IN THE HIGH COURT OF LESOTHO
In the matter between:
PETLANE PETLANE APPLICANT
OFFICER COMMANDING CENTRAL CORRECTION
INSTITUTION 1ST RESPONDENT
COMMISSIONER OF CORRECTIONAL SERVICES 2ND RESPONDENT
THE ATTORNEY GENERAL 3RD RESPONDENT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 15TH DAY OF FEBRUARY 2011
The applicant in this matter is PETLANE PETLANE. He is a Mosotho male adult of Mazenod, in the district of MASERU. He is a member of LESOTHO CORRECTIONAL SERVICE. At the present moment he is stationed at MASERU CENTRAL CORRECTIONAL SERVICE. The 1st respondent is the Officer Commanding MASERU CENTRAL CORRECTIONAL INSTITUTION. The 2nd respondent is the Commissioner of CORRECTIONAL SERVICE.
Counsel for both parties agree or at least do not question that the Public Service Act 2005 and the PUBLICE SERVICE REGULATIONS2008 apply in this matter. The applicant is a member of CORRECTIONAL SERVICE. The appointments, promotions, transfers and dismissal or discharge in terms of SECTION 137(3) (h) CONSTITUTION OF LESOTHO as far as concerns offices of the Director of Prisons and offices of members of the Prison Service, are exempted from the application of the provisions of SECTION 137, CONSTITUTION OF LESOTHO. This section provides as follows:-
“137 (1) subject to the provisions of this constitution, the power to appoint persons to hold or act in the offices in the public service (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Service Commission.
(2) Subject to the provisions of this chapter, the Public Service Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under subsection (1) to any one or more members of the Commission or, with the consent of the Prime Minister , to any public officer
(3) The provisions of this section shall not apply in relation to the following offices, [My underlining]
(h) the office of Commander of the Defence Force and the offices of Members of the Defence Force, the office of Commissioner of Police and the offices of Members of Police force, the office of the Director of National Security Service and the offices of Member of the National Security Service, and the office of the Director of Prisons and offices of members of the Prison Service”.
The reading of this provisions give the impression that the appointments, promotions, transfers, discipline and discharge of the members of the prison service are not governed nor regulated by The Public Service Regulations.
In this present matter, the counsel have not assisted the court by placing before it any piece of legislation which regulates the transfers of the members of the Correctional Services, other than the Public Service Regulations.
As pointed out earlier on, the applicant in this matter is a member of LESOTHO CORRECTIONAL SERVICE. Is it the same thing as being the member of Prison Service? The two counsel have not addressed this question. Their silence in the subject matter may be taken an answer in the affirmative. My search to establish how the Public Service Regulations were made applicable in respect of the offices of members of the CORRECTIONAL SERVICEhas not been successful.
THE APPLICANT’S CASE
The applicant received a letter of transfer from the Commission of CORRECTIONAL SERVICES. The letter is dated 22nd DECEMBER 2008. The applicant received it on the 7th January 2009 he was to report for duty at the new station on or before 22nd January 2009. The applicant is challenging this transfer as being
3 Mala fide
The reasons for the transfer to be characteristic as above are:-
(1) The applicant has not been charged and found guilty of indiscipline or any wrongdoing.
(2)He is a family man with the young child and at the same time, he takes care of his siblings because both of his parents are deceased. Therefore there is need to make arrangements to split and/or separate his household into two parts. That is to say, he has to arrange to leave his siblings by themselves at one home – his parents house and take to his new station, his wife and child. In order to make arrangement concerning re-location of his family at the new station, the applicant needs time well in access of (14) fourteen days because there is no ready accommodation for him and his family at the new station. He could not secure proper and fit accommodation within such short notice while in his mind he is still grappling with the adjustments to the idea of transfer. It is going to be difficult for him to support and maintain two homes, e.g. himself, his wife and child on the one hand at one homestead and his younger siblings at his parent’s home in Mazenod on the other hand. He further claims that maintenance of two homes is going to be too costly considering his meagre salary. He had been recently transferred from Qacha’s Nek to MASERU CENTRAL at his special request because of the circumstance pertaining to his person and his family as the head of the household.
In terms of the law the applicant is transferable. His peculiar circumstances personal to him and otherwise have been taken into account when a decision to transfer him was considered.
Applicant admitted involvement in trafficking with the prisoners. The applicant confessed to conniving with the said Rantlali Nkeane in a planned mass escape. Therefore there was no need to hold disciplinary enquiry.
The period of notice given to the applicant in order to prepare for the transfer was about one month. The CORRECTIONS INTERNAL CIRCULAR NOTICE No 107 of 2008, TRANSFERS was issued out and posted on the 5th DECEMBER2008. The applicant was given reasons for his intended transfer, first of all verbally on the 20th October 2008. These reasons were reduced to writing in the letter of 22nd DECEMBER 2008, which was in response to the representations the applicant had made in his letter [which is a very poor photocopy of a letter written in Sesotho which is not translated contrary to the rules of this court.] There must always be a fair translation of the documents written in Sesotho if and when such documents are used as part of evidence before court. RULE 58 High Court Rules 1980.
In terms of the law the public officers are transferrable. The head of the department may transfer a public officer within the relevant Ministry, department or agency. SECTION 32 (3) PUBLIC SERVICE REGULATION 2008. There is an acceptance by both parties that a member of CORRECTIONAL SERVICEis a Public Officer, therefore subject to transfers. The said transfer is made in terms of the PUBLIC SERVICE REGULATIONS 2008.
The portion of those regulations – Public Service Regulations 2008 which is pertinent to the issue under consideration provides as follows:-
“32 (5) where the transfer is to a new duty station which is [My underlining] a distance of 40 km and above from the public officer’s old duty station, the Head of the Department shall notify the officer of the transfer, at least, 3 months before the date of transfer [My underlining] except where immediate transfer is necessary for operational requirements.”
The seems to have been some discussions between the parties regarding this applicant’s intended transfer from MASERU CENTRAL CORRECTION SERVICE TO BEREA CORRECTIONAL SERVICE. On the 10th DECEMBER2008, perhaps prompted by seeing his name in the CIRCULAR NOTICENo. 107 of 2008, the applicant wrote a letter to the Commissioner of Correctional Services, requesting not to be transferred to BEREA. This circular is the first formal notice of the intended transfer. There is no other written proof of notice to
transfer this applicant which has been placed before this court. Where regulations require prior notice before a certain action is taken, that notice must be formal and official. The respondent is a pains now to try to prove that the required notice to transfer this applicant was given in terms of the law. If the proper notice was given in writing there would be no problem to prove the same.
The INTERNAL CIRCULAR NOTICENo. 107 of 2008 – TRANSFERSmay not be regarded as final and authentic Notice of Transfer regarding this applicant, particularly when the office of the Commission of CORRECTIONAL SERVICESsaw it fit to write a letter directly to this applicant. [SEE ANNEXURE PP1]. In this letter no reference is made to the circular. Reference is made to the prior meeting between the two parties. Reliance is placed by the respondent on the prior meeting between the parties [i.e. 20th October 2008] as the instance of notice to the applicant that he is going to be transferred. This was not a formal notice. There is a dispute as regards giving the applicant the required notice in terms of the regulations. It was not a written notice. Consequently, there are problems to prove the same. Where the law requires a specific time period to be given, it is that exact time period that must be given. There must be a written formal notice that can show the exact date on which it was given. The letter of transfer which the office of the Commissioner of Correctional Services wrote and sent to this applicant, is not such a formal notice that is required by the Public Service Regulations 2008. This letter – “Annexture PP1” is not the notice to the applicant that he is to be transferred. It is a response to his representations regarding the intended transfer. There is no evidence of how and where the applicant came to know of the intended transfer.
There may have been prior discussions regarding the intended transfer, but there was no formal written notice of transfer as required by the law. The allegation that he was given notice verbally and/or he was given reasons for his transfer verbally were not proved before this court. They remain as bare and unsupported allegations. Without proof the allegation relied on by the respondent cannot be accepted by this court.
Although the respondent mentions the issue of operational requirements, it is not in a plain language and straightforward manner. He claims that there was a plot for mass escape which was made by one so called high profile prisoner with the connivance of this applicant. The notice of at least 3 months before the date of transfer, is dispensed with where immediate transfer is necessary for operational requirements SECTION 32 (5) PUBLIC SERVICE REGULATIONS 2008. The respondent does not claim the need to dispense with the compliance with the Regulations. The respondent claims to have acted in total compliance with the regulations. He claims to have given the required notice. There were no operational requirements which prompted an almost immediate transfer of this applicant.
According to the applicant it was a normal transfer. In those circumstances, there must be a total and complete compliance with the regulations. Suggestions that the notice was given verbally on the 20th October 2008 and followed by a letter of 22nd December 2008, were attempts to try to prove that the required notice was given. No where in the papers does the respondent claim to have acted under pressure of a need for immediate transfer. Therefore the failure to give the required period of notice in terms of the regulations, cannot be condoned.
For these reasons this application must succeed. It is granted with costs.
For Applicant: Mr Mosotho
For Respondents : Mr Molokoane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law