CIV\APN\107\93

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

ATTORNEY
GENERAL Applicant

v

MPHO
MARUMO Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 25th day of May, 1994

Counsel
who readily appreciates the short comings in his case is a credit in
his service to the Court.

Counsel
for the Crown has conceded that a good number of points raised by
Counsel for the respondent in the case for rescission
are quite
legitimate and I agree with that submission. While indeed an
application for rescission cannot just be lightly dismissed
in the
current case it appears that the two valid points which were raised
by respondent's Counsel; namely, that the question complained
of;
that is to say, the reinstatement of the respondent would be likely
to cause breach of or affect the discipline in the force,
I don't see
how that could really do that. The second point was also valid namely
that it doesn't seem that

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there is
any valid defence in the papers supporting the application for
rescission. However because the whole question of payment
of the
emoluments depends on the discretion of the Commissioner of Police I
don't think it would be wrong to interfere with that
discretion where
it appears, that the other party by virtue of the fact that a
judgment was taken by default against it, is aggrieved.

Points
have been raised which show that the applicant is in a tight corner.
A criminal charge which the respondent faces was prepared
long ago in
1991 and the preparatory examination, I am told, has been held and
completed yet to date there is no indictment charging
him before the
High Court, We are in 1994 now, yet the requirements in the Police
Force Order are such that the respondent shall
not while
investigations are being made or are going on before the Commissioner
of Police Tribunal - before that is completed -
the suspect shall not
take any alternative employment. Of course the law is silent about
when the matter is pending before the
courts of law; and it doesn't
seem that the powers of the Commissioner to stop the man from earning
an income extend beyond the
inquiry that he himself embarks upon in
his own tribunal. So even if the court would have been inclined to be
sympathetic to the
plight of the state it doesn't seem proper that a
man in the circumstances of the respondent should be barred from
securing anything
whatsoever to enable him to keep going in life. See
Police Order No. 26 of 1971 (as amended) sections 25 and 27.

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From my
reading of the above sections it becomes clear to me that the power
of the Commissioner to suspend a member of the police
force in
accordance with the provisions laid down therein does not extend the
disadvantage resultant from such suspension beyond
the completion of
the proceedings determined by the Commissioner against a member of
the Force falling under the category to which
the respondent belongs.
Thus an attempt to enforce such powers beyond such completion would,
in my view, be ultra vires. Consequently
in respect of a matter now
pending before the Courts of law it would not be proper to subject
any individual to operation of such
powers. If it was the
legislature's intention to so subject him them this intention
occasioning such disadvantage to an individual
should have been spelt
out in plain language. Hence, as in the present case, if it seems to
the Court that the Commissioner's exercise
of discretion may result
in undue hardship or even abuse to the individual, the Court should
feel at large to curb it.

But
because it may seem necessary that these stringent conditions should
prevail even beyond the completion of the Commissioner's

investigation but before the fate of a trial pending before the
Courts, it would be necessary to amend section 25 because it would
be
untenable and indeed absurd to read into this section as it stands
presently, an intention by the legislature to extend the
powers of
the Commissioner so as to cover even the period when a matter is
pending before courts but falls beyond the

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point of
completion of the Commissioner's investigation.

I am
saying this because in the discretion which the Commissioner of
Police has a man in the circumstances of the respondent can
be
interdicted (a) on full salary (b) on half pay or (c) on no salary at
all. So, I am not prepared to interfere with the order
that I granted
earlier except to the extent that the Commissioner of Police is
relieved from paying increments and allowances accruing
between the
time when the respondent was suspended from service in the Police
Force and the time of the eventual fate of his criminal
trial.

As for
his salary, the order that was given by default should remain.

This is
all that in my view should meet the fairness required by peculiar
circumstances in this case.

Three
quarters of the respondent's costs to be paid by the applicant
because the state has succeeded to some minor degree to have
part of
the default judgement altered.

The
Commissioner is given an option to accept or decline whatever
overtures the respondent makes about his wish to go back

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on duty
meantime.

25th May,
1994

For
Applicant : Mr. Molapo

For
Respondent: Mr. Ntlhoki