CIV/APN/324^B/2001

IN THE HIGH COURT OF LESOTHO

In the matter between:

‘MANKALIMENG MATŠOHA (duly assisted)
ELSIE NTŠOHI (duly assisted)
MOHALETSANA QHOBELA

1^ST APPLICANT
2^ND APPLICANT
3^RD APPLICANT

DIRECTOR OF POSTAL SERVICES
PRINCIPAL SECRETARY MINSTRY OF
TRANSPORT AND COMMUNICATIONS
PUBLIC SERVICE COMMISSION
ATTORNEY-GENERAL

1^ST RESPONDENT

2^ND RESPONDENT
3^RD RESPONDENT
4^TH RESPONDENT

Service Commission had reversed the Permanent Secretary’s decision and
placed applicants on half-pay. Also, sometime in 1997 criminal charges
were preferred against applicant and to date they are pending before the
subordinate court, Maseru.

Applicants have drawn the Courts attention to the fact that “all civil
servants who are under suspension are on full pay and it is their legitimate
expectation that they be treated likewise”. Accordingly, it is this Court’s
view that the sole factor to be decided in this application is whether there is
authority for the proposition that public servants on suspension are, without
exception, placed on full pay. While I am on this subject, perhaps it will be
useful to quote relevant legislation in this regard.

According to section 21 of the Public Service Act, 1995, the clause
empowers head of department to suspend an officer from duty though the
Commissioner “may order payment to that officer of the whole or a portion
of his salary or benefits may be made”, the central issue being that “during
suspension the suspended officer is not entitled to payment of any salary or
benefits as of right ---.”

As we have seen above, the Commission revised the Permanent
Secretary’s decision by placing applicant on half-pay.

It was in pursuit of their dissatisfaction of being placed on half-pay
that applicants approached this Court seeking an order in the following
terms:-
1. Declaring applicant’s suspension from the Public Service on half pay

since 1996 unfair.

2. Directing respondents to pay to applicants arrears of salary from the
   date of the purported suspension to the date of judgment.

3. Directing respondents to re-instate payment of the applicant’s full
   salary pending the outcome of the criminal proceedings against them.

4. Costs of this application.

5. Further and/or alternative relief.

Respondents have opposed the application and on page 13 of the
paginated record is the Notice of Intention to oppose running from page 13
to page 14 and on page 17 are paragraphs 7 and 8 at the end of which a
Deponent has signed, I have looked at the index and against No. 8 of the
Index is “Answering Affidavit of Matšepo Ramakoae (Molise) shown to be
15-17 meaning, I think, that the Answering Affidavit is to be found on
pages 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 take
the utmost precaution to edit record of proceedings to ensure that it is
properly paginated and that every minor details of documents are in the file
for as it is, there’s too much pressure on Courts to complete judgments
timeously and albeit a necessary requirement making it absolutely un-heard
of for judges to scurry around looking for missing documents and details
which 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 in
any event opposed afterall necessary details as to opposition are to be found
in respondents’ Heads of Argument.

In this application a point of law in limine was taken by respondents and
the Court was also addressed on merits. However, when the application
came for argument quite wisely I should say Mr. Mapetla for the
respondents abandoned the point in limine preferring to argue the
application on merits.

Before me Mr. Mosito has submitted he is challenging suspension and
half-pay. I have already shown above that in their application applicants

have challenged half-pay. This Court has also read the Founding Affidavit
of the 1^st applicant ‘Mankalimeng Matšoha and finds “suspension” has been
only referred to in passing and not challenged. Perhaps paragraph 8 of the
Founding Affidavit is worth bringing into full focus.

It reads:-
“I wish to take this Honourable Court into my confidence and
state that as a matter of practice all civil servants who are under
suspension are on full pay.As a result our differential treatment
in this regard is disconcerting. We have been advised by our
attorney of record and verily believe same to be true and correct
that legally the said practice of giving suspended civil servants
their full pay raises on our part the legitimate expectation that
we will be treated likewise.

We have been on half-pay since our suspension and this
has placed considerable strain on our lives and those of our
families. We have written and caused our attorney of record to
write several letters to the respondent pleading for re-
instatement of payment of our full salary but to no avail. We
thus are left with no option but to approach this Honourable
Court in the manner we have done.” (My emphasis).

I am of the view that, what is challenged is ½ pay and not
suspension. Mr. Mapetla has also submitted first, courts cannot interfere
with legislative authority by substituting its own decision for that of the
Public Service Commission for if applicants were dissatisfied with ½ pay
they should have approached the Public Service Commission on review
instead 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 have
always understood the Court’s role to be one of control within limits. Thus
in Sachs v Minister of Justice, Klopperberg v Minister of Justice, 1964
(1) SA 813 (D) a case having to do with security legislation Henning J
had occasion to observe:

“----Where, as in the instant case, a statute vests in the Minister the
discretion to decide whether the disclosure of information will be
detrimental to public policy, the Minister’s discretion is final. The
Court is bound to accept his statement that he has duly exercised his
discretion, unless it is shown that he acted mala fide or under a
misconception.”

Reading the above case closely, is seems to me when the legislature
vests power on an organ of government to decide in the first place, the
organ’s decision may not be interfered with or as it is often said, a Court
cannot substitute its own decision for that of the organ vested with
legislative power and with respect this is Mapetla’s argument. I wonder if
Mr. Mapetla’s argument would hold regard being had to the proviso namely
“unless it is shown that he acted mala fide or under a misconception.” Has
to be recalled though that Mr. Mapetla’s argument is two-pronged, namely:

(1) That while the Principal Secretary suspended applicants the
matter had landed on the Public Service Commission which,
applying its statutory discretion had reversed the Principal
Secretary’s decision by placing applicants on half-pay and, it was

necessary in the circumstances that applicants approach once
more the Public Service Commission for a revised version of
their salaries while on suspension.

(2) That this Court cannot substitute its own decision for that of the
Public Service Commission as the Appeal Court has found in the
uncited case of Chobokoane decided recently.

As for (1) above, I don’t know how applicants would approach the
Public Service Commission but if it’s by way of review I doubt the Public
Service Commission has such a procedure. Although I have enumerated
two factors for determination, this is without prejudice to other factors
raised by Mr. Mapetla mentioned by me above which will also receive
attention.

The controversy between the role of Courts vis-à-vis administrative
organs has raged for quite a while culminating in my view in the illustrious
Liversige v Anderson (1942) AC 206 case in which under the British
Defence Regulations the Secretary of State for Home Affairs had ordered
the detention of a person whom, by reason of his involvement wish German
nationals and his active support of national socialism the secretary believed
him to be of hostile associations and a threat to public safety. Has to be
remembered 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” but
despite his “vigorous and celebrated” dissent the majority of the House of
Lords held that the honest, subjective “satisfaction” of the Secretary was
sufficient for a valid detention order and the Court could not question the
grounds for his “satisfaction” for the reason that the Court was not in the
same 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 a
confidential character.”

The majority decision in Liversige v Anderson above is the bedrock
of Mr. Mapetla’s contention that the Court is not privy to information at the
disposal of applicants’ authorities. And while this is true, I am wondering
whether this Court is being told that because of the sensitivity and maybe
subtle machinations associated with theft cases the Court cannot interfere
despite the unreasonably long time applicants have been suspended and put
on half-pay, a period well-neigh ten (10) years, it is justifiable for
administrative authorities to sit on their laurels without prosecuting
applicants. If so, this is unfair and travesty of justice which this Court
cannot watch silently for now that applicants are before Court the Court
cannot but grant relief if circumstances deserve it.

While the proposition that in administrative matters a Court cannot
substitute its own decision for that of the administrative organ stands, the
requirement is not of blankets application seeing it has undergone
considerable metamorphosis. Apparently now the objective approach
advanced by Lord Atkin enjoys judicial support and it is popular in England
where Liversige v Anderson is almost completely forgotten and Courts
insist on examining the soundness of the factual basis on which
discretionary power has been exercised. In the instant application, in the
beginning the factual basis of putting applicants on half-pay was sound
being supported by the statute on account of the discretionary power of the
commissioners, but this has been eroded by the fact that applicants have
been on half-pay for an unreasonably long time without being brought to
justice and in the circumstances they have suffered prejudice. In this regard
Professor Wade has been credited with having said; “Courts have an
ingrained repugnance of legislative devices for making public authorities
judges of the extent of their own powers, or of exempting them from
judicial control (Wade p.394). It is said English courts have stopped short
of reviewing matters of “pure judgment” (see Secretary of State for the
Home Department, exparte Khawaja (1984) AC 74, 110 T-G) and French

courts have gone a step further and will set aside administrative decisions
where there has been an “obvious error of judgment” - see Cf Schwartz
French Administrative Law 232ff. In South Africa courts have never
completely accepted that subjectively phrased powers the final say in the
hands of administrative officials alone and although the majority decision in
Liversige v Anderson has been influential judges do, sometimes,
distinguish it or reject it completely - see Kellersmann v Minister of the
Interior, 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) 67
and e.g. Watson v Commissioner of Customs and Excise, 1960 (3) SA
212 (N), 216; United Democratic Front (Western Cape Region) v
Theron NO 1984 (1) SA 315 (1) 323B-E; Ndabeni v Minister of Law and
Order, 1984 (3) SA 500 (D), 512-13. Cf the remarks by De Beer J in
Michel v R 1944 OPD 227, 249-50.

There is also authority for the proposition that unlawful
administrative decisions may also be set aside or under certain
circumstances corrected by the Supreme Court and in this regard a classic
statement is to be found in Johannesburg Consolidated Investment Co v
Johannesburg Town Council, 1903 TS 111, 115 (emphasis added) where

Innes CJ said:

“Whenever a public body has a duty imposed on it by statute, and
disregards important provisions of the statute, or is guilty of gross
irregularity or clear illegality in the performance of the duty, this Court
may be asked to review the proceedings complained of and set aside or
correct them. This is no special machinery created by the Legislature; it
is a right inherent in the Court, which has jurisdiction to entertain all
civil causes and proceedings arising (within its territorial jurisdiction ---
(and) is such a case as falls within the ordinary jurisdiction of the
Court.”

Generally speaking, a court will decline to provide a remedy where
the applicant is undeserving as where there is no clear right and somehow
the applicant is tarnished. The gist of the need to set aside or correct an
administrative decision lies in the unlawful or irregular decision by the
administrative organ and I may add any accompanying unfairness.

According to Baxter’s Administrative Law p. 681, “the function of
judicial review is to scrutinize the legality of administrative action, not to
secure a decision by a judge in place of an administrator “for, as a general
principle, the Courts will not attempt” to substitute their own decision for
that of the public authority “in that if an administrative decision is found
utra vires the court will usually set it aside and refer matter back to the
authority for a fresh decision or, as Mr. Mapetla has contended, in the first
place refer the matter back to the authority for a fresh decision. It has been
said 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 Licencing
Board (1953) (30 SA 500 (C), 503 per Van Winsen J. cf Vries v Du
Plessis NO 1967 (4) SA 469 (S), 482 C-D; and it was emphasized in
Jonannesburg City Council & Administrator, Transvaal, 1969 (2) SA 72 (T),
76 by Hiemstra J that “the ordinary course is to refer back because the
court is slow to assume a discretion which has by statute been entrusted to
another tribunal or functionary.

In exceptional circumstances though, the principle is departed from
for the overriding principle is that of fairness and as was said by Holmes,

AJA:

“---- The Court has a discretion, to be exercised judicially upon a
consideration of the facts of each case, and --- although matter
will be sent back if there is no reason for not doing so, in
essence 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 it
would merely be a waste of time to order the tribunal or
functionary to reconsider the matter where the decision of the
public 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 require
the applicant to submit to the same jurisdiction again.

(iv) Where the court is in as good a position to make the decision
itself (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 declare
whether actual pending administrative action is lawful. In the English Court
of the Exchequer, the Court has awarded relief against the Crown, in
judgments which were usually declaratory in form.

While the jurisdiction disappeared when the court’s general equitable
jurisdiction passed to the Chancery in 1841, it became popular in ordinary
civil actions against the crown following the decision in Dyson v.
Attorney-General in (1911) KK 410; see also Geldenhuys and Neethling
v 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 first
crown Liability Act at the Cape (Act 37 of 1988) the courts could not award
damages against the Crown. However, in the cases that followed, it appears
the Crown simply acquiesced, taking no objection to the Court’s
jurisdiction. Although not provided for by the Union Crown Liability Act
above, the Act prohibited the enforcement of judgments given against the
Crown by legal process. From the point of view of Courts, it will be seen
that the declaratory remedy was severely inhibited for the Courts would not
grant a declaratory order where parties were simply in dispute over the
nature of their relative rights or where the infringement or rights were
merely feared or anticipated. For the order to be granted, a “concrete
invasion of right had to have taken place (see pp. 698-99 Baxter above).

By decision in ex parte Farquhas, 1938 TPD 213, South African
courts have recognized declaratory orders where Barry J advocated for
encouragement 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 dealing
with the procedure as provided in England. He was of the
opinion that it was in the public interest to provide a speedy and
easy access to the Courts for a person who has any real cause of
complaint against the exercise of statutory powers by
Government departments and Government officials, and I may
add by public bodies generally. As he points out, the procedure
will not be abused, because the Court is not bound to make a
declaratory 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 officers
and government departments. Not only this, applicants have been on half-
pay for an inordinantly long and unreasonable time and I have no doubt this
will be a wake up call to these government officials and departments to
seriously consider what to do with applicants considering the serious
neglect of their individual rights and immunities.

I must also consider one of Mr. Mapetla’s contentions raised in
Ramoholi’s case found in Lesotho Law Reports and Legal Bulletin 1997-
98 p. 367. This was a case in which Ramoholi was suspended from duty
without pay. He was, it would seem, suspended by the Principal Secretary
for the Ministry of Education. Applicant did not go via the Ministry or
government structures to redress his complaint but came straight to Court
for 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 an
infringement upon his right.”

Like in the present application, Ramoholi’s 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 that
ought to be considered in reaching this decision, but there can be
little doubt that the hardship that a suspended person may suffer
if the suspension is for any appreciable length of time would
have to be given substantial weight.”

In so far as Chobokoane’s case is concerned (C of A (CIV) 17/2003
(unreported this Court is of a very strong view that the present case is
distinguishable from Chobokoane’s case. Chobokoane’s hands or record
was not clean, he was convicted and sentenced of a serious crime. The High
Court acting as it did was motivated by interest of minor children and the
fact that the relationship between Chobokoane and his wife seemed

improved. The judgment was not in sympathy with Chobokoane but the
best interest of third parties though quite correctly the Appeal Court found
this Court would not substitute its own decision for that of the Judicial
Service Commission. On the contrary, this is a hardship case without light
at the end of the tunnel considering, as I have said, applicants have been
suspended for well-neigh 10 years on half-pay without charges being
brought against them. That they have not been charged is no fault of theirs
nor are they responsible for the financial burden they have to endure.

This Court has rejected Mr. Mapetla’s submissions in their entirely
since it appears to this Court that it is in the nature of some heads of
government departments and ministries to take advantage of government
statutes and punish some civil servants by placing them at a disadvantage in
suspending them and not prosecuting them. This application is granted to
the effect that applicants are to be paid their full salaries from the date of
their suspension up to and including finalization of any criminal
proceedings that may be brought against them. Respondents will severally
and jointly the one to pay and others to be absolved pay costs of this
application.

G. N. MOFOLO
JUDGE

For the Applicant: Mr. Mosito

For the Respondents: Mr. Mapetla