CIV/APN/324B/2001
IN THE HIGH COURT OF LESOTHO
In the matter between:
MANKALIMENG MATOHA (duly assisted)ELSIE NTOHI (duly assisted)MOHALETSANA QHOBELA
1ST APPLICANT2ND APPLICANT3RD APPLICANT
AND
DIRECTOR OF POSTAL SERVICES PRINCIPAL SECRETARY MINSTRY OFTRANSPORT AND COMMUNICATIONSPUBLIC SERVICE COMMISSIONATTORNEY-GENERAL
1ST RESPONDENT
2ND RESPONDENT3RD RESPONDENT4TH RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. MofoloOn the 12th day of August, 2005
By my standard, this application took quite sometime to decide for it
was reserved to 24 March, 2005 but unfortunately there were intervening
cases which cried for decision. Apart from this Court considered this is a
case in its own class deserving cool, unhurried treatment. This was at least
explained to Counsel. Applicants are members of the Postal Services and
according to papers before me they were suspended in or about September,
1996 and among the provisions for suspension while they were suspended
without pay they were not to seek alternative employment. Later, the Public
Service Commission had reversed the Permanent Secretarys decision andplaced applicants on half-pay. Also, sometime in 1997 criminal chargeswere preferred against applicant and to date they are pending before thesubordinate court, Maseru.
Applicants have drawn the Courts attention to the fact that all civilservants who are under suspension are on full pay and it is their legitimateexpectation that they be treated likewise. Accordingly, it is this Courtsview that the sole factor to be decided in this application is whether there isauthority for the proposition that public servants on suspension are, withoutexception, placed on full pay. While I am on this subject, perhaps it will beuseful to quote relevant legislation in this regard.
According to section 21 of the Public Service Act, 1995, the clauseempowers head of department to suspend an officer from duty though theCommissioner may order payment to that officer of the whole or a portionof his salary or benefits may be made, the central issue being that duringsuspension the suspended officer is not entitled to payment of any salary orbenefits as of right ---.
As we have seen above, the Commission revised the Permanent Secretarys decision by placing applicant on half-pay.
It was in pursuit of their dissatisfaction of being placed on half-paythat applicants approached this Court seeking an order in the followingterms:-1. Declaring applicants suspension from the Public Service on half pay
since 1996 unfair.
Directing respondents to pay to applicants arrears of salary from thedate of the purported suspension to the date of judgment.
Directing respondents to re-instate payment of the applicants fullsalary pending the outcome of the criminal proceedings against them.
Costs of this application.
Further and/or alternative relief.
Respondents have opposed the application and on page 13 of thepaginated record is the Notice of Intention to oppose running from page 13to page 14 and on page 17 are paragraphs 7 and 8 at the end of which aDeponent has signed, I have looked at the index and against No. 8 of theIndex is Answering Affidavit of Matepo Ramakoae (Molise) shown to be15-17 meaning, I think, that the Answering Affidavit is to be found onpages 15-17. However, as I have shown above, there are no pages 15 and
16 there being, pages 13, 14 and 17.
I have for times without number been on record to say counsel is to takethe utmost precaution to edit record of proceedings to ensure that it isproperly paginated and that every minor details of documents are in the filefor as it is, theres too much pressure on Courts to complete judgmentstimeously and albeit a necessary requirement making it absolutely un-heardof for judges to scurry around looking for missing documents and detailswhich as I have said are to be in the record of proceedings. I will, however,give respondents the benefit of doubt and find that the application was inany event opposed afterall necessary details as to opposition are to be foundin respondents Heads of Argument.
In this application a point of law in limine was taken by respondents andthe Court was also addressed on merits. However, when the applicationcame for argument quite wisely I should say Mr. Mapetla for therespondents abandoned the point in limine preferring to argue theapplication on merits.
Before me Mr. Mosito has submitted he is challenging suspension andhalf-pay. I have already shown above that in their application applicants
have challenged half-pay. This Court has also read the Founding Affidavitof the 1st applicant Mankalimeng Matoha and finds suspension has beenonly referred to in passing and not challenged. Perhaps paragraph 8 of theFounding Affidavit is worth bringing into full focus.
It reads:-I wish to take this Honourable Court into my confidence andstate that as a matter of practice all civil servants who are undersuspension are on full pay.As a result our differential treatmentin this regard is disconcerting. We have been advised by ourattorney of record and verily believe same to be true and correctthat legally the said practice of giving suspended civil servantstheir full pay raises on our part the legitimate expectation thatwe will be treated likewise.
We have been on half-pay since our suspension and thishas placed considerable strain on our lives and those of ourfamilies. We have written and caused our attorney of record towrite several letters to the respondent pleading for re-instatement of payment of our full salary but to no avail. Wethus are left with no option but to approach this HonourableCourt in the manner we have done. (My emphasis).
I am of the view that, what is challenged is ½ pay and notsuspension. Mr. Mapetla has also submitted first, courts cannot interferewith legislative authority by substituting its own decision for that of thePublic Service Commission for if applicants were dissatisfied with ½ paythey should have approached the Public Service Commission on reviewinstead of coming to Court on a declaratory. He has also disputed there is
precedent in our Courts placing suspended public officers on full pay and I
intend answering Mr. Mapetla though not necessarily seriatim.
As to the role of Courts in administrative matters, I havealways understood the Courts role to be one of control within limits. Thusin Sachs v Minister of Justice, Klopperberg v Minister of Justice, 1964(1) SA 813 (D) a case having to do with security legislation Henning Jhad occasion to observe:
----Where, as in the instant case, a statute vests in the Minister thediscretion to decide whether the disclosure of information will bedetrimental to public policy, the Ministers discretion is final. TheCourt is bound to accept his statement that he has duly exercised hisdiscretion, unless it is shown that he acted mala fide or under amisconception.
Reading the above case closely, is seems to me when the legislaturevests power on an organ of government to decide in the first place, theorgans decision may not be interfered with or as it is often said, a Courtcannot substitute its own decision for that of the organ vested withlegislative power and with respect this is Mapetlas argument. I wonder ifMr. Mapetlas argument would hold regard being had to the proviso namelyunless it is shown that he acted mala fide or under a misconception. Hasto be recalled though that Mr. Mapetlas argument is two-pronged, namely:
(1) That while the Principal Secretary suspended applicants thematter had landed on the Public Service Commission which,applying its statutory discretion had reversed the PrincipalSecretarys decision by placing applicants on half-pay and, it was
necessary in the circumstances that applicants approach oncemore the Public Service Commission for a revised version oftheir salaries while on suspension.
(2) That this Court cannot substitute its own decision for that of thePublic Service Commission as the Appeal Court has found in theuncited case of Chobokoane decided recently.
As for (1) above, I dont know how applicants would approach thePublic Service Commission but if its by way of review I doubt the PublicService Commission has such a procedure. Although I have enumeratedtwo factors for determination, this is without prejudice to other factorsraised by Mr. Mapetla mentioned by me above which will also receiveattention.
The controversy between the role of Courts vis-à-vis administrativeorgans has raged for quite a while culminating in my view in the illustriousLiversige v Anderson (1942) AC 206 case in which under the BritishDefence Regulations the Secretary of State for Home Affairs had orderedthe detention of a person whom, by reason of his involvement wish Germannationals and his active support of national socialism the secretary believedhim to be of hostile associations and a threat to public safety. Has to beremembered it was during the war years and the security of the state at risk.As is well-known, Lord Atkin in support of his contention spoke of amid
the clash of arms, Courts speak the same language in war as in peace butdespite his vigorous and celebrated dissent the majority of the House ofLords held that the honest, subjective satisfaction of the Secretary wassufficient for a valid detention order and the Court could not question thegrounds for his satisfaction for the reason that the Court was not in thesame position as the Secretary to assess the danger posed by the detainee,nor did it have the same access to information, much of which was of aconfidential character.
The majority decision in Liversige v Anderson above is the bedrockof Mr. Mapetlas contention that the Court is not privy to information at thedisposal of applicants authorities. And while this is true, I am wonderingwhether this Court is being told that because of the sensitivity and maybesubtle machinations associated with theft cases the Court cannot interferedespite the unreasonably long time applicants have been suspended and puton half-pay, a period well-neigh ten (10) years, it is justifiable foradministrative authorities to sit on their laurels without prosecutingapplicants. If so, this is unfair and travesty of justice which this Courtcannot watch silently for now that applicants are before Court the Courtcannot but grant relief if circumstances deserve it.
While the proposition that in administrative matters a Court cannotsubstitute its own decision for that of the administrative organ stands, therequirement is not of blankets application seeing it has undergoneconsiderable metamorphosis. Apparently now the objective approachadvanced by Lord Atkin enjoys judicial support and it is popular in Englandwhere Liversige v Anderson is almost completely forgotten and Courtsinsist on examining the soundness of the factual basis on whichdiscretionary power has been exercised. In the instant application, in thebeginning the factual basis of putting applicants on half-pay was soundbeing supported by the statute on account of the discretionary power of thecommissioners, but this has been eroded by the fact that applicants havebeen on half-pay for an unreasonably long time without being brought tojustice and in the circumstances they have suffered prejudice. In this regardProfessor Wade has been credited with having said; Courts have aningrained repugnance of legislative devices for making public authoritiesjudges of the extent of their own powers, or of exempting them fromjudicial control (Wade p.394). It is said English courts have stopped shortof reviewing matters of pure judgment (see Secretary of State for theHome Department, exparte Khawaja (1984) AC 74, 110 T-G) and French
courts have gone a step further and will set aside administrative decisionswhere there has been an obvious error of judgment - see Cf SchwartzFrench Administrative Law 232ff. In South Africa courts have nevercompletely accepted that subjectively phrased powers the final say in thehands of administrative officials alone and although the majority decision inLiversige v Anderson has been influential judges do, sometimes,distinguish it or reject it completely - see Kellersmann v Minister of theInterior, 1945 TPD 179, 189ff; Minister of the Interior v Bechke, 1948(3) SA 409 (A), 443; Tefu v Minister of Justice, 1953 (2) SA 61 (T) 67and e.g. Watson v Commissioner of Customs and Excise, 1960 (3) SA212 (N), 216; United Democratic Front (Western Cape Region) vTheron NO 1984 (1) SA 315 (1) 323B-E; Ndabeni v Minister of Law andOrder, 1984 (3) SA 500 (D), 512-13. Cf the remarks by De Beer J inMichel v R 1944 OPD 227, 249-50.
There is also authority for the proposition that unlawfuladministrative decisions may also be set aside or under certaincircumstances corrected by the Supreme Court and in this regard a classicstatement is to be found in Johannesburg Consolidated Investment Co vJohannesburg Town Council, 1903 TS 111, 115 (emphasis added) where
Innes CJ said:
Whenever a public body has a duty imposed on it by statute, anddisregards important provisions of the statute, or is guilty of grossirregularity or clear illegality in the performance of the duty, this Courtmay be asked to review the proceedings complained of and set aside orcorrect them. This is no special machinery created by the Legislature; itis a right inherent in the Court, which has jurisdiction to entertain allcivil causes and proceedings arising (within its territorial jurisdiction ---(and) is such a case as falls within the ordinary jurisdiction of theCourt.
Generally speaking, a court will decline to provide a remedy wherethe applicant is undeserving as where there is no clear right and somehowthe applicant is tarnished. The gist of the need to set aside or correct anadministrative decision lies in the unlawful or irregular decision by theadministrative organ and I may add any accompanying unfairness.
According to Baxters Administrative Law p. 681, the function ofjudicial review is to scrutinize the legality of administrative action, not tosecure a decision by a judge in place of an administrator for, as a generalprinciple, the Courts will not attempt to substitute their own decision forthat of the public authority in that if an administrative decision is foundutra vires the court will usually set it aside and refer matter back to theauthority for a fresh decision or, as Mr. Mapetla has contended, in the firstplace refer the matter back to the authority for a fresh decision. It has beensaid to do otherwise would constitute an unwarranted usurpation of the
powers entrusted to the public authority by the legislature ---. - ----see
Bonnievale Wine and Brandy Co. Ltd v Gordonia Liquor LicencingBoard (1953) (30 SA 500 (C), 503 per Van Winsen J. cf Vries v DuPlessis NO 1967 (4) SA 469 (S), 482 C-D; and it was emphasized inJonannesburg City Council & Administrator, Transvaal, 1969 (2) SA 72 (T),76 by Hiemstra J that the ordinary course is to refer back because thecourt is slow to assume a discretion which has by statute been entrusted toanother tribunal or functionary.
In exceptional circumstances though, the principle is departed fromfor the overriding principle is that of fairness and as was said by Holmes,
AJA:
---- The Court has a discretion, to be exercised judicially upon aconsideration of the facts of each case, and --- although matterwill be sent back if there is no reason for not doing so, inessence it is a question of doing fairness to both sides.
It has been said from cases (Baxter p. 682 footnote 40 and cases
therein quoted) it appears courts recognize at least four situations in which
they will be justified in correcting the decision by substituting their own:
(i) Where the end result is in any event a foregone conclusion and itwould merely be a waste of time to order the tribunal orfunctionary to reconsider the matter where the decision of thepublic authority would be a mere formality.
(ii) Where further delay would cause unjustifiable prejudice to the
applicant.
(iii) Where the tribunal or functionary has exhibited bias or
incompetence to such a degree that it would be unfair to requirethe applicant to submit to the same jurisdiction again.
(iv) Where the court is in as good a position to make the decisionitself (ibid pp 682-685.
I am of the view that given the circumstances of this case the end
result is a foregone conclusion and it would be a waste of time to order the
commission to reconsider its decision having regard to the fact that further
delay would cause unjustifiable prejudice to the applicants.
It has also been said a declaratory order does no more than declarewhether actual pending administrative action is lawful. In the English Courtof the Exchequer, the Court has awarded relief against the Crown, injudgments which were usually declaratory in form.
While the jurisdiction disappeared when the courts general equitablejurisdiction passed to the Chancery in 1841, it became popular in ordinarycivil actions against the crown following the decision in Dyson v.Attorney-General in (1911) KK 410; see also Geldenhuys and Neethlingv Benthin 1918 AD 426, 439-40. South African courts themselves began to
develop the remedy (Act 37 of 1988) and until the enactments of the firstcrown Liability Act at the Cape (Act 37 of 1988) the courts could not awarddamages against the Crown. However, in the cases that followed, it appearsthe Crown simply acquiesced, taking no objection to the Courtsjurisdiction. Although not provided for by the Union Crown Liability Actabove, the Act prohibited the enforcement of judgments given against theCrown by legal process. From the point of view of Courts, it will be seenthat the declaratory remedy was severely inhibited for the Courts would notgrant a declaratory order where parties were simply in dispute over thenature of their relative rights or where the infringement or rights weremerely feared or anticipated. For the order to be granted, a concreteinvasion of right had to have taken place (see pp. 698-99 Baxter above).
By decision in ex parte Farquhas, 1938 TPD 213, South Africancourts have recognized declaratory orders where Barry J advocated forencouragement of the orders saying:
I wish to associate myself with the remarks made by Farwell J..(in Dyson v Attorney-General (1911) 1 KB 410) in dealingwith the procedure as provided in England. He was of theopinion that it was in the public interest to provide a speedy andeasy access to the Courts for a person who has any real cause ofcomplaint against the exercise of statutory powers byGovernment departments and Government officials, and I mayadd by public bodies generally. As he points out, the procedurewill not be abused, because the Court is not bound to make adeclaratory order and would refuse a declaratory order except in
proper cases ----.It has been said a declaratory order is useful in that it may simply
declare the unlawfulness of the action in question and leave it to the
authority to act in whatever manner it deems fit to correct the situation (see
Shaban v Culemborg Banking Corporation Ltd, 1962 (2) SA 450 (W),451). This is exactly what applicants are availing themselves of,complaining against the exercise of statutory powers by government officersand government departments. Not only this, applicants have been on half-pay for an inordinantly long and unreasonable time and I have no doubt thiswill be a wake up call to these government officials and departments toseriously consider what to do with applicants considering the seriousneglect of their individual rights and immunities.
I must also consider one of Mr. Mapetlas contentions raised inRamoholis case found in Lesotho Law Reports and Legal Bulletin 1997-98 p. 367. This was a case in which Ramoholi was suspended from dutywithout pay. He was, it would seem, suspended by the Principal Secretaryfor the Ministry of Education. Applicant did not go via the Ministry orgovernment structures to redress his complaint but came straight to Courtfor a declaratory regarding his suspension without pay.
The Court per Maqutu J. had amongst other things held:
The fact that applicant was suspended without pay was aninfringement upon his right.
Like in the present application, Ramoholis interdiction in terms of
the statute prevented him seeking alternative employment and to this effect
at p.375 Maqutu J. had found that to the suspended official suspension
without pay is definitely punishment. In course of his judgments at p. 376
Maqutu J. had also found the granting of a declaratory order was
discretionary. Also, in Swart and Others v Minister of Education and
Culture, House of Representatives and Another 1986 (3) SA 331 (C) at
p. 348 F-I Selikowitz AJ is reported to have said:
----I do not wish to enumerate nor lay down the factors thatought to be considered in reaching this decision, but there can belittle doubt that the hardship that a suspended person may sufferif the suspension is for any appreciable length of time wouldhave to be given substantial weight.
In so far as Chobokoanes case is concerned (C of A (CIV) 17/2003(unreported this Court is of a very strong view that the present case isdistinguishable from Chobokoanes case. Chobokoanes hands or recordwas not clean, he was convicted and sentenced of a serious crime. The HighCourt acting as it did was motivated by interest of minor children and thefact that the relationship between Chobokoane and his wife seemed
improved. The judgment was not in sympathy with Chobokoane but thebest interest of third parties though quite correctly the Appeal Court foundthis Court would not substitute its own decision for that of the JudicialService Commission. On the contrary, this is a hardship case without lightat the end of the tunnel considering, as I have said, applicants have beensuspended for well-neigh 10 years on half-pay without charges beingbrought against them. That they have not been charged is no fault of theirsnor are they responsible for the financial burden they have to endure.
This Court has rejected Mr. Mapetlas submissions in their entirelysince it appears to this Court that it is in the nature of some heads ofgovernment departments and ministries to take advantage of governmentstatutes and punish some civil servants by placing them at a disadvantage insuspending them and not prosecuting them. This application is granted tothe effect that applicants are to be paid their full salaries from the date oftheir suspension up to and including finalization of any criminalproceedings that may be brought against them. Respondents will severallyand jointly the one to pay and others to be absolved pay costs of thisapplication.
G. N. MOFOLO JUDGE
For the Applicant: Mr. Mosito
For the Respondents: Mr. Mapetla