CIV\APN\319\92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LEFUTSO
KHOMARI Applicant

and

PRINCIPAL
SECRETARY 1st Respondent

ATTORNEY
GENERAL 2nd Respondent

PROJECT
MANAGER -SECOND POPULATION

AND
NUTRITION PROJECT 3rd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 19th day of April.
1993.

The
applicant seeks an order in the following terms:

1. The
   period of notice required by the rules of Court be dispensed with on
   the grounds of urgency of this matter;

   
   

2. Declaring
   the letter of dismissal of Applicant by First Respondent dated 28th
   August, 1992 null and void and of no force and effect;

   
   

3. Directing
   First Respondent to desist from unilaterally changing Applicant's
   terms and conditions of her employment contained in
   her letter of
   appointment dated 29th April, 1991 and annexure thereto;

   
   

4. Directing
   Respondent to pay the costs hereof;

   
   

5. Granting
   Applicant such further and\or alterative relief.
   

   
   

In her
founding affidavit the applicant avers that she was

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employed
by letter by the Second Population, Health and Nutrition Project
which is duly established by the laws of this country.
Her letter of
appointment was signed by the Acting Project Manager and the first
respondent on behalf of the Project. The letter
is dated the 29th
April, 1991, The appointment was for two years and the terms and
conditions of her employment were spelt out
in the letter . In other
respects she was governed by the Employment Act 1967 as amended.

Paragraph
4 of the letter of the applicant's appointment states chat the
authority that appointed her may terminate her appointment.
It
indicates in paragraph 9 that she was to serve at Quthing as a
District Health Administrator. Although she was regarded as an

employee of the Ministry of Health she was not in terms of her letter
of appointment to be governed by the Public Service Order
and the
Public Service Regulations (See Annexures "LK1" and "LK2"
to the founding affidavit which are the letter
of appointment and job
description respectively).

On the
3rd August, 1992 the applicant was transferred to Mokhotlong by a
letter signed by the Chief Personnel Officer of the Ministry
of
Health on behalf of the first respondent (See Annexure "LK3").

The
applicant submits that she could not be transferred from

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Quthing
to Mokhotlong because that would be a breach of the conditions of her
contract with the Project as set out in her letter
of appointment.
She submits that the first respondent cannot unilaterally change the
terms and conditions of her appointment.

On the
28th August, 1992 the first respondent dismissed her in terms of
clause 4 of her letter of appointment. She was paid one
month's
salary in lieu of notice. In that letter the first respondent clearly
stated that he was acting in terms of Rule 224 of
the Public Service
Regulations 1969 which provides that

"Subject to the provisions of the principal law for the time
being in force relating to public service, an officer is liable
to be
posted to any public office inside or outside Lesotho as required by
the Minister."

The first
respondent goes on to say that the Government's power of executive
management of public service remains unaffected.

In his
answering affidavit the first respondent concedes that his letter
(Annexure "LK5") is wrong because it refers to
the Public
Service Regulations 1969 and Public Service Order 1970 as well as
Public Service Commission Rules 1970 which are not
applicable to the
applicant's contract. It is stated in no

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uncertain
terms in the letter of appointment that the terms and conditions of
the applicant's appointment are those appearing in
the letter itself
and that in other respects her appointment shall be governed by the
Employment Act 1967 as amended.

I do not
agree with the submission by Mr. Mohapi, counsel for the respondents,
that the letter of appointment is a nullity and that
there is no
valid contract between the Lesotho Government and the applicant.
There is a contract between the applicant and the
Government of
Lesotho which is described as the borrower in the Development Credit
Agreement (Annexure "PM II"to the
answering affidavit). The
first respondent signed the letter of appointment of the applicant on
behalf of the borrower. The letter
of applicant's appointment is
valid and regular in all respects.

The only
question or issue to be decided by the Court is whether the letter of
dismissal or terminating the applicant's appointment
was lawful and
proper. The applicant alleges that the decision to dismiss her was
not taken in good faith after due process of
law. I entirely agree
with her. At the time the first respondent wrote the letter of
dismissal he was under the wrong impression
that the Public Service
Order, Public Service Regulations and Public Service Commission Rules
were applicable to the case before
him. Now why did he not follow the
normal

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procedures
prescribed by the statutes referred to above? Why did he not give the
applicant an opportunity to be heard before he
decided to dismiss
her?

The
applicant was not refusing to accept the transfer but was merely
giving her own interpretation of the terms and conditions of
the
letter of her appointment . The first respondent was under an
obligation to give her a chance to be heard and then inform her
that
her interpretation was wrong. He gave his wrong interpretation that
Public Service Regulation No, 224 applied to the applicant's

appointment and in the last paragraph of that wrong and unlawful
letter abruptly terminated the applicant's appointment. There
is no
doubt in my mind that he acted in bad faith and totally ignored the
fact that the applicant was a fairly senior officer not
to be treated
like a gardener appointed on temporary and flimsy terms by a private
employer.

Be that
as it may the applicant seeks a declaration that the letter of her
dismissal is null and void and of no force and effect.
I have no
hesitation to make that declaration on the ground that in dismissing
the applicant the first respondent did not only
apply the wrong law
which was not applicable to the case but also acted in bad faith and
unfairly by denying the applicant a chance
to be heard.

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It is
debateable whether during the period of two years of the appointment
the applicant could be transferred. I do not propose
to make any
finding on that issue because it is not necessary for my decision in
this case.

For the
reasons stated above the application is granted in terms of prayers
(a), (b), (a) and (d).

J.L.
KHEOLA

JUDGE

19th
April, 1993.

For
Applicant - Mr. Pheko

For
Respondents - Mr. Mohapi.