CIV/APN/314/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

THUSO
KHAMA Applicant

V

1. THE
MINISTERRESPONSIBLE

FOR THE
PUBLIC SERVICE Respondents

2. THE
SOLICITOR GENERAL

JUDGMENT

Delivered
by the Hon, Chief Justice, Mr. Justice T.S.Cotran on the 11th day of
March, 1983

The facts
of the case as appear on papers before me are briefly as follows :
The applicant is a public officer and was first interdicted
by the
Permanent Secretary to Agriculture his Head of Department for three
months on half pay from the 23rd April 1982 allegedly
for being
involved in the terrorist activities of the so called Lesotho
Liberation Army, The Permanent Secretary purported to act
in terms of
powers conferred upon him by the Public service Order 1970 read with
Part 5 of the Public Service Commission Rules
(annexure A to founding
affidavit) which period of interdiction was extended on 15th June
1982 by three months during which time
he was asked to submit, if he
wished, "any deliberations" before 30th June 1982 (annexure
B). On 10th September 1982
the period was extended through a letter
from the Chief Agricultural Officer, the applicant's immediate
superior by yet another
three months effective from 23rd July 1982
(annexure C). In the latter three instances extending the
interdiction no Rules were
quoted. On the 27th September 1982 the
applicant was placed on "indefinite compulsory and unpaid leave"
by the Acting
Permanent Secretary to Cabinet(Perspnnel) from 1st
October 1982 purportedly under powers conferred upon the Minister
vide s.4(l)(x)
of the Public Service Order 1970 (annexure D). On the
21st October 1982 the applicant was

2

summoned
(after some discussion earlier) to appear at the office of the
Permanent Secretary for Agriculture for a "hearing"
to be
held on 27th October 1982 (annexure F). On 27th October 1982 the
applicant appeared to answer charges but the proceedings
were then
adjourned. There was one main charge c/o to s.10(1)(p)(iv) of the
Public Service Order 1970, and three alternative charges
under
s.10(1)(c), 10(1) as amended by s.3(e) of Act 8 of 1973 (this
10(l)(v) and s.10(l)(m). In this meeting, which was clearly
intended
to be one of a disciplinary nature under Part 5 Rules 5-01 et seq of
the Public Service Commission Rules the applicant's
representative
intimated that he was going to lodge an application to the High Court
and it would appear that the proceedings were
adjourned with the
consent of all sides.

On the
15th December 1982 the applicant, on notice to the two respondents,
moved the Court for an order couched in the following
terms:

1. Directing
   the respondents to stop the disciplinary proceedings set up in terms
   of the Public Service Commission Rules against
   the applicant;

   
   

2. Setting
   aside the purported interdiction as well as the indefinite
   compulsory and unpaid leave of applicant and directing that
   the
   respondents shall forthwith reinstate applicant in his position in
   the Ministry of Agriculture;

   
   

3. Directing
   the respondents to pay all applicant's arrears of salary with effect
   from the month of April, 1982;

   
   

4. Directing
   respondents to pay the costs of this application;

   
   

5. Granting
   further or alternative relief as is deemed fit by the above
   Honourable Court."

   
   

The
applicant set the 24th December 1982 for filing an intention to
oppose and set 14 days from hence for answering affidavit if
any was
contemplated.

The
Notice of Intention to Oppose was filed on the 22nd December 1982.
Under Rule 1 of the High Court Rules "days" in
the
computation of time include Saturdays but unless a Judge otherwise
orders the days between the 16th December and 12th January
shall not
be included in the computation of time. The effect of this Rule
(barring a Judge's order) is that the 14 days from the
date of entry
of appearance on 22nd December 1982 ended on 28th January 1983 by
which time the

3

respondents
opposing affidavit should have been filed. No affidavit by
respondents however had been filed by that date nor an extension
of
time applied for.

The
applicant moved the Court on 3rd February 1983 seeking confirmation
of the rule and the matter came before Molai J. Counsel
for
respondents asked for more time to file an affidavit and this was
granted the Court fixing the 9th February 1983 (not 9th January
1983
quite obviously) for the hearing. The opposing affidavit was filed on
the 8th February 1983. The applicant replied to the
opposing
affidavit on the 9th February.

The
application was crowded out and Molai J could not hear it. It was
argued before me on the 15th February 1983.

The
opposing affidavit from the 1st respondent was sworn by Mr. Bereng
the Permanent Secretary Cabinet(Personnel). He avers in paragraphs
2
and 3 as follows :

2.

The present position obtaining in this matter is that the applicant
has been lawfully dismissed from the Public Service under Rule

6-01(1)(b) and (e) of the Public Service Commission Rules. The copy
of a letter of dismissal is herewith attached marked "A".

The question of re-instatement of the applicant therefore cannot and
does not arise.

3.

Therefore the respondents pray that the applicant's request for
reinstatement be dismissed with costs."

It should
be noted that the applicant had not been dismissed at the time he
launched the application. The word "reinstate"
was probably
used in its wide sense to indicate that amongst the reliefs sought
was one for an order directing the respondents
to allow the applicant
to resume work.

The
letter dismissing the applicant was signed by the Permanent Secretary
Cabinet(Personnel) and is dated the 20th January 1983
and reads :

" I regret to inform you that it has been decided that you be
removed from office by way of dismissal in terms of Section

6-01(l)(b) and (e) of the Public Service Commission Rules 1970. You
will be paid a month's salary in lieu of notice, as well as
all
salary due to you since 23rd April, 1982, when you were interdicted
from performing the duties and responsibilities of your
office. Your
last day of service as an employee of the Lesotho Government will be
28th February, 1983."

4

In the
replying affidavit the applicant avers that hie purported dismissal
was unlawful and therefore null and void. His counsel
adopted, in
essence, the arguments of Unterhalter AJ In Mocasi v Solicitor
General (CIV/APN/69/82) in which the learned Judge distinguished
the
majority Judgment of the Court of Appeal in the Minister in Charge of
Public Service & another v Mokhahlane -C. of A. (CIV)
No.5 of
1982 on the ground that that judgment did not examine the question
"as to whether on the facts of that case there
had been an abuse
of the powers conferred by Rule 6 of the Public Service Commission
Rules 1970".

I find
the Permanent Secretary's Cabinet(Personnel) letter of 20th January
1983 rather puzzling for in one breath he writes that
it has been
"decided" to dismiss the applicant under Rule 6-01(1)(b)
and (e) and in the other breath the applicant is
given one month pay
in lieu of notice. Miss Fanana could not bring to my attention any
provisions in the Rules giving power to
terminate on one month's
notice the service of an officer who has been confirmed to the
Permanent Establishment. I am told that
provisions for termination on
notice is found in appointments on temporary or contract terms.

If it is
assumed that the applicant was so confirmed (as appears to be the
case) it seems to me that no need arises for extra remuneration
of
one month's salary in lieu of notice and indeed a bonus of an extra 8
days to the 28th February. I see nothing in the Rules
that would
justify this payment unless It falls under the head of "ex
gratia" payment which would require the concurrence
of the
Minister of Finance in terms of s.4(l) of the Public Service Order
1970.

Miss
Fanana's argument was that the effect of the Permanent Secretary
Cabinet(Personnel) affidavit is an implied acknowledgement
that some
of the steps taken against the applicant from the 23rd April 1982 up
to the letter of dismissal were irregular. I do
not thinly, in view
of Crown counsel's admissions on behalf of the respondents, that I
need go into the original complaints of
the applicant. The Crown
admitted irregularities and agreed to make amends for the past by
paying him full salary but the submission
before me was that the
dismissal was valid because it was exercised under a "different
Rule".

5

The crux
of the respondents' case is this: The power to dismiss under Rule 6
is independent of the power relating to discipline
conferred by Rule
5 so the Minister may exercise the power to dismiss a public officer
notwithstanding proceedings successful,
semi successful,
unsuccessful, discontinued, aborted, or irregular under Rule 5. One
Justice of Appeal in Mokhahlane's case supra
(Goldin JA in a minority
Judgment) and two High Court Judges (Rooney J sitting at quo in
Mokhahlane supra, a case of dismissal,
and Unterhalter AJ in Mocasi
supra, a case of compulsory retirement) held other-wise. The latter
case has been taken to the Court
of Appeal, and was heard on or about
the 25th January 1983. I have postponed giving judgment in this
application for a little while
in the hope that during the interval
further enlightnent could have been shed. The judgment has not
arrived yet and I cannot keep
the litigants waiting.

In the
absence of any change of stance by the Court of Appeal (for the Court
has the privilege of finding that the matter, to quote
Baron
Bramwell, does not appear to it now as it appears to have appeared to
it then) I am bound by the majority opinion in Mokhahlane
supra, and
proceed on the basis that the power to dismiss a public officer can
be exercised under Rule 6 independently of Rule
5.

The
resort to Rule 6 is drastic for it does not necessarily permit of a
right to a hearing (Mocasi's case) and the head of department
must
apply for directions from the Senior Permanent Secretary as to the
procedure to be adopted which procedure the Public Service
Commission
must also follow. But reference to the Public Service Commission
there must be. It is the latter body that advises the
Minister what
to do. It is not necessary for me to decide whether the Minister is
bound by that advice but it is necessary that
a Court of review be
satisfied that the Commission had been seised of the complaint and
had tendered an advice. It does seem that
that advice is not subject
to review. The object of reference of a matter involving a public
officer to the Commission under this
Rule is clear, viz, that an
objective body would go over the complaints against the officer
unhampered by the regidity of Rule
5 and make an independent
assessment if there is some substance in the complaint or whether it
is no more than a mere executive
whim.

6

The
letter of dismissal is not written under the authority of the
Minister, it does not state that the Public Service Commission
has
completed any proceedings referred to it by the Head of Department or
the Senior Permanent Secretary; and it does not say any
advice had
been tendered. It should be noticed that the word used is "may"
so that if no advice by the Commission has
been tendered to the
Minister the matter probably ends there.

There is
a presumption of course that when a public officer has been dismissed
under Rule 6 that the various persons involved in
the proceedings
have complied with the provisions of the Rule and that is what the
majority of Justices in the Court of Appeal
assumed in Mokhahlane,
supra, but this presumption has been negatived in this instance by
the admittedly irregular proceedings
taken under Rule 5,the proposed,
by apparently unauthorised, disbursement of funds to the applicant,
and by the timing of the dismissal.
It is not enough, in my opinion,
in circumstances such as prevailed in this case to arrive at a
conclusion that the Rule has been
complied with.

It
follows that the dismissal of the applicant by this particular letter
of January 20th was invalid.

The
respondents to pay the costs.

CHIEF
JUSTICE

11th
March 1993

For
Applicant : Mr. Mphutlane

For
Respondents : Miss Fanana