THE HIGH COURT OF LESOTHO
the matter between:- CIV/APR/35/2005
MOKHUTSOANE - MDA PLAINTIFF
SECRETARY – GENDER 1ST
by the Honourable Madam Justice M. Mahase
Civil Procedure –
Review – Dismissal of applicant from work pursuant to
provisions of Codes of Good Practice 2005 –
what is- local
remedies – Labour Law – Public Service Order –
Whether or not applicant governed by these laws.
is a review application. The applicant has asked the court for the
That the decision
of the 1st
respondent dated the 18th
October, 2007 purporting to dismiss applicant from work shall not be
reviewed, reversed and set aside on the grounds that it
irregular, improper and outright unlawful in as much as it is
directly in conflict with provisions of the laws of Lesotho.
respondent shall not be directed to transmit the record of
proceedings in the disciplinary hearing of applicant to this
court within seven (7) days of service upon him of this
not be reinstated forthwith to her position of work with effect from
the date of her purported dismissal.
not be paid salary/wages which are due and payable to her with
effect from date on which such salary was stopped/withheld.
not enjoy her benefits and seniority rights as if she was never
“dismissed” from the public service.
not be awarded costs of this applicant in the event only of
Further and or
The facts which
precipitated into this application have been spelt out in the
applicant’s founding affidavit.
Briefly they are
that the applicant who is a public employee of the Lesotho Government
in the Ministry or under the Ministry of
Gender, Youth, Sports and
Recreation, was served with a disciplinary action form on a date she
does not remember. In that form
it was alleged that she had absented
herself from duty without a valid excuse or authority for two (2)
days:- vide part C of the
said form under disciplinary inquiry.
Further still, it
was alleged on that form that the applicant has committed a breach
within the final written warning.
Applicant, on the
other hand alleges, in her supplementary affidavit that the alleged
disciplinary enquiry against her was conducted
in direct conflict
with the statutory procedure in as much as the so-called “Codes
of Good Conduct” provisions had
no legal force because they had
not yet been promulgated into law. They therefore were not a legal
instrument in terms of the
laws of this country.
It is a matter of
common cause that following the dismissal from work, the applicant
appealed that decision but her appeal was unsuccessful.
to that unsuccessful appeal, the applicant did not declare a dispute
in terms of the provisions of the said code.
In other words, she did
not refer her case to the Conciliation Board or Arbitration Tribunal
as provided for in the said Code.
The application is
being opposed by the respondents who have also raised a points in
limine to wit, whether the applicant has exhausted
the local remedies
before approaching the Honourable Court for review? The opposition
of the respondents on this application on
the merits is based on
action of the 1st
respondent to dismiss the applicant was irregular, improper and
applicant’s employment contract is governed by the Labour Code
Order of 1992?
It is the
respondent’s averment that the applicant has not exhausted the
local remedies before having approached this court
for a review of
the proceedings in question. Vide paragraph 4.1.1 of the
respondents’ heads of argument.
support of this averment is placed upon the authority
by Lawrence Baxter,: Administrative Law, 1984, page 720 to the effect
right to judicial review will only be deferred if such
is clearly evident from the governing legislation
or in the case
of a private organization, from the terms of
between the complainant and association”.
Jockey Club of South Africa v. Feldman 1942 A.D. 320 (351-2).
It is accordingly
their averment that in terms of the provisions of section 15 (1) (a)
of the Public Service Act No. 1 of 2005
read together with Section 9
(6) of the Codes of Good Practice of 2005, such local remedies are
available for applicant to have
exhausted before rushing to court.
Vide paragraphs 4.1.2 up to 4.1.4 of respondents’ heads of
On the other hand,
it is the applicant’s argument in rebuttal that she has filed
the instant application in terms of the provisions
of Rule 50 of the
Rules of this court and that in the said Rule, there is no
requirement for exhaustion of local remedies preceding
of the provisions of Rule 50.
It is further
argued on behalf of the applicant and correctly so that the so-called
local remedies provided for in the said Codes
of Good Practice 2005,
are provisions provided for in a document which has no legal basis
and force because at the time when same
were invoked against the
applicant, same had not been promulgated into law. That these had
then not been enacted as law by Parliament
in accordance with the
provisions of section 15(2) of Public Service Act 2005.
pertaining to the application of the said Codes of Good Practice 2005
was raised and dealt with by this court in the
case of Rethabile
Masia v. Retŝelisitsoe Khetsi & Others CIV/APN/178/2007.
circumstances of this case, it was indeed, irregular, improper and
unlawful for the respondent’s to have invoked the
a document which had not then been promulgated into law by an act of
Parliament much to the prejudice of the applicant.
without conceding that the respondents acted lawfully against the
applicant, it is trite that it has not been suggested
that there is a
general rule that a person who considers that he has suffered wrong
is precluded from having recourse to a court
of law while there is
hope of extrajudicial redress – vide Bindura Town Management
Board v. Desai & Co. 1953(1) S.A.
358 at 362 (G).
In the premises,
it follows therefore that the point raised in limine at paragraph
3.1.1 of the respondents’ heads of argument
should be dismissed
and it is accordingly dismissed.
advanced on behalf of the respondents in their heads of argument as
per paragraph 4.1.3 should also suffer the same
fate because the
procedure therein provided derives its origin from the Codes of Good
Practice (supra) which codes are or were
not law or were not a legal
instrument promulgated by Parliament when the disciplinary enquiry
based upon it was carried out against
On the merits, it
has been submitted on behalf of the applicant that the dismissal of
her from the Public Service is irregular,
improper and outright
unlawful because it is directly in conflict with the provisions of
the laws of Lesotho. Applicant has however
not referred to any
specific or particular laws of Lesotho which she has referred to
above. Be that as it may, it is trite that
no one can be a Judge in
his own cause.
There is no doubt
in the mind of this court that the composition of the disciplinary
panel as well as that of the appeal tribunal
before which the
applicant appeared when she was firstly dismissed from her job and
when her appeal against such dismissal was
heard were seriously, in
law and procedurally flawed in many respects.
They were flawed
in as much as members of the disciplinary panel whose decision was to
dismiss the applicant, also later at the
appeal tribunal formed
membership at that appeal tribunal see applicant’s founding
affidavit paragraph 9.1. and 9.2.
It is a matter of
common cause that (and just by way of an example), the prosecutor or
respondent at the disciplinary panel/hearing
– one Rethabile
Misisili Deputy Principal Secretary of the 1st
respondent further sat in the appeal tribunal and actually reached
the very same decision that was being appealed against by the
Indeed a proper
reading of annexure A, to which the deponent to the answering
affidavit one Makalo Theko has referred this court
in reliance of the
respondents’ case makes it clear that the conclusion or
decision that the applicant was fairly charged
etc. was made by the
chairperson who happens to be none other than the Deputy Principal
Secretary Mr. R. Mosisili.
In a nutshell, and
to further illustrate and confirm that the composition of the
disciplinary panel as well as that of the appeal
flawed, it becomes clear from the contents of the answering affidavit
of the Principal Secretary at the Ministry
of Gender – to wit
paragraph 8.2 that the Principal Secretary for Labour and Employment
acting at the instance of the Principal
Secretary for Gender wasassisted
in reaching its appeal decision by those other persons who had sat at
the initial disciplinary enquiry panel; to wit messrs R.
This Mr. Makalo
Theko alleges was the position. In doing so he does not deny that
Mr. R. Mosisili was the same respondent who was
the prosecutor at the
court a aquo (initial disciplinary panel) which reached or made a
decision to dismiss the applicant from
her job. In other words,
these persons played an active role at various stages of having the
applicant dismissed from work and
they also assisted, thereby playing
an active role in assisting the chairperson at the appeal to confirm
the dismissal of the applicant
from her job.
herein alluded to above in both panels is not only procedurally
flawed in terms of the law but it also lacks transparency
averments as contained in her founding affidavit to wit paragraphs
9.1 and 9.2 as well as in her heads (both
sets) of argument hold
water. This is moreso regard being had to the fact that Mr. Makalo
Theko has not been supported by the
Principal Secretary (Labour and
Employment) who had, in the absence of Mr. Makalo Theko chaired the
It is, in the view
of this court, not only untenable, but it is also ludicrous for the
respondents to deny that the procedure adopted
by the Ministry of
Gender lacked fairness and that it was unjust, highly irregular as it
trampled upon the rights of the applicant.
It has been
submitted on behalf of the applicant that her terms of employment are
governed by the Labour Code Order of 1992, vide
paragraph 10 of her
This is denied by
the respondents – vide paragraph 9 of the answering affidavit.
With the greatest respect to the applicant,
she is indeed misinformed
and ill-advised. Her contract and the terms of her employment are
governed by the Public Service Act
2005 – see annexure “A”
to the answering affidavit.
made a finding that the Codes of Good Practice 2005 had not been
promulgated into law when the alleged dismissal
of the applicant was
reached, this court declines to deal with issues raised in the
applicant’s notice of motion with regard
to her reprimand of
March 2006 and to contents of paragraph 11.1 and 11.2 of this notice.
These are now academic issues.
For the foregoing
reasons, and bearing in mind circumstances of this case, the
applicant’s application is granted in terms
of prayers 1, 3, 4,
5, and 6 of the notice of motion.
ordered to pay costs of suit to the applicant.
- Ms. K.M. Thabane
- Mr. M. Moshoeshoe
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