CIV/APN/156/2008
IN THE HIGH COURT OF LESOTHO
In the matter between:-
LEHLOA RAMOTSO 1ST APPLICANT
RAMABELE MOKHANTSO 2ND APPLICANT
PAUL MAJALLE 3RD APPILICANT
and
THE COMMANDER OF THE
LESOTHO DEFENCE FORCE 1ST RESPONDENT
THE HONOURABLE MINISTER
OF DEFENCE AND NATIONAL
SECURITY 2ND RESPONDENT ATTORNEY GENERAL 3RD RESPONDENT
DIRECTOR OF PUBLIC
PROSECUTIONS 4TH RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 26th August 2008
Applicants herein are members of the Lesotho Defence Force. They approached this Court for relief their main prayer being for this Court to direct “first respondent to see to it that applicants’ full salary is paid to applicants from the date of his interdiction until contemplated criminal proceedings are disposed of in a manner that would entitle interference by first respondent with applicants’ salary.”
It is common cause that applicants were arrested and charged with treason in the Magistrate Court sometime in July 2007, were suspended from duty on full pay, in August 2007 and the said suspension was altered to one on half pay in December.
They are challenging the lawfulness of the revised suspension on half pay before this Court. The application is opposed and was argued before me on the 4th August 2007.
In support of their prayer, it is the applicants’ contention that first respondent’s suspension order is for an unlimited duration of time because it depends on when criminal charges of high treason and other offences will commence and be disposed of to finality. It was submitted on their behalf by Mr. Phoofolo that 1st respondent has left applicants in the hands and mercy of the fourth respondent, namely the Director of Public Prosecutions because if he continues to procrastinate, (as it is their contention) from indicting applicants in the High Court, then 1st respondent continues to withhold applicants’ salaries indefinitely.
Mr. Phoofolo further submitted that during their said suspension, applicants are precluded from looking for alternative jobs to augment their financial status. In addition, that while they concede that the section relied upon by the first respondent for his decision i.e. Section 90 (2) (b) of the Lesotho Defence Force Act 1996 gives him such powers, the section was premised on the basis that the charges involving applicants as members of the military will be disposed of speedily.
Further, that the fact that a year has passed since applicants were suspended from duty and criminal proceedings against them have neither commenced nor have been disposed of has created an unreasonable situation which per their contention, is illegal.
Lastly, applicants submitted that in spite of the provisions of Section 24 (3) the 1993 Constitution of Lesotho, they are not excluded from the protection of all its other provisions and as a result the suspension on half pay is unconstitutional.
In turn, Mr. Letsie who appeared on behalf of all the respondents argued that the respondents’ challenge of the Constitution has been brought
before the wrong court and should have been taken before the Constitutional Court. Further that the suspension of applicants on
half pay is not unconstitutional because they were afforded a hearing before it was made.
He added that the applicants did not respond to the averments that were made by the 1st respondent in his answering affidavit and as such the said averments i.e. that the half salaries would sustain the applicants stand
unopposed.
It was respondents’ Counsel’s further case that the so-called review of the earlier decision has been explained by the 1st respondent namely that he only suspends and the 2nd defendant determines the issue of allowance during a suspension.
He submitted that the present application is not the proper way to challenge the suspension on half pay but rather that applicants should have challenged the DPP to speed up the process or stay it indefinitely. In addition that the DPP did not have to enter the fray as the issue is between applicants and 1st respondent alone.
Lastly, Counsel for respondents contended that applicants are members of the disciplined forces who are facing very serious charges as contained in all the ‘LR’ annexures and that it is the Constitution that lays down the law in relation to such officers so that it cannot correctly be said that their suspension is contrary to its provisions.
In his reply, Counsel for applicants submitted that they are not challenging the Constitution but rather, are challenging the constitutionality of the first respondent’s decision to suspend them on half pay as already contended. He added that the Courts have emphasized that soldiers are also subject to the rights provided for in the Constitution.
Further that the DPP’s failure to respond to applicants’ averments leaves this Court in darkness regarding how soon he intends to indict them in the High Court. He added that their case was not on the delay itself but instead, on the consequences of the delay.
Mr. Phoofolo added that they made a conscious decision not to respond to averments in the answering affidavit because they are matters of law which at any rate should not have been made in the affidavits but at the initial stage of the suspension. That the said hearing did not address or respond to the concerns raised by the applicants in their“show cause” letters.
I now proceed to deal with the issue whether or not the suspension by first respondent of applicants on half pay, is lawful.
It is common cause that before the initial suspension on full pay, applicants where written letters requesting them to show cause why they should not be suspended from service pending criminal proceedings against them. For convenience, I will quote from one of the said standard letters i.e. annexure LR 1 which is couched as follows in parts and insofar as it is relevant to the issue at hand:-
WHEREAS you are currently facing a charge of treason in the High Court of Lesotho; or alternatively sedition, contravention of Section 7 read with section 12 of the Internal Security Act No. 24 of 1984 or contravention of Section 183 (2) of the Criminal Procedure and Evidence Act of 1981;
AND WHEREASit is felt by the LDF Command that circumstances alleged to have surrounded the commission of the said offence tarnish the image of the Defence Force;
YOU ARE THEREFORE REQUIRED to show cause; if any; why you may not be suspended from serviced on allowance equivalent to your salary pending the outcome of the case against you:
The said letter was responded to by the applicants’ attorney per a letter,annexure LR 2 in the Court’s file in which he cautioned first respondent against taking such action. It in turn was followed by another‘show cause’ letter dated the 23rd November which effectively repealed the first one i.e. annexure LR 1 the reasons provided therein being that first respondent only has the power to suspend a member of the Force from service in terms of the Section 90 (2) of LDF Act No.4 of 1996 whereas the determination of their allowances lies in the hands of 2nd respondent.
The letter also required each applicant to show cause why first respondent may not cause 2nd respondent to grant him an allowance equivalent to the half of his salary in accordance with the section, the reason advanced being that they would not be performing any LDF duties during their period of suspension and that the ultimate decision would be that of 2nd respondent.
Following receipt of annexure LR 3, applicants’ Counsel wrote to 1st respondent per a letter dated 14th December 2007 advising him against such a move for reasons that were stated as follows in the penultimate and last paragraphs thereof:-
“We state that it is not our clients’ fault that they are on suspension, and further that the delay in the prosecution of their cases cannot be laid on their door steps. It is entirely the prosecutions’ whether (sic) it be (sic) at the Court Martial or the High Court.
In the circumstances it would be unlawful to prejudice ort clients in the manner contemplated, and we would not hesitate to approach the High Court should that decision be implemented.”
On the 28th December 2007, 1st respondent wrote applicants their respective letters of suspension on half pay.
Indeed as it has been correctly stated and conceded, first respondent is given powers under Section 90 (2) of the Act to suspend members of the Force and the provision reads as follows:-
“The Commander of the Defence Force may, at any time suspend a person referred to in subsection (1) from duty pending the result of an investigation into or any trial before a military court or civil court of any offence alleged on reasonable grounds, to have been committed by that person.
Provided that he may be paid such allowances not exceeding the amount of his salary as the Minister may determine.”
In my opinion, it is indubitable that the above quoted section does not require the Commander to provide reasons for his decision. However, it is also my view that it cannot be denied that a discretion such as this one which carries with it potential hardships to those whom it might negatively affect should not be exercised arbitrarily and unreasonably but in good faith and mindful of the potential prejudice.
In the present matter, applicants’ main contention is that the suspension will cause them undue hardships because the matter of instituting criminal proceedings against them in the High Court does not lie in their hands or those of the first respondent but rather, in 3rd respondent’s hands. Further, that the respondents cannot at this stage be allowed to cite pending proceedings against them in the court martial because this was never the basis of their suspension in terms of the show cause letters.
I, without hesitation agree with this latter contention as it is undoubtedly supported by the contents of annexure LR 1 which I have already quoted herein above. Therein, no mention was made of proceedings that are pending or being instituted in the Court Martial during the time the letters were written to the applicants. This is my view means the decision and the subsequent amendment thereof were based on charges of treason or alternatively sedition ‘in the High Court of Lesotho’ in terms of the sections referred to therein.
In the case ofB.M. Mapola v Compol CIV/APN/24/98 quoted to this Court, Maqutu J (as he then was) dealt with a similar matter wherein the applicant therein has been suspended on half-pay by the Commissioner of Polic in terms of a section contained in the Police Order of 1971 which was then in operation.
At p5-6 of the judgment, the Court made the following observations:-
“During this period the suspended policeman’s emoluments are in abeyance save an allowance that the Commissioner at his discretion
might choose to give the suspended policeman. The commissioner never brought disciplinary proceedings against applicant but relied on the criminal proceedings that the Director of Public Prosecutions brought in the Magistrates’ Court but withdrew with the intention of indicting applicant before the High Court, but did not do so for over one and half years.
It seems to me the Commissioner of Police is by law not entitled to forget about a suspended policeman and leave everything in the hands of the Director of Public Prosecutions. The welfare of the policeman remains his concern. Even in fixing the allowance that the policeman must receive he must hear the policeman. He cannot unfairly fix the policeman’s allowance”.
The Court also found that a person’s salary falls under the category of property or interest in terms of Section 17 of the Constitution which provision forbids arbitrary seizure thereof.
By the same analogy, I am inclined to accept the submission of the applicants that for the reason that the institution of proceedings against them is neither in their hands nor those of the 1st respondent, they are similarly left in the mercy of the Director of Public Prosecutions who has not indicted them to-date. In addition, he did not file any opposing papers to this application wherein he could have put the Court in the picture with respect to when he intents doing so.
For this reason, I find that the revised suspension on half pay of applicants would not only be unconstitutional for the reason that it might be perpetual, but also because 1st respondent has also failed to demonstrate that he took into account the personal circumstances of applicant in that he has not stated how it was arrived at.
I also respectfully wish to incorporate the rest of Court’s sentiments expressed in the Mapola case, especially to wit, because of the potential harmful consequences that section 90 of the Lesotho Defence Force Act carries, the discretion mandated therein should be exercised with due recognition of the concerned individuals’ human rights in the form of affording them a fair hearing on the issue of whether or not the said half salary would sustain them and for how long. Asking them to make presentations
without showing that those were considered as a matter of fact does not in my view amount to a fair hearing properly so-called.
I therefore find that applicants herein have successfully made out a case for the relief sought and accordingly grant them prayer (b) as it is stated in the Notice of Motion as well as costs of the proceedings.
N. MAJARA
JUDGE
For applicants : Mr. H. Phoofolo
For respondents: Mr. L. Letsie
.
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