C of A (CIV) 2/05

CIV/APN/418/04

IN THE COURT OF APPEAL OF
LESOTHO

In
the matter between:

MINISTER OF HOME AFFAIRS 1^st APPELLANT

MINISTER
OF PUBLIC SERVICE 2^nd APPELLANT

COMMISSIONER
OF POLICE 3^rd APPELLANT

ATTORNEY
GENERAL 4^th APPELLANT

and

MAMPHO
MOFOLO RESPONDENT

11
and 20 April 2005

CORAM :

STEYN
P

GROSSKOPF
JA

MELUNSKY
JA

Summary

Police
officer – retirement of – whether retired under regulation 11(1)
or 11 (2) of regulations made under Police Service Act,
1998 –
regulation 11(1) does not contemplate a prior hearing - whether
regulations ultra vires – rights of the officer to be
heard prior
to retirement - regulation 11(1) interferes with existing rights –
presumption against retrospectivity – regulation
11(1) does not
apply to police officers who had acquired rights to retire at age of
55.

MELUNSKY JA:

?1? The
main issue that has to be decided in this appeal is whether the
respondent, an inspector in the Lesotho Mounted Police Service
(“the
LMPS”), was obliged to accept compulsory retirement on reaching the
age of 50, as the appellants contend, or whether, as
she maintains,
she is entitled to remain a member of the LMPS until she becomes 55
years of age. The respondent was 50 years old
when she deposed to
her founding affidavit on 16 August 2004 but the date when she
reached that age does not appear from the record.
The parties are in
agreement that before the promulgation of regulations made under the
Police Service Act, 7 of 1998 (“the Act”),
the respondent would
have retired at the age of 55 years but there is a dispute whether
this retirement age arose out of a practice
that had evolved or
whether it was based on a statutory right. The interpretation,
application and validity of the regulations,
insofar as they deal
with the retirement of members of the LMPS, are therefore crucial to
the outcome of this appeal.

?2? The
regulations were published under Legal Notice 202 of 2003 (“the
2003 regulations”). Regulation 11, which deals with the subject
of
retirement, was amended by regulation 3 of regulations promulgated
under Legal Notice 95 of 2004 (“the 2004 regulations”).
The
relevant provisions of regulation 11, as amended, read:

“11
(1) Subject to this regulation, a Police Officer shall retire from
the Police Service, and shall be so retired on attaining the
age of
55 years in the case of a Senior Officer and the age of 50 years in
the case of a subordinate officer and other ranks.

2. 
   The Commissioner may, having regard to the conditions
   of the Police Service and after consultation with the Police
   Authority, retire
   a member of the Police Service before or after the
   member concerned –

   
   

1. 
   in the case of a senior officer, attains the age of 55
   years; and
   

   
   

2. 
   in the case of subordinate officer attains the age of
   50 years.

   
   

2. 
   ……………………………

   
   

2. ……………………………

   
   

2. 
   Where the Police
   Authority is of the opinion that it is in the public interest to
   retain the services of a police officer beyond
   retiring age, the
   officer may if so willing, be retained from time to time by the
   Commissioner, for further periods that shall
   not in the aggregate
   exceed 5 years”.

   
   

Two matters require to be noted : the first is that the
only material

amendments
introduced by the 2004 regulations relate to the ages for retirement.
Before amendment the ages for retirement were considerably
lower –
45 years in the case of a senior officer and 40 years in the case of
a subordinate officer and other ranks. Secondly,
at all material
times the respondent was a subordinate officer for the purposes of
the regulations.

?3? The
respondent was appointed to the Police Service in 1975, apparently on
a temporary basis. Her appointment became permanent in
1984 and
consequently she became entitled to a pension on her retirement. On
17 June 2004 the respondent was informed of the contents
of a
wireless message sent to Superintendent Sehlabo of the LMPS
instructing him to make his subordinates

“………………..aware
of the contents of regulation 3(b) of the LMPS Administration
(Amendment) Regulation 2004 which provides that such officers
shall
retire at the age of 50”.

The message added :

“Officers
who are going to be affected by this regulation are those who have or
will attain 50 years of age after this regulation (amendment)
became
effective as the law doesn’t apply retrospectively”.

Regulation
3(b) of the 2004 regulations was substantially a re-enactment of
regulation 11(2) of the 2003 regulations, the only important
difference being the alterations to the ages of retirement, which I
have already noted. Consequently the message might more
appropriately
have referred to “regulation 11(2) of the LMPS
regulations, as amended. It may also be noted that regulation 3(a)
of the 2004
regulations did nothing more than delete the ages of 45
years and 40 years in regulation 11(1) and replace them with the ages
of
55 years and 50 years respectively.

?4? On
30 June Superintendent Sehlabo was instructed by wireless to inform
the respondent that she should

“…………proceed
on leave pending retirement w.e.f. 23.07.04 to 24.11.04”

and that a
“formal letter” would follow. Subsequently the respondent
received the letter written on behalf of the Commissioner
of Police
(“the Commissioner”) on 29 June. In the letter the respondent
was informed that she should proceed on 85 days’ leave
“pending
retirement” with effect from 23 July to 24 November 2004, which
would be her last day of service.

?5? As
a result of the communications mentioned above, the respondent
instituted proceedings on motion. On 3 September 2004, Peete J
granted an order which in para 1 called upon the appellants to show
cause, if any why:

“(a) The ordinary rules of this Honourable Court
pertaining to periods and mode of services shall not be dispensed
with on account
of the urgency of this matter.

(b) An order shall not be made declaring the
applicant’s purported compulsory retirement from the police service
null and void.

(c) An
order shall not be made reinstating applicant to her position in the
Lesotho Mounted Police Service.

(d) An order shall not be made declaring respondents’
failure to give applicant reasonable notice of the intention to
retire her
compulsorily an illegal act.

5. 
   Respondents or their servants shall not be
   restrained and interdicted from withholding applicant’s salary
   pending the finalisation
   of this application.

   
   

(f) Alternatively, directing the respondents to
determine and pay applicant’s pension as if she retired at the age
55 years.

(g) Respondents shall not be directed to pay the costs
of this application.

(h) Granting applicant further and/or alternative
relief.”

Para 2 of
the order directed that para 1(a) and (e) thereof were to operate as
interim relief with immediate effect.

In her founding affidavit the respondent made it clear
that she was under the impression that she was being retired by the
Commissioner
in terms of regulation 11(2) (as amended) and that this
belief was induced by the reference to regulation 3(b) of the 2004
regulations
in the first wireless message. It was only on 14
September that the Commissioner (the third appellant in this appeal)
wrote to the
appellant advising her that her retirement with effect
from 24 November was in terms of regulation 11 as amended by
regulation 3(a)
of the 2004 regulations. That is how matters stood
when the application came before Majara AJ on the extended return
day. For various
reasons, some of which will be referred to in this
judgment, the learned judge granted the respondent’s application
with costs,
thereby impliedly confirming the rule nisi. It is
against that order that the appellants appeal to this court.

?6? The
learned judge decided to deal with the application on the basis that
the respondent had been retired by the Commissioner under
the
provisions of the amended regulation 11(2). She considered that in
terms of this regulation the respondent was entitled to a
hearing or
the right to make representations before the Commissioner retired her
but was afforded no such right. The learned judge
was undoubtedly
correct in holding that the
audi alteram
partem maxim had to
be applied before the Commissioner acted in terms of regulation
11(2). This much was conceded on the appellants’ behalf.
Counsel
for the appellants submitted, however, both before us and in the
Court a quo
that the respondent, having reached the age of 50, was obliged to
retire in terms of regulation 11(1) ; that the reference to
regulation
3(b) in the first wireless message was clearly erroneous;
that the error who obvious if regard was had to the wireless
communication
as a whole ; and that the error was corrected by the
letter of 14 September 2004.

?7? The
Court a quo rejected
these submissions, mainly on the ground that it would be unfair to
the respondent to permit the appellants to “change their
stance at
this stage,” i.e. after the rule nisi
had been granted.
The learned Judge added :

“…………to
allow a decision maker to wait until after an employee has approached
the Court and been granted an interdict and only then purport
to make
a new case would be a grave injustice to such an employee.”

I have a different view of the matter. The appellants
were not before Peete J when he granted the rule, although service of
the papers
had been effected on them some five days earlier. They
filed their opposing papers on 21 September. In the opposing
affidavit the
Acting Commissioner made it clear that the reference to
regulation 3(b) in the first wireless message was “a mistake” and
that
the relevant regulation was intended to be 11(1) as amended. It
is important to note that the appellants did not change their stance
or alter the basis of their defence during the course of the
litigation. What they did was to attempt to correct an erroneous
impression
that might have been created by a wireless message which
was sent before the litigation commenced. There is no reason why
they could
not do so. What the learned Judge should have done was to
have had regard to the affidavit of the Acting Commissioner and not,
in
effect, to treat it as pro non scripto.

?8? The
wireless message in question contained two inconsistent statements –
that regulation 3(b) (regulation 11(2) as amended) was
of application
and that in terms of the regulation the respondent was obliged to
retire at the age of 50 years. But regulation 11(2),
as amended by
3(b), does not provide that an officer shall
retire at the age of fifty. Compulsory retirement on the grounds of
age is provided for only in regulation 11(1) as amended by 3(a)
in
2004. This provides ample support for the Acting Commissioner’s
assertion that the incorrect section was quoted in the message.
I
add that when faced with the inconsistencies which are so apparent in
the wireless communication, the respondent could have sought
clarification from the Commissioner before commencing legal
proceedings. More importantly the respondent suffered no real
prejudice
once she became aware of the Commissioner’s error. She
had the right to respond to the Acting Commissioner’s allegations
in
her replying affidavit and she did so.

Moreover
she was, in the circumstances, entitled to expand upon the

averments
contained in her founding affidavit and, if so advised, she could
have applied to amend the notice of motion. I do not
agree that the
respondent was subjected to unfairness or that she suffered an
injustice – much less an injustice that was grave
– due to the
appellants’ desire to put their defence properly before the court,
nor did her counsel, in argument before us, point
to any respect in
which she was prejudiced. It was and remains the appellants’
contention that the respondent was obliged to retire
by the operation
of law in terms of regulation 11(1) as amended on reaching the age of
50 years. What will be considered in due
course is whether this
contention is correct.

?9? On
the respondent’s behalf it was argued that even if regulation 11
(1) applies to the case, considerations of fairness required
that she
should have been given the opportunity to make representations before
the regulation was implemented or made applicable
to her. This
submission was predicated on the assumption that immediately before
the regulations came into operation the respondent
had a statutory
right to remain in service until she reached the age of 55 years.
Whether she had such a right or merely an expectation,
as the
appellants submit, is also a matter that will be adverted to later,
for even if the respondent’s retirement age had previously
been
governed by statute, principles of fairness or natural justice cannot
be imported into regulation 11(1) in the manner suggested
by the
respondent’s counsel. Principles of fairness arise where a statute
confers administrative powers on a functionary, particularly
the
right to make a decision that might adversely affect a person. In
such circumstances, as Lord Mustill aptly put it in Doody
v Secretary of State
?1993?
3 All ER 92 (HL) at 106 :

“Since the
person affected usually cannot make worthwhile representations
without knowing what factors may weigh against him, he is
informed of
the gist of the case he has to answer.”

?10? The
well-known maxim of
audi
alteram partem is
frequently invoked. It was described as “sacred” by Stratford
ACJ in Sachs
v Minister of
Justice
1934
AD 11 at 38 and so it is in its proper setting, namely, when a
statute empowers a public official to give a decision which may
prejudicially affect the property or liberty of an individual. The
maxim does not apply where no administrative action is contemplated
or where no decision needs to be given by an official or body. No
administrative action is envisaged in regulation 11(1), nor does
the
regulation make provision for a decision to be given whereby its
terms are to be implemented or applied to a member of the LMPS.
The
regulation simply prescribes the retirement ages of members of the
police service and, according to its provisions, retirement
becomes
effective by the operation of law and not due to the action of an
official. Consequently the argument put forward by the
respondent’s
counsel cannot succeed on this point.

?11? A
further argument put forward by the respondent’s counsel was that
the first appellant (“the Minister”) was not authorised
by an Act
of Parliament to regulate on the ages of retirement of members of the
LMPS. This argument was upheld by the learned judge
a quo.
The enabling provision which is applicable to this appeal is section
84 of the Act which, under the heading Regulations, reads:

“84 (1) The Police Authority may, after consultation
with the Commissioner, and, in respect of matters concerning pay,
allowances,
leave entitlement, pensions and compensation for death or
injury on duty, the Minister responsible for the Public Service and
the
Minister of Finance, make regulations relating to the government,
administration and conditions of service of the Police Service.

(2) Without
prejudice to the generality of subsection (1), regulations under this
section may make provision with respect to all or
any of the
following matters

1. 
   the ranks to be held by police officers;

   
   

(b) the qualifications for appointment and promotions of
police officers;

(c) the definitions of
offences against discipline and the penalties therefore;

(d) pay, allowances and leave entitlement of police
officers;

5. 
   pensions and compensation for death or injury while
   

   
   

on duty; and

5. 
   the issue, use and return of police uniform, equipment
   and accoutrements;
   

   
   

Provided
that Regulations in relation to appointments and promotions shall
provide that all such appointments and promotions shall
be on the
basis of merit”.

?12? The
argument advanced on the appellant’s behalf, as I understood it,
was that subsection (1) deals with the general power to make
regulations but that subsection (2) specifies the particular subjects
or items that could be covered by such regulations, in other
words
that the Police
Authority, being the Minister, could make regulations only in respect
of the matters set out in section 84(2). This
submission appears to
ignore the clear grammatical words used in the section. Subsection
(1) provides that the Minister may make
regulation under three main
headings –

“the
government, administration and conditions of service of the Police
Service”.

Subsection
(2) does not, however, in any way limit the general powers given, to
the Minister under section 84(1). The opening expression
in
subsection (2) – “without prejudice to the generality of
subsection (1)” - makes this quite clear. There is no need to
consider this argument any further.

?13? The
learned judge a quo,
however, held the regulations were, in effect, ultra
vires, not because
subsection (2) limited the Minister’s power to regulate only to the
specific subjects in that subsection, but on the
more general ground
that

“nowhere
in the regulations ?
presumably, the Act?
has the Minister either expressly or impliedly, been authorised by
Parliament to make regulations relating to the age ?of?
retirement of Police Officers.”

A similar approach was adopted by the respondent’s
counsel in his heads of argument but this was not, quite correctly,
pursued with
any vigour at the hearing of the appeal. The expression
“conditions of service” in subsection (1) is obviously intended
to be
a reference to conditions of service of members of the LMPS.
Moreover the phrase clearly means the terms of the contracts of
employment
of police officers and not the physical conditions or
circumstances surrounding officers during such employment (cf. The
construction
placed on “ conditions of labour “ and “conditions
of employment” in Wholesale Coal Supplies Ltd v Goodman,
1933 TPD 321 at 329-330). The duration or term of period of a
service contract is an element, if not an essential requirement,
of
such a contract (see Joubert (ed) Law of South Africa
vol 13 (first reissue) Part I, paras 87 and 100). It must
follow, therefore, that once the Minister is given the power to
regulate
on the conditions of service of police officers, he has the
right to specify for how long the contract is to endure and when and
under what circumstances it may terminate. In Wholesale Coal
Supplies Ltd v Goodman (supra) it was held that where the
Minister had power under the statute to provide for conditions of
employment, he could lawfully prescribe
the period of notice to
terminate it. Similarly, and pursuant to section 84 of the Act, the
Minister may by regulation prescribe
when and under what circumstance
members of the police service may be required to retire. In the
result regulation 11 (as amended)
is not ultra vires.

?14? The
way is now clear to consider the most critical aspect of this appeal
which is whether regulation 11(1) applies to police officers
who were
entitled to a pension by statute when the regulations became
effective. It is not strictly necessary to deal with regulation
11(2) in this regard for the simple reason that the Commissioner did
not retire the respondent in terms of that provision. The
application
of regulation 11(1) needs to be considered in the light
of the presumption against the retrospective operation of the law.
The presumption
may be applied in two different contexts: first,
where a statute operates backwards, i.e. if an Act provides that at a
past date
the law shall be taken to be that which is not, sometimes
referred to as retroactive operation, and second, when a statute
interferes
with existing rights and obligations (see Van
Lear v Van Lear 1979
(3) SA 1162(W) at 1164 E-F). We were referred by the respondent’s
counsel to section 27C of the Interpretation (Amendment)
Act, 4 of
1993, which reads :

“
Subsidiary legislation shall not be expressed to take
effect from a date before the date of its publication in the Gazette
where if
the legislation so took effect –

(a) the
rights of a person (other than the Government of Lesotho or a
statutory corporation) existing at the date of publication would
be
affected in a manner prejudicial to that person; or

(b) liabilities would be imposed on a person (other than
the Government of Lesotho or a statutory corporation) in respect of
any act
or omission before the date of publication,

and where any subsidiary legislation contains a
provision in contravention of this section that provision is void and
of no effect”.

?15? The
regulations now in issue are subsidiary legislation and for this
reason it was argued on the respondent’s behalf that

“ their
retrospective effect is of no effect and void in as far as appellants
purport to apply them to the respondent retrospectively”.

Section 27C deal with only the first sense in which
retrospectivity is used, i.e. where it is expressed (my
emphasis) to take effect from a date before the date of its
publication in the Gazette. No such expression appears in regulation
11. Thus section 27C is of no application to this matter but what
still remains to be considered is whether regulation 11(1) interferes
with or takes away a vested right acquired by the respondent.

?16? This
is the stage at which it becomes necessary to decide whether, before
the regulations were promulgated, the respondent had a statutory
and
legal right to retire at the age of 55 years or whether, as the
appellant contends, she did not have a right but merely an
expectation
arising out of a practice that had developed. To decide
the matter, it is necessary to have regard to some of the more
important
statutory provisions which, where practicable, I shall
attempt to summarise as briefly as possible. These provisions are :

(i) The Pension Proclamation, No 4 of 1964 provides in
section 6(1) (a) (i) for the payment of a pension to an officer if
inter alia he retired from public service under the Government
of Lesotho on reaching the age of 55 years. Section 8 of the
Proclamation provided
for compulsory retirement at the age of 55 or
at the age of 45 on six months’ notice.

(ii) Both of the aforesaid provisions
were repealed, the former by Pension (Amendment) Order 39 of 1970
which provided for payment
of a pension if an officer retired from
public service under the Government of Lesotho “on or after he
attains an age at which
an office is, by any law to be vacated.”
Section 8 of the 1964 Pensions Proclamation was eventually replaced
by section 12(1)
of the Public Service Order 21 of 1970 which read:

“Subject to the other subsections of this section, a
public officer shall have the right to retire from the public service
and
shall be so retired, on attaining the age of fifty-five years”.

I shall
advert to the other subsections later. All that needs to noted now
is that section 2(1) of the Public Service Order defined
a public
officer as “ a person holding or acting in any public office.”

3. Subsequently the
   Police Order, 26 of 1971 came into operation. No

   
   

retirement age was
prescribed under this Order but the Commissioner did have the power
to retire a member of the Force on certain
specified grounds such as
a “reduction of establishment”, medical grounds, habitual
inattention to orders or general incompetence
(section 29).

4. 
   The Lesotho Mounted Police Regulations 1972 were
   promulgated

   
   

under the
Police Order 1971. Regulation 14 read :

“The
grants of pensions and gratuities to all members of the Force shall
be governed by the Pensions Proclamation 1964.”

?17? I
pause here to make the following observations:

(i) When the respondent joined the Police Service in
April 1975, her conditions of service were governed by the Police
Order. Her
retirement age, however, was not dealt with in the order
but regulation 14 applied the provisions of the Pensions Proclamation
1964
to “all members of the Force.”

(ii) Notwithstanding
the provisions of regulation 14, most of the relevant provisions of
the Pensions Proclamation 1964, had already
been repealed. It may be
noted that regulation 12 of the 2003 regulations also applies the
Pensions Proclamation 1964 to members
of the police service.

?17? The
Public Service Order 1970 was repealed by the Public Service Act 13
of 1995. Sections 30(1) and (2) of this Act read:

“(1)
Subject to the provisions of this section, a public officer shall
retire from the public service, and shall be so retired, on
attaining
the age of fifty-five years.

2. 
   A public officer who has attained the age of forty-five
   years

   
   

may in the discretion of the Commission be retired from
the public service.”

These
sections are similar to the provisions contained in the sections
12(1) and (2) of the repealed statute.

?18? The
final statute which needs to be mentioned is the Act (the Police
Service Act 1998) which repealed the Police Order of 1971. Section
85(2) (a) of the Act provides that a serving member of the LMPF shall
continue to be a member of the Police Service “as if he had
been
appointed under the provisions of this Act.” Section 31 of the Act
gives the Commissioner the right to retire police officers
on grounds
similar to those contained in section 29 of the Police Order 1971.

?19? The
appellants’ counsel submitted before us that the Public Service
Order 1970 and its successor, the Public Service Act 1995, did
not
apply to members of the LMPS once the Police Service Order 1971 came
into force. The reason is the following, according to the
argument:
the Police Service Order 1971 and its successor, the Police Service
Act 1998 are self-contained Acts dealing only with
the police
services; and that while police officers are “public officers”
for the purposes of both the 1970 Public Service Order
and the 1995
Public Service Act, they are no longer treated in the same way as
other public servants, as their conditions of service
are governed by
separate legislation, i.e. the Police Service Statutes. As such the
respondent had no legal right to retire at
the age of 55 and the
question of restrospectivity was irrelevant. We were not, however,
referred to any provision of the Police
legislation that expressly
excluded members of the police from the operation of the retirement
enactments of the Public Service Acts.
There is nevertheless
considerable force in these submissions and they are strengthened by
some of the provisions in the Public Service
legislation relating
specifically to retirement. These are referred to in para ?20?
below.

?20? In
terms of the police legislation certain important rights and powers
are reserved for the Commissioner and the Minister. Thus in
terms of
this legislation it is the Commissioner, subject to the direction of
the Minister in certain instances, who has the general
control of the
administration of the Police Service in his hands (see section 5 of
the Police Order, 1971 and section 13 of the Act)
and there is
certainly no indication that any other Minister, person or body may
be involved in the affairs of the Police Service.
But under the
retirement provisions of the Public Service statutes certain powers
and duties in relation to the retirement of officers
are given to the
Minister responsible for the public service, the Principal Secretary
and the Public Service Commission (see sections
12(4), (5), (7) and
10 of the Public Service Order, 1970 and sections 30(2) to 30(8) of
the Public Service Act, 1995). These provisions,
while not in
conflict with the powers of the Commissioner and Minister under the
Police legislation, do encroach upon the administrative
powers and
functions of these officials.

?21? On
the other hand the compelling argument advanced by the respondent and
expressed in the judgment of the learned judge a
quo is that the retirement date of members of
the Police Service since 1971, if not earlier, would have had no
statutory basis unless
the Public Service retirement laws applied to
them. Furthermore, police officers, in respect of retirement
provisions, would be
treated differently to all other public
officers. Effectively this would mean that police officers would, as
counsel for the appellants
put it, have nothing more than an
expectation to retire at the age of fifty-five. What is more, there
would be no general statutory
power by the responsible authority to
compel a member of the LMPS to retire before reaching that age or the
right to extend the retirement
age. There may be substantive reasons
for compelling a police officer to take early retirement (see
sections 30(5) and (8) of the
Public Service Act 1995) or for
extending the retirement date beyond the age of 55 years (see
sections 30(6) and (7) of the said
Act).

?22? In
weighing up the respective arguments I have come to the conclusion
that the submissions of the respondent should prevail for the
following reasons:-

1. 
   The provisions of the Public Service statutes are wide
   enough to apply to all “public officers”, including police
   officers,
   according to the definitions and the ordinary grammatical
   meaning of the words. This is accepted by the appellants.

   
   

2. 
   It is unlikely that the legislation would have excluded
   police officers for over 30 years from the retirement provisions
   that applied
   to all other public officers. Prima facie it
   may be assumed that the legislature intended to treat all public
   officers on the same footing in the absence of specific provisions
   to the contrary. In fact the Pension Proclamation 1964, although
   repealed, was expressly applied to police officers (see paras
   ?16(iv)?
   and ?17?above.

   
   

3. 
   Had it been the intention of Parliament to exclude
   police officers from all of the provisions the Public Service Act
   this would
   probably have been clearly stated in the enactments. It
   is not sufficient, in my view, to hold that the retirement
   provisions
   were excluded by implication or inference. Although it
   may be possible to imply or infer such an exclusionary term,
   the implication is not a necessary one and the inference falls far
   short of being
   irresistible.
   

   
   

4. 
   The retirement provisions exist not only for the
   benefit of the public officer but also for the benefit of the
   Ministers and senior
   officials in the control of the departments, as
   I have pointed out. It is therefore reasonable to assume that the
   legislature,
   apart from giving adequate protection to members of the
   public service, would also have had regard to the reasonable
   requirements
   of the officials in control of the administration of
   the Government of Lesotho by permitting such persons also to have
   some say
   in the retirement ages of employees.

   
   

?23? All
of these considerations lead to the conclusions that police officers
did have statutory
rights in respect of retirement before the 2003 regulations became of
force and effect and that the retirement provisions
did not have
obscure origins in an undefined practice. Incidentally this, too,
seems to have been the view of the Principal Secretary
for Home
Affairs according to a circular issued on 7 September 1998.

?24? The
final question is whether regulation 11(1) applies to all police
officers, including those with a statutory right to a pension
before
the 2003 regulations (as amended) came into effect. This is where
the presumption against retrospectivity in the second sense
in which
I have used it in para ?15?
above needs to be considered. In this sense, as I have mentioned, a
statute is said to be retrospective when it takes away or interferes
with an existing right (see the discussion in Cape
Town Municipality v F
Robb & Co Ltd 1996 (4) SA 329 (A) at
350G – 351D). The presumption is based on notions of fairness but
it nevertheless remains a presumption
– albeit it a “strong
presumption” as Baxter points out in Administrative
Law at 355. It is so fundamental a
principle and has been so frequently applied that it would be an act
of supererogation for me to
say more than that the scope of
legislation which seeks to remove vested rights should be
restrictively interpreted. Important as
the presumption is, however
the legislature in general is free to depart from it either expressly
or by implication. The right to
enfringe would seem to apply to
regulations in addition to Acts as section 24 of the Interpretation
Act, 19 of 1977 provides:

“Subsidiary legislation shall have the same force and
effect and shall be as binding and shall be constructed for all
purposes as if
it had been contained in the Act under which it was
made.”

?25? Counsel
for the appellants submitted that the presumption was rebutted by the
very words employed in regulation 11(1). This was so,
he argued,
because of the peremptory nature of the provisions. The fact that
the regulation enacts that a police officer “shall
retire from the Police Service, and shall
be so retired” does not address the question. Those words do not
mean the regulation should be construed so to apply to all police
officers, irrespective as to whether the officer had already acquired
a right to retire at a later date. Nor are there any other
provisions, either in the Act or in the regulations, which, whether
expressly or by implication, would justify this Court in holding
that
the presumption against retrospectivity has been excluded in
regulation 11(1). This leads inexorably to the conclusion that
the
regulation does not apply to the respondent and that she was not
obliged to retire on reaching the age of 50 years. This conclusion
is not affected by the fact that the respondent’s right to remain
in employment under the earlier legislation was not unqualified
:
for although she could have been required to retire earlier in terms
of section 30(2) of the Public Service, 1995, this did not
occur.

?26? I
am not convinced that I would have reached a different conclusion
even if the respondent had a legitimate expectation, based on
a
practice, and not a statutory right, to retire at the age of 55
years. While it is not strictly necessary to decide the point,
the
following factors seem to be relevant:

1. Although
   the Supreme Court of Appeal in South Africa has held that a
   legitimate expectation relates to procedural matters only (see
   Meyer
   v Iscor Pension Fund 2003 (2) SA
   715 at 732 A-E and the authorities referred to therein), it has also
   been held and, in my view, not without merit,
   that

   
   

“the
legitimate expectation refers to the rights sought to be taken away
and not the right to a hearing.” (see Mokoena
and Others
v Administrator,
Transvaal
1988 (4) SA 912 (W) at 918 D)

2. In
   English law the doctrine of legitimate expectation includes the
   right to a claim for substantive relief and not only the right
   to
   procedural fairness.

   
   

3. In Meyer’s case (supra) the Court
left open the difficult question whether the English doctrine of
substantive relief should be incorporated into South African
Law (at
733 I to 734 A). It is also not a question that needs to be dealt
with in this case. The respondent does not seek substantive
relief.
The appellants concede, however, there was a practice which entitled
police officers to have an expectation of retiring
at the age of 55
years. One question that arises is whether the respondent should be
in a less advantageous position because her
expectation was based on
a settled practice and not on a legal right. It may be observed that
in cases of procedure an established
practice or policy has been held
to be sufficient to give rise to a legitimate expectation that a
decision-maker should act fairly
(see the authorities quoted in
Administrator Transvaal and
others v Traub and Others 1989 SA 731
(A) at 756 G to 757 E and the remarks of Corbett CJ at 761 I to 762
B). It is certainly conceivable that consideration
of fairness might
also require that legislation that removes an expectation, based on
an established practice, to receive a certain
benefit, should be
construed in accordance with the presumption against the interference
or removal of existing rights. This aspect
was only touched on in
argument before us and in view of its importance I hesitate to
express a firm conclusion on the matter. Moreover
it is not
necessary to do so in view of the finding that the respondent’s
expectation was based on a legal right.

?27? Three
important points remain. First, this judgment is concerned only with
regulation 11(1) as amended. It is emphasised that we
express no
opinion on whether or nor regulation 11(2) or any of the other
regulations are retrospective in their operation. Second,
although
it has been found the regulations are not
ultra vires insofar as
they apply to conditions of service generally, no argument was
addressed to us on whether the Minister was authorised
by the Act to
make regulation having an retrospective effect and, if not, what
would the result be if the regulations were found
to be
restrospective in their operation. We therefore express no opinion
on this subject either. Thirdly we do not find it necessary
to
decide whether the respondent would have been entitled to rely on the
presumption against restropectivity had we been of the view
that she
had no right, but only an expectation, to remain in employment until
retiring at 55 years of age.

?28? To
sum up, therefore:

1. 
   Regulation 11(2) does not apply to this appeal. The
   Commissioner did not intend to retire the respondent in terms of
   this regulation.
   His real intention was to inform the respondent
   that she was obliged to accept compulsory retirement in terms of
   regulation 11(1).
   The litigation had to be dealt with on that
   basis.

   
   

2. The respondent was not entitled to a hearing or the
right to make representations under regulation 11(1). The regulation
applied
by the operation of law and not due to the exercise of a
decision by an official.

3. 
   Regulation 11 is not ultra vires to the extent
   that the Minister is precluded from regulating for the retirement of
   police officers. The Act authorises him to make
   regulations in
   respect of conditions of service of police officers : this includes
   the right to make provision for retirement
   of members of the LMPS.
   

   
   

3. 
   Prior to the coming into force of the regulation the
   respondent had the statutory right to retire at the age of 55
   (subject to certain
   qualifications) and not a mere expectation to
   retire at that age.

   
   

3. 
   Regulation 11(1), according to its terms and the terms
   of the empowering Act, should not be interpreted so as to operate
   retrospectively.
   There are no sound reasons for holding that the
   regulation should be construed so as to remove the respondent’s
   statutory right
   to retire at the age of 55 years. Accordingly the
   right of subordinate police officers to retire at the age of 55 has
   not been
   taken away by regulation 11(2). No opinion is expressed on
   whether the other regulations, including regulation 11(2), operate

   retrospectively.

   
   

?29?
For the reasons set out above, the appeal is dismissed. However it
is necessary to adjust the order of the Court a quo.
It is therefore
ordered that:

1. 
   The appeal is dismissed with costs;

   
   

2. The order of the court a quo is set aside and
is replaced with the following:

“ Paragraphs
1(b), (c), (e) and (g) of the rule nisi
issued
on 3 September 2004 are confirmed.”

____________________

LS MELUNSKY

JUDGE
OF APPEAL

I
agree __________________

J
STEYN

PRESIDENT

I
agree __________________

FH
GROSSKOPF

JUDGE
OF APPEAL

For
the appellants : TS Putsoane

For
the respondent: EH Phoofolo