CIV/APN/114/83

CIV/APN/117/83

IN THE
HIGH COURT OF LESOTHO

In the
Applications of

LETSIELO
THAANYANE 1st Applicant

EMMANUEL
MPALIPALI LEROTHOLI 2nd Applicant

V

SOLICITOR GENERAL

Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 24th day of February,
1984.

Both
Applications are treated as one for the purposes of this judgment
because the issues involved are the same although the facts
may be
slightly different.

The
applicants seek for an order :

1. Setting
   aside the Honourable Minister of Finance's decision to surcharge the
   Applicant with an amount of M10,196.24,

   
   

2. Granting
   the Applicant such further and/or alternative relief as the Court
   deems fit;

   
   

3. 3.Granting
   the Applicants the costs of this Application.

   
   

Both
applicants were civil servants employed by the Lesotho Government.
They were both stationed at Maseru Sub-Accountancy as accountants.
In
1980 they were criminally charged with the theft of a sum of
M20,392.59- They were found not guilty and acquitted. However,
on the
22nd December 1982 the Commissioner of

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Inland
Revenue issued to each of them a letter (Annexure "A")
calling upon them to show cause why they should not be surcharged
in
the full amount or in part with the loss which occured during the
course of their duty at the Sub-Accountancy. On the 30th November

1982 a request was made through their attorneys as to how the amount
of M20,392.59 was arrived at. (Annexure "B"). The

Commissioner of Inland Revenue replied on the 9th December 1982 as
per Annexure "C". There followed an exchange of letters
the
culmination of which was a letter dated the 30th March 1982 from the
Commissioner of Inland Revenue that the Minister of Finance
had
surcharged each of the applicants an amount of M10,196.24-(Annexure
"G"). To Annexure "G" was attached
Annexure H1
indicating now the surcharge in each case would be liquidated - in
respect of Thaanyane at the rate of M85 per month
and in the case of
Lerotholi at the rate of M55 per month. In addition, the money due to
them in terms of the Compulsory Savings
Act would be applied in full
towards the recovery of the surcharge. Annexure "H"2 was a
payment voucher reflecting payments
and balances.

Before
the receipt of Annexure "G" applicants wrote through their
attorneys to the Commissioner of Inland Revenue showing
cause why
they should not be surcharged. (Annexure "F"

Both
applicants deny that they were negligent. They were not responsible
for the receiving and issue of receipts for payments made
to
Government. They were

3

only to
see that proper accounts are maintained.

They both
submit that the provisions of section 32 of the Finance Act 25 of
1978 have been wrongly and unlawfully applied in their
cases because
conditions precedent to the exercise of the power under the
provisions of the said section did not exist.The Minister
of Finance
has caused to be deducted, as part of the surcharge, a sum of
M4,750,45 (in respect of Thaanyane) and M10,196.24 (in
respect of
Lerotholi) per Annexure H2" from the salary due to them*, This,
it is submitted, in wrongful and unlawful to the
extent that it
conflicts with provisions of section 37(1)(a) of the Finance Act 25
of 1978.

The
applications are opposed. The main opposing affidavit appears to be
that of the Minister of Finance. In essence, he says that
the
applicants were negligent, that annexure "A" was written in
conformity with the provisions of section 32(1) of the
Act; that
after reading a report by the Senior Internal Auditor of his Ministry
(one Nair who has made a lengthy affidavit as well)
it appeared the
Ministry had suffered loss to an extent of M20,392.59 due to the
negligence of Lerotholi by removing cash and covering
it up with
bogus cheques. These cheques were dishonoured, and are not even
available; That Thaanyane was negligent in not discovering
the loss
sooner; that he considered the representations made by applicants on
the 25th March 1983 and found them unsatisfactory;
that he contents
that the recovery of M4,750,45 (Thaanyane) was in order since it
represents

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arrears
of salary to which the applicant was entitled following his
interdiction, criminal prosecution and subsequent reinstatement;
that
he had ordered the entire sum because he had more than reasonable
grounds for assuming that the state would suffer tremendous
loss
unless a greater part of his salary was withheld; that the amount
surcharged exceed M10,000.00, that what was done was lawful
in
compliance with the law and the degree of negligence, by collusion,
was of a high degree.

Nair made
a long affidavit in which he sought to establish that Lerotholi stole
the money at the Sub-Accountancy and signed bogus
cheques. He had
also testified before a magistrate during the Criminal trial of both
applicants. After examining the documents
at the Sub-Accountancy he
was of the opinion that twenty-three (23) cheques were included in
the Bank deposition slips to cover
up illicit removal of liquid cash
and this fraudulently balance the cash register and prevented
detection of fraud against the
Government.The dishonoured cheques
should have been kept to expidite a follow up. He is aware that the
applicants were criminally
prosecuted at the Magistrate's Court,
Maseru with the theft of the said money. He had testified in that
Court and had referred
to certain documents which he subsequently
handed into Court as exhibits. He understands that those exhibits
have been stolen.

The
Minister of Finance (hereinafter referred to as the Minister)
concedes that Annexure "A" was written in conformity
with
the provisions of section 32(1) of

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Act 25 of
1978 (hereinafter referred to as the Act). The section reads thus.

"Section
32(1)

If it appears to the Minister that by reason of the neglect or fault
of any person who is or was at the time of such neglect or
fault a
public officer the public revenue or public stores have sustained
loss or damage or improper payments of public moneys
have been made
and if within a period specified by the Minister an explanation
satisfactory to him is not furnished with regard
to such apparent
neglect or fault, the Minister may surcharge against the person the
amount which appears to him to be the loss
suffered by Lesotho or the
value of the property lost or damaged or the amount improperly paid
as the case may be or such lesser
amount as the Minister may
determine." (My underlining).

It is
quite clear from the reading of this section that it is the Minister
who is to initiate an action contemplated against a public
servant.
It is also quite clear from the reading of the section that the
Minister has a discretion. It is also clear that the rights
of the
public servant are affected. It is also quite plain from the section
that the Minister has a duty to make an inquiry into
matters of fact
or fact and law. The Minister, in my view therefore acts in a
quasi-judicial capacity and not in absolute discretion
when he
invokes the provisions of the section. Unless, therefore, the maxims
audi et alteram partem and nemo index sua causa are
excluded by the
governing statute they apply. These maxims are sometimes referred to
as the rules of national justice.

If the
Minister deposes in his affidavit that Annexure "A" is
written in confirmity with the provisions

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of
Section 32(1) of the Act, he is in fact conceding that it was written
on his behalf.

What did
Annexure "A" convey to the applicants? This is how it
reads:

CONFIDENTIAL

INREV/LOSS/MSU/C

Inland
Revenue Office,

Private
Ba A 102,

MASERU
100.

22nd
November, 1982.

Mr.CLL
Thaanyane

c/o
Leribe Sub. Accountancy,

P.0. Box
LR 88

LERIBE
300.

Dear Sir,

L0SS OF
PUBLIC FUNDS - MASERU SUB ACCOUNTANCY - M20.392-59.

You are
kindly requested to show cause why you

should
not be surcharged in full or in part with the

above
loss which arose during the course of your duty at the above
sub-Accountancy.

Your
reply to be received before the 6th December, 1982.

Yours
faithfully,

COMMISSIONER
OF INLAND REVENUE".

There is
no allegation that it was written on behalf of the Minister persuant
to the provisions of Section 32(1) of the Act. The
Annexure "A"
merely informs the applicants of the loss of public funds at Maseru
Sub-Accountancy and that they, the applicants,
should show cause why
they should not be surcharged with the whole

or part
of the loss suffered,, They were to furnish their

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replies
in less than a month.It is now trite law that the applicants ought to
have been informed fully about the prejudicial allegations
made
against them. They must know the case they are called upon to meet.
The notice is required for the specific reason that the
person in
applicant's position ought adequately to have an opportunity of
rebutting the case against him.

However,
it must be clearly understood that what I have said above does not
amount to formalities required in framing a criminal
charge. In cases
such as the present, the rule merely ensures that the applicants are
aware of the charge.The applicants content
that Annexure "a"
did not come anywhere near satisfying the above test. Mr. Tampi for
the Respondents, very fairly in
my view conceded the point but
submitted that the correspondence that followed had the tendency of
clearifying the issues. The
point it, Annexure "A" did not,
by itself, satisfy the test. As Mr. Tampi was to concede again, it
was drawn by an official
who assumed that everybody was aquinted with
the background facts.It is not always so. Perhaps if the matter is
dealt with departmentally
can one be excussed in acting on such in
assumption. However that may be, the Minister was acting in his
quasi-judicial function
and had to observe the rules attendant
thereto. Despite this irregularity the applicants were surcharged.

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in the
papers before this Court, for the first time, they got to grisps with
the reasons why they were surcharged. Unfortunately
by then, the
Minister had already exercised his discretion and decided to impose a
burden or a disability on the applicants. He
had in fact, decided to
do something even more drastic by invoking the provisions of section
37(1)(b) which read:

"(b) Where the person surcharged is due to be paid any moneys of
whatever description by the State other than by way of salary
or
pension, the Minister may cause the amount of any surcharge imposed
on that person to be deducted from such moneys in whole
or in part as
he considers" (My underlining)

The
Minister had decided to take the whole amounts due to the applicants
whereas he should have treated those amounts as arrear
salaries and
had only taken what section 37(1) (a) entitled him to. These amounts
are surely salaries because as salaries they
were never paid to
applicants but rather compulsorily put away for them.They cannot,
therefore, be called by any other name as
long as they constitute a
fraction of the applicants' salary which by operation of the law were
never paid to them. Again, when
all these things were done by the
Minister, the applicants had not yet been afforded a hearing persuant
to the audi et alteram
parten maxim. This, in my view, is clearly
wrong. In any event, Mr. Tampi conceded that the Minister had been
wrong in withholding
the entire salary, that is arrear salaries.He is
quite correct because the public servant is not meant to be left
penniless in
the surcharge proceedings.They are to be applied
humanly.

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The
Applicants, lastly, discovered for the first time in this Court that
they are not being charged with neglect but with fraud
and theft. The
allegations by the Respondents in this Court contain issues which
should have been placed before the Applicants
by the Minister. The
Applicants, unfortunately, are not being tried before this Court. It
is no longer a question of the Minister
having acted mala fide as the
Respondents' counsel submitted. It is the question rather of whether
the applicants were afforded
a hearing before a surcharge was imposed
on them. The answer is surely in the negative.

In the
premises the Order is granted as prayed.

JUDGE.

24th
February, 1984.

For the
Applicants : Mr. K. Sello

For the
Respondents : Mr. Tampi