1

CIV/APN/261/89

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

KHAUHELO
'MAMOKOENA RAMODIBEDI Applicant

and

THE
ATTORNEY-GENERAL Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 2nd day of August. 1993.

On 13th
October, 1989 the applicant herein filed, with the Registrar of the
High Court, notice of motion in which she moved the
court for an
order framed in the following terms:

"1. Setting aside the notice of interdiction served by the
Respondent on the Applicant herein on the 18th September, 1989
a copy
of which is annexed hereunto;

2. Directing
   that the Applicant be re­instated to her post forthwith;

   
   

2

2. Directing
   Chat Respondent pay the costs of this application;

   
   

2. Granting
   the Applicant such further or alternatiave relief as this Honourable
   court deems fit."

   
   

The
Respondent intimated his intention to oppose this application. The
founding and the answering affidavits were duly filed by
both the
Applicant and the Respondent, respectively. No replying affidavit was
filed.

It is
common cause from the affidavits that the Respondent was, at all
material times, employed by the Lesotho Government as a Prosecutor
in
the Subordinate Court of Maseru. On 14th February, 1989 the
Respodnent, as the head of the Applicant's ministry, addressed to
her
a letter (annexure "A" to the founding affidavit) in which
he advised the Applicant that she was being interdicted,
without pay,
pending the determination of disciplinary proceedings to be
instituted against her in terms of the provisions of rule
5-21 of the
Public Service Commission Rules. 1970.

It is,
however, significant that the intended disciplinary proceedings were
never instituted against the Applicant. Rule 5-22(2)
of the Public
Service Commission Rules 1970 provides, in part:

3

"(2)
If no criminal charge or charge of a breach of discipline is
preferred within three months against an officer who has
been
interdicted, the interdiction lapses....."

It
follows, therefore, that when three months of her interdiction
expired, on 14th May, 1989, without any disciplinary proceedings

being prefered against her, the Applicant's interdiction, which had
not been extended, automatically lapsed.

According
to her, on 12th September, 1989, the Applicant instituted, and
rightly so in my opinion, CIV/APN/225/89 seeking, inter
alia, her
re-instatement as public prosecutor. Before CIV/APN/225/89 could be
heard, the Respondent, however, addressed, to the
Applicant, the
letter dated 18th September, 1989 (annexure "B" to the
founding affidavit) by which he re-instated her
to her post, with
retrospective effect from 15th February, 1989. She was admittedly
paid her full emoluments for the period of
her interdiction i.e. from
15th February, 1989 up to 18th September, 1989.

On the
same day, 18th September, 1989, the Respodent addressed, to the
Applicant, annexure "C" to the founding affidavit
by which
he agaisnt interdicted her without pay pending the determiantion of
disciplinary proceedings to be instituted against
her. The
interdiction was to operate

4

with
effect from 21st September, 1989. It is the latter interdiction of
21st September, 1989, that prayer 1 of the notice of motion
is aimed
at.

As it has
been stated earlier, in terms of rule 5 -22(2) of the Public Service
Commission Rules. 1970. an interdiction ie valied
for 3 months
unless, of course, it has been extended. The Applicant's interdiction
was issued on 14th February, 1989, It was never
extended and
automatically lapsed at the end of three months i.e. on 14th May,
1989. It seems to me that on this technicality the
Applicant was on
18th September, 1989, re-instated to her position as Public
Prosecutor.

In her
submission, the Applicant contends that the ground upon which the
interdiction of 21st September, 1989 is based is the same
as the
ground upon which the interdiction of 14th February, 1989 was based.
Having re­instated her on 18th September, 1989,
the Respondent
was not empowered, in law, to interdict her further, as he puported
to do, on 21st September, 1989. The submission
made by the Applciant
is denied by the Respondent according to whom the interdiction of
21st September, 1989 was made pursuant
to the provisions of the
Public Service Commission Rules. 1970 and its legal validity could
not, therefore, be challenged.

5

It would
appear from the answering affidavit that in her founding affidavit
the Applciant omitted to disclose material facts viz.
that on 19th
September, 1989,the Reapodnent initiated, before the Public Service
Commission, proceedings for her dismissal from
office (annexure 1 to
the answering affidavit),in terms of the provisions of rule 6 - 01 of
Part 6 of the Public Service Commission
Rules. 1970, On 5th October,
1989 the Respondent addressed, to the Applicant, notification of
interdiction (annexure II to the
answering affidavit) on the ground
that proceedings for her dismissal had been initiated before the
Public Service Commission.
The notification of interdiction (annexure
II to the answering affidavit) was sent to the applciant per covering
letter dated 9th
October, 1989 (annexure III to the answering
affidavit). The covering letter explained clearly, to the Applicant,
that annexure
"C" to the founding affidavit was being
amended by annexure II to the answering affidavit.

The
applicant has decided to file no replying affidavit. There is,
therefore, nothing to gainsay the Respondent's averments in this

regard. That being so, annexure II to the answering affidavit has, in
my finding, euperceded annexure "C" to the founding

affidavit.

It is
clear from the affidavits that the ground upon which the applicant
was, on 14th February, 1989,

6

interdicted
was that disciplinary proceedings were to be instituted against her
in terms of the provisions of rule 5 - 21(1) of
the Public Service
Commission Rules 1970. The ground upon which she was interdicted on
the second occasion, 21st September, 1989
was however, that the
proceedings for her dismissal in terms of rule 6 - 01 of the Public
Service Commission Rules. 1970 had been
initiated before the Public
Service Commission. The applicant's contention that the grounds upon
which she was interdicted on the
two occasions was the same cannot,
therefore, be quite correct.

Assuming
the correctness of my finding that annexure "C" to the
founding affidavit has been superceded by annexure II
to the
answering affidavit it must be accepted that the applicant cannot be
heard to say annexure "C" to the founding
affidavit must be
set aside, for the simple reason that the annexure has been
superceded and, therefore, non-existant.

In the
result, I come to the conclusion that the first prayer in the notice
of motion cannot succeed. The remaining prayers flow
from the first
prayer in the notice of motion. Likewise they cannot succeed.

I would,
therefore, dismiss this application with costs to the Respondent.

7

B.K.
MOLAI

JUDGE

2nd
August, 1993.

For
Applicant : Mr. Nakane

For
Respondent: Mr. Malebanye