IN THE HIGH COURT OF LESOTHO
In the matter between:
MATHAKANE HOKINYANE APPLICANT
PRINCIPAL SECRETARY MINISTY OF LOCAL
GOVERNMENT AND CHIEFTAINSHIP 1ST RESPONDENT
LOCAL GOVERNMENT SERVICE COMMISSION 2ND RESPONDENT
MINISTER OF LOCAL GOVERNMENT AND
CHIEFTAINSHIP AFFAIRS 3RD RESPONDENT
ATTORNEY GENERAL 4TH RESPONDENT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 11TH DAY OF AUGUST 2011
The applicant in this matter is MATHAKANE HOKINYANE. She is an adult MOSOTHO WOMANof KHUBETSOANA, in the district of BEREA. She is an employee of the government of LESOTHOwho presently works for the government, under the Ministry of Local Government and Chieftainship. She was first engaged in her present post in November 2005. Her station of work has been since her first engagement, in the offices of the Local Government and Chieftainship, in the district of Berea which is in the lowlands of this Kingdom of LESOTHO. On the 9th March 2011, the applicant received a letter of Transfer to MOKHOTLONG. She was to report for duty at her new station – MOKHOTLONG, on the 1st April 2011. This notice of transfer gave her the maximum period of notice of approximately three weeks before she must report for duty at her new station. This sudden transfer came unexpected.
It is not surprising that the applicant resists this transfer. There are various reasons why the applicant is not able to take up with the expected enthusiasm the intended transfer to Mokhotlong, considering in particular, her present personal circumstances.
1 - She is a married woman. That by itself per se, poses no problem. It is not unusual for the family to be broken up, by employment or in pursuit of the same. Applicant and her husband live together with their two children at their family home. There seems to be a complete right of freedom for the employer to split or complete break-up families. The children are day-schooling although it is not mentioned where exactly, It must be presumed that it is within the distance that allows them to commute daily.
She is also taking care of an elderly parent - her father who is semi-blind because of his old age. There is nothing peculiar about this aspect of her life. All over the world women are expected, in fact are required to look after the children, the sick and the elderly. She cannot abandon this responsibility. The number of children under her care and custody has increased to four with the addition of two more children of her brother. These children are rather in a special position because they are orphans. The untimely death of their parents has left them destitute. The applicant, who is their aunt is their nearest next of kin. She is required and expected; to take care and custody of them. This transfer takes away from these two children that substituted motherly loving care of their aunty. Death took away from them their loving parents without notice. They must be asking themselves what is it that they have done to deserve these deprivations of love and care at each every turn of these sudden events which are beyond their control.
2 - This transfer should have taken effect on the 1st April 2011. Was it a joke? Was it a mere coincidence that it happens on all fools day? This applicant must have seen an avalanche of problems coming towards her, brought by this letter of Transfer to MOKHOTLONGin her particularly peculiar circumstances. She must have asked herself why is she without notice put in this position. Psychologically and physically she is required to make sudden adjustments. The question of her own health is paramount. It is not only important to her family! Strangely as this may sound, it is also important to her employer that she maintains good health and continues to render the needed services to the GOVERNMENTof LESOTHO and/or its subjects.
3 - This applicant is a chronically sick diabetic person. Her body sugar levels go up and down dangerously and suddenly. It is not uncommon for a patient of this type of chronic disease to fall into coma if the sugar level is allowed to fall too low or to rise too high. I am not sure which one of the two conditions is more dangerous and sends the patient into coma immediately. The applicant has averred in her Founding Affidavit, that at times in the night her body sugar level falls very low and she loses consciousness. In those circumstances she needs immediate medical help. She usually gets injections administered by her husband who has been specially and clinical trained to administer the same. It is therefore very dangerous to her life if she were to live alone without her husband or perhaps a nurse special trained to administer such injections if and when required. The said nurse should be as close to her as her husband in order to be able to monitor her condition so that early detection of the deficiency is observed and immediate steps to correct the deficiency are embarked upon.
4 - The applicant’s husband is employed. He is not a house husband; otherwise, there would be no problem if she were to take him with her to MOKHOTLONG. Unfortunately because of his own employment, that is not possible. He commutes daily from their place of resident, Khubetsoana to Roma where he is employed. Roma is about thirty minutes to one hour’s drive from KHUBETSOANAwhere the applicant lives with her family. The civil servants expect to be transferred as part and parcel of their jobs. But that does not have to be the case to each and every civil servant. There are some instances when civil servants are not transferable despite the rules and regulations which authorize the transfers. The transfer must be for the maximum benefit of the employer no matter how inconvenient it is or can be to the employee. This is hard and harsh! That is why it is tempered with considerations which benefit or compensate the government employees for sudden loss of what is at hand. There is no evidence which shows this court the type of cushioning if any, which will enable the applicant to land safely and softly after this quick take off from usual station.
The applicant is presently engaged in a course of training in order to improve, enhance and sharpen her excellence at her work. She was informed by the then Chief Executive Private Sector Development and FINANCIAL AFFAIRSby letter dated 22nd February 2008, “ANNEXURE H I” that she has been selected to study on the Certificate Programme that commenced on the 25th February 2008.
5 - She was advised to commit to the programme as it will help to raise the profile of procurement, as an internationally recognized profession. Applicant committed herself full and completely to the training in excellence in procurement, when she completed the certificate programme she continued on her own initiative and progressed to higher levels of the training in that field. She is presently registered for level 4 Foundation Diploma. [Refer to ANNEXURE 4]
It is not in dispute that she is not going to be able to continue to study at the IDM place of study here in MASERU, if she transfers to MOKHOTLONG. That is a definite abrupt termination of her training. It is not only her who is going to lose. The Government for which she is applying her skills, where she will continue to improve the application of her skills, will also lose.
It appears from that letter of the then Chief Executive, Private SECTOR DEVELOPMENTand FINANCIAL AFFAIRS– Mr Mosito Khethisa that Ministry of FINANCE AND DEVELOPMENT PLANNING,was anxious to have Basotho who are qualified and skilled in internationally recognized professions in chartered institute of Purchasing and Supply. No doubt this applicant will actually be prejudiced by untimely cessation of her training. As I have hinted earlier on, it will also be a loss to the nation as a whole. Is this inevitable? Can it be avoided? Yes. There is no reason placed before this court that shows this court that there is immediate and compelling need to have this applicant apply her skills only to MOKHOTLONG. She has been applying her skills and expertise at her present post and location. It is said that her expertise is needed in MOKHOTLONG. Do the present circumstances pertaining to her personally and to her family allow such a transfer? There is no evidence to show this court that there are preparations underway to ensure that her transfer serve the intended purpose – rendering of needed services to Basotho at MOKHOTLONG. She must be suicidal to go to MOKHOTLONG without her husband or a nurse who will monitor her condition and take immediate corrective measures when the need arises.
6 – TRANSFER WITHOUT HEARING
There is no legal requirement for hearing prior to transfer. The legal principle that appears to have been established over the years in this jurisdiction is that an employee has a right to a hearing in relation to a potentially prejudicial decision. MAMONYANE MATEBESI DIRECTOR OF IMMIGRATION and others C of A (CIV) 2/96.
There are no specific rules and/or regulations that require a hearing before a transfer of an employee could be made. It is demanded by the principles of natural justice together with fundamental principles of fairness, that prior to the making of the final and potentially prejudicial decision the person whose rights are likely to be adversely affected by such decision should be given an opportunity to be heard before it is made. SELIKANE and 33 Others v LTC & Others C of A (CIV) No 7/99.
It is established that the applicant’s health will be adversely affected by her transfer to Mokhotlong. The doctors who have managed her health conditions so far are located here at the lowlands e.g. Berea and/or Maseru. There is no evidence that there are doctors who can manage her condition in Mokhotlong. There is no evidence that she will be provided with the nurse or anybody who is clinically trained to administer the injections if and when required under the emergency that may arise there in Mokhotlong. The intended transfer is not only risky but it is also dangerous to her life. There is therefore need to create conducive environment for the maintenance of her not so very good health at MOKHOTLONGprior to her transfer there at. There is no evidence that there are preparations to enable this employee to cope with her health problems at MOKHOTLONG. Is she being inadvertedly dispossed of. If there was a hearing prior to her intended transfer could the decision to transfer her been made? I doubt it!
“The right to Audi is however infinitely flexible. It may be expressly or implied ousted by statute, or greatly reduced in its operation”
This was said, by Gauntlet JA in the case of MAMONYANE MATEBESI v DIRECTOR OF IMMIGRATIONand Others LLR and L. B 1997 – 1998, page 455 at 464 (7). Under normal circumstances, where a decision is likely to affect a person adversely or the decision is potentially prejudicial, a person against whom such a decision is to be made, should be asked to make representations, verbal or written, prior to the making of that decision. SELIKANE P SELIKANE and Others v LTC and Others 1999 – 2000 LLR and LB page 127.
The audi alteram partem principle may apply to transfers where such transfers are prejudicial or potentially prejudicial to an employee. The applicability of the rule depends on the circumstances of each case. SELIKANE Supra. Considering how badly she is likely to be affected by the purported transfer, there was a need to give the applicant an opportunity to make a decision to take or refuse to take a chance with her health conditions.
The untimely and abrupt termination of her further skills training should be the decision made by the applicant. She should not suddenly and without notice, be forced to abandon her further skill training in the field most relevant to her performance of her functions at her place of work. Fairness demand that she should be an active participant in the making of such decision. Otherwise if she is forced as it appears to be case presently, that smacks of malice.
7 – COSTS
The question of order of costs must be determined in the light of the case. There is a prayer for costs at attorney and client scale. There is nothing in the papers filed of record, to justify that prayer. There is nothing in the address of the applicant’s counsel to support the demand of costs at attorney and client scale. In the circumstances I find nothing to justify the said prayer. I therefore I award costs in the ordinary and usual scale.
For Applicant: Mr Molati
For 1st Respondent: Mr Shale
For 2nd Respondent : Mr Phafane (KC)
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