CIV/APN/161/92

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

JOSEPH
FOBOApplicant

and

OFFICER
COMMANDING MASERU CENTRAL PRISON 1st Respondent

MINISTER
OF JUSTICE 2nd Respondent

ATTORNEY-GENERAL 3rd
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 21st day of April. 1993.

The
applicant herein who is a prison officer has moved the court for an
order directing, inter alia, that the proceedings presided
over by
the 1st Respondent in a certain disciplinary case against him
(Applicant) be reviewed, altered and/or set aside on the
grounds of
substantial irregularity. The granting of the order is opposed by the
Respondents,

It
appears from the record of disciplinary proceedings that during the
month of November, 1991, the applicant was disciplinarily
charged and
convicted of contravening rule 156 of the Prison Rules 1957 and fined
to pay a total

2

amount of
M190. The applicant did not pay the fine until the end of March,
1992, when the 1st Respondent deducted it from his salary,
presumably
in accordance with the provisions of the Prison Rules of which rule
163 reads, in part:

"163(1) An officer in charge determining a case shall either
dismiss the charge, or find the officer guilty thereof and -

1. ..................

   
   

2. ................

   
   

3. make
   one of the following recommendations:

   
   

(i)...............

(ii)...............

(iii)...............

(iv)...............

(v)...............

(vi)...............

(vii) that the officer be fined an amount not exceeding one half of
such officer's basic salary for one month.

2. The
   amount of any fine imposed under subrule (1), may be recovered by
   stoppage from the officer's pay."

   
   

It is
perhaps convenient to mention at this stage that it is not really
disputed that the applicant's monthly net salary was, at
the material
time, M536-07. It must be accepted, therefore, that the amount of
M190 deducted by the 1st Respondent from the applicant's
salary did
not

3

exceed
one half of his basic salary for one month.

Unsatisfied
with the action taken by the 1st Respondent, the Applicant went to
consult Mr. Phoofolo of the Firm of Attorneys styled
E.H. Phoofolo &
Co who on 26th March, 1992 addressed a letter to the 1st Respondent.
The letter reads, in part:

"Prison officer Fobo has instructed us to act for him. The said
officer has informed us that a sum of M190-00 was this month
deducted
from hie monthly salary to day. According to Mr. Fobo, this amount,
he believes, was deducted in lieu of payment of a
fine which was
imposed on him after he was found guilty in disciplinary proceedings
against him.

We
respectfully wish to draw your attention to the following:-

1. Unless
   authorised by the owner, a deduction of a person's salary is an
   unlawful act, for which he is entitled to institute a claim
   for
   reimbursement thereof in the law courts.

   
   

2. All
   that the law governing prison officer's punishment for misconduct
   says is that the officer "be fined an amount not exceeding
   one
   half of such officer's basic salary." It does not go further as
   to authorise the prison authorities to deduct the amount
   from the
   officer's salary per se (Section 163(c) (vii). It is our firm
   position that one (sic) an officer has been ordered to
   pay a fine,
   and the time during which it should be paid has been

   
   

4

stipulated in the award; it remains at the discretion of the said
officer as to how, and from what source he draws the funds for

payment thereof.

In the light of the foregoing, we are instructed to demand, as we
hereby do, immediate reimbursement of Mr. Fobo's money and that
is
without prejudice to your claim against him. Failure to reimburse Mr.
Fobo as demanded will leave us with no choice but to approach
the
courts of law for appropriate relief.

Yours faithfully,

(Signed) E.H. Phoofolo

E.H. PHOOFOLO"

(My underlining)

The words
I have underscored in the above cited letter indicate, in my opinion,
that the writer thereof misconceived the provisions
of subrule (2) of
rule 163 of the Prison Rules viz. that the amount of any fine imposed
under subrule (1), may be recovered by
stoppage from the officer's
pay.

Be that
as it may, the record of the disciplinary proceedings goes on to
disclose that when he received the above cited letter,
the 1st
Respondent caused a disciplinary charge to be preferred against the
applicant, who was accordingly charged with contravention
of the

5

provisions
of subrule (19) of rule 156 of the Lesotho Prison Rules. 1957. It
reads, in part:

"156. Any officer shall be guilty of an offence against
discipline, and liable to disciplinary awards prescribed in rule
163,
who –

(1)....

19. publishes
    any matter, or makes any public pronouncement, relating to prisons,
    or prisoners or the administration of the prison
    service ..."

    
    

The
particulars of the charge sheet disclosed that on or about the 30th
March, 1992 he was found to have published the administration
of the
prison service to Attorney E.H. Phoofolo. In accordance with the
provisions of rule 157 (4) of the Prison Rules, the applicant
was on
2nd April, 1992, served with the charge sheet. He initialled, and
stated that he admitted, the charge, in accordance with
the
provisions of rules 157 (5) and 158 (1) of the Prison Rules,
respectively.

The
hearing of the disciplinary proceedings started on 14th April, 1992
before the Senior Prison Officer, M. Mahao, who on 16th
April, 1992
found the applicant guilty as charged and made the award of 12 months
special probation.

6

According
to the record of proceedings, the applicant intimated that he did not
wish to appeal against the decision of the adjudicator.
However, on
22nd April, 1992, the applicant filed, with the Registrar of the High
Court the present application for review on the
grounds that in the
course of the disciplinary proceedings he was, contrary to the
provisions of rule 158 (iii) of the Prison Rules
denied the right to
call Attorney E.H. Phoofolo as a witness in his defence and the
disciplinary charge was defective in that the
allegations thereof did
not disclose an offence. In their answering affidavit deposed to by
M. Mahao, who was the presiding officer
in the disciplinary
proceedings against the applicant, the Respondents categorically
denied that, at the hearing of the disciplinary
case, the applicant
ever intimated the wish to call E.H. Phoofolo as a witness in his
defence. According to M. Mahao, what the
applicant told him was that
he wanted to call E.H. Phoofolo to come and represents him as a
defence counsel. That the applicant
was advised he could not, in
terms of the provisions of rule 160 (2) of the Prison Rules, be
allowed to do. He (Mahao) considered
the applicant's request to be
represented by E.H. Phoofolo quite irrelevant and did not even record
it.

There can
be no doubt, therefore, that the applicant's averment that, during
the hearing of the disciplinary case, he requested
E.H. Phoofolo to
be called as a witness in his

7

defence
is disputed by the Respondent and cannot be resolved on affidavits
alone. However, it is to be observed that rule 158 (iii)
of the
Prison Rules provides,

in part:

"158 The accused officer shall state in writing upon the charge
sheet -

(i)....................

(ii) ...................

(iii) The names of any witnesses whom he desires to call at the
hearing."

(My underlining)

I have
underscored the word "shall" in the above cited rule 158 of
the Prison Rules to indicate my view that the provisions
thereof are
mandatory. If it were true that he intended to call E.H. Phoofolo as
a witness in his defence, it seems to me that
the applicant ought to
have written his name on the charge sheet when it was served upon him
on 2nd April, 1992. He admittedly
did not. The result is that the
applicant's averment that he intended to call E.H. Phoofolo as a
witness in his defence is not
supported by either the charge sheet or
the record of proceedings. The onus of proof that he wanted Phoofolo
to testify in his
defence vested with the applicant. I am not
convinced that, on a balance of probabilities, the applicant has
satisfactorily discharged
that onus.

In any
event, it is significant to observe that rule

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166
provides:

"166 (1) An officer in whose case a disciplinary award or
recommendation has been given, may appeal, in writing, giving his

reasons, to the Director against the decision and the award or
recommendation and any order made in consequence thereof by the

officer in charge. No such appeal shall lie where the charge was
dealt with by caution. Such appeal shall be handed to the officer
in
charge within fourteen days from the date of the award or
recommendation, and there shall be no right of appeal after the
expiration
of the aforesaid fourteen days.

2. The
   officer in charge shall forward to the Director, with the appeal,
   the record of the proceedings taken under rule 159, together
   with
   all documentary exhibits received during the proceedings, and his
   observations on the case. The observations of the officer
   in charge,
   and the other documents to be forwarded under this sub-rule, shall
   be shown to and initialled by the officer, who
   may, if he so
   requests, be permitted to make copies of all or any of such
   documents.

   
   

2. The
   Director may, after considering the papers forwarded to him under
   sub-rule (2), allow the appeal and dismiss the charge, or
   may
   confirm the disciplinary award or substitute therefor

   
   

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a caution or any award, whether more or less severe, which would have
been within the power of the officer in charge to impose,
and
confirm, vary or reverse any order under rule 163.

4. In
   all appeals the Director may, before finally determining the matter,
   refer the case back to the officer in charge to take further

   evidence on any matter relevant to the case and specified by the
   Director."

   
   

In my
view, the above cited rule 166 clearly empowers the Director of
Prison to do exactly what this court is asked to do viz, to
consider,
review, alter and/or set aside the decision in a disciplinary case
against the applicant. Assuming the correctness of
the record of
proceedings that the decision against him was made on 16th April,
1992, the applicant had time until 30th April,
1992 to lodge his
appeal to the Director, However, on 22nd April, 1992 i.e. seven (7)
days before the expiration of the time allowed
for appeal, the
applicant, in total disregard of the provisions of rule 166 of the
Prison Rules, 1957 instituted the present application
before the High
Court. This is a flagrant undermining of the statutory powers of the
Director of Prisons and should not, in my
opinion, be
encouraged/permitted. The applicant ought to have exhausted domestic
remedies, available to him, before approaching
this court in the
manner he did.

10

He did
not do so. The application was, for that reason, brought before the
High Court prematurely and ought not to succeed.

I would,
therefore, dismiss this application with costs.

B.K.
MOLAI

JUDGE

21st
April, 1993.

For
Applicant : Mr. Phoofolo

For
Respondent: Mr. Putsoane.