C of A
(CIV) 05/07

IN THE
COURT OF APPEAL OF LESOTHO

HELD AT
MASERU

In the
matter between:

THE
PRESIDING OFFICER N.S.S.

(L.
MAKAKOLE) FIRST APPELLANT

ATTORNEY
GENERAL SECOND APPELLANT

AND

MALEBANYE
MALEBANYE RESPONDENT

CORAM:
RAMODIBEDI JA

GROSSKOPF JA

SMALBERGER JA

HEARD: 11
OCTOBER, 2007

DELIVERED:
24 OCTOBER, 2007

SUMMARY

Review ~
Disciplinary proceedings - Appellant absenting himself from duty
contrary to section 14 of the National Security Service
(Amendment)
Regulations 2005 -Subsections 21 (8) and (9) of the National Security
Service Act 1998 read with Regulation 32 (1)
(2) (3) and (4) of the
National Security Service Regulations 2000 - The powers of the NSS
Board of enquiry and those of the Director
General on recommendation
for discharge

2

contrasted
- The court a quo correctly finding that the disciplinary proceedings
in question were not irregular - The court, however,
led astray by a
letter addressed by theDirector General to the appellant and inviting
him to show cause why he should not be discharged
- On appeal such
letter held to be inconsequential - The court a quo improperly
granting an order not prayed for - Appeal allowed.

JUDGMENT

RAMODIBEDI
JA

[1] This
appeal essentially raises the question of the validity or otherwise
of the respondent's discharge from the National Security
Service
("the N.S.S.") The appeal lies against the following
background. During the period between 19 December 2005 and
5 January
2006, a period spanning thirteen consecutive days, the respondent, a
member of the N.S.S. stationed at N.S.S. Headquarters
in Maseru,
absented himself from work without leave. In due course, on 7 March
2006, he faced a disciplinary hearing before a board
of enquiry of
the N.S.S. ("the Board") on a charge of contravention of
Regulation 14 of the National Security

3

Service
(Amendment) Regulations 2005. This Regulation reads :-

"14. A member who absents himself without leave commits breach
of discipline. "

[2] The
respondent pleaded guilty to the charge. Acting in terms of
Regulation 32 (4) of the National Security Service Regulations
2000
("the Regulations") as fully set out in paragraph [7]
below, the Board recommended that the respondent be discharged
from
the N.S.S. The recommendation was in these terms:-

"[In] terms of Regulation 32(4) of National Security Service
Regulations of 2000, the Board recommends that the defaulter
be
discharged from the Service. "

It is
common cause that the respondent was duly advised of the Minister's
confirmation in this regard on 30 May 2006.

4

[3]
Thereafter, the respondent launched a review application in the High
Court. He sought prayers couched in the following terms
:-

1. Declaring
   the disciplinary proceeding (sic) against the Applicant on 7th March
   2006 irregular and therefore of no legal force
   and effect.

   
   

2. Reviewing
   the said proceeding (sic) and setting them aside.

   
   

3. Ordering
   Applicants (sic) re-instatement to his N.S.S post and rank with
   effect from his date of dismissal.

   
   

4. Directing
   the Respondents to pay Applicant's costs only in the event of
   opposing this application.

   
   

5. Granting
   Applicant such further and/or alternative relief this Honourable
   Court shall deem fit and proper. "

   
   

[4] The
Respondent's grounds of review are set out in paragraph 15 of his
founding affidavit. Therein he makes the following complaints:-

5

"15

In
summary the decision to discharge me from the office is irregular and
stands to be set aside for the following reasons:

15.0 The composition of the Board included my direct superior.

15.1 My hearing took place well over seven (7) days after I was
notified of the complaint against me.

15.2 I did not admit my guilt in writing.

15.3 I was not informed of my right to legal representation.

15.4 The Director General did not make his own recommen­dations
to the Minister. If he did he failed to provide me with copy
of same.

15.5 1st Respondent acted both as the presiding officer and as the
Director General in this case and could therefore not be seen
to be
fair and transparent in the dealings of this case.

15.6 Because the Director General is enjoined to recommend to the
Minister, only the Minister can confirm or set aside the Director

General's recommendations.

15.7 The so-called Minister's confirmation was made a secret to me
until again 1st Respondent informed me per MM6,

15.8 The Board of Enquiry is supposed to make recommendations to the
Director General who in turn is supposed to recommend to the
Minister
who is supposed to either confirm or set aside the Director General's
recommendation and in the same breath I am supposed
to appeal to the
same Minister. "

6

On 26
March 2007, the High Court (Nomngcongo J) came to the following
conclusions:-

1. I
   found nothing irregular in the proceedings of the 7th March 2006 and
   therefore I would not set them aside.

   
   

2. I
   found however that the procedures provided for by Regulation 32 (1),
   (2), (3) and (4) of the National Security Service Regulations
   2000
   and Section 21 (8) and (9) of the National Security Service Act were
   not followed in discharging the applicant from service
   and such
   discharge was therefore unlawful.

   
   

3. Prayers
   1 and 2 are therefore dismissed.

   
   

4. Prayer
   3 is granted as supplemented by prayer 5 for alternative relief i.e.
   declaring applicant's discharge unlawful although
   not specifically
   prayed for, and re-instating him to his N.S.S, post and rank with
   effect from the date of dismissal.

   
   

5. The
   applicant having only partially succeeded is entitled to only half
   of his costs."

   
   

[6] The
appellants challenge the correctness of the learned Judge a quo's
order Nos. 2 and 4 reflected in the preceding paragraph.
They rely on
a single ground of appeal which reads as follows:-

"The
learned Judge errered (sic) and misdirected himself by declaring as
he did that ' applicant's discharge was unlawful'
thereby granting a
substantive prayer and/or order which was

7

not
sought in the Notice of Motion and for which no motivation was made
in argument, "

[7] It is
now opportune to refer to Regulation 32 (1) (2) (3) and (4) of the
Regulations and Section 21 (8) and (9) of the National
Security
Service Act 1998 ("the Act") upon which the learned Judge a
quo relied in reaching his decision declaring the
respondent's
discharge unlawful. The Regulation in question reads:-

"32. (1) The Board shall and the Director General may, within 5
working days after the Board has issued its decision make

recommendations to the Minister regarding the case and shall provide
the member with a copy of the recommendations.

(2) The Member may, within 5 working days after receiving

the recommendations, appeal the Board's decision and make his
recommendations to the Minister.

(3) The Minister may confirm or set aside the decision of the

Board.

(4) The decision may be reprimand, suspension, demotion, salary
reduction, transfer or discharge from the Service. "

8

Section
21 (8) of the Act in turn provides as follows:-

"The board of enquiry shall, and the Director General may make
recommendations to the Minister regarding the case. "

Section
21 (9) reads as follows:-

"The
Minister may, after considering the record of the proceedings of the
board of enquiry, the recommendations of the board
and the Director
General if any, and the grounds of appeal, of and representations
made by the member, set aside or confirm the
decision of the board of
enquiry and-

1. direct
   that no further action be taken on the matter;

   
   

2. direct
   that he be cautioned and reprimanded;

   
   

3. direct
   that he be demoted or salary be reduced to such an extent as may be
   recommended;

   
   

4. direct
   that the member be called upon to resign from the Service with
   effect from a specific date; or

   
   

5. discharge
   the member from the Service with effect from a specific date. "

   
   

[8] As
indicated in paragraph [2] above, the Board duly made a
recommendation to the Minister. The learned Judge a quo

9

correctly
made this finding on page 13 of this judgment when he said the
following:-

" I come now to the letter of 26th April itself. It makes very
disturbing reading. First of all, why was there need to write
such a
letter when on the ? March the Board had made its recommendation and
all it had to do was send it to the Minister within
five working days
and give a copy to the applicant? The first Respondent says in this
regard that she was 'only communicating the
board's recommendations
and did not make any decision whatsoever and as such applicant
suffered no prejudice.' If it is so what
was the purport of the
letter of the 7th March to the applicant. Further is first Respondent
telling us that the recommendations
of the Board of which she had
been presiding officer was only being dispatched to the Minister on
the 26th April - well beyond
the 5 working day period stipulated by
law? "

In my
judgment the finding that the Board made its recommendation decides
the matter. The dispute should have ended at that point
in favour of
the appellants. Put differently, the finding in question ought to
have tipped the scales in favour of the appellants.

10

[9] With
respect to the learned Judge a quo, what seems to have led him astray
is a letter written by the first appellant dated
26 April 2006,
annexure "MM4." It is addressed to the respondent in these
terms:-

"RE:
RECOMMENDA TION FOR DISCHARGE FROM THE SER VICE

You will
recall that following your appearance before the National Security
Service Staff Board sitting as a disciplinary tribunal
in early
March, 2006 it was recommended that you be discharged from the
National Security Service. This came as a result of your
absenting
yourself from duty for thirteen (13) consecutive days with effect
from 19th December 2005 to 5 January 2006.

By this
letter you are required to give reasons if any, within seven (7)
working days, why the recommendations of the disciplinary
board
cannot be confirmed.

Yours
sincerely

Sgd

L
MAKAKOLE

DIRECTOR
GENERAL - NS.S.(a.i)"

In my
view, once the Board had made its recommendation to the Minister on 7
March 2006 as it did, it was strictly not

11

necessary
for the first appellant to write annexure "MM4." It is
plain from a correct reading of section 21 (8) of the
Act read with
Regulation 32 (1) that it is the Board which is enjoined to make a
recommendation and not the Director General who
merely has a
discretion whether or not to do so. Nor can there be any doubt from a
correct reading of these provisions that such
a recommendation is
made to the Minister. It follows that the letter in question is, in
my view, inconsequential. The learned Judge
a quo was with respect
wrong to rely on it for his order declaring the respondent's
discharge unlawful. As correctly submitted
on the appellant's behalf,
this was in any event not the respondent's case as pleaded. It was
not the respondent's case for that
matter, that the Board's
recommendation in question did not reach the Minister or that he was
denied an opportunity of responding
thereto in terms of Regulation 32
(2). Nor was the order granted by the learned Judge a quo prayed for
in the

12

notice of
motion, a point which he correctly concedes in order No.4 of his
judgment as fully set out in paragraph [5] above.

[10] In
several of its decisions this Court has deprecated the practice of
granting orders which are not sought for by the litigants.
See for
example Nkuebe v. Attorney General and Others 2000 - 2004 LAC 295 at
301 B - D; Mophato oa Morija v. Lesotho Evangelical
Church 2000 -
2004 LAC 356. In the latter case, this Court (per Grosskopf JA) said
the following at page 360:-

"The appellant's first ground of appeal was that the court a quo
erred in making the above order when neither the appellant
nor the
respondent had asked for it. Counsel for the respondent, on the other
hand, submitted that the court a quo was fully entitled
to grant such
an order since the notice of motion included a prayer for further
and/or alternative relief.

I do not agree. The relief which a court may grant a litigant in
terms of such a prayer cannot in my view be

13

extended to relief which he has never asked for and which is not even
remotely related to what he has asked for. It is equally
clear that
the order was not granted at the request of the respondent and it
does not appear on what grounds the court a quo could
order the
respondent... "

Similarly,
this Court has more than once deprecated the practice of relying on
issues which are not raised or pleaded by the parties
to litigation.
See for example Frasers (Lesotho) Ltd vs Hata-Butle (Pty) Ltd 1995 -
1999 LAC 698; Sekhonyana and Another vs Standard
Bank of Lesotho Ltd
2000-2004 LAC 197; Theko and Others v Morojele and Others 2000-2004
LAC 302; Attorney-General and Others v
Tekateka and Others 2000 -
2004 LAC 367 at 373; Mota v Motokoa 2000 - 2004 LAC 418 at 424;
Lesotho National Olympic Committee and
Others vs Morolong 2000 - 2004
LAC 449.

[11] It
remains to point out that the Board's recommendation in question was
fully justified on the facts. The respondent

14

admittedly
had a dreadful record of indiscipline. In this regard the record of
proceedings merits quotation:-

"The prosecutor pointed out that this was not the first time
that the defaulter is appearing before a disciplinary board and
that
he always tenders the same mitigation but he never lives up to his
promises. On different occasions in the past the defaulter
absented
himself without leave.

In September, 2004 he was charged and convicted for absenting himself
without leave from 21s' to 23rd July, 2004 and from 5th to
11th
August 2004. He was sentenced to seven (7) days forfeiture of pay on
the first count and ten (10) days forfeiture of pay on
the second
count.

In January, 2005 he was also charged and convicted of the same
offence and convicted (sic) having absented himself with effect
from
19th to 24th October 2004. He was sentenced to five days forfeiture
of pay. He was also charged and convicted for proceeding
to Thaba
Bosiu Blue Cross Rehabilitation Centre without permission. He was
sentenced to One Hundred Maloti (Ml 00.00) salary reduction
and
reprimand.

In May, 2005 he was again charged and convicted by the Staff Board
for absenting himself from 01s' to 04th March, 2005 and from
19th to
22nd April 2005. He was sentenced to suspension from duty without pay
for two months plus a severe reprimand.

Unfortunately these did not act as a deterrent as only two months
after he returned from interdiction he absented himself hence
the
present charge. He therefore asked the Board to impose a sentence
that will show the defaulter that his behaviour is viewed
in a
serious light. "

14

admittedly
had a dreadful record of indiscipline. In this regard the record of
proceedings merits quotation:-

" The prosecutor pointed out that this was not the first time
that the defaulter is appearing before a disciplinary board
and that
he always tenders the same mitigation but he never lives up to his
promises. On different occasions in the past the defaulter
absented
himself without leave.

In September, 2004 he was charged and convicted for absenting himself
without leave from 21st to 23rd July, 2004 and from 5th to
11th
August 2004. He was sentenced to seven (7) days forfeiture of pay on
the first count and ten (10) days forfeiture of pay on
the second
count.

In January, 2005 he was also charged and convicted of the same
offence and convicted (sic) having absented himself with effect
from
19th to 24th October 2004. He was sentenced to five days forfeiture
of pay. He was also charged and convicted for proceeding
to Thaba
Bosiu Blue Cross Rehabilitation Centre without permission. He was
sentenced to One Hundred Maloti (Ml00.00) salary reduction
and
reprimand.

In May, 2005 he was again charged and convicted by the Staff Board
for absenting himself from 01s' to 04th March, 2005 and from
19th to
22nd April 2005. He was sentenced to suspension from duty without pay
for two months plus a severe reprimand.

Unfortunately these did not act as a deterrent as only two months
after he returned from interdiction he absented himself hence
the
present charge. He therefore asked the Board to impose a sentence
that will show the defaulter that his behaviour is viewed
in a
serious light. "

15

[12] In
this Court counsel for the respondent sought to escape the obvious
consequences of the latter's previous convictions by
submitting that
the respondent was not given an opportunity to address them. No
suggestion was made, however, that these previous
convictions were
incorrect. In any event this submission overlooks two important
factors, namely:-

1. The
   court a quo specifically made a finding that there was "nothing
   irregular" in the review proceedings in question.
   There is no
   challenge to that finding, nor can there be.

   
   

2. The
   respondent does not deny the previous convictions in question. He
   was present at the hearing and had ample opportunity to
   dispute the
   previous convictions if they were incorrect, but he did not.

   
   

[13] As
this Court stressed in Commander LDF and Others v Retselisitsoe
Ramokuena and Another C of A (CIV) No.19 of 2005, courts
should not
be insensitive to the evil

16

that
indiscipline can cause to an organization such as the N.S.S. The
sensitive nature of this organization in particular may be
gauged
from section 5 of the Act. It provides as follows :-

"5.
(1) The function of the Service shall be the protection of the
national security.

(2)
Without prejudice to the generality of subsection (1) the Service
shall –

1. protect
   the state against threats of espionage, terrorism or sabotage which
   may infringe on national security;

   
   

2. protect
   the state from activities of agents of foreign powers and from
   actions of persons intended to over­throw or undermine
   democracy
   by political, industrial or violent means;

   
   

3. protect
   the economic well-being of the state against threats posed by the
   actions or intentions of persons inside or out­side
   Lesotho; and

   
   

4. protect
   the State against any activity that may tend to operate to undermine
   national security. "

   
   

17

[14] It
is plain then that, in order to discharge its functions effectively
as envisaged in the Act, the N.S.S. must be served by
highly
disciplined men and women who take their work seriously and who do
not just absent themselves from duty without leave at
the drop of a
hat. Otherwise the national security itself would be undermined.
Viewed in this way, it follows that the respondent
has got only
himself to blame for his discharge.

[15]
Faced with these problems, counsel for the respondent was then heard
to argue that the Minister should have written the letter
himself
confirming the respondent's discharge. But, it will be seen that
nowhere, either in the Act or in the Regulations, does
the Minister
bear this obligation. It surely suffices that the Director General
forwarded the information for the respondent's
discharge to him.
This, she did by letter

18

annexure
"MM6"dated 30 May 2006 addressed to the respondent. The
letter reads as follows:-

"Be informed that the Honourable Minister has confirmed both the
verdict and punishment recommended by the Board of Enquiry
upon your
disciplinary case in accordance with Section 21(9) (e) of the N.S.S.
Act, 1998 read with Regulation 32 (4) of the N.S.S.
Regulations,
2000.

You are therefore discharged from the Service w.e.f. 1s' June 2006.

You are instructed to handover to S. O. Accounts all government
property that was entrusted to you during your tenure of office.
"

More
importantly, it cannot be seriously disputed that the Minister did in
fact confirm the respondent's discharge. In any event,
it was not,
once again, the respondent's case as pleaded that the Minister did
not make such a confirmation.

[16] For
the reasons which I have endeavored to highlight above I am of the
opinion that the appeal should be allowed. Accordingly,
the following
order is made:-

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1. The
   appeal is upheld with costs.

   
   

2. The
   judgment of the court a quo is set aside and replaced with the
   following order:-

   
   

"The
application is dismissed with costs."

M.M. RAMODIBEDI

JUSTICE OF APPEAL

I agree

F.H. GROSSKOPF

JUSTICE OF APPEAL

I agree

J.W. SMALBERGER

JUSTICE OF APPEAL

FOR
APPELLANT: Mr T.S. Putsoane

FOR
RESPONDENT: Mr B. Makututsa