CIV/APN/259/2007
IN THE HIGH COURT OF LESOTHO
In the matter between:
LIMPHO PHAILA Applicant
and
DIRECTOR GENERAL NATIONAL
SECURITY SERVICES 1st Respondent
ATTORNEY GENRAL 2nd Respondent
JUDGMENT
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 11th February, 2008.
The Applicant in this case approached this Court seeking for the following relief: -
That the decision of the 1st Respondent of the 15th June, 2007 to transfer the applicant be declared null and void.
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That her transfer from Maseru to Mafeteng be stayed pending finalization of this application.
The application was moved on urgent basis but the Court had put the parties to terms as regards the filing of the necessary papers.
The Applicant's case was based on the following facts. The Applicant, a female married woman and a member of the National Security Service. She was first engaged in the National Security Service in April, 2001. She was initially stationed in Leribe and later transferred to Thaba-Tseka around 2002. She was again transferred to Maseru till when she lodged a claim in this case.
On the 4th may 2007 she received a letter of transfer from the office of the 1st Respondent though the transfer was not implemented. A copy of that letter was attached. According to the Applicant, the transfer followed a complaint of sexual harassment that she had lodged with her superiors including the Principal Secretary of the Ministry of Defence against one of her superiors by the name of Nkuebe.
The Applicant had lodged that sexual harassment complaint in April 2007 and the complaint was duly attended to. A board or a
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Commission of Enquiry was set up to enquire into the matter but no report was ever published. She had made enquiries of the report to her superiors but never got any satisfactory answers, and the report never came out.
She said, it was whilst she was awaiting the report and asking about it that she was confronted with the transfer. The second letter of transfer came on the 18th June, 2007, and was attached to the founding papers. It was therefore the Applicant's belief that she was not being transferred with bona fide intentions but to punish her for venting her right to integrity. She had even tried to persuade the 1st Respondent to withhold her transfer but have regard to some representations which she wanted to make regarding the transfer. She said the issue kept on being deferred till she resorted to Courts of law.
The Applicant has thus challenged the transfer as unlawful because according to her was not bona fide but intended to serve as a
punishment. She also claimed that she ought to have been afforded a hearing or at least some representations that could persuade the 1st Respondent to determine the issue of her transfer in a manner less harmful to her. And finally that her transfer had to be in terms of the law governing the National Security Services (NSS)
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substantively and procedurally. She has stated in her founding papers that she had been given so short a notice to get prepared to move to another station. She said she has no problem with leaving Maseru. She had only been given two weeks within which to get ready to move to another station.
This Court has therefore been called upon to determine:-
Whether applicant's transfer was in terms of the law governing the National Security Services both substantively and procedurally.
Whether it was necessary to have been afforded a hearing in relation to her transfer.
Whether applicant's transfer was bona fide in the circumstances or whether was intended to serve as a punishment and therefore unlawful.
Whether transfer in terms of the Law
Section 10 (1) of National Security Services Act No.11 of 1998
provides as follows:-
"The Minister may acting in accordance with the advice of the Director General appoint any person as a member or promote, demote, transfer or discharge a member in accordance with this Act." (my underlining)
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As it may be seen from the above section, it is the Minister who determines amongst others transfers of members of NSS, but should transfer when so advised by the Director General.
The Applicant in this case has shown that the letter of her transfer was in fact issued by the Director General. She therefore contended that the Director General had no such powers to transfer her.
In response to that, the Respondent argued that section 19 of Act 11 of 1998 provides for delegation of powers by the Minister, in this case the Minister of Defence. The section reads thus:-Section 19 - Delegation of Power
"The Minister may, on such conditions as he may deem fit, delegate to the director General, any power conferred on him by this Act except the power conferred on him by section 41 and that power shall be deemed to have been exercised by the Minister."
It follows from the foregoing that the powers conferred upon the Minister by section 10 (1) of Act 11 of 1998, which include amongst
others the powers to transfer, can be delegated upon the Director General whenever there is a need to do.so. And section 41 of the same Act confers powers upon the Minister to make Regulations.
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Now going back to section 10 (1) of the Act which gives the Minster powers of amongst others to transfer members of NSS acting in accordance with the advise of the Director General. Legal Notice No.82 of 2000, National Security Services (Delegation of Powers) Notice 2000, section 2 thereof reads :-
"The powers of transfer and discharge vested in me by section 10 (1) of the National Security Services Act 1998 are delegated to the Director General."
It was the Applicant's case that the delegation violates the spirit of the Principal Act in that it would mean the Minister would recommend to himself. He said one could not participate at the recommendation stage and later come and adjudicate upon his own recommendation. He referred to the case of Koatsa v National University of Lesotho 1991 - 92 LLR & LB 173 - 4 for the proposition that no man could be a Judge in his own case.
I would not agree with the Applicant here because the Act clearly empowered the Minister to delegate his powers to the Director General under section 19 thereof. I would not see how the Minister would recommend to himself. The Director General was quite entitled to issue out the letter of transfer in terms of section 2 of Legal Notice No. 82 of 2000.
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The Applicant further argued that she was not afforded an opportunity to be heard before she was transferred. The Respondent on the other hand denies that she was entitled to any hearing. The determining factor here would be whether or not the Applicant was going to be prejudiced by the transfer.
The Applicant alleged that she ought to have been given a hearing so that the transfer would not harm her as a married woman who could not easily relocate. It was her feeling that the Respondents had a desire to bury the report. She showed that she had put the issue of her transfer to first Respondent and tried to persuade him to withhold the transfer and to have regard to the representations she wanted to make regarding her transfer, but that the issue kept on being deferred to a later date.
The attitude of the Respondents has been that they deny that the transfer followed a complaint of sexual harassment. They are not denying that there was such a complaint lodged, but are saying her transfer was only due, and had to be implemented whether or not she had lodged a complaint.
The Respondents are saying that it is the Director General's discretion to deploy or redeploy the officers to the stations of his
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choice, with or without a representation, especially if it would not prejudice the subject.
The Applicant has stated that the transfer came after she had lodged a sexual harassment case against one of the senior officers at work. Also that the report of some enquiry into the matter was not forthcoming. And that she was given only two weeks within which to move to her new station in Mafeteng.
I have already indicated above that the complaint of sexual harassment is not denied. It has also not been denied that she was not furnished with a report concerning the investigation into the matter.
At paragraph 5 of the their answering affidavit, the Respondents have clearly indicated that even if the report was to come out, it had to go to the Principal Secretary, being the person who instigated the inquiry, and not the Applicant. Isn't that strange. The enquiry was about the Applicant on a complaint she had lodged and the Respondents are saying she was not entitled to the report.
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The Respondents at paragraph 9 of the answering affidavit showed that the two weeks that were allowed for the Applicant to move were just enough as there was no problem of lodging. They said that the house was ready for the Applicant to occupy and assume her duties in Mafeteng.
I find the approach to the affairs of the Applicant by the Respondents to have been of such an inhumane nature, particularly during this era when the international community is making such a noise in favour of protecting women and children as a vulnerable group.
I could not understand the Respondents when they said that the Applicant's transfer to Mafeteng would not prejudice her follow up on the report against her sexual harassment complaint, and therefore said the audi ateram partem rule was not applicable prior to her transfer.
In the case of Ngubane v Minister of Education and Cultural Ulundi and Another 1985 (3) S.A. 160, the Court had this to say that;
"There can be no doubt that in deciding whether to transfer the Applicant, the official concerned would have to enquire into
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and consider various facts and circumstances which affected the applicant's rights."
In casu, the Applicant's situation as a married woman had been ignored despite her concern that as a married woman an immediate relocation would cause her prejudice. She was also concerned about a report concerning her sexual harassment complaint which was not forth coming. To say that she was not entitled to knowing the results of the enquiry concerning her complaint was indeed an inhumane treatment and approach to the situation.
This now brings us to the last point of whether or not Applicant's transfer was bona fide in the circumstances or whether was intended to serve as a punishment and therefore unlawful.
In the light of the circumstances surrounding the Applicant's transfer the bona fides of that transfer as put by the applicant were highly sceptical. The transfer came after the Applicant had lodged a sexual harassment complaint against one of the senior officers at her work place. When the Applicant demanded production of the report of the Commission of Enquiry into the matter, the report was withheld from her and the Respondents are saying she was not entitled to the report but the Principal Secretary who had instigated the enquiry. The Applicant was only allowed two weeks within
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which to move on transfer from Maseru to Mafeteng. She was not even afforded a hearing before such transfer was made despite her concerns which she had made known to them.
The Applicant argued that a transfer should happen when it is due not because it is motivated by certain conduct. The Respondents have not denied that the Applicant had lodged a sexual harassment complaint against one of the senior officers at work place. They have also not disputed the fact that they have not yet furnished the Applicant with a report of the Commission of Enquiry set up to investigate the matter. Instead what the Respondents said was that the Applicant was not entitled to the report but the Principal Secretary who instigated the enquiry.
Unlike in Kepa v Anglican Church of Lesotho and Another 1995-99 LAC 40 where the Appellant's transfer was falsely represented to the Appellant as being motivated by a need to reorganize, there was no reason given for the Applicant's transfer. In casu like in Kepa's supra, the unfairness with which the Applicant's transfer was conducted resulted in a taint which permeated and impugned all the Respondents actions.
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When the Applicant was so transferred things were not normal. She had demanded for the report of enquiry concerning herself and had requested for a representation, but all that had been ignored. The Applicant showed that her request to be heard kept on being deferred till she was told to leave within two weeks to her new station.
The Respondents relying on the case of Selikane and 33 Others v LTC and Others C of A CIV of 1999 contended that the audi alteram partem rule could not be applicable prior to the Applicant's transfer as the transfer was not going to prejudice her follow up on the report against her sexual harassment complaint. The Respondents further showed that the Applicant never explained how the transfer would harm her.
But the Applicant has clearly shown that she was going to be prejudiced regarding her follow up on the Commission's report and also that as a married woman with a family she could not be able to relocate that easily. I would not understand what the Respondents meant by saying the Applicant had not stated how she was going to be prejudiced by the transfer.
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The Respondents seemed to have supported the Applicant's case in stating the position of the law as regards the right to be heard. In saying that, "it is trite law that where a statute empowers a public official or body to do an act or give a decision which prejudicially affects an individual in her existing rights, such individual is entitled to the application of the audi alteram partem rule" Attorney-General, Eastern Cape v Blom 1988 (4) S.A 661. As already stated the above fits well the circumstances surrounding the Applicant's case. The Applicant was entitled to have been heard prior to her transfer.
Looking at all the circumstances surrounding the Applicant's transfer considering that it was implemented immediately after her lodgement of the sexual harassment complaint and when the Applicant had demanded production of the Commission's report which report was withheld and is still withheld to date. That notwithstanding that the Applicant as a complainant is quite entitled to the knowledge of the Commission's findings. In the light of all these, it could not be doubted that the bona fides of the Applicant's transfer were highly sceptical. The basis of such transfer had not been stated.
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The purported transfer by the first Respondent as rightly put by the Applicant, looking at the circumstances surrounding it was not bona fide but was prompted by the desire to bury the report regarding the sexual harassment complaint. Under no circumstance could it be said that a complainant is not entitled to a report concerning his or her case. It is like saying in a criminal case that a complainant should not be entitled to know the results of his case but the prosecutor. The Respondents are not even saying the report had first to go to the Principal Secretary, but are saying the Applicant as complainant was not entitled to get the report at all. This was a clear case of mala fide approach to the affairs of the Applicant. Also to say that the two weeks prior to such transfer was enough to effect such a transfer, despite the plea to be heard by the Applicant, surely this was unreasonable.
It could not have been unreasonable for the Applicant to have concluded that the transfer was not made with bona fide intentions but to punish her for venting her right to integrity.
For the foregoing reasons, the Court finds that the transfer was not bona fide but mala fide as the Applicant was not afforded a hearing prior to such transfer. Her report which she was quite entitled to get was unreasonably withheld and that she was not even afforded
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enough time to prepare herself and her family to move to that new station. For the reason stated above, the Application is granted as prayed with costs.
M. HLAJOANE
JUDGE
For Applicant: Mr Molati
For Respondents: Mr Jaase