In her
founding affidavit she alleged that she was instrumental in making a
lot of inroads in the
programme all of which she tabulated.
averred that although she never received a response to annexure 'G',
it came to her attention that the Head of her new
division wrote a
letter, annexure 'H' to the Director of Human Resources in which the
former made a request for transfers of some
officers within the
division, applicant herein included. As per applicant's averments,
"the basis of the request was that
there was a need for an
experienced and dedicated officer in Safe Motherhood thus insinuating
that I am not" Subsequent to
this letter, applicant received a
letter, annexure 'J' from the Executive Officer of Human Resources
Department informing her of
her transfer from the Family Health
Division to Queen Elizabeth II Hospital effective from 1st May 2004.
applicant's case that annexure 'J' had been influenced by annexure
'H' and that she was not even given any reasons why she
transferred from the Family Health Division to Queen II hospital
despite the fact that the Head of the Family Health Division
complained about her so called inefficiency and lack of dedication in
applicant's further averment that annexure 'J' was not signed by the
Chief Nursing Officer as per the standard practice under
and supervision she had always been.
stated that after receiving this letter of transfer, which brought
about this application, her legal representatives wrote
to the Human
Resources Department challenging the said transfer. On or about the
21st May 2004 applicant's representative received
a reply from the
legal office of the Ministry advising that the transfer was lawful
and that any other action by applicant would
be regarded as
insubordination. Applicant's lawyer responded to that letter asking
that applicant remain in the Family Health Division
outcome of the decision of the court but there being no response of
the same, applicant duly transferred to Queen II
to avoid being
charged with ill discipline.
applicant's case that all the previous transfers whilst she was still
a bedside nurse were within hospitals and she did not
prejudice as a result. She argued that the latest transfer, which she
is challenging before this court is prejudicial
because of the
reasons that firstly, it was a means of punishment resulting from the
letter from the Head of the Division to the
Department wherein her dedication and experience had been questioned.
applicant contended that her professionalism had been enhanced since
her assumption of duty in the Family Health Division
in that she
underwent different training
her duties had changed from that of a bedside nurse to that of a
trainer for service providers whereby inter alia, she
it was applicant's contention that her skills as a nursing officer
within that division had been enhanced as she was also
administrative, public relations, community services, public address,
managerial and research skills. She argued that she
advanced in her career.
as a nurse at the Family Health division she now enjoyed certain
privileges, including working normal hours as opposed
to when she was
a bedside nurse. Fifthly, the transfer would deny her attending
workshops and undertaking international travel,
which exposed her to
professional improvement. Lastly, that she was never given a hearing
before the transfer and yet when previously
she had challenged a
prejudicial transfer, it had been withdrawn.
concluded by challenging the powers of the Human Resources Officer to
transfer her as per the provisions of the Public
proceed to deal with the issues raised separately.
applicant have the right to be heard before she could be transferred?
to answer this question it is important first to determine whether
applicant was prejudiced by the transfer, which in turn
entitle her to be heard before she could be so transferred. This test
was stated by the Court of Appeal in the case
of Morokole v Attorney
General and 3 Others C of A No. 25 of 2003 (CIV/APN/32/2002).
attempting to show prejudice applicant asserted that at the Family
Health Division, she was working normal hours as opposed to
was a bedside nurse. She also asserted that she was attending
workshops and exposed to international travel, which gave
exposure in her professional career. She however conceded that she
was still earning the same salary as she had been earning
based at Queen II Hospital. In response to these assertions,
respondents as per the answering affidavit of Teleko Ramotsoari,
Principal Secretary for the Ministry, stated that part of a nurse's
duties is working abnormal hours and that applicant was
abnormal hours at the Family Health Division which includes overtime
and weekends. This factor was not denied by
applicant in her replying
affidavit save to aver that respondent agrees with her that the hours
that she had kept at Queen II are
say that I rejected this particular ground for the reason that this
court takes judicial notice of the fact that nurses do
hours as part of their professional duties and this reason cannot be
used as being particularly prejudicial to applicant.
assertion that she was working normal hours at the Family Health
Division was responded to in the answering affidavit
to the fact that
even at that division, nurses do work overtime and after hours and
this was not challenged in the replying affidavit.
contention that applicant enjoyed certain benefits such as
international travel and attending and arranging workshops which
her own words were 'good opportunity', I must say that the nature of
these benefits is not such that they are rights which the
have to protect in that they were only incidental to the particular
work that applicant was doing whilst based at the
Division. These are not benefits in the sense of grading, salary,
leave etc. which are usually attached to a particular
post within the employment hierarchy such that they should be used to
legitimately raise the question of prejudice.
I therefore accordingly
reject this ground too. See the case of Morokole v Attorney General
et al (Supra) p7.
enough, the professionalism of applicant may have been enhanced by
her being based at the Family Health Division but nowhere
letter of transfer to that division was an undertaking made that she
was being transferred there permanently nor were any
out therein which would give rise to the expectation that she was
transferred there on a different level or under
different terms of
service from the usual ones, a diversion from which would give rise
to her suffering prejudice. Nor has applicant
placed anything before
this court, which supports this contention.
answering affidavit at paragraph 9, M. Ramotsoari stated as follows;
"I would also like to bring to this Honourable Court's attention
that the Family Health Division is not an established Post
Civil Service. It is merely an operational or working arrangement and
the Applicant was not holding any substantive position"
reaction to this was that if this assertion was correct, she would
not be identifiable as a Safe Motherhood Programme
annexure 'I' and that as such, a post was created for such an
however not clear from this reply whether applicant is asserting that
such a position was created especially for her
it did not exist before she was transferred to the division or not,
which would lend credence to her contention. As it stands
papers, it does not tell the court anything with regard to the
structure at the Family Health Division vis-a-vis the other
structures within the whole Ministry in as far as they relate to her
and the rotation of other professional nurses which would
convince the court that applicant was indeed holding a substantive
post different from the other posts she has occupied
tenure in the various departments to which she has been transferred
time and again.
opinion therefore, this transfer was of a similar nature like the
others which preceded it. It therefore did not establish
expectation on applicant's side to believe that she was now based at
the division permanently and/or was holding a substantive
there, from which a subsequent attempt to transfer her would be
transfer fair and lawful?
contended that the transfer was a means of punishment resulting from
an earlier complaint by the Head of the division
as per annexure 'I'.
The exact wording of the letter is as follows;
"Family Health Division wishes to request transfer of some staff
members from the Division for purposes of strengthening and
Divisional performance. Programmes that are affected as the
• EPI Programme - Logistics officer and Surveillance officer
• Safe Motherhood Programme officer
We request that these officers be replaced with those that have at
least district experience of five years.
Let me emphasize that the present EPI Manager is on 24 months
contract of which twelve months have already been served; and failure
to have a successor will have a negative impact on the programme.
Safe Motherhood needs an experienced and dedicated officer; (My
underlining) maternal mortality remains a major concern and an
intervention will save lives of many women."
paragraph is the one upon which applicant is basing her contention
that she was transferred as punishment because the Head
Division had alleged she was both inexperienced and not dedicated.
She asserted that it was subsequent to this letter that
a letter from Human Resources Division purporting to transfer her.
Thabane argued that the only body that is expected to punish civil
servants for breach of discipline is the Public Service Commission.
The next question would therefore be
the transfer was a means of punishment for breach of discipline.
response, Ms Pali contended that applicant had not been accused of
any breach of discipline and hence could not be punished under
circumstances. I agree with this contention for the reason that aside
from annexure V the letter from the Head of the Division
not even directed to applicant, the latter was never accused of any
breach of discipline by anyone which would warrant
that she be
accorded a hearing. Her assertion that the transfer was punishment is
in the court's opinion, her own interpretation
of the contents of
annexure 'I' which is not supported by any facts. In the
circumstances of this case, the audi alteram partem
rule would be
applicable if applicant had either been accused of a breach of
discipline and/or misconduct or where the decision
to transfer her
would adversely affect and/or prejudice her. This position was also
adopted by Corbet J in Administrator Transvaal
& Ors v Traub &
Ors 1989 (4) SA 731. In casu, the court has already found no
existence of such prejudice.
addition, upon reading the contents of annexure 'I', I was not
convinced that applicant was accused of breach of discipline anywhere
in the letter. At best, by implication it is
dedication that could have been questioned. I however do not think
that where one is said to lack dedication that is an accusation
misconduct. Assuming that this is what the letter implied, this
assessment of applicant by the Head of the division would have
wrong, especially when one takes into account the letters that
applicant wrote to the Ministry regarding the administrative
other problems that she encountered during her tenure at the division
and the assessment form that pointed to the opposite.
if that was the case, as annexure 'I' stands, it still does not spell
out any breach of discipline on applicant's
part that would in turn
necessitate that a hearing be held. On the basis of these reasons I
rejected this point.
Does the Principal Secretary have powers to transfer applicant?
The functions of a Principal Secretary are provided for under Section
96 of the Constitution and Section 12 of the Public Service
respectively. The latter repealed the 1970 Public Sendee Order.
Section 96 of the Constitution provides as follows;
Where any Minister has been charged with responsibility for any
department of government, he shall exercise general direction and
control over that department and, subject to such direction and
control, every department of
government shall be under the supervision of the Principal Secretary
whose office shall be an office in the public service: (my
12 (1) of the Public Service Act in turn provides as follows:
In addition to the functions vested in a Principal Secretary by the
Constitution, the Principal Secretary is the overall supervising
chief accounting officer of a department under his supervision, (my
Thabane contended that although the Principal Secretary is the chief
accounting office, as regards transfers, Regulation 38(2)
Public Service Act specifically provides that the minister may make
regulations for the posting, secondment and transfer
of the public
officers. Her submission was that the Principal Secretary would have
to take the powers to transfer from the regulations
made by the
minister. She argued that respondent has not shown any such
regulation and therefore the Principal Secretary does not
Section 39 (1) of the Public Service Act, the Public Service Order of
1970 was repealed. However subsection (2) thereof provides
subsection (1) all subsidiary legislation made under the repealed
enactment or kept in force by the repealed enactment
shall be deemed to have been made under this Act and shall continue
in force, so far as they are consistent with
this Act, until revoked
by regulations made under this Act.
Public Service Regulations of 1969 were made prior to the 1970 Order.
The Order did not however repeal these regulations and
in force as per the provisions of Section 39 as quoted above.
Regulation 224 thereof, which is the regulation on postings,
"Subject to the provisions of the (principal law for the (sic)
being in force relating to the public service,) inside or outside
Lesotho as required by the Minister."
As I have
already stated, it was not applicant's case that there are no such
regulations. Her argument is that respondent has not
shown it. This
factor notwithstanding, the court is aware of the existence of such a
regulation and the fact that respondent has
not shown it does not
mean that the court cannot of its own accord, make reference to it.
understanding of the above regulation is that the Minister has the
power to post an officer to any public office. As has already
mentioned, the provisions of the Constitution and the Public Service
Act empower the Principal Secretary to be the overall
accounting officer in any given ministry. This means that even where
postings, transfers and other decisions are made, they
are made under
conceded that prior to the coming into being of a Human Resources
Office, letters of transfer of applicant used to be signed
Chief Nursing Officer. She however submitted that this situation was
changed by the creation of the Human Resource Office
was not challenged by applicant. Ms Pali argued that the Human
Resource Officer was simply communicating the fact
of the transfer.
However, the powers transfer remained vested in the Principal
light of the above statutory provisions, I find no reason to disagree
with this submission. None of the letters of transfer
those previously signed by the Chief Nursing Officer) stated that
they were signed on behalf of the Principal Secretary.
as per past practice, all the letters of transfer had previously been
signed by the Chief Nursing Officer. In my opinion,
this factor alone
does not change the
position to wit, that the Principal Secretary is the chief accounting
officer so that all the statutory decisions including
and/or postings are made on his behalf regardless of who appended
their signature on the letters of transfer. This case
distinguishable from that of Food & General Workers Union &
Others v Lanko Cooperative Ltd 1994 15 ILJ
875 in that therein,
the court found that respondents had acted contrary to a tacit
undertaking that they had made to re-employ
applicants on a
transfers of applicant and others are the norm. I therefore do not
find the latest one, the bone of contention herein,
out of the
ordinary for the simple reason that whoever signed it did so as per
the statutory powers of the Principal Secretary.
The only difference
herein is that as opposed to what used to happen in the past, a new
division had since been established and
all administrative decisions
were now communicated from this new division hence why the signature
of the Human Resources Executive
Officer had replaced that of the
Chief Nursing Officer.
factor also negates legitimate expectation on the side of applicant.
It was Ms Thabane's contention that as per past practice,
expected to be transferred by the Chief Nursing Officer. In my
opinion, this is stretching the concept
practice too far. This is because applicant has not convinced the
court that she was no longer subject to being transferred
It is my
humble opinion that in casu, the mere question of who signs such
transfers is not material and does not go to the root
of the matter.
In my view, what is important and has been established before this
court is that applicant is a public officer who
is subject to being
transferred as per statute. This case can be distinguished from that
of A Bullock No and 2 Others and Provincial
Government of North West
Province & Another Case Number 44/03.
case, the Supreme Court of Appeal found that the appellants did have
a legitimate expectation to be heard before a decision
could be made
on whether or not they could be granted a new lease. Appellants had
made some improvements on a certain adjoining
foreshore to their
property. These improvements were vital for the continued operation
of a yacht club of which they were trustees.
The court found that the
decision by 1st respondent not to renew their lease without affording
them a hearing was irregular. Appellants
and 1st respondent had
already engaged in far advanced negotiations for a new lease. They
had also been granted a series of leases
prior to the decision. All
theses were found to count towards
created a legitimate expectation on the side of appellants. This was
not the position in casu.
accordingly rejected this submission also.
above reasons, I find that applicant has not successfully made out a
case for the prayers as set out in the Notice of Motion.
application is therefore dismissed with costs.
Applicant : Ms Thabane
Respondents : Ms Pali
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