THE HIGH COURT OF LESOTHO
the matter between:
OF EMPLOYMENT AND LABOUR 2ND
Delivered by the Honourable
Judge M. Mahase
On the 19th
Disciplinary Proceedings Review Reinstatement
The applicant has
approached this court by way of review application. He is seeking
The decision of
respondent dismissing him from his employment with the 2nd
respondent be set aside;
That he be
reinstated to his position.
is being opposed by the respondents.
Briefly the facts
of this case are that the applicant who had at all material times
been employed by the 2nd
respondent was charged with having misappropriated funds paid into
the trust fund in the offices of the 2nd
The said funds
were to be paid to the dependant(s) of one Fani Mabaso. The
applicant is alleged to have misappropriated the sum
(one thousand maloti); thereby breaching the Provisions
of Section 15(1)(a)(i) of the Public Service Act No.1 of 2005
read together with Sections
3(1)(f) and 3(2)(n) of the Codes of Good Practice 2005.
disciplinary proceedings held against the applicant, he was then
dismissed from his employment by the 2nd
respondent; after a recommendation to dismiss the applicant from
employment was made by the Senior Labour Representative who had
the chairman/chairperson in the initial disciplinary inquiry held
against the applicant.
dismissal from his employment by the 1st
respondent, the applicant lodged an appeal against that dismissal
from employment. The applicants appeal was dismissed by the
respondent who was the chairperson of the appeal panel.
The above are
matters of common cause so also are the following:-
That Mrs. M.
Masheane, who is the Senior Labour Representative sat in the initial
disciplinary proceedings against the applicant
as the chairperson;
subsequently wrote a recommendation for applicants dismissal and
had the recommendation submitted to the 1st
That, she also
took part in the appeal hearing lodged by the applicant who
challenged his dismissal from the 2nd
respondents employment by the 1st
That, this time
around, Mrs. M. Masheane sat in that appeal hearing as sectional
recommendation by Mrs. M. Masheane to 1st
respondent for the dismissal of the applicant, the 1st
respondent duly wrote annexure A herein filed and had
applicant dismissed from employment.
That, he (1st
respondent) later, on the 25th
November 2005, chaired an appeal hearing in which applicant was
challenging the appeal decision of dismissing applicant from
employment of the 2nd
Now, the questions
or the issues to be determined by the court are:-
- Firstly, whether
or not the respondents have followed the correct procedure in
applicant as they
- Secondly and inlimine
whether the applicant has exhausted the local remedies available
to him before approaching this court for a review?
It has been
submitted by the respondents that, applicants application for
review by this court has been prematurely filed before
because the applicant has not exhausted local remedies contrary to
of Section 9(6) of the Codes of Good Practice
In response, it
was submitted on behalf of the applicant that, in practice, no such
tribunal has ever been set up. This is, so
it was pointed out,
butterressed by the fact that there has never been publication of
names of people who constitute such a tribunal
published in the
Further, a copy of
such a gazette has not even been attached to the respondents
It is therefore
the applicants submissions that there being no Conciliation Board
and Public Service Tribunal the applicant has
this court for relief in terms of the Provisions
of Rule 50(1)(a) of the High Court Rules 1980.
have in turn argued that while such a tribunal has in practice not
been set up, there is nothing preventing the
applicant from filing
his appeal/or from declaring a dispute to such a tribunal.
In other words,
the respondents argue that the physical non existence of such a
tribunal is no bar to the noting of an appeal by
applicant to it.
Vide page 3
respondent head of argument.
In essence the
respondents concede that although provided for by the law, such a
body is non existent.
It is the view of
this court, in the light of the above that the respondents
argument that applicant should make use of a non
existing body is
untenable. This I say with great respect.
What that means is
that the applicant and some other people in his position would have
to wait indefinitely for their appeals to
be dealt with by a non
existing tribunal while they remain aggrieved by their dismissal.
This loophole or vacuum can not in law
be allowed because it is an
impediment to the administration of justice. One can not in all
fairness be expected to have recourse
to a non-existing tribunal.
This point inlimine
is therefore dismissed.
It is the
applicants argument that the respondents have not followed the
proper/correct procedure in dismissing him as they did
disciplinary hearing against the applicant was not chaired by the
head of the section contrary to the Provisions
of Section 8(3)(a) of Part III of the Codes of Good Practice
That Mrs. M.
Masheane, who had chaired the said initial proceedings, and being
the Labour Respresentative who was supervising
all the districts,
and not being the public officers head of section, should have
been called as a complainant in the absence
of the applicants
head of section.
It is applicants
further argument that, Mrs. M. Masheane should also not have been a
member in the subsequent appeal lodged
by the applicant against the
decision of the disciplinary panel which was chaired by her and
which recommended his dismissal.
In essence, the
gist of the applicants submission is that it was unprocedural,
unfair and highly prejudicial to him that Mrs.
M. Masheane was a
member of the disciplinary panel as well as the appeal board which
determined his fate in the employ of the 2nd
respondents have not denied nor challenged the submission that Mrs.
M. Masheane sat in the two bodies wearing two different
to speak in determining the fate of the applicant and ultimately
being instrumental in the dismissal of the applicant
from the employ
of the second respondent.
This court has
come to the conclusion that indeed, the participation of and or the
inclusion of Mrs. M. Masheane in both capacities
in both the panels
which decided to dismiss the applicant from his employment with the
respondent was unprocedural, unfair and highly prejudicial to the
This does not
accord with the principles of a fair trial and are contrary to the
principles of natural justice. The fact whether
or not she actively
ultimately endorsed the decision by the appeal board is neither here
The fact that she
recommended to the 1st
respondent the dismissal of the applicant renders her fantusofficio
in the subsequent appeal against the hearing of the applicants
appeal. She can not by all imagination be expected to be impartial.
She was bound to endorse her own earlier recommendation against the
It is a matter of
common cause that on appeal, the 1st
respondent, Mr. Retelisitsoe Khetsi was the chairman of the appeal
panel. It should be recalled that the 1st
respondent is the officer to whom a recommendation that the applicant
be dismissed from work at the 2nd
respondents offices was submitted.
He indeed endorsed
and carried out that recommendation and had the applicant dismissed
from work. This was effectively his decision
too. In the
circumstances, he should not have chaired an appeal panel wherein his
own decision against the applicant was subject-matter.
It will be readily
seen, and this is a matter of common cause that indeed the 1st
respondent acted as he did against the applicant on the basis of the
recommendation of the disciplinary hearing which hearing had
chaired by Mrs. M. Masheane. Vide annexure A page 8 of the
record of proceedings.
In that letter,
respondent has informed the applicant of his right to appeal to the
head of department against this punishment (of dismissal) within
(5) days of receipt of this letter Annexure A.
regrettably the section herein referred to by the 1st
respondent, viz Stage
4 (a) (i) of the Codes of Good Practice
is not the correct section, and has nothing to do with an appeal.
One does not know whether or not this information so communicated
the applicant was meant to mislead applicant.
In fact and to be
precise there is no Section
4 of the said Codes of Good Practice.
It is of
particular importance to realize that pursuant to the provisions of
the said codes, to wit Section
where dismissal of a public officer is being contemplated, the
Head of Section shall recommend such dismissal to the Head of
Department who shall after adequate investigation confirm the
In the instant
case, the 1st
respondent indeed confirmed the dismissal of the applicant. In other
words, this confirmation is a decision of the 1st
respondent. He (1st
respondent) should therefore not in law, have presided in any way in
an appeal wherein his own decision was challenged by the party
aggrieved by that decision.
The above is so
regardless of the fact whether or not Mrs. M. Masheane and the 1st
respondent had each properly precided as chairpersons over
disciplinary hearing and the appeal in their proper/correct positions
as sectional and departmental heads respectively.
It is irregular,
unfair and highly prejudicial to the applicant that Mrs. M. Masheane
and the 1st
respondent have each been members in the appeal panel in which their
respective recommendation and decision to have and to dismiss
applicant from the employ of the 2nd
respondent were subject-matter.
advanced in rebuttal by the 1st
respondent in this regard that there was nothing wrong about him
having been chairperson on that appeal panel in as much as he
entitled in law as head of the department to do so in misguided.
This I say with respect.
The said codes
empower the Head of Department to be a chairperson in an appeal
lodged by the aggrieved public officer who has been
dismissed by the
very head of Department vide Section
In essence the net
effect of this is that that Head of Department is the one who
actually dismisses a public officer after adequate
It is trite that
no man should be a judge in his own case. What the Provisions
of Section 9 of this Codes
do is to allow the Head of Department to be a judge in his own case.
This is against the principles of natural justice.
of this Section 9(3)(a)
are therefore problematic and ultra vires the Constitution of this
country. They deny an aggrieved party a fair trial by an impartial
In any case, it is
not clear to this court if the Codes were ever promulgated into law
in terms of the Provisions
of Section 3 of the Interpretation Act No.19 of 1977.
Be that as it may
the fact that applicants immediate supervisor had allegedly been
charged together with the applicant is no
justifiable reason in law
for both Mrs. M. Masheane and 1st
respondent to have been included as members in both the disciplinary
and appeal panels in which their respective recommendation
endorsement of the dismissal of the applicant were subject-matter.
Being an officer
empowered by the Provisions
of Section 8(6) of the Codes,
to dismiss a public official i.e. applicant in the instant case,
respondent should not, after his endorsement of such a dismissal of
applicant by him from the employ of the 2nd
respondent, have chaired the appeal which was filed by the applicant
against the 1st
respondents endorsement of such a recommendation.
This is against
the principles of natural justice of fairness and impartiality. The
question is having endorsed the recommendation
that applicant be
dismissed from the employ of the 2nd
respondent in which the (1st
respondent) was acting as Head of Department, how could he on appeal
be expected to be impartial and renege on his decision that
be dismissed from his employ with the 2nd
respondent even if circumstances did not so permit?
This is flagrant
violation of the Rules of natural justice of fairness. This is
indeed so despite the existence of the Provisions
of Section 9(1) and (3) of the Codes of Good Practice
(Supra). The Provisions of this section clearly violate the
principles of natural justice.
In any case, there
is nothing on record showing the following:-
That the Head of
Department ever adequately investigated the circumstances which
surrounded this dismissal of the applicant before
he endorsed or
confirmed the recommendation made to him by Mrs. M. Masheane that
the applicant be dismissed as he did.
That any kind of
warning was ever issued against the applicant before a disciplinary
inquiry was carried out against him.
This failure to
issue such a warning to the applicant is in violation of the
of Section 7(1), 8(6) of stages 2 and 3 of these codes.
It is apposite to
note that the fact that there is no provision setting out the
procedure to be followed if ones head of section
supervisor is unable to attend the disciplinary inquiry should not be
a reason justifying the violation of the principles
justice. Any next senior public officer could have been appointed to
chair the disciplinary inquiry in the absence
of Mr. Ndabeni.
Mrs. M. Masheane
should never have chaired the initial disciplinary inquiry against
the applicant nor should she also have been
a member of the appeal
panel in anyway.
respondent has, in his answering affidavit, tried to justify the
presence or inclusion of Mrs. M. Masheane in the appeal panel
saying that she attended the appeal panel not as a member but rather
she attended as a witness and so she was not part of the
appeal. With respect, this is highly irregular. Having been a
chairperson in the initial disciplinary inquiry, Mrs.
should never have in any way featured in a subsequent appeal launched
against her recommendation for the dismissal
of the applicant.
there is nothing on record indicating that she had attended and been
included in the appeal panel as a witness. It
is clear on the record
of proceedings at page 26 that her designation in that panel is that
of a sectional head. There is no iota
of evidence that she was ever
a witness in that appeal panel.
There is also
nothing on record indicting that she ever on appeal testified for or
against the respondents or the appellant. In
any case, and this is
trite law, no evidence is ever adduced on appeal except under very
exceptional circumstances if that is ever
The fact that Mrs.
M. Masheane was a member in both the initial disciplinary inquiry and
on appeal herein is buttressed by the fact
that she is clearly
indicated as first having sat in the disciplinary inquiry as the
Senior Labour Representative (Chairperson)
vide annexure B-
page 9 of the record of proceedings. She later on sat in the appeal
panel in her capacity/designation
as a Sectional Head vide page
26 of the record. She is nowhere indicated to have sat in any of
both panels as a witness.
respondent, to whom a recommendation that applicant be dismissed from
work was made, and who endorsed that recommendation is indicated
have been the chairperson in the appeal panel. He is indicated to
have been the acting Principal Secretary of the 2nd
respondent at that time.
It has already
been indicated above that, having endorsed a recommendation of the
dismissal of applicant; and having indeed dismissed
per annexure A the 1st
respondent should not have been involved in anyway and in whatever
capacity in the appeal proceedings wherein the applicant was
challenging his dismissal by the 1st
It has further
been argued on behalf of the applicant that Mr. B. Bitso, complainant
in the disciplinary inquiry against the applicant
is not a public
servant in terms of the Provisions of Section 154 of the Constitution
of Lesotho, and so he is not the right person
to have been a
complainant in the said inquiry.
None of the
respondents have pleaded issuably to the above. The 1st
respondent has indicated in his answering affidavit to have noted
contents of the said averment as contained in the applicants
founding affidavit, to wit paragraph 8. Even Mr. B. Bitso has not
filed any affidavit refuting this fact. The respondents have
therefore conceded to this point and it is upheld.
It is not the
respondents submission that Mr. B. Bitso is indeed a public
officer, holding or acting in any public office. The
fact that Mr.
B. Bitso has been employed by the Labour Commissioner to administer
the workmans compensation fund does not qualify
him to be a public
officer in terms of the Provisions
of Section 154 of the Constitution of Lesotho.
It has further
been submitted on behalf of the applicant, and this is his other
reason for appeal, that he was never given an opportunity
to say or
address the disciplinary panel in mitigation before a recommendation
for his dismissal was made by Mrs. M. Masheane.
It is, in other
words, the applicants argument that the Provisions
of Section 4(1)(d)
of the codes have not been observed by the disciplinary panel.
It is trite that
such an opportunity to mitigate should have been awarded/afforded to
a public officer who is being charged for
misconduct at the initial
stage of the inquiry and not on appeal.
There is nothing
in annexure B demonstrating that the applicant was asked to say
anything in mitigation. The fact that applicant
was asked to say
anything in mitigation at the appeal stage and at the beginning of
same does not cure the irregularity of having
not been afforded him
an opportunity to mitigate at the initial stage; namely at the
disciplinary inquiry before a recommendation
to dismiss him by Mrs.
M. Masheane to 1st
respondent was made. The procedure of affording an aggrieved party
an opportunity to mitigate on appeal is a novel one. Such
opportunity or a right is usually so afforded at the initial stage of
the proceedings since such mitigating factors are calculated
influence the outcome of the lower tribunal/panel which makes the
It was therefore
highly irregular for the initial disciplinary panel to have not
awarded the applicant such an opportunity at that
of the proceedings.
It is to be
recalled that even on this appeal, the chairperson before whom the
appeal of applicant was prosecuted had already endorsed
recommendation for the dismissal of the applicant, so that mitigating
before the very officer who had already endorsed such
served no purpose in law.
submission that, in the above circumstances, the respondents have
violated Rules of natural justices holds water.
Lastly, it is the
applicants submission that the sanction of dismissal imposed upon
with the nature of the offence he is alleged to have committed;
Not fair and is
inconsistent with the disciplinary action previously taken in a
similar case against one Senkame Mabatla a
applicant who is stationed in Quthing district.
In that case the
total sum of money which had allegedly been misappropriated was +
M5,500.00. The Principal Labour Officer of Leribe had chaired the
panel because, the Principal Labour Officer for Quthing (Sectional
Head thereat) was a complainant in the said inquiry. This is unlike
in the instant case where some other person, who is not a
officer was a complainant. Ultimately Mabatla was found guilty of
having misappropriated that sum of money but the punishment
to him/her was that he/she should repay the said misappropriated sum
of money by installments of M200.00 monthly.
punishment of dismissal meted out upon the applicant herein; who had
allegedly misappropriated only the sum of M1,000.00
is very harsh.
This is moreso since there is no indication that the applicant was in
the habit of committing this kind of misconduct.
misappropriation of public funds by any public officer is a serious
act of misconduct, it is against the very principles andProvisions
of Section 4(1)(a), (b), (d) and (e)of
in question that the applicants case has been dealt with in the
manner outlined herein and spelt out in the applicants founding
in question provides guidelines which shall be adhered to in handling
a disciplinary matter under this codes. These guiding principles
mention but a few and those most relevant to the present review
application are that:-
4(1) a) A public
officer shall have a fair hearing;
The rules of
natural justice shall apply;
d) The Head of
Section or Department in determining the appropriate sanction shall
take into consideration the mitigating factors
of the case;
e) The sanction
shall be commensurate with the nature of the offence that has been
f) The sanction
shall as far as possible, be fair and consistent with disciplinary
action previously taken in other similar circumstances.
respondents response to the applicants submission as contained
in his answering affidavit to wit paragraph 11 is mind
respondent has tried to draw a distinction between the case of the
present applicant and that of Mabatla.
respondent does not deny that both the present applicant and Senkame
Mabatla had misappropriated public funds, he says that (and
where he distinguishes the two cases) the public funds which Mabatla
had misappropriated were to be deposited whilst those
by the applicant in the application in casu
were to be transferred to a member of public and further that the
present applicant has not only misappropriated such funds, but
(applicants) actions have had the effect of bringing the
Government into disrepute.
The above are
reasons advanced by the 1st
respondent explaining why the same treatment meted out to Mabatla
could not be meted out to the applicant.
In the light of
all the surrounding circumstances herein, and regard being had to the
irregularities herein outlined and alluded
to by this court, the 1st
respondents averments and response as contained in paragraph 11 of
his answering affidavit are untenable.
without any doubt, the respondents have, in conducting the
disciplinary inquiry herein against applicant and in
appeal of the applicant as they did; violated the Provisions
of Good Practice 2005;
in the way alluded to above by this court; as well as the Provisions
of the Public Service Act 2005
whose provisions are ancillary to those of the Constitution of
Lesotho, relating to fairness and impartiality.
circumstances, the points raised herein in limine
by the respondents have to be dismissed and are accordingly
The issue whether
the respondents have followed the correct procedure in dismissing the
applicant, has also to be answered in the
For the foregoing
reasons, the applicants application and his prayers in the notice
of motion are granted as prayed with costs.
Applicant : Adv. A. M. Chobokoane
Respondent : Adv. M. Moshoeshoe
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law