CIV/APN/271/2006

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MALEBANYE
MALEBANYE APPLICANT

AND

THE
PRESIDING OFFICER-N.S.S 1st RESPONDENT

(Mr
Makakole)

THE
ATTORNEY GENERAL 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr Justice T.Nomngcongo On the 26th March 2007

It is
common cause that on the 8th February 2006, the Presiding officer L.
Makakole of the staff Board, a disciplinary body of the
National
Security Service wrote to the applicant advising him that he was
being charged with contravening Regulation 14 of the
National
Security Service (Amendment) Regulations of 2005 in that he absented
himself from duty without leave for thirteen

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consecutive
days from the 19th December to the 5th January 2006. He was also
informed that he was expected to appear before the
Staff Board to
answer the charge on the 20th February 2006 at 0800 hours.

On the
appointed day the charge was read to him but he was not asked to
plead as the Staff Board was apparently not in full attendance
and
the matter was postponed to the 6 March. For some undisclosed reason
it did not proceed that day but on the following day,
the 7th March.
He pleaded guilty and was consequently found guilty in terms of
section 21 (6) of the National Security Service
Act of 1998 which
reads:

2. (6)
   "After considering evidence before it and affording the member
   or any other member representing him at, a hearing the
   board of
   inquiry may find the member guilty or not guilty of the misconduct
   and inform him of its findings but if that member
   admits in the
   written submission or hearing that he is guilty of the

   
   

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misconduct he may be found guilty without other evidence being
adduced", (my underlining)

Having
found the applicant guilty the board then heard the prosecutor
present a list of previous misconducts for which he alleged
the
applicant had been convicted. The record does not show whether he was
afforded the opportunity to admit or deny such previous
convictions
as would have happened in a magistrate's court. Now section 21 (4) of
the National Security Service Act 1998 has this
to say:-

"At the inquiry the law relating to evidence and witnesses as
applicable in criminal proceedings in the magistrate court shall
as
far as practicable apply".

With
regard to previous convictions the procedure for proof thereof is
laid down as follows in the Criminal Procedure and Evidence
Act 1981:

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"289 (3) If the trial is before a subordinate court the
prosecutor may, after the accused has been found guilty, tender
evidence
of the previous conviction he alleges in respect of the
accused, and thereupon the court shall :-

1. ask
   the accused whether he is the person alleged to have been previously
   convicted, and

   
   

2. determine
   the truth as to such alleged previous convictions as the accused has
   not admitted.

   
   

4. If
   on any trial:-

   
   

1. any
   previous conviction is lawfully proved against the accused; or

   
   

2. the
   accused has admitted the previous conviction, the court may take it
   into consideration in awarding sentence for the offence
   to which he
   has pleaded, or of which he has been found guilty.

   
   

Taking
into consideration the list of previous convictions presented by the
prosecutor the staff Board came to the conclusion that
the only
suitable

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punishment
for the applicant was to discharge from duty and it made a
recommendation to that effect. By letter of the 7th March
- that is
the same day, the applicant was apprised of this decision and
recommendation.

The
National Security Service Regulations 2000 Regulation 32 (1) (and the
Principal law is identical here) provides as follows.

"(1) The Board shall and the director may within 5 working days
after the Board has issued its decision make recommendations
to the
Minister regarding the case and shall provide the remember 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."

   
   

As
indicated above presumably acting in terms of Reg. 32 (1) the
Presiding Officer (1st Respondent) L. Makakole (as she then was)

wrote on the 7th March a letter to the applicant with the following
covering note

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"Forwarded herewith please find summary of proceedings in the
above case."

There was
no indication that the proceedings and/or recommendations were at the
same time or anytime within the required 5 working
days were being
sent to the Minister. Any doubt that nevertheless this was done is
removed by what transpired next.

On the
26th April 2006 well beyond the 5 working days required by Regulation
32(1) L.Makakole now wearing a new mantle of Director
General, N.S.S
(a.i) wrote to the applicant reminding him of the disciplinary
hearing against him in which a recommendation for
his discharge had
been made. She required him by this letter to "give reasons if
any, within seven (7) working days, why the
recommendations of the
disciplinary board cannot be confirmed. "

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The
applicant was alarmed by this communication and questioned its
proprietary by letter dated 9th May 2006. I have no doubt it
is this
state of affairs that precipitated the present proceedings in which
the applicant prays that the court:

1. Declare
   the disciplinary proceedings against the applicant on 7th March 2006
   irregular and therefore of no force or effect.

   
   

2. Review
   the said proceedings and set them aside.

   
   

3. Order
   the 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 the costs in the event of
   opposing this application".

   
   

I may add
here that before this the 1st Respondent had written to the applicant
informing him that the Minister had confirmed the
decision by the
"Board of inquiry upon your disciplinary case

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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."

The main
grounds for applicant's complaint are summarized at par. 15 of his
founding affidavit as follows.

"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.

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 inquiry 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".

Regarding
the composition of the Board, the applicant's complaint was that it
consisted, inter alia, of one M.Mafaesa whom he

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described
as the Director of Administration and as such a person under whom he
directly fell. This he said is contrary to the provisions
of
Regulation 29 (5) of National Security Service Regulations 2000.
(Par. 7 of the Founding). When the applicant was shown in answer
by
the 1st Respondent that Mafaesa was, contrary to what was alleged, in
fact the Director of operations, the applicant in reply
conceded his
mistake and substituted that of Mothabeng saying he was in the same
manner disqualified from sitting on his hearing.
The applicant stands
or falls by his founding papers. He could not seek to correct his
founding papers in reply when the respondent
is now unable to meet
his case. This is trite.

In the
complaint 15.1 the applicant simply chooses the minimum period to the
exclusion of the maximum. The regulation provides that
the hearing
must take place no sooner than 7 working days and no later than 10
working days after a member has been notified of
a charge against
him.(Regulation 30(3)). Now a simple calculation

The must
show that between the 8th February and 20th February the

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authorities
were still within the time prescribed in the regulations. There is no
merit in this complaint. Of course on that day
the matter was
postponed but that is in the nature of a hearing.

At 15.2
the applicant says he did not admit his guilt in writing. He need not
do so in terms of regulation of 21 (6). He may do
so but he also has
a discretion to plead at the hearing. This obviously envisages viva
viva pleading. That is clearly the interpretation
to given to the
words "if that member admits in the written submission or
hearing ...." Applicant's plea was in accord
with the
regulation.

The next
point made by the applicant is that he was not informed of his right
to legal representation. The applicant is a member
of the National
Security Service. In my view this is what I may call a para-legal
institution whose members cannot be compared
to ordinary members of
the public who may be said to be often ignorant of their right to
legal representation. If I am wrong in
that

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perception,
surely members of the National Security Service are expected to know
the Regulations governing their employment. Nay,
it is like every
employee their duty to do so. Now Regulation 30 (7) has this to say
regarding legal representation.

"(7) the member may be represented by a legal counsel at the
member's own cost."

The
applicant cannot tell me that he wanted someone else to tell him he
had a right to legal representation when it was there for
him to see
all the time. In saying this I am not unmindful of the letter
Annexure "MM5" written either by the applicant
or as I
suspect someone with at least some knowledge of the law in which is
quoted the National Security Service Act of 1998 and
the Regulations
thereof of 2000 and the amendment of 2005. I can only conclude this
by saying, none so ignorant as those who would
not know. There was no
irregularity here.

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The rest
of the complaints from par. 15.4 to 15.8 stem from the letter of 26th
April 2006. The applicant makes the general observation
here that the
Director General is the person charged, presumably following a board
inquiry, with making a recommendation to the
Minister who in turn may
confirm or set aside the recommendation of the board. I have earlier
referred to the relevant regulation
32 (1) which clearly says "The
Board shall and the Director General may......make recommendations to
the Minister." So,
clearly the primary and mandatory duty to
make recommendations to the Minister lie with the Board rather than
the Director General,
whose function is merely discretionary. The
principal act -section 21 (8) uses exactly the same terminology and
to emphasize the
discretionary nature of Director General's function
at sub-section (9), it goes on to say :

"The Minister may, after considering the record of proceedings
of the board of inquiry, the recommendations of the board and
the
Director General if any.......set aside or confirm the decision of
the board of inquiry" (my emphasis).

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It cannot
be correct therefore that it is the Director General who is "enjoined
to recommend to the Minister" although
he may well do so if he
chooses. It is the Board of inquiry, rather that is enjoined to
recommend to the Minister.

I come
now to the letter of the 26 April itself. It makes very disturbing
reading. First of all, why was there need to write such
a letter when
on the 7 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?.

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What I
find most disturbing is that the now acting Director General,
Makakole who was at the hearing the presiding officer is asking
of
the then accused reasons why a recommendation to discharge him cannot
be confirmed, (my emphasis). Firstly to whom are these
reasons to be
given and by what authority of the law. None was referred to me and I
have found none. The Board has made its recommendations
all that the
Director General can do under the law is to make his own
recommendations if he so chooses within 5 working days. He
cannot
wait beyond that period and then ask a member for reasons within a
period of 7 working days - not provided for in the law.

One
wonders what then happened with the information that Makakole got
following this illegal procedure.

One final
observation regarding the whole procedure, the applicant has always
called into question whether indeed the

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recommendations
of the board were made to the Minister as required by law. He went so
far as to call it a "so-called Minister's
confirmation." In
my view, nothing would have been simpler than to annex the minister's
written confirmation instead of annexing
"MM6" a letter, in
the nature of hearsay from Makakole who has not proved to be overly
concerned with following prescribed
procedures.

In the
premises I come to the following conclusion:

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.

   
   

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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 his dismissal.

   
   

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

   
   

T.
Nomngcongo

JUDGE

For
Applicant: Mr Makuputsa

For
Respondent: Mr Kali

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