HIGH COURT OF LESOTHO
SERVICE COMMISSION 1st Respondent
MINISTRY OF COMMUNICATIONS 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
Applicant : Mr Thulo
Respondent : Miss Pali
by the Honourable Mr. Justice T. Monapathi on the 12th day of May.
her dismissal, which was preceded by a conviction and sentence before
the magistrate of Berea, on the 25th April 2002 Applicant
had been an
employee of Lesotho Government attached to the Postal Department of
the Ministry of Communications.
then stationed at Maqhaka Post Office, in the Berea district.
noted an appeal against the said sentence. She had been convicted on
her own plea she was sentenced to four years imprisonment.
that was suspended.
also common cause that the Applicant was charged under section
14(l)(i) of the Public Service Act 1995 (the Act) which provides
"A public officer shall not commit a criminal offence involving
dishonesty or which brings the public service into disrepute."
conviction and sentence of imprisonment before the magistrate of
Berea caused the Ministry of Communication (the Ministry) to
disciplinary proceedings before the Adjudicator (the Tribunal) who
required under section 14(l)(h) of the Act on a charge
of breach of
having been read before the Adjudicator, the Applicant decided not to
plead because she was of a view that she had already
noted an appeal
only on sentence but not on conviction, against the decision of the
Magistrate's Court. She was found guilty by
the Tribunal. She was
thereupon dismissed from the public service.
pervading question will always be how far standards set by Courts for
their own minimum requirements for attainment of or compliance
the principles of natural justice including fairness can be expected
in the workings of tribunals. Learned authors H.W.R.
Wade and C F
Forsyth say in the 7th Edition of Administrative Law on page 905:
'Tribunal exist in order to provide simpler, speedier, cheaper, and
more accessible justice than do the ordinary courts."
learned authors furthermore pronounce on matters of procedure as
follows on page 931 of the work:
"It is fundamental that the procedure before a tribunal, like
that in a court of law, should be adversary and not inquisitorial.
The tribunal should have both sides of the case presented to it and
should judge between them, without itself having to conduct
inquiry of its own motion, enter into the controversy, and call
evidence for or against either party. It if allows itself to
involved in the investigation and argument, parties will quickly lose
confidence in its impartiality, however fair-minded
it may be. This
principle is observed throughout the tribunal system, even in the
adjudging of small claims before social security
local tribunals and
supplementary benefit appeal tribunals by a departmental officer.
Naturally this does not mean that the tribunal
should not tactfully
assist an applicant to develop his case, particularly when he has no
representative to speak for him, just
as a judge will do with an
unrepresented litigant." (My emphasis)
that the Applicant was represented before the Tribunal by Counsel who
could ably make objections and call for evidence for
Again on the question of tribunals' procedures L Baxter in
Administrative Law, 1st Edition
"The central principle governing the procedure of administrative
tribunals are inflexibility and fairness. Both are emphasized
common law and they are usually catered for (partially at least) by
the governing legislation. Without flexibility much advantage
employ of tribunal interest of courts is lost. Without fair
procedures then decision will no confidence and they will probably
unjust." (My emphasis)
be important in my judgment.
brought a review application (presumably in terms of High Court Rule
(H.C.R) 50(2)) on a "Notice of Motion"
before this Court in
which she sought the following orders:
the proceedings which led to dismissal of applicant herein be
reviewed and set aside as being irregular.
applicant be re-instated to her post as a Postmaster Grade D.
applicant be paid all such monies and/or benefits which may have
been due to her but for the dismissal.
respondents pay costs hereof only in the event of opposition.
applicant be granted such further and/or alternative relief as this
Honourable Court may deem meet.
application was opposed by the Respondents who filed the answering
affidavit of one Puleng Pali. A point-in-limine was also
this affidavit. The point was not argued as such by agreement of the
parties. The answeing affidavit accordingly attracted
affidavit by the Applicant.
transpired before the tribunal that despite Applicant's objection the
charge was sought to be amended by Mr Seamatha who
Ministry and who prosecuted the charge. The amended charge had
freshly introduced, by addition, the following particulars:
"that the charged officer was convicted of the crime of theft
(general deficiency) and sentenced to imprisonment on 26th November
2001 by Berea Magistrate Court."
hearing submissions the objection was overruled. The Adjudicator,
correctly in my view, felt that there would be no prejudice
Applicant in the charge as amended.
Seamatha later on the day the charge was amended handled in as
a record of conviction and sentence in a criminal trial number CR
190/2000 from the magistrates' Court allegedly relying
18(4) of the Act. The record was inspected by Applicant's Counsel and
then exhibited and marked "A". This
brought a close of the
Ministry's case in the charge against the Applicant.
Adjudicator made her finding that the officer was guilty as charged
Mr Thulo without challenging any other aspect of the
proceeded to submit in mitigation. Having considered the issued
raised in mitigation the Adjudicator, who concluded
that the offence
committed by the Applicant deserved to be treated "with the
seriousness it deserves," made an award,
which subject to
confirmation of the Public Service Commission in terms of section
27(1) of the Act, of dismissal from office.
Indeed this conformation,
from the Public Service Commission, did come forth on the 15th May
observed that it had been unchallenged that on the 18th April 2002
before the Tribunal that the Applicant had been served with
charge as far back as the 30th January 2002 and :
"In addition the amendment was made before Court on 18th April
2002 Mr. Seamatha was merely ordered to type and provide it
Thulo so that the matter was postponed from the 18th April 2002 to
25th April 2002."
constituted in my view seven days within which Counsel would prepare
and consult. Furthermore Mr. Thulo could easily have sought
postponement if he thought there had been too a little time for him
to do the necessary. He did not.
make the following adverse comment against the Applicant. Without
disclosing that she had previously been convicted and
without showing any grounds for her complaint in the preceding ten
paragraphs of her founding affidavit, Applicant
stated as follows in
I am not satisfied with the conduct of the proceedings in the
aforesaid disciplinary proceedings in the magistrate Court
record was not handed in by the proper and/or authority and, as such,
was not afforded a hearing on my defence in those proceedings
contrary to the audi alteram partem rule.
circumstances the decision by the (learned) Adjudicator was
erroneously arrived at and on such basis alone be reviewed and
for Respondents in turn submitted that Applicant had failed to set
out circumstances and the factual basis on which Applicant's
contrary to the said H C R 50(2). I observed however that such an
attempt has been made by the Applicant. The real question
whether those grounds, facts or circumstances upon which Applicant
relied were good enough or sufficient for setting aside
proceedings on the basis of prejudice and gross irregularity but not
mere dissatisfaction on her part.
Respondents' Counsel urged that on the basis of the said conviction
by the Court there had been proof enough in terms of
section 18(4) of
the Act which provides that:
"If the breach of discipline that is alleged against the public
officer is also a criminal offence of which that officer has
convicted, certified copy of the record of trial and conviction by
the Court of law is sufficient proof of the commission
of the breach
of discipline unless the conviction has been set aside by a superior
extent as I concluded as it was correctly argued by Miss Pali that
the admitted Court record of the magistrate of Berea
sufficient proof without any further evidence. I was reminded that no
objection was raised before the Adjudicator by
Mr. Thulo in this
regard. Such an objection would have read like this judging from what
he later submitted:
The requirement for admission of record was not intended to do away
with the rule of evidence, specifically that the record of
proceedings should be tendered in evidence by Clerk of Court."
have agreed if it was before a Court of law not a tribunal such as
the Adjudicator or if there was this requirement specifically
out following on the said section 18(4). See comments by learned
authors H R Wade and Another and L Baxter (supra) I doubted
something more was required in the circumstances to make the record
of proceedings sufficient or conclusive in terms of
section 18(4) of
the Act. I thought nothing more was required. It is this only
conclusion, in the circumstances, which is consistent
inflexibility and fairness which the Court's policy requires. See L
addition there had been no protest before the Adjudicator regarding
admission of the record. It was furthermore not shown before
Court that there had been prejudice in admitting the record, which
was not disputed in any way, as a correct history of the
and sentence of the Applicant. It was correctly submitted, in my
opinion, therefore that proof of the charge was based
allegations but on the proof (by production) of record of the said
criminal trial against Applicant as this is clearly provided
under the law.
for the tendency to enlarge issues during argument, with due respect
to Applicant's Counsel I thought the two germaine questions
paragraph 11.1 and 11.2 of Applicant's founding affidavit (see page 7
(supra) were sufficiently answered in this judgment.
concluded that this application was ill=conceived and was entirely
application is dismissed with costs to Respondents.
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