HIGH COURT OF LESOTHO
SAMSON MALATALIANA APPLICANT
CHAIRMAN P.S.C 1st RESPONDENT
COMMISSIONER OF LANDS(a.i) 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
by the Honourable Mr Justice T. Nomngcongo on the 4th day of August
26th June 2003, the applicant herein was informed by a letter signed
by the Commissioner of Lands a.i. that at it's 5201st
Public Service Commission had resolved on the 27th May 2003 that he
be dismissed from office. This followed a disciplinary
on the 15th November 2002 had imposed a punishment of" dismissal
from office" in terms of section 27 (1)
(a) of the Public
Service Act No. 13 of 1995. On the 27th August he launched the
present proceeding seeking relief in the following
aside the dismissal from office of the applicant.
reinstatement of the applicant with immediate effect.
of suit in the event that the respondents oppose this application.
and/or alternative relief.
reasons for the relief sought are set out in his founding affidavit
and may be summarised as follows:
prosecutor in the disciplinary case discredited his own witness and
the adjudicator allowed this procedure and expunged the
that witness from the record in contravention of section 274 of the
Criminal Procedure and Evidence Act 1981. This,
constituted a gross irregularity.
calls into question the credibility of the witnesses for the
prosecution whom he says he should have but did not cross-examine
because he did not have the benefit of legal advice.
was "puzzled and befuddled by the language the Tribunal used
viz, words like Re-examination.."
application was opposed and Mr Sekoati present counsel for the
respondents filed an affidavit on their behalf. Mr Sekoati had
been a prosecutor in the disciplinary proceedings that gave rise to
this application. In reply the applicant took issue with
saying it was undesirable that he should be both counsel and a
witness. It may well be so, but I may point out that it
unknown that legal practitioners should file affidavits in
proceedings that they took part in. I do not wish to take the
up any further than that. The crux of the respondents opposition is
that the proceedings were not a trial such as would
provisions of the Criminal Procedure and Evidence Act. Mr Sekoati
also dealt with the question of the credibility of
the witnesses and
finally that applicant was never denied the opportunity to
cross-examine the witnesses. There
is a lot
of merit in the points made on behalf of the respondents.
first of all generously assume that what the applicant purported to
do when he approached the court as he did was to ask
me to review the
proceedings of the disciplinary tribunal in terms of Rule 50 of the
Rules of Court. I say I assume so because
there is no specific prayer
for review and the prayers fall for short of the requirements of the
Rule vide Rule 50 (1)
provides for instance:
"Such notice shall call upon all persons to whom the notice is
addressed to show cause why such decision should not be reviewed
corrected or set aside and the notice shall call upon the magistrate
presiding officer or chairman, officer or person (as the
case may be)
to despatch, within fourteen days of receipt of the notice to the
Registrar the record of such proceedings..."
applicant's complaint that a certain provision of the Criminal
Procedure and Evidence Act was not complied with misses the nature
proceedings that heard his disciplinary case. The proceedings were
not a criminal trial as contemplated in the act and there
was no need
that they comply with it in any detail or at all. All that is
required of the tribunals of that nature is that they
who appear before it a fair hearing s in its broadest sense. They
were not bound by technical niceties. It was thus
put by Lord
Loreburun, the English Lord Chancellor:
" I need not add that in doing either they must act in good
faith and listen fairly to both sides, for that is the duty lying
upon everyone who decides anything. But I do not think that they are
bound to treat such a question as though it were a trial.
no power to administer the oath, and need not examine the witnesses.
They can obtain information in any way they think
best, always giving
a fair opportunity to those who are parties in the controversy for
correcting or contradicting anything prejudicial
to their view"
Board of Education v RICE  A.C. 179. Also see ADMINISTRATIVE
LAW by H.W.R. WADE (3rd. Ed.) P. 192.
applicant also challenges the credibility of witnesses. It is trite
that that is eminently a matter for appeal that could not
before this court. It is provided for by section 25 of the Public
Service Act, which for undisclosed reasons the applicant
avail himself of.
complaint that had he been legally advised he might have
cross-examined the witness also has no merit. He was never denied the
right to legal representation and if he did not avail himself of it,
he only has himself to blame. In any case as alluded to this
a criminal trial where he had a right to legal representation and to
be advised of such right. He received a fair hearing
and was afforded
the opportunity to cross-examine witnesses, of which in respect of
one witness he took full advantage and in respect
of the other two
pointedly said they were talking the truth and that is why he did not
take such advantage.
regards the point that language was used that "puzzled and
befuddled" he mentions significantly the one incident of
re-examination and I pretty
cannot point to any other in that record. I refuse to believe that
anyone could ask a person to re-examined himself; the
has to be made to be disbelieved.
no merit at all in this application. It is dismissed with costs.
APPLICANT : MR HOEANE
RESPONDENTS : MR SEKATI
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