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CIV\APN\445\93

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

HLOMOHANG
MOROKOLE Applicant

and

ATTORNEY
GENERAL 1st Respondent

PRINCIPAL
SECRETARY FOR EDUCATION 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 26th day of April
1995

Mr. Khati
is the Principal Secretary of the Ministry of Education, and he was
also in that capacity the administrative head and
superior of the
Applicant who was the Educational Facilities Co-ordinator. The
Applicant's employment was terminated by the Principal
Secretary on
the 30th September 1993 by this letter annexed as HM2 to the
proceedings. This gave rise to this proceedings in which
the
Applicant claims for the following orders:

1. Declaring
   Applicant's dismissal by Second

   
   

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Respondent herein as null and void.

2. Directing
   Respondent to, pay the costs thereof.

   
   

3. Granting
   Applicant such further and or alternative relief.

   
   

Following
on an agreement between the Government of Lesotho, Ministry of
Education and the Applicant whose memorandum of agreement
was annexed
as HM1 to this proceedings the Applicant was employed as an
Educational Facilities Co-ordinator "in the service
of the
Government of Lesotho." Of particular importance to this
judgment is what is provided in. clause 5 of that agreement
which
reads: "Save as may be herein provided this agreement of
employment shall be subject mutatis mutandis to the provisions
of the
1969 Public Service Regulations."

I did not
think that the provisions of clause 10 of the written agreement were
such as to provide an avenue or a way of solving
disciplinary
infractions. I have understood it to mean that for good cause and by
mutual agreement the written agreement may be
amended from time to
time. The clause reads:

Whenever
the provisions of the agreement of Employment

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shall
appear wanting and\or ambiguous, the parties herein shall seek and
achieve a consensus and the same shall form part of this
agreement of
Employment upon being reduced into writing and appended to this
document."

Before
deciding the main points, the resolution of which should lead to the
decision of this proceedings, it is necessary to recite
the facts
leading to the Applicant's dismissal. A collision occurred on the
20th May 1993 involving a government vehicle registration
No. X 6612
driven by the Applicant and a pedestrian, resulting in the death of
the pedestrian. It appears that on information received
of the
collision, the Applicant was asked to make a written report and to
fill a form G.P. 102 all which the Applicant apparently
delayed in
executing, as shown by the memo dated the 2nd July 199 3 at page 49
of the record. Despite all it seems that a report
about the accident
had already been made by one MOSITO RAPAPA in relation to the
circumstances surrounding the sending of the motor
vehicle to a
garage for repairs. It was not disputed that this Applicant sent the
damaged vehicle for repairs. I sensed that the
extent of the damage
to the vehicle was not common cause but that is not an important
issue. It seemed that the Applicant was perceived
to have
surreptitiously sent the vehicle for repairs. It was accordingly felt
by the Principal Secretary of Finance in his

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letter to
the. Applicant (annexed as HM 5 at page 56 of the record) that the
Applicant never showed interest in making the report.
The attitude of
the Principal Secretary of Finance was therefore that ; "For
reasons of the aforegoing it appears to me by
reasons of your neglect
or fault at the time you were a public officer, the public revenue
and the public stores sustained loss
and damage. The of loss suffered
by the public revenue is the sum of two thousand eight hundred and.
fifty one Maloti (M2,852.00),
and if within 21 days an explanation
satisfactory to me is not furnished by you with regard to the
apparent neglect or fault as
aforesaid. I may, with the approval of
the Minister of Finance, surcharging against you to two thousand
eight hundred and fifty
one Maloti (M2,851.00) being the amount
suffered by Lesotho." (my underlining) The Principal Secretary
of Education felt that:
"you responded to the reminder on the
7th July 1993 by a memo, a copy of which is hereto annexed and marked
"E"
wherein you apparently disputed that there was such an
accident."

(see
annexure HM3 at page 10 of the record) I have looked at this annexure
E the last statement of which reads "I am not too
sure whether
repairs of this nature are considered as accident as alleged." I
may also add by way of observation that annexure
E at page 50 being a
memo from the Applicant to Mr. Mafitoe of" the Second
Respondent's office) is also remarkable for its
reticence. It reads :
"What is all about the alleged accident Could you kindly tell me
more about it How and where did the

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accident
happen? It is clear therefore that nowhere does one see any form of
report or reply addressed by this Applicant either
to the Principal
Secretary of Education or the Principal Secretary of Finance. What
comes out by way of a reason for the attitude
by the Applicant can be
gathered from the paragraph 5 of his replying affidavit which reads
as follows:

"5
Ad paragraph 13 and 14

The annexure referred to herein have nothing to do with the misuse of
any vehicle by me. At the time I was written a letter by
the Deponent
I was facing a criminal charge in connection with the use of the said
vehicle. The charge of Culpable Homicide based
on my alleged driving
of the said vehicle. Mr. Khati was forcing me to give a report which
the police had intended to use against
me in that case. I told Mr.
Khati that if I were to give a report, it might prejudice my case. In
fact, it was confirmed at my
trial that my report was demanded to
assist the police. I deny that Mr. Khati gave sufficient opportunity
to make representation.
All he wanted was to get information from me
in order to pass to the police." (My underlining)

My
purpose for highlighting the above portions, is that it is notable
that in all the responses made by the Applicant as a result
of the
demands from reports made either by the Second Respondent or the
Principal Secretary of Fiance the Applicant is not forthcoming
in
disclosing the above reason of the impending criminal case and the
likely prejudice in making a full report This is so, if not
on all
occasions but in response to the letter HM of 13th September 1993 in
which the increasing urgency of the

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matter
was made clear by the Second Respondent. This is clear where it is
said:

" The manner in which you have handled the matter, as already
shown above amounts to the following acts of misconduct willful
or
negligent default in carrying out instructions given by a person
having authority to do so and knowingly making false statement
that
the motor vehicle had not been involved in an accident, despite
evidence to the contrary as shown above." (my underlining'

I was not
addressed on whether the matter of the substance or the reason for
not disclosing the reasons for avoiding to make a report
should have
been made in the founding papers. Neither was I addressed on the wish
if any on the part of the Respondent to contest
statement in
paragraph 5 of the Applicant's replying affidavit by filing of an
additional affidavit. To that extent I would have
no reason for not
accepting the truth of the statement. I need not comment on the
validity of the Applicant's apprehension that
prejudice would result
in the true and full statement getting into the. hands of the police.
But it was a felt apprehension. Apparently
the Applicant seems to
have given priority to the criminal case that was looming as more of
a jeopardy as compared to the investigation
conducted by the Second
Respondent.

In the
absence of a debate in that regard I was not able to decide whether
the effect of Public Service Rule 5.4 (2) would be that
in a
situation such as where a Public Servant was charged with Culpable
Homicide the disciplinary charge would have to await the
disposal of
the criminal charge. In a normal case

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that
would depend on the directions of the Attorney General. But the
matter was not canvassed nor were there such a direction even
where
it appears that the Attorney General would still have to be consulted
in any prosecution involving a Civil Servant.

It seems
therefore that the Applicant's attitude was such that the Second
Respondent's entreaty in his letter to the Applicant of
the 13th
September 1992 would receive no positive response. The Second
Respondent says in the letter:

However before I take a decision on the matter, I deem it appropriate
to grant you an opportunity as I hereby do, to make your

representation if any, in connection with the matter concerning X
6612 referred to above. Such representation must be made in writing

and submitted to the office of the Principal Secretary for Education
within seven days of the receipt of this letter."

While the
argument that this Applicant is a public servant was forcefully
pursued I was also asked to consider that there was legitimate

expectation on the part of the Applicant of the following. Firstly
that before being dismissed he would be given adequate notice
that it
was considered by his superior that such a prejudicial step against
him would be taken and secondly., an adequate opportunity
of being
heard would be granted to him. That would amount to the Applicant
having been given a fair hearing. I would agree with
the principle.
(see Tseuoa Tsekoa & 4 Others vs the General Manager Lesotho
Flour Mills and 4 Others C of A CIV No. 23\88 (Tsekoa
and Flour Mills
case) at page 7 in approval of Mokoena & Others vs Administrator
Transvaal 1988

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(4) 912 W
The learned judge of Appeal Aaron JA considered the application of
the audi alteram rule in page 7 of Tsekoa and Floor
Mills case and
concluded that " ....... What is adequate in these respects must
always depend on the circumstances. It is
basically a question of
fairness. ...... In the circumstances I consider that Appellant and
other employees were given adequate
notice of intended action against
them and had a fair opportunity to make representation of management
if they wished." I
would have had no doubt that the Applicant
would appear to have been given such a fair notice subject to his
attitude of reluctance
to make a statement for fear that the comments
would be made available to the police, had the situation not been
more complicated

The
Applicant says that the Second Respondent had no power to dismiss him
for alleged misconduct even "presumably" on
the strength of
clause 11 of the agreement. As a matter of fact this is the clause
which the Second Respondent invokes in the letter
of dismissal of the
30th September 1993. The clause 11 reads as follows:

"Termination of contract by both parties shall be subject to
three months' notice or payment of salary in lieu of three months."

I am
attracted by the reasoning of the learned judge of appeal Mahommed P.
in the case of MALIPUO MARARA vs O.K. BAZAARS C of A
(CIV) No. 18 of
1990 where he said at page 9:.

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"The audi alteram partem rule is a rule of flexible content. Its
fundamental object is to ensure that the procedure is adopted
before
any action is taken against any person affecting his legitimate
interest is really fair. What will be fair in a particular
case will
depend on the circumstances of that case .....". The learned
judge adopted the comments of Colman J in HEATHERDALE
FARMS PTY LTD
vs DEPUTY MINISTER 1980 (3) SA 476 at 486 and continued thus:

"Fundamental however, to the proper application of the rule are
two requirements: First notice of intended action to the party

affected and secondly proper opportunity for him to present his
case". See also R v NOMVETI 1960 (2) SA 108(E) 117 where a

removal Order issued without proper notice was set aside even though
the offender was warned on previous occasions that action
would be
taken against him.

The
Applicant says furthermore that the Second Respondent had no power to
dismiss him for alleged misconduct even presumably on
the strength of
clause 11 of the agreement of employment. I would agree that the
Second Respondent would normally invoke this clause
in the absence of
an allegation or reason of alleged misconduct. This Clause II seems
to be consistent with the provision of Section
14 (4)(b) of the
Employment Act of 1967 but is certainly not consistent with Section
15(2) and (3) of that Act. What I want to
underline is that once an
employer alleges misconduct he cannot allege that and then seek to
terminate in terms consonant with
section 14 (4) (b). Misconduct is
premised upon a procedure for breach of discipline having been
brought into play. This is so
whether or not that is explicitly
provided for in the contract. So that it is the proper contention of
the Applicant that : "Much
as I am

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to be
treated as a public servant in terms of clause 5 of the agreement of
employment so must I be treated like one in all other
respects
including in this situation where I am alleged to have committed an
act of misconduct." Clause 5 reads: "Save
as may be herein
provided the agreement of employment shall be subject mutatis
mutandis, to the provision of the 1969 Public Service
Regulations."
So that the vital distinction is not whether the Applicant is a
public Servant as the Respondents even referred
to him as one but
whether he must be treated as one for certain purposes, bearing in
mind the Clause 5 and the Public Service Regulations.
I conclude that
the Regulations have been incorporated by reference in the agreement
as signed by the parties.

My above
conclusion means that for all other purposes for which termination is
considered the Public Service Regulations are to
be invoked with the
exception of matters which properly belong to the provisions of
Clause 11. What the Applicant in effect says
is that: "If a
breach of discipline is suspected against an officer, the sectional
head in the Department must complete a
dossier i.e. a record of
information about the events set of documents about the event. He
must write a short summary of the dossier
for consideration by the
Head of Department, with suggestions on what action is to be taken
e.g. whether the officer is to be charged
or not, whether to consult
the Attorney

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General
or not and what charge, if any, may be preferred against the officer"
(see page 7 Notes on Lesotho Public Service Disciplinary
Rules and
Procedure by M.M. Qhobela). Furthermore the procedure to be adopted
should have complied with the instituting of disciplinary
proceedings
in terms of Public Service (PSC) Rule 541 (to seek Attorney General's
direction), PSC Rule 5-42 (when appropriate a
charge to be prepared),
PSC Rule 5-43 (appointment of adjudicator), PSC 5-44 (service of
Charge Sheet) and the necessary procedures
of hearing and final
decision as provided further in the Regulations. This was not done. I
would find that the Applicant had a
legitimate expectation that he
would be dealt with in terms of the Public Service Rules being by way
of due process, in which implies
notice of intended action and
opportunity to be heard, as is the real content of audi alteram
partem principle, part of which is
procedural justice.

It
appears, to be possible that Government may employ persons to perform
duties in furtherance of government activities without
appointing
them to the public service It is also proper that such officer
depending on their agreement with the respective ministry
of the
government may not be seen to be occupying an office "of
emoluments" strictly speaking. (see also TSEkoa and Flour
Mills
case page 5-7). But I do not agree that for purposes of discipline
(at least) the Applicant would not be subject to

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Section
19(1) of the,Public Service Order 1970 and all other provisions
prescribing for matters of disciplinary procedures. It means

therefore that failure to grant the Applicant a hearing amounts to
failure to grant a statutory hearing which would be categorized
as
violating a jurisdictional fact. (See HERMANNESBURG MISSION vs SUGAR
INDUSTRY CONTROL BOARD (1) 1981(4) SA 278(H) 287-8).

Having
answered the question of adequate notice, fairness, and whether the
Applicant was a public servant, the only question to
deal with is the
Applicant's submission that having not been dealt with by way of
Public Service disciplinary procedure, and having
been dismissed by
the First Respondent the Applicant was dismissed by a wrong person.
This kind of problem was put in focus in
the case of. LESOTHO
TELECOMMUNICATION CORPORATION vs THAHAMANE RASEKILA C of A (CIV)
24\91 at page 8 where Browde JA says :

'I have come to a conclusion therefore that the decision to dismiss
the Respondent taken by the Board of Directors and not by the

Managing Director and that being so the decision was in breach of the
regulations which govern the relationship between the parties
on this
ground alone the Respondent was entitled to re­instatement and to
that extent the appeal must fail."

This
statement may be found to be too broad when sought to be applied to
the facts of the present application but the point being
made is that
the Second Respondent would not just make into himself the powers to
dismiss the Applicant without such a

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specific
power being conferred on him. This is also meant to convey the
understanding that "power is not conferred upon the

administration generally, and any power which is conferred may be
exercised by the office holder or body upon which it is conferred

alone. If someone else purports to exercise the power, the letter's
act is simply ultra vires and invalid." (See BAXTER
ADMINISTRATIVE
LAW 1st Edition at page 426). And furthermore that :
"Except in. the case of an exercise of power under the
prerogative, a
public authority has no powers other than those which
have been conferred upon it by legislation". (See BAXTER,
ADMINISTRATIVE
LAW 1st Edition at page 38)

I have
been persuaded that my task is an easy one, that is: to "declare
the dismissal by the Second Respondent null and void."
There has
never been an attempt to persuade me that the fact that the Applicant
had a two year contract which could or could not
normally be renewed
was a factor to consider in exercising my discretion. This Applicant
has worked a mere 11 months of the two
year period. It is submitted
however that there would also be no need to pray for re-instatement
on the basis that "once notice
was insufficient the purported
dismissal was a nullity and as the invalidity was disputed the
Appellant became entitled to a declaration
Order in terms of prayer
(a) set out above. In this regard see KOATSA KOATSA v NATIONAL
UNIVERSITY OF LESOTHO C of A (CIV) 15\86.
"Once there was no

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dismissal
there is no question of re-instatement, and prayer (b) was therefore,
not necessary." (See MOSALA KHOTLE vs ATTORNEY
GENERAL C of A
(CIV) 13 of 1982 - 22\01\93 - per Browde J.A. at page 5). In the LTC
and Rasekila case the Court of Appeal went
on from page 11 to page 14
to review the law on re-instatement of employees and such related
Orders such as payment of emoluments,
damages and specific
performance and the Court's discretion in proper cases and stated at
page 12.

"In
so far as the re-instatement of the employee is concerned however,
South African Courts, have since Schierhout case, re-instated

employees when it was considered equitable to do so. See for example
NATIONAL UNION OF TEXTILE WORKERS vs STAG PACKING (PTY) LTD
1982 (4)
SA 151."

It is
clear from the aforegoing that I took the view that Applicant's claim
(a) and (b) ought to be allowed.

T.
MOMAPATHI

JUDGE

For the
Applicant : Mr. Nathane for L. Pheko & Co,

For the
Respondents : Miss Sesing for Attorney General