CIV\APN\247\93
IN THE HIGH COURT OF LESOTHO
In the matter between:
MOQHALI MOQHALI Applicant
and
LESOTHO TELECOMMUNICATIONS CORPORATION Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 6th day of October. 1993.
This is an application for an order in the following terms:
That a rule nisi do hereby issue calling upon Respondent to show cause, if any, on a date to be determined by this Honourable Court why:-
The suspension of Applicant by the Managing Director of Respondent dated January, 1993 shall not be declared null and void and of no force and effect.
The intended disciplinary proceedings against Applicant before the Board of Directors of Respondent on June 9th 1993 shall not be stayed pending the finalisation of this application;
The order declaring that the Board of Directors of Respondent have no right whatsoever to sit as a disciplinary tribunal contrary to the provisions of Respondent's Personnel Regulations shall not be granted;
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The instructions of the Board of Directors of Respondent to Applicant to return private motor vehicle Ad 643 shall not be stayed and the said motor vehicle shall not be returned to Applicant pending the finalization of this application;
Respondent shall not be directed to pay the costs hereof.
Granting Applicant such further and\or alternative relief as this Honourable Court may deem fit.
That rules 1 (b) and (d) should operate with immediate effect as a temporary interdict and that Applicant's affidavit attached hereto will be used in support hereof.
On the 8th June, 1993 the rule nisi was issued and made returnable on the 14th June, 1993. However prayer 2 was not granted.
After several extensions of the rule the matter was argued before me on the 10th September, 1993. Judgment was reserved.
Prayers 1 (b) and 1 (c) were not opposed by the respondent. On the 10th September, 1993 those two prayers were confirmed by agreement of the parties.
The facts of this application seem to be common cause and they are as follows;
At all material times the applicant was and still is in the
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employ of the respondent as a member of the permanent staff. His terms and conditions of employment were governed by the respondent's Personnel Regulations. He holds the senior position as the Head of Planning Division of the respondent.
On the 28th January, 1993 the Managing Director of the respondent suspended the applicant without having invited him to make any representation before he took that step. The suspension was with immediate effect pending the outcome of the disciplinary case which was to be beard by Mr. Mopeli Qhobela of the Public Service Commission.
On the 24th March, 1993 Mr. Qhobela delivered a written judgment in which he indicated that he had no jurisdiction to deal with the applicant's case as the Personnel Regulations of the respondent clearly indicated the proper tribunal to hear the respondent's case.
Thereafter the Board of Directors of the respondent attempted to constitute itself as a disciplinary tribunal to hear the applicant's case. This has also failed because the respondent's Personnel Regulations indicated who shall compose the disciplinary tribunal.
In the position he holds, the applicant is entitled to the
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transport which the respondent provides. At the end of four years he would be entitled to buy this car from the respondent. He is entitled to two hundred litres of fuel per month. This is a term of his contract with the respondent.
Although the applicant is on suspension he still earns his full monthly salary. He is still occupying the respondent's house allocated to him. On the 27th May, 1993 the applicant received a letter from the respondent that the Board of Directors of the respondent had directed, again without first hearing the applicant, that he should return the car with immediate effect. The car which is given to the Divisional Head is regarded as a family benefit. His wife is entitled to use the car. It is for both official and private use. On the 28th May, 1993 the applicant returned the car under protest.
I propose to deal with the car first.
Mr. Matsau, respondent's attorney, submitted that the official vehicle has been allocated to the applicant to carry out official duties therewith. The benefit to use the same for personal use is ancillary to the main purpose of official use. The applicant has stated that he is entitled to free two hundred (200) litres of petrol per month which is charged to the Corporation's account. He submitted that this benefit is
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available to the applicant for as long as he is performing his duties as an employee of the respondent.
The Board of Directors of the respondent was therefore entitled to withhold the benefit from the applicant pending finalisation of the disciplinary action against him. He further submitted that the balance of convenience favours the action taken by the Board of Directors. He further submitted that the said benefit cannot be compared with salary and the use of the official residence. In the latter, for instances, the balance of convenience would favour that the applicant should be paid his salary in full in the meantime and be allowed to occupy the official residence.
I do not agree with Mr. Mataau that the benefit to use the car for personal use is ancillary to the main purpose of official use. It is a very valuable benefit which is enjoyed by the applicant in terms of his contract with the respondent. As the applicant has not been dismissed I am of the view that he is still entitled to the use of the car for his personal purposes. I cannot see any distinction between the use of the official residence and the payment of full salary on the one hand and the use of the car for personal purposes on the other hand. These three things are the benefits which the applicant must enjoy as long as his contract with the respondent still subsists.
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Be that as it may the crucial question is whether the respondent was entitled to deprive the applicant of the use of the car without affording him a chance to be heard. In other words did the audi alteram partem rule apply to the case? The respondent is a parastatal organization created by statute. Because of the public nature of the respondent there is no doubt that the audi alteram partem rule must apply. (See Koatsa v. The National University of Lesotho, C. of A\15\86 unreported).
Koatsa's case (supra) dealt with termination of employment without giving the employee a fair opportunity of being heard on the matter, especially where it appears from the circumstances that the employee had a "legitimate expectation" that he would remain in employment permanently in the ordinary course of events.
In the present case the applicant's contract with the respondent provides that he would enjoy the benefit of the use of the respondent's car for private purposes as well as for official duties. I am of the view that he has a legitimate expectation that as long as he is still in the employment of the respondent that benefit would not be terminated unilaterally. The act of the respondent is a clear breach of contract.
I am of the view that this prayer must be confirmed.
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In prayer 1 (a) the applicant praye that his suspension by the Managing Director of the respondent dated the 28th January, 1993 be declared null and void and of no force and effect on the ground that he was not given a chance to be heard before that drastic step was taken against him.
The authorities seem to differ as to whether before a suspension from office is made the employee must be heard or not. In most cases where the employee is suspended without pay the courts have said that before such a drastic action is taken he ought to be given a chance to be heard. Or if it was not possible to hear him before the suspension was made to hear him immediately thereafter.
In Administrative Law by Wade, 6th edition at page 565-6 the learned author says:
"Suspension from office as opposed to dismissal may be nearly as serious a matter for the employee, but the Courts have wavered
between two different views. One is that the employer needs a summary power to suspend without hearing or other formality as a holding operation, pending inquiries into suspicions or allegations. The other is that suspension is merely expulsion pro tanto. Each is penal, and each deprives the member concerned of the enjoyment of his rights of membership or office. Taking the former view in a controversial decision, a majority of the Privy Council held that a schoolteacher in New Zealand need not be given a hearing before being suspended without pay pending the determination of a disciplinary charge against him on which he would be fully heard in accordance with statutory regulations. Although it
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was recognised that suspension without pay might involve hardship and also a temporary slur on the teacher, it was held that he had accepted this possibility in the terms of his employment and that the disciplinary procedure as a whole was fair. It has been said also that a police officer need not be heard before being suspended from duty pending investigation of charges of misconduct.
Favouring the opposite view, the Court of Appeal of New Zealand has rejected the distinction between suspension and expulsion and has held that natural justice is required equally in both cages; and there are similarly clear Australian decisions. Suspension without pay, in particular, may be a severe penalty, and even suspension with pay may gravely injure reputation. In principle the arguments for a fair hearing are unanswerable; and if for reasons of urgency it cannot be given before action is taken, there is no reason why it should not be given as soon as possible afterwards."
In Lewis v. Heffer and others (1978) 3 All E.R.354 (C.A.) at p. 364 C-E Lord Denning, M.R. said:
"Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending enquiries. Suspicion may rest on him and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground of defending himself, and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply: see Furnell v. Whangarei High Schools Board.
In a separate concurring judgment Lane L.J. said (at 368h-j) that where suspension was an administrative action and had to be effected
immediately, pending investigation, it was not only impossible to hear the subject but natural justice will seldom if ever at that
stage demand that the
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investigation should ... hear both sides. No one's livelihood or reputation at that stage is in danger. But the further the proceedings go and the nearer they get to the imposition of a penal sanction or to damaging someone's reputation or to inflicting financial loss on someone, the more necessary it becomes to act judicially and the greater the importance of observing the maxim,audi alt eram partem."
In Mhlauli v. Minister of Department of Home Affairs and others 1992 (3) S.A. 635 it was held that the audi alteram partem principle was applicable when a statute empowered a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights, unless the statute expressly or by implication indicated to the contrary.
It was further held that suspension unquestionably constituted a serious disruption of one employee's rights: the social and personal
implications of being barred from working and of being seen to have been so barred, and being deprived of pay, were substantial.
Accordingly, that the applicant had been entitled to a hearing prior to his suspension.
In Muller and others v. Chairman, Minister's Council, House of Representatives, and others 1992 (2) S.A. 508 it was held that it was not the intention of the Legislature in S. 20 (2) of the Act to deny a hearing to a public officer prior to or, in extreme
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cases, immediately after his suspension without pay pending the hearing of disciplinary charges against him. The same necessarily applies to the absence of any reference to a hearing, or to the denial of a hearing, in Reg. A25.1. According, such a suspension , if imposed without giving the public officer a hearing, is invalid.
Article 28.5 of the respondent's Personnel Regulations provides that 'if it appears necessary or desirable an employee may be suspended from duty with or without pay from one to three months at the discretion of the MD pending the completion of the investigations.'
There is no doubt that the Managing Director of the respondent has the power to suspend from office any employee of the respondent. The Regulation makes no reference to the hearing or the denial of a hearing before the M.D. decides to suspend an employee of the respondent. As there is no specific reference to the exclusion of a hearing before suspension then the audi alteram partem rule must apply to the present case.
If the MD of the respondent found that this was an extreme case in which he had to take quick action by way of good administration, i.e. maintenance of good discipline amongst the staff, he ought to have given the applicant a hearing immediately
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after the suspension.
For this reason alone I am of the view that the suspension is invalid.
The applicant has now been on suspension for about eight (8) months. 'The further the proceedings go and the nearer they get to the imposition of a penal sanction or to damaging someone's reputation or to inflicting financial loss on someone, the more necessary it becomes to act judicially, and the greater the importance of observing the maxim, audi alteram partem'. The applicant is now suffering a financial loss because the official car which he used for private or personal purpose has been taken from him. His reputation is at stake inasmuch as for the last eight (8) months people are aware that he is not going to work. If he drinks intoxication drinks he may develop a bad habit of drinking at daytime when other people are at work. This may seriously affect his character and reputation.
The suspension has become illegal for another reason. The M.D. of the respondent is empowered to suspend an employee for a period of from one to three months. That period expired on the 28th April, 1993. The applicant is entitled to go back to work. Public moneys should not be used to pay an employee whose suspension has expired.
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The long delay in prosecuting the charges against the applicant before a proper tribunal is due the lack of knowledge by the respondent of its own disciplinary machinery when an employee has committed an offence. The respondent is on a fishing expedition - It first appointed the Adjudicator in the Public Service Commission who rightly pointed out that he had no jurisdiction. Thereafter the respondent purported to establish the Board of Directors of the respondent as a disciplinary tribunal. This attempt has been abandoned. It is not clear from the papers what the respondent intends to do. This confusion and an appalling lack of knowledge of the respondent of its own disciplinary procedures is pathetic and costing it a lot of money unnecessarily.
In the result the rule is confirmed with costs.
J.L. KHEOLA
JUDGE
6th October, 1993.
For Applicant - Mr.Pheko
For Respondent - Mr. Matsau.
