CIV/APN/285/06
IN THE HIGH COURT OF LESOTHO
In the matter between:-
SEABATA KOEKOE 1ST APPLICANT
‘MAPASEKA MATELA 2ND APPLICANT
KHATHATSO KHOELE 3RD APPLICANT
‘MAMOKASI TLOUOE 4TH APPLICANT
‘MABOKANG NCHEKE 5TH APPLICANT
‘MAZOLO MAKHOALI 6TH APPLICANT
MABUSETSA ‘MABATHOANA 7TH APPLICANT
‘MATSEKO LEKOATSA 8TH APPLICANT
TIEHO MASAOANA 9TH APPLICANT
LEQHOABOQHOABO MAKARA 10TH APPLICANT
NKOPANE PHORORO 11TH APPLICANT
MOKHALI SELLO 12TH APPLICANT
MIRIAM M. PINDA 13TH APPLICANT
TAELO MOEKETSI 14TH APPLICANT
LEBOHANG SEKATLE 15TH APPLICANT
MOEKETSI NTSEBE 16TH APPLICANT
‘MATSEPANG MATJEKA 17TH APPLICANT
PITSO THAISI 18TH APPLICANT
PHAKISO MAUTSOA 19TH APPLICANT
TSEBELETSO SELEBALO 20TH APPLICANT
‘MATHABO KHALI 21ST APPLICANT
THAKANE LENKOANE 22ND APPLICANT
‘MAMONYANE MOJAKISANE 23RD APPLICANT
MOTSEKI NOLOANE 24TH APPLICNAT
TOKA LESIE 25TH APPLICANT
THABO MACHELI 26TH APPLICANT
ABINYANE KOU 27TH APPLICANT
THABO MAFEREKA 28TH APPLICANT
‘MUALLENYANE MAFAESA 29TH APPLICANT
LEPOLESA TAU 30TH APPLICANT
‘MATAU KHOLUMO 31ST APPLICANT
NTHOFEELA MOKALA 32ND APPLICANT
TSEPO MOLIBOLA 33RD APPLICANT
MALINGOANE MOROKA 34TH APPLICNT
THABANG MOSOEUNYANE 35TH APPLICANT
‘MAMATEBELE MOHATHE 36TH APPLICANT
KHAKHANE LETSHOPA 37TH APPLICANT
RAMOHAPI RANCHEBE 38TH APPLICANT
MOLEFI MOKONE 39TH APPLICANT
‘MAKABELO NYOOKO 40TH APPLICANT
TEBOHO MAITSE 41ST APPLICANT
LEBOHANG MAIME 42ND APPLICANT
LIMPHO PITSO 43RD APPLICANT
‘MATSEPO M. NTLAME 44TH APPLICANT
AND
COMMISSIONER OF POLICE 1ST RESPONDENT
MINISTER OF HOME AFFAIRS 2ND RESPONDENT
MINISTER OF PUBLIC SERVICE 3RD RESPONDENT
ATTORNEY GENERAL 4TH RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 8th February 2007
Applicants approached this Court on notice of motion wherein they are seeking relief in the form of a declarator in the following terms:-
Declaring 1st respondent’s act of not affording 1st to 7th and 15th and 16th applicants an opportunity to attend Police Training College special Constables course and to write the 1996 examinations after the said course as unlawful due to the fact that applicants were not given a hearing before the decision not to admit them to the course was taken.
Declaring 1st respondent’s act of not promoting 9th to 13th applicants after they had attended the 1996 Police Training College Special Constables course, and writing final examinations thereof as unlawful due to the fact that they were not given any hearing before that decision was taken.
Declaring applicants to be permanently employed regard being had to the inordinately long period of time that they have been employed as Special Constables or Police Assistants in the Lesotho Mounted Police Service.
ALTERNATIVELY
Directing the 1st respondent to comply with its duty of deciding the issue of employing applicants as troopers properly in the light of the past
practice.
Granting applicants further and/or alternative relief
Costs of this application.
The application is opposed. The facts are basically common cause, namely that, applicants are Police Assistants whom prior to 1998 used to be classified as Special Constables. Depending on the time of their recruitment, some of them were employed under the 1957 Police Proclamation, others under the 1971 Police Order whilst others were employed under the 1998 Police Act.
It is also undisputed that since their having joined the police Service, some of the applicants have never been afforded the status of permanent police officers and that their appointment was not for a specified period but was open-ended. It is also common cause that during their period of service as special constables, some of the applicants were selected to attend promotion training courses, with others who were promoted from being police assistants to being fully-fledged Police Officers having passed their examinations at the end of the training course. It is against this background that applicants approached this Court for relief as shown above.
The matter was argued before me on the 20th November 2006 and Mr. Phoofolo for applicants informed the Court that the facts were not really in dispute save for the Court to determine the issue whether applicants
could be employed on a temporary basis indefinitely.
In his founding affidavit, especially at paragraphs 8 and 9 thereof respectively, 1st applicant SEABATA MICHAEL KOEKOE avers as follows:-
“I was employed as a Special Constable on the 1st March 1996. I attach hereto my letter of appointment marked “SM 1”. It will be readily seen from the said letter of appointment that the date of termination of my appointment as such was deliberately left out by the appointing authority, despite the requirements of the Police Proclamation 1957 and Police Order 1971, that such appointments should be for a specified period. The effect of our appointment as Special Constables was and is still that we are not entitled to any promotion and pension at the end of our service however long it may be. However we are duty bound to perform duties like police guard, police day and night patrolling, police crowd and traffic control duties. These are the duties ordinarily performed by any trooper in the Police Service.
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After three months of being employed, and time and again over the years we used to make enquiries as to how long we are going to remain a (sic) temporary employees, and the answer used to be that it is true that the period of temporary employment of a Special Constable is three months, and because such period long expired for me and my other colleagues “taba eo entse e sebetsoa” (the matter is being attended to). I recall distinctly making inquiries at the Human Resources Office of the 1st respondent on the same issue of the length of my temporary employment and my unsatisfactory service conditions all these past years. The human resource has been giving the same answer that the matter is being attended to. Nothing has developed out of that promise, while my colleagues and I remain temporary employees on a continuous basis and without any improvement to our service conditions. Some of us have resigned after years of stagnation while others have since died in the service of 1st respondent.”
In her opposing affidavit 1st respondent answered as follows to the above quoted averments:-
“Contents therein are noted save to deny that the appointment of special constables should be for a specified period. In terms of the law, the appointment can either be for a specified period or be open ended.
I deny that the period of temporary employment of special constables and/or Police assistants is three months as alleged and put applicants to the proof thereof. It is true that the issue of special constables and police assistants is being attended to. There is a bill which is to the effect that all special constables and/or Police assistants who are already in the service should be accorded the status of Police Officers. This therefore shows that there is indeed a development on this issue.”
In his replying affidavit, 1st applicant avers that the fact that the special constables are to be employed for a specified time is stated in Section 35 (1) of the Police Order 1971.
On the issue of the selection criteria for training and promotion it is applicants’ case as stated in paragraphs 10.1, 10.2, 10.3 and 10.4 respectively of the founding affidavit deposed to by KOEKOE that:-
“In terms of section 5(3) of the Police Order 1971 the Commissioner of Police was vested with the power to appoint a person to hold a rank below the rank of Senior Offices (sic) including the power to confirm appointments and to appoint by way of promotions. This power is vested in the Commissioner also in terms of section 8(3) of the Police Act 1998.
That even though my letter of appointment (annex “SM 1”) refers to the police Proclamation 1957, My employment contract is infact (sic) governed by the Police Order 1971 as I was employed while this Order was still in force. In terms of section 35(1) of the Order 1971 and section 59(1) of the Police Service Act 1998, our appointment has to be for a specific time. I have already mentioned that no time has been fixed for our appointments. Further in terms of section 35(2) of the said 1971 order we are supposed to have the same privileges, powers and protection, and are liable to perform the same duties as ordinary members of the force….
In 1996 twenty-eight of our colleagues wrote and twenty-seven passed the final examination. Nineteen of them were promoted to the rank of trooper, while nine were not promoted and still remain Special Constables to to-day. I attach hereto as “SM 2” and “SM 3” respectively the list of our colleagues who wrote the examinations and the list that was promoted to the rank of a trooper after they had passed the said examinations. I also for the purposes of this aspect of promotion by examination writing refer to the affidavits of No. 672 Leqhoaboqhoabo Makara and No. 990 Mirriam M. Pinda. The other affected people are ‘Matseko Lekoatsa, Tieho Masaoana, Nkopa Phororo, Mokhali Sello, and Taelo Moeketsi on whose behalf 10th and 13th applicants will file further affidavits.
The events and practice show that Special or Police assistants have joined the Police Service first without a fixed period of employment. Secondly such employment policy was not necessarily actuated by the conditions spelt out by the statute such as public emergency or disturbance and the like. It appears to have been largely a way of creating entry into the system which lead (sic) to full appointment on permanent terms later. One route to such appointments was the creation of some special courses at the police Training College to enhance the knowledge and skills of the Special Constables, in order to prepare them for appointments as troopers, although such appointments were said to be promotions as my annexure “SM 3” shows. … The writing and passing of the training courses led to appointments on permanent terms without exception…. That is why it came as a surprise to our group when some of us were never given the opportunity to attend the training courses, as well as the selection of some for promotion leaving others even among those who wrote and passed….”
The above averments were responded to in the opposing affidavit of 1st respondent in these words:-
“Contents therein are noted save to indicate that the commissioner of police is vested with the power to appoint, confirm appointments and to appoint by way of promotion persons to hold ranks of police officers. Applicants herein are special constables and police assistants. Their position is therefore different from that of police officers in terms of the law.
Contents therein are denied and applicants are put to the proof thereof. In terms of the law, Applicants’ appointments can either be for a specific time or be open ended. I reiterate contents of paragraphs 4 and 5 herein above. On the issue of selecting special constables and/or police assistants to attend promotion training courses and the criteria used therein, this is always based on the performance and discipline of such persons and applicants are very much aware of this fact.
Contents therein are noted save to indicate that selection is based on the overall performance and discipline of an individual. I reiterate contents of the above paragraph.
Contents therein are noted.”
In his address and heads of argument, Mr. Phoofolo submitted that applicants’ case is that in view of the considerable period of time they have served as Police assistants, they should by now have been employed as troopers and that it is within the discretion of the 1st respondent to do so. Further, that 1st respondent’s averments cannot be factually or legally true to wit; that she cannot absorb applicants into the Police Officers’ rank without the authorization of Parliament because in terms of Section 8 of the Police Act 1998 1st respondent has the power to appoint Police Offices to any rank below that of a Senior Officer.
Secondly, that 1st respondent did not seek Parliament’s approval before the people listed in applicants’ annexure “SM 3” could be promoted from the rank of Special constables to troopers. In addition that 1st respondent’s case is that the selection of applicants to attend promotion training courses depends on the individual performance and discipline not that it depends on the approval of Parliament. It was his submission that in view of these factors, applicants should be afforded the same treatment as their other colleagues.
Counsel for applicants added that 1st respondent admitted in her opposing affidavit that direct appointment after an unstipulated period of service has always been another way of entering into the Police Service at the level of trooper so that the argument that it is only through an Act of Parliament that the same consideration can be extended to applicants in casu is incorrect.
On behalf of respondents, Ms Pali submitted that their case is that it is true that the issue of applicants’ position in the police service is being attended to and that per an existing Bill, all special constables and/or police assistants who are already in the police service should be accorded the status of Police Officers.
Secondly, that the period of temporary employment of special constables and/ or Police assistants can either be for a specific period or open ended especially because per her contention, the Police Order and the Police Act do not define a “temporary period”.
Lastly, it was Ms Pali’s submission that the criteria for selection for promotion per the opposing affidavit of 1st respondent are based on the overall performance and discipline of each individual which criteria applicants are aware of and that as such, there is no bias and discrimination in changing the terms and conditions of service of special constables and/or Police Assistants.
Lastly Ms Pali submitted that 1st respondent does not have the power to change and/or amend the existing laws as that is the exclusive mandate of parliament but can only recommend changes as evidenced by the provisions of the Police Service Amendment Bill of 2005 which provides that Special constables and/or Police Assistants who are already in the Police Service must be accorded the status of Police Officers.
I have already shown that most of the facts herein are common cause. It is also not disputed that applicants were appointed for an unspecified period as evidenced by annexure “SM 1” in the founding affidavit which bears the heading:-
APPOINTMENT OF SPECIAL CONSTABLE
It reads in parts and insofar as is relevant herein as follows:-
“I, the undersigned MAJOR T.S. KORO (qualification) do under the powers vested in me by the Police Regulations hereby appoint SEABATA KOEKOE to be Special Constable in the Royal Lesotho Mounted Police from 1.3.96 to – subject to the Police Order 1971…”
As can be readily seen, for the fact that there is a dash after the word to, it cannot be correct as was argued on behalf of respondent that this appointment was not open-ended which in turn begs me to deal with the issue of whether or not the appointment of applicants in casu was correctly left open ended.
I find it convenient to start off from the premise that it cannot be disputed that before the coming into being of the Police Service Act 1998, the law that was in force, especially at the time 1st applicant and others were appointed as special constables was the Police Order 1971. Section 35 thereof provides as follows:-
Whenever there are not sufficient ordinary members of the Force available to perform police duties or any particular duty,… the Commissioner may, authorize generally or in any particular case any senior officer to appoint in writing as many fit and proper persons as may be deemed necessary to act as special constables for a specified time with such rank as may be specified by the appointment officer:
Provided that it shall be lawful for any senior officer so to appoint such special constables, if, in the opinion of such senior officer, such appointment is of immediate necessity. Such appointments shall be notified forthwith to the Commissioner.
Every special constable appointed under this section shall have the same powers, privileges and protection and shall be liable to perform the same duties and shall be amenable to the same penalties and shall be subordinate to the same authorities as ordinary members of the Force, and may be paid such remuneration as the Minister may determine. (my underlining)
Although 1st respondent denied it in her opposing papers, in my view, the above provision does support applicants’ case that, their appointment
should have been for a specified period, as well as the fact that per Koekoe’s contention as quoted above, applicants are obliged under the law to perform the same duties as ordinary police officers. This is especially so because although she averred that her denial was based in terms of the law, 1st respondent did not refer this Court to such a law if it does exist apart from the 1971 Order.
This being the case, it is my opinion that applicants are correct in their contention that the open-ended nature of their appointment, coupled with the fact that they have been in the service for a period of about ten (10) raised a legitimate expectation on their part that as it happened with their other colleagues, they would eventually be absorbed into the Police Service.
This brings me to the next issue, whether, selection to attend training courses and promotions, was fixed on any criteria thus justifying applicants’ having been left out of same.
As I have already shown above, 1st applicant averred that no such criteria existed and that the selection was arbitrary and as a result was biased and discriminatory. He also added that since he was first appointed, he (and others) have made several inquiries regarding their terms and conditions of service including but not limited to the issue of promotion after successful completion of the training course. The same was iterated by some of the other applicants in their supporting affidavits including for instance, that of Leqhoaboqhoabo Makara.
To this end applicants attached annexures “SM 4” a letter written by 13th applicant, Pinda to the Head of Human Resources (LMPS) and dated 2nd February 2006 and “SM 6” a letter written by 10th applicant, Leqhoaboqhoabo Makara to the Head Human Resources and dated the 27th April 2006. In both letters, applicants are applying to be promoted having successfully completed the training course.
Both letters were responded to and the replies have been attached as annexures “SM 5” and “SM 7” respectively. “SM 5” a letter written in response to the 13th applicant’s letter and dated 11th May 2006 reads as follows in part and insofar as is relevant to the issue at hand:-
“I am directed by the Commissioner of Police to inform you that our office is working hard to improve the working conditions of Police
Assistants.”
It is signed by Senior Inspector Theko.
On the other hand “SM 7” is a memorandum addressed to the Compol HHR from O/C TSD and dated 27th April 2006. It reads:-
“Sir,
NO 672 P/A Makara showed me his application concerning pass marks of 1996. I forwarded this application to you for your consideration.”
The letter is signed by one Makoae. Although his rank is also stated, the hand writing is faint and thus not easily discernible.
In addition, there is annexure “SM 8” a document from COMPOL ACP ADMIN addressed to DISPOLS, ACPS, REGIPOLS, DIR/TRAINING AND O/C SOU. It reads as follows:-
“CPHQ/R/14 29/12/05 YOU ARE HEREWITH INSTRUCTED TO ENSURE THAT POLICE ASSISTANTS AT YOURS (sic) ARE ALWAYS PAIRED WITH POLICE OFFICERS WHILE EXECUTING THEIR DUTIES STOP A SITUATION OF DETAILING POLICE ASSISTANTS ALONG TO CARRY POLICE DUTIES WILL RESULT IN A HARD MEASURES BE TAKEN (sic) AGAINST RESPONSIBLE OFFICERS STOP FURTHERMORE YOU SHOULD NOTE AND INFORM ALL POLICE ASSISTANTS AT YOURS (sic) THAT THIS OFFICE IS WORKING HARD TOWARDS THEIR ABSORPTION IN EITHER BEING POLICE OFFICERS OF TECHNICAL ASSISTANTS AND THEY WILL BE INFORMED OF THE OUT COME SOONEST STOP THIS PROCESS IS NOT NEARING THE END STOP
DTOR : 29 1958
OPER : SELLO”
Although it was respondents’ case that selection is or was based on performance and discipline, this was only alleged for the first time in the pleadings. Instead, the responses to applicants’ applications supports the latter’s averments that they were told that the matter was being looked into. All the above quoted correspondence makes no mention of criteria.
In my view, if it is to be believed that certain criteria had been followed, then this should have been pointed out to applicants in the replies. Failure to categorically point this out to them, simply buttresses applicants’ case that selection was made arbitrarily without following any particular criteria. Further, applicants have also attached annexures “SM 2” and “SM 3” which are a list of those applicants who were selected to attend training and a list of those who successfully passed it but were left out of the promotions without any reasons being given for such a decision respectively.
It is against this backdrop that I accept applicants’ contention as true on a balance of probabilities. On that basis, I also accept the submission that they had a legitimate expectation that over the years which they had been serving, they would be absorbed into the Police Service as it happened with some of their colleagues and/or selected for training promoted following a successful completion of same.
The doctrine of legitimate expectation was dealt with at length in previous cases such as that of ‘Mampho Mofolo v Commissioner of Police CIV/APN/418/2004 (unreported) and other authorities therein referred to. Without dwelling on the various considerations discussed therein, suffice it to say that it is now a principle of law that established practice creates a legitimate expectation on the part of an individual upon wherein the audi alteram partem principles should apply.
I accordingly find that applicants’ are correct in their contention that this doctrine applies in the present case.
Lastly, I turn to deal with the issue whether applicants’ prayer cannot be granted without any change or amendment of the law by 1st respondent. I have already shown that according to annexures “SM 2” and “SM 3” other special constables and or police assistants have been selected for training and promotion by 1st respondent. This fact was not denied save to add that selection was done on the basis of performance and discipline.
Further, it is common cause that the said selection has been taking place within the present regime that governs conditions of service of police officers starting from the 1957, Police Proclamation, the 1971 Police Order and the 1998 Police Service Act i.e. in the absence of any other Act of Parliament. Therefore, in my opinion, the submission by Ms Pali that for the same process to take place with regard to the present applicants the law needs to be amended first is incorrect. The existence of a Bill does not change the fact that promotions and employment on permanent terms of special constables has taken place all along in the absence of the said Bill and/or Act.
I accordingly cannot accept the argument that the remedy sought by applicants requires 1st respondent to change the existing law. Even assuming that it did, it would be an untenable relief which this Court would not even grant for the reason that as was submitted on behalf of 1st respondent, it is only Parliament that can promulgate, change and/or amend the law.
For all the above reasons, I accordingly find that applicants have successfully made out their case and proceed to grant the prayers sought in terms of prayers 1, 2 and 3 in the main and alternative prayer 4 as they are stated in the notice of motion.
Costs are accordingly awarded to applicants.
N. MAJARA
JUDGE
For applicants : Mr. H. Phoofolo
For respondent : Ms P. Pali
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