HIGH COURT OF LESOTHO
RAMOKOENA 1st APPLICANT
KHETHISA 2nd APPLICANT
- LDF 1st RESPONDENT
OF DEFENCE 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
HONOURABLE ACTING MRS JUSTICE M. MAHASE ON THE 30/05/05
representatives appeared before me on the 30 / 05 / 2005. By consent
the two applications were consolidated and heard simultaneously
because issued raised and parties herein are the same. The
application are to be argued by the same lawyers; Messrs Phafane and
Motsieloa appeared for parties herein respectively.
large the facts herein are common cause. In brief they can be
summarized as follows:-
applicants were members of the L. D. F. since November 1996. They
were both employed on permanent and pensionable terms.
summarily discharged from their employment on the 7th July 2003.
Letters of discharge have been filed and annexed in their
are marked "RR1" and TK1" respectively. They are both
dated the 7th July 2003 and have been signed by
General A.M. Mosakeng.
applicants were alleged to have been convicted of several military
offences. Same have not been clearly spelt out in their
discharge from the L.D.F.
both requested to make written representations within (10) days from
receipt of their letters "RR1" and "K2"
3 of those letters warned them of the consequences
they fail to make representations in writing within the stipulated
applicants responded to that request as per their letters attached
and marked "RR3" and "TK3", dated 10th
The wording of their response is the same.
pleaded that they should not be discharged because they have already
been punished for the offences they were alleged
to have committed.
They said they have served the punishments which had been imposed
upon them. They further pointed out that a
discharge from the L.D.F.
is a harsh and a second punishment.
have also attached "RR4" and "TT4" Force Orders
dated the 3rd May 2003 and these show clearly the
against them and the punishments which were imposed upon them. These
range between ten (10) days extra duties
and a fine of M30.00 (Thirty
no dispute that the said punishments were duly served by the
applicants herein. There is no indication on the papers before
nor on the said force orders that there were other further charges
preferred against the applicants which are outstanding
or which are
still pending finality. That also is not the story of the 1st
respondent. If this be so, then the applicants have
served all the
punishments which had been imposed upon them. There was no need that
they should be punished once again for the
applicants allege that the 1st respondent has subjected them to a
double jeopardy/punishment for the same offence merely because
are a certain class of public servants. They say this is
unconstitutional as it discriminates against them. As a result, so
they argue, the said Section 31 of the Lesotho Defense Force Act 1996
is also null and void to the extend that it discriminates
public servant s who are members of the Lesotho Defence Force.
applicants have challenged their discharge from the L.D.F. as being
unconstitutional for two or three reasons; namely that;
allege that they have not been given a fair hearing before they were
discharged/dismissed from the L.D.F. by the 1st respondent.
alleged discharge/dismissal is a double jeopardy/punishment because
they have been punished and have served the punishment
which had been
imposed upon them by the 1st respondent for the offences in their
capacities as members of the L.D.F.
Section 31 of the Lesotho Defence Force Act No. 74 of 1996, under
which the 1st respondent has discharged them is unconstitutional
as such their said discharge from the L.D.F. is to be declared null
have relied on Sections 2, 18 and 19 of the Constitution of Lesotho
in support of their applications.
applicants herein have filed heads of arguments in support of their
arguments. Here the basis/reasons for challenging their
discharge/dismissal from the L.D.F. are set out and the following
cases which were all decided by the High Court have been cited
support their arguments. These are: i) Tankiso Hlaoli v Karabo Hlaoli
- CIV/ADN/1 /98
Molai Ramoholi v Principal Secretary of Education and A.G. 1991-96
(2) LLR p 916.
Mamoeti Taetsane v Itumeleng Letsepe & 3 Ors. CrV/T/32/97
Matsehla Khalapa v Commissioner of Police 1999 -2001 LLR p. 106 at p1
10 - f-g
these cases have dealt with issues which were said to offend against
the Constitution of the Kingdom of Lesotho.
case of Hlaoli (supra) the High court, per KheolaC.J. (as he then
was) refused to give effect to Section 14 of the Adoption
Proclamation No. 16 of 1952 because the court said
word 'African' used in that section of the Proclamation is a racial
description. It went further to say that the section,
discriminatory of itself and in its effect. All of that section was
accordingly declared unconstitutional and void.
In J. M.
Ramoholi's case, the court as per Justice Maqutu declined to give
effect to the Public Service Commission Rules on interdictions
ground inter alia that those rules discriminated against public
servants as against employees in the private sector.
this judgment reads as follows, I quote:
"We live in the days when the Constitution is the Supreme Law of
the Land.... The Rules... Strike me as violating the spirit
the letter of the Constitution... surely Parliament cannot validly
make laws that discriminate against public servants by
from public servant the rights other employees have...."
the Constitution leaves no room for discrimination of any kind
against any particular sector of the public including public
principle of audi alterem parten applies to all people alike
including members of the L. D. F. In the instant case the applicants
were requested to make representations in writing within 10 days from
receipt of the letter from the commander of the L. D. F.
cause why because of certain conduct they shall not be discharged
from the force in accordance with Section 31 (b) and
(c) of the
Lesotho Defence Force Act 1996.
complied with that request and they responded as per "RR3"
and "TK3". To that extend, it can be argued
that they were
given a hearing but when despite their response and plea that they be
not discharged from the L. D. F. for reasons
they have stated there
at; the Commander decided to discharge them, then the Commander was
bound not to discharge them without
a further hearing since they had
both served the punishments which had been imposed upon them,
by the Commander) for the offences which they were alleged to have
committed. They should have been heard even on the
finally discharge them from the L.D.F., in total disregard of their
response as per letter "RR3" and "TK3".
decision to discharge the applicants from the L.DP. is a result of
the conduct referred to in the letters of the Commander of
dated the 05/06/2003. The punishments which were imposed upon the
applicants was a result from their conduct referred to
letters of the commander of L.D.F. dated the 05/06/2003 and annexed
in the application herein, marked "RR2"
already been indicated, the applicants have been found guilty by
L.D.F. disciplinary committee and they served the punishments
out upon them. There is no dispute about this fact. No appeal was
ever lodged about the findings and punishments meted out
applicants by the Commander.
therefore had no good reason to punish them again for the same
not been disclosed to court who the L.D.F. Disciplinary Committee
members are, what their mandate is, nor has it been shown
procedure is followed by such a committee, neither is this court
clear as to who actually imposed the said sentences/punishments
court is not even clear whether or not legal representation is
allowed whenever one appears charged before such a disciplinary
as it may the consequences following a hearing and conviction by such
a committee go too far as to deprive one of a livehood
as is the
position displayed in the present applications.
court is mindful and aware that that all the letters "RR2* -
"TK2" and "RRl" "TK2" including
- "TK4" are signed by the Lesotho Defence Force Commander
A. M. Mosakeng.
absence of any other explanation, the inference that this court draws
from this is that, the said Commander of the L.D.F.
acted as a
complainant, a judge and an executor in the cases of the applicants.
not lawfully acceptable and has resulted into double jeopardy against
the applicants. Being a Commander, he clearly had
interest in the matter. In other words, this court is not clear
whether or not Section 16 of the L.D.F Act 1996 was
against the case of the applicants herein. All that is clear on the
papers before court is that it was the commander
of the L.D.F. who
complained of applicants certain conduct and ultimately discharged
them from the L.D.F. as members.
did even after a disciplinary committee had convicted and imposed
some punishments upon them. I am unable to follow nor
contents of paragraph 10 of the answering affidavit of the 1st
exactly the behaviour which the complainants complain about. Why did
1st respondent opt to first impose sentences/punishments
applicants, while he also had powers to discharge them from the
that punishments were earlier imposed upon them (applicants) and they
served same disposed of their cases. The reading
of Section 31 of
theL.D.F. Act 1996, nowhere empowers the commander to punish a member
of the force twice for the same offence
even after service of
punishment. If indeed that is how the 1st respondent understands or
interprets that section, then he is misinterpreting
section of that law.
the wording of 1st respondent's letters "RR2" and "TK2"
has to be looked into. In the 3rd paragraph/sentence,
applicants of the consequences should they not make representation in
writing within (10) days from receipt of same.
them that failure to make such written representations shall
automatically indicate that the discharge should be effected.
applicant's did not waste any time. They duly complied with the
request of the 1st respondent forthwith. They both made and
their written presentations within 4 days (four) of receipt of the
1st respondent's letter; "RR2" and "TK2".
shows remorse and preparedness to abide by the rules and or orders
given to them by their superior officer. In their letters,
applicants have humbled themselves in stating grounds why they should
not be discharged from the force.
circumstances of this case, the wording in the last, third
paragraph/sentence, did, to my mind raise hopes and expectations
the applicants. They must have felt assured
having so abided by the request from the 1st respondent, their pleas
not to be discharged would be favourably looked into,
and the likely
discharge not be carried out. They expected, and rightly so, that
since they had already served the punishments,
then the 1st
respondent would call upon them if and when he had decided to
ultimately discharge them as he indeed did; despite
already indicated that the 1st respondent should have given the
applicants a hearing on the issue of finally discharging
though they had made representations as requested by him in his
letters "RR2" and "TK2".
respondent has automatically discharged the applicants from the
force, and by so doing, he has acted against his words, in the
last third (3rd) paragraph of his letters "RR2" and "TK2",
thereby shuttering any expectations and or
hopes that, since they
have responded to the request of 1st respondent, then they may not be
discharged from the L.D.F. They had
legitimate expectations that
following their written
to the L.D.F. Commander, they would not be automatically discharged
from the L.D.F.
respondent has, by virtue of his official position, been given vast
powers to deal with members of the defence force throughout
country. This is an enormous and a highly responsible public duty.
That duty should be performed within the legal framework
duties and not arbitrarily, nor in a discriminatory way.
doctrine of legal expectation is recognized in Lesotho. In the case
(unreported) of Koatsa v National University of Lesotho
C of A (CIV)
No. 15 of 1986 Mahomed AJ (as he then was) had this to say ....
"The employee should be given a fair opportunity of being heard
on the matter, especially where it appears that he had a "legitimate
expectation" that he would remain in employment permanently in
the ordinary course of events".
words, and as Maqutu J. said in the case he quoted in Ramoholi v P.S.
Ministry of Education and A.G. (supra)
"A reasonable balance must be maintained between the need to
protect the individual from decisions unfairly arrived at by
authority (and by certain domestic tribunals) and the contrary
desirability of avoiding undue Judicial interference in
respondent's decision to finally discharge the applicants from the
L.D.F., and in the circumstances of this case has been
hearing them further even if that discharge was unavoidable even
after their written representation were made.
case of Administrator of Transvaal and Others V Traub and Others 1989
(4) S. A. 731 Corbett CJ. had this to say: I quote:
"The question whether or not the rule is applicable does not
depend on whether proceedings are disciplinary in nature. According
to classic formulations the audi rule applies: ......... when the
statute empowers a public official or body to give a decision
affecting an individual in his liberty or property or existing
rights, unless the statute expressly or by implication indicates
proper reading of the section in question herein, does not expressly
or otherwise empower the Commander of the L.D.F. to act
respondent has, in his heads of arguments indicated that the
applicants have been discharged from the force following a multiple
however not very clear. The only convictions I see on annexure "RR4"
and "MM1" are as follows in respect
of each applicant.
Ramokoena - two (2)
Khethisa - Four (4)
applicants have been punished for all these offences, and I seriously
wonder if indeed we can say that these are multiple in
numbers and in the circumstances of this case?
not and the order of discharge is too harsh for the said offences
more so since applicants have already been punished in
foregoing reasons I make the following declaratory order:
purported termination or discharge of applicants, by the 1st
respondent from employment with the Lesotho Defence Force is
Respondents are directed to pay the costs of this application.
Applicants : Mr. S. Phafane
Respondents : Mr. R, Motsieloa
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