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.

1. M.
   HLAJOANE
   

   
   

JUDGE

For
Applicant: Mr Molati

For
Respondents: Mr Jaase