CIV/APN/91/91

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

JOHN
MATSOSO BOLOFO Applicant

and

ATTORNEY-GENERAL
1st Respondent

COMMISSIONER
OF POLICE 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 27th day of October. 1994.

The
applicant herein filed, with the Registrar of the High Court, a
notice of motion in which he moved the court for an order framed
in
the following terms:

"(a) Declaring applicant's purported retirement from the Police
Force null and void;

2. Directing
   Respondents to pay the costs of this application in the event of
   opposition;

   
   

2. Granting
   applicant such further and/or alternative relief as this Honourable
   Court may deem fit."

   
   

2

The
founding affidavit was duly filed by the applicant. The Respondents
opposed the grant of the order sought in the applicant's
notice of
motion but filed no answering affidavit. They instead filed notice of
intention to raise, at the hearing, two questions
of law, presumably
in terms of the provisions of rule 8(10) (c) of the High Court rules
1980. The questions of law raised by the
Respondents were that the
order sought by the applicant could not be entertained firstly
because it was prescribed in terms of
the provisions of the
Government Proceedings and Contracts Act. 1965 and secondly on
account of the provisions of the Removal of
Public Officers
(Validation) Order, 1988.

The facts
disclosed by the founding affidavit were briefly that the applicant
was, at all material times, employed, by the Government
of Lesotho,
as a major and attached to the Royal Lesotho Intelligence Service
branch of the Police Force. He was, therefore, a
public officer.

On 10th
November, 1987 the applicant received a letter (annexure JMB "1")
by which the Director of the Royal Lesotho Intelligence
Service
instructed him to give reasons (if any) why he should not be retired,

3

following
his failure to take proper and timeous action in connection with
terrorists incidents at Maphutseng on 8th November, 1987.
In reply
applicant addressed, to the Director, a letter (annexure JMB "2")
of the same date, 8th November, 1987, in which
he pointed out that he
had been betrayed by his colleagues who had in their possession the
necessary information, upon which he
could have taken proper and
timeous action, but failed to convey it to him. He denied, therefore,
the accusation that he had committed
any misconduct for which he
could be liable for retirement on public interest.

Notwithstanding
the reasons he had given, on 17^th December, 1987 the
applicant received, from the Secretary of the Military Council, a
letter (Annexure JMB"3") by which
he was advised that in
terms of the provisions of Section 29(f) of the Police Order. 1971 as
amended by the Police (amendment)
Act. 1983 he had been retired from
the Police Force, with effect from 1st January, 1988.

In his
founding affidavit applicant further averred that following the
allegations contained in annexure JMB"1" a Commission
of
Inquiry was established to inquire into his alleged misconduct. It
exonerated him, a fact which was, however, denied by the
Respondents
per annexure JMB"7", the letter of

4

18th
September, 1990 filed by the applicant himself.

From the
date of his alleged retirement in 1988 up to 1990 the applicant had
been shuttling between the offices of the Military
Council and Public
Service Personnel in an attempt to reach an amicable settlement of
his purported retirement but all in vain.
Hence the institution of
these proceedings in 1991.

It is
significant that according to the founding affidavit, which is the
only available evidence before this court, the cause of
action
accrued in January 1988. However, it was not until 21st March, 1991,
i.e a little over 3 years later, that the applicant
filed with the
Registrar of the High Court the notice of motion for an order as
aforesaid.

Section 6
of the Government Proceedings and Contracts Act. 1965 provides:

"6. Subject to the provisions of sections six, seven, eight,
nine, ten, eleven, twelve and thirteen of the Prescription Act,
no
action or other proceedings shall be capable of being brought against
Her Majesty in her Government of Basutoland by virtue
of the
provisions of section two of this Act after expiration of the period
of two years from the time when the cause of action
or other

5

proceedings first accrued."

It is
common cause that from 1st January, 1988 up to the time when he
instituted these proceedings in 1991 the applicant had been
shuttling
between the offices of the Military Council and Public Service
Personnel with the hope that the question of his retirement
could be
settled amicably. When that did not materialise he decided to
initiate these proceedings.

If the
applicant had applied for condonation to institute these proceedings
outside the prescription period of two years, the court
could, in my
opinion, have been inclined to consider that application favourably
in the circumstances of this case. Although he
clearly instituted
these proceedings outside the limit of two years prescribed by the
provisions of section 6 of the Government
Proceedings and Contracts
Act, supra. I would not decide the case against the applicant on that
basis.

As
regards the second point of law raised by the Respondents, it is
significant that the now repealed section 29 (f) of the Police
Order,
1971 which was the law applicable, at the time, provided:

"29. The Commissioner may, in the case of any member of the
Force, at

6

any time,
but after having given that member an opportunity to

make
representations:

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

   
   

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

   
   

3. ....................

   
   

4. ....................

   
   

5. ....................

   
   

6. retire
   in the public interest any such member who displays an habitual
   inattention to orders, or general incompetence, or fails
   to obey
   orders, or fails to co-operate with other members of the Force, or
   manifests a guarrelsome disposition or want of courage,
   ability or
   zeal, although he may not be guilty of a specific offence."

   
   

The
letter (annexure JMB "3") of 17th December, 1987 by which
his retirement from the Police Force, with effect from 1st
January,
1988, was communicated to the applicant emanated from the Military
Council i.e. not the Commissioner of Police. To the
extent that it
was the Military Council and not the Commissioner of Police who
retired the applicant from the Force, the procedure
stipulated by the
provisions of section 29 (f) of the Police Order. 1979 was, in my
view, not complied with. The question that
arises is whether or not
failure to comply with the procedure laid down under the provisions
of section 29(f) of the Police Order,
supra, had the effect of
nullifying the applicant's retirement from the Force. Section 3 of

7

the
Removal of Public Officers (validation) Order. 1988 provides:

"3. Notwithstanding the provisions of the Public Service Order,
1970, or of the regulations made thereunder or of any other
law, any
public officer removed or purported to have been removed from office
by any person acting or purporting to act by or under
the authority
of Government, whether by way of dismissal, retirement or otherwise,
for any reason whatsoever, during the specified
period, shall be
deemed to have been lawfully removed from office, whether or not the
procedure for such removal was complied with."

(my underlinings).

I have
underscored the words "whether or not the procedure for such
removal was complied with" in the above cited section
3 of the
Removal of Public officers (validation) order. 1988 to indicate my
view that, on the authority thereof, failure to comply
with the
procedure laid down under the provisions of section 29(f) of the
Police Order. 1971 could not, and did not, nullify the
applicant's
retirement by the Military Council. That being so, the answer to the
question I have earlier posted viz. whether or
not failure to comply
with the procedure laid down under the provisions of section 29(f) of
the Police Order, supra, had the effect
of nullifying the applicant's
retirement from the Force, must be in the negative.

8

Turning
now to the question whether the applicant could, in the circumstances
of this case, institute these proceedings against
the Respondents, it
is worth noting that the removal of Public Officers (Validation)
Order 1988 came into operation with retrospective
effect from 20th
January, 1986. When, on 1st January, 1988, the applicant was retired
from the Police Force, the order was, therefore,
applicable. Section
4(1) thereof clearly provides:

"4(1) notwithstanding any law to the contrary, no action or
other legal proceedings whatsoever, whether civil or criminal,
shall
be instituted against,

1. the
   Government; or

   
   

2. any
   person acting by or under the authority of Government; for or on
   account of, or in respect of, the removal from office of
   any public
   officer during the specified period."

   
   

The
specified period referred to under the provisions of the above cited
section 4(1) of the Removal of Public officers (Validation)
Orders,
supra is defined by section 2 thereof as meaning the period between
20th January, 1986 and 31st May, 1988.

9

However,
in total disregard of the provisions of section 4(1) of the Removal
of Public Officers (Validation) Order. 1988 the applicant
instituted,
on 21st March, 1991, the present proceedings against the Respondents.
That he could not be permitted to do. It must
be accepted, therefore,
that the second point of law raised, in limine, by the respondents
was well taken.

In the
result, I come to the conclusion that this application ought not to
succeed. It is accordingly dismissed with costs to the
Respondents.

B.K.
MOLAI

JUDGE

27th
October, 1994.

For
Appellant: Mr. Malebanye

For
Respondant: Mr. Mapetla.