CIV/APN/156/2008

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

LEHLOA
RAMOTSO 1^ST
APPLICANT

RAMABELE
MOKHANTSO 2^ND
APPLICANT

PAUL
MAJALLE 3^RD
APPILICANT

and

THE
COMMANDER OF THE

LESOTHO
DEFENCE FORCE 1^ST
RESPONDENT

THE
HONOURABLE MINISTER

OF
DEFENCE AND NATIONAL

SECURITY 2^ND
RESPONDENT ATTORNEY GENERAL 3^RD
RESPONDENT

DIRECTOR
OF PUBLIC

PROSECUTIONS 4^TH
RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 26^th
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 4^th
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 1^st
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 1^st
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 1^st
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
1^st
respondent namely that he only suspends and the 2^nd
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
1^st
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 WHEREAS
it
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 23^rd
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 2^nd
respondent.

The letter also
required each applicant to show cause why first respondent may not
cause 2^nd
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 2^nd
respondent.

Following receipt
of annexure
LR 3,
applicants’ Counsel wrote to 1st respondent per a letter dated
14^th
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 28^th
December 2007, 1^st
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 3^rd
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 of
B.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 1^st
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 1^st
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

.