C. OF A
(CIV) No.32 of 1991

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

MARY
CLOVER NTHOLI Appellant

and

ATTORNEY
GENERAL Respondent

HELD AT
MASERU

Coram:

MAHOMED
P.

BROWDE
J.A.

KOTZE
J.A.

JUDGMENT

Browde
J.A.

The
appellant commenced employment with the Lesotho Government as a
clerical assistant in February 1972. During the course of her

employment she was promoted to the position of assistant
instructional material designer, a post she held until
the 18th
November 1987. On that date the appellant was convicted of theft in
the Maseru Magistrates' Court and sentenced to a term
of
imprisonment. She was released on bail on 29 November 1987 pending
the outcome of an appeal which had by that time been noted.
On her
release from prison on 29 November 1987 the

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appellant
alleges (and it was not disputed before us) that she reported at work
but was told by Mr. Mohapeloa, the then Deputy Principal
Secretary,
"not to come as my affairs were being considered". As a
result the appellant did not work until the
29th December 1987
when she received the "letter of interdiction" which gave
rise to the litigation between the parties
culminating in this
appeal. The letter was addressed to the appellant by the Ministry of
Employment and dated the 29th December.
The relevant portion reads as
follows :-

"Dear Madam,

I wish to advise you that I have, in terms of Public Service
Commission Rule 5-21(1) and 5-22(1) decided to interdict you on no

pay from exercising the powers and performing the duties of your
office with effect from November 19, 1987..... because you were

involved in theft.....and as a result your continued presence in
office constitutes a threat to good discipline.... in terms of
Public
Service Commission Rule 5-21(5)."

On the
following day, that is 30 December 1987, appellant's attorney replied
to the letter of interdiction and contended that the
Ministry had no
power to interdict the
appellant retrospectively. There was no
reply to that nor to a subsequent letter calling for a reply and on
9th May 1988 an application
was launched in the Court a quo in which
the appellant asked for the following relief :

(a) Declaring applicant's interdiction dated 29 December 1987 null
and void;

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(b) Directing Respondent to pay applicant's salary with effect from
November, 1987 to date of Judgment;

(c) Directing Respondent to pay the costs of this Application.

In the
answering affidavit filed by the Deputy

Principal
Secretary in the Ministry concerned it was conceded that the letter
of interdiction was defective because of its retrospective
effect. It
was argued however in the Court a quo (and again in this Court) that
the "bad" part of the letter i.e. the
date "November
19, 1987" is severable from the rest of the letter, thus having
the effect of interdicting the appellant
from the date of the letter,
namely 29 December, 1987.

If one
approaches the question of severability purely on a grammatical basis
it is clear that the excision of the words complained
of would render
the letter incomprehensible since the date from which the interdict
was to take effect would be a blank. Indeed
counsel for the appellant
has on this basis submitted that the doctrine of severance cannot
apply in this case because it would
lead to absurdity. If the date is
severed
or deleted, so the submission went, the letter would have
no effective date. This argument overlooks that one can notionally
sever
the offending date thus leaving the interdict effective from
the date of the letter. In other words the "badness" in the

letter does not result in "the totality being so unreasonable as

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to be
impermissible".

See
Baines Motors v. Piek 1955(1) SA 534 at 541 E-G per Schreiner J.A.

If this
severance would result in a contrived situation which could never
have been acceptable to the author of the letter then,
of course, it
could not be entertained. In my view, however, no such result ensues
from the severance since it seems clear that
what the author intended
was to interdict the appellant from working for the department and it
can hardly be suggested that the
author would adopt the attitude that
if the interdict was not to commence from November 19, 1987 then he
would rather it did not
commence at all. It cannot therefore be
validly argued that by severing the date "November 19, 1987"
and notionally substituting
"today" that the object of the
author is no longer reflected in the document.

In regard
to severance it remains only to affirm that

"the doctrine of judicial severability has very often been
applied in the field of subordinate legislation, its operation
is not
confined to that field. It has with the same logic and effect been
applied in the field of contract (see Markowitz and Sons
Trust Co
(Pty) Ltd v. Bassous 1966(2) PH (a) 65 (c); in the adjudication of
administrative Acts (See: S v. Ockers and Another 1974(2)
SA 253; and
in the construction of administrative documents such as permits
(Transair (Pty) Ltd. v. National Transport Commission
1977(3) SA
784(A) at p. 785 F-H). The document

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sought to be attacked in the instant case is a letter of appointment
for public purposes and I can see no reason why the doctrine
of
severability should not be applied to its contents".

per
Mahomed JA (as he then was) in Edward Hae Phoofolo v. Rex C.
of A.
(CRI) 1988 at 14.

In the
result I am of the view that the learned Judge a. quo correctly held
the interdiction valid as from the date of the letter
namely, 29
December 1987. With regard to the claim for salary it is common cause
that if the letter of interdiction was valid from
29 December 1987

(a) The appellant was not entitled to any salary during the period
that she was in prison i.e. from 18 November 1987 to 29 November
1987
and

(b) Was entitled to her salary from the 29 November 1987 when she was
released on bail pending the determination of her appeal,
to the 29th
December 1987 when the interdiction took effect.

On the
27th October 1989 the appellant's appeal to the High Court in the
criminal case was dismissed and on 17th August 1990 she
was dismissed
from service with the Lesotho Government. Counsel for the appellant
has argued that on the basis that the
interdict was valid from the
date of the letter it was valid only for a period of 3 months. For
this submission he relied on Rule
5-22(2) of the Public Service
Commission Rules which reads:

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"If no criminal charge or charge or a breach of discipline is
preferred within three months against an officer who has been

interdicted the interdiction lapses and he shall be allowed to resume
duty and he shall be paid his full emoluments for the period
of his
interdiction unless on application of the head of department and
after having given the officer and opportunity to make

representations, the Minister after consulting the commission orders
otherwise".

There
seems to be no substance in this submission. Not only had a criminal
charge been preferred but the appellant had been found
guilty on such
charge.

The
further submission has been made that an interdiction cannot validly
be for an indefinite period and that the letter does not
specify when
the interdiction would end.
This however overlooks the fact that
letter specifically makes reference to the aforesaid Rules of the
Public Service Commission
Rule 5-21(7) of which provides -

"If an officer has been convicted of a criminal charge and the
head of department recommends that he be removed from office
in
consequence of that conviction, the head of department shall
interdict the officer pending the decision of the Minister after

consulting the Commission or the result of any appeal that the
officer may have lodged in a superior Court."

The
interdiction is, therefore, not indefinite as its limits are
prescribed as a matter of law.

Finally
Counsel for the appellant has submitted that

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G. P. C.
KOTZE'

Judge of
Appeal

I agree,.
The appeal is upheld and the conviction and sentence are set aside.

I.
MAHOMED

President
of the Court of Appeal

I agree.

J. BROWDE

Judge of
Appeal