CIV/APN/407/2000
IN THE HIGH COURT OF
LESOTHO
In the matter between:
'M'AMONTŠO
'MOLOTSI Applicant

and

ACCOUNTANT GENERAL 1^st Respondent
PRINCIPAL
SECRETARY - MINISTRY OF PUBLIC SERVICE 2^nd
Respondent
MINISTER RESPONSIBLE FOR THE PUBLIC
SERVICE 3^rd Respondent
ATTORNEY GENERAL 4^th
Respondent

For the Applicant: Mr Nteso
For the Respondents: Mr
Mapetla

JUDGMENT
Delivered by the Honourable
Mr. Justice T. Monapathi
on the 10^th day of December
2001

The Applicant herein has applied ex parte on urgent basis for an order
interdicting Respondents from transferring her from one Ministry
to another
namely the Ministry of Local Government to the Ministry of Finance both located
within Maseru City within one kilometre
of each other. She has further applied
for an order declaring the said transfer null and void and costs of the
application. This
application was opposed
by
-2-
Respondents.

The grounds upon which Applicant relied have been outlined in paragraph
13 of Founding Affidavit. They are as follows:

Firstly, that the First Respondent had no power to transfer Applicant
from Ministry of Local Government to the Ministry of Finance
- Treasury
Department or any Ministry wheresoever (see Annexure "A" page 14 of the record).
Annexure "A" is a letter dated 15^th October 2000, to the Applicant
from the Principal Secretary (Mr. Sekatle) of Ministry of Public
Service.

Secondly, in the same token that Mr. Sekatle had acted unlawfully when he
purported to confirm what had been done which the Applicant
called a "stark
violation of the law." In regard to what Mr. Sekatle has confirmed, this Court
was referred to Annexure "A" at page
14 of the record, which was a letter dated
6^th September 2000 from the Accountant General addressed to this
Applicant. The letter says:

"It has been decided that you be transferred from the Ministry of Local
Government to the Ministry of Finance/Treasury Department
with immediate
effect.

Your other terms and conditions of service will remain the
same."

This letter was also addressed "under flying
seal" (u.f.s.) to the Principal Secretary Local Government. Lastly on the aspect
of the
letter it showed that it was copied to the Ministry of Public Service,
Ministry of Local Government and the office of the Auditor
General.

One of the complaints by the Applicant is that since Annexure "A" bears
no acknowledging signature from the Principal Secretary, the
latter may not have
been aware

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of it; he may not have consented to the transfer or he may have been
side-stepped in the arrangement; or it was otherwise procedurally
flawed. But
otherwise it has not suggested that the Accountant General was not the
appropriate officer to have communicated the intended
transfer to the Applicant.
At this stage it is even helpful to indicate that the Applicant was suggesting
that the transfer was faulty
in that the letter had not indicated that the
letter was that of Public Service Commission or the Minister or emanated
therefrom,
through proper channels or decision.

Thirdly, it was that the Third and the Second Respondents acted
wrongfully in transferring Applicant into a vacuum. The suggestion
being that it
was where there was no desk or work allocated to her and where she was placed in
a limbo. As she puts it in para 8.2
of her Replying Affidavit, she
said,

"The prejudice that I suffer is that I know there was no vacant position at
the Treasury Department, hence why I have been rejected
from Treasury by the
present Accountant General. As of now I am shuttling between the Ministry of
Local Government and Ministry of
Finance. There is not even office space for me
in the Treasury Department. The reason why the present Accountant General
rejected
me was because he was shocked as to the manner of my purported
transfer."

Indeed this is a pathetic story.

The above brings me to the history of this application. It was filed on
the 30^th October 2000, on which day an interim order was issued
returnable on the 20^th November that year. On the 20^th
November the rule was extended to the 4^th December and to the
11^th December of that year, when on the latter date the Applicant
asked for time to file a Replying Affidavit thence the Respondents asked
that
the Applicant be put to terms that she be compelled to file her reply by
14^th December.

-4-

The minute in the file shows that on the 18^th December Mr
Nteso for Applicant and Mr. Nthloki were before Court. Then it is recorded that
the Applicant has still failed to file
her Replying Affidavit and then the
prayer 2,6 which was an interim order operating with an immediate effect was
discharged. The
prayer had been that the transfer was stayed pending the
determination of the application. A point was made therefore that the alleged
prejudice could not have been in the terms suggested at least after the interim
order..

Fourthly, that the notice (five working days) which had been given in
Annexure "B" had been insufficient. I instantly noted that the
Applicant had not
stated her personal circumstances which caused prejudice either in the transfer
itself or in the number of days
granted. That is why the response by the
Respondents' deponent, Mr. Sekatle was that having called the Applicant or the
Applicant
having attended to Mr. Sekatle's whatever was the case the Applicant
was given "full counselling" and there could not have been any
prejudice that
she suffered as a result of such transfer.

Fifthly, that none of the Respondents had power under any law to transfer
Applicant without first giving her prior hearing and the
grounds therein. I did
not read this to suggest that the 3^rd Respondent had no such power. I
may just note however what Mr. Sekatle said in response. I quote from paragraph
8 of Answering Affidavit:

"Equally without merit is the argument that she is being transferred
without being given sufficient notice or hearing. The part of
the matter is
Applicant was given 5 days within which to move to her new office appear I had
called her to my office for full counselling
on this matter. It is therefore
incorrect to suggest that she was not given a fair hearing, besides there is no
basis in law that
she was entitled to such hearing particularly when there is no
prejudice that she suffered as a result of such transfer."

-5-

Before coming back to the last issue I found it hard to ignore or not to
mention as a background this what Mr. Sekatle calls mere
gossip. At the same
time I acknowledge that this contained as Mr. Sekatle observed more reason of a
why the Applicant should have
been removed from where she was (by way of
transfer) because her relations with the Principal Secretary could not conduce
to proper
functioning of the Ministry. And the misunderstanding constituted a
good ground for the Applicant to accept to part ways with the
head of the
Ministry for the good of the running of the Ministry. These allegations which
were contained in paragraphs 8,9,10 and
11 contained things which could have
been declared scandalous and vexatious but there was no such attack. As a
background and as
a matter of public policy I would not avoid stating them for
what they are but not for their truthfulness. If they are true one can
only hope
that they will be dealt with according to law.

Firstly, the complaint that Mr. Sekatle and the Applicant's boss
(Commissioner of Lands) were close friends.

Secondly this Applicant had quarrelled with the Commissioner of Lands and
complained about incidents of contravention of regulations
which led to unfair
benefits and enrichment from public funds, and this the Applicant resisted. This
resulted in hate against the
Applicant and the undertaking by the Commissioner
of Lands that she will get rid of the Applicant.

Thirdly, a certain cheque was allegedly paid to a certain Rainbow
Construction for a job that was allegedly not done. The Applicant
said she
complained to the Principal Secretary. This attracted more hatred.

Fourthly a company called Bahale Construction was allegedly paid in full
for work not completed.

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And lastly a certain employee by the name of Lebohang Mpheuletsane was
allegedly paid a salary of Grade 12 even though according to
her employment
contract she was supposed to be paid a salary of Grade 8. A complaint by
Applicant in this connection attracted an
accusation that she was being
insubordinate.

Apparently this Applicant is someone who takes umbrage at acts of
corruption because as she said those were just but a few examples.
I go back to
the feeling of Mr. Sekatle who said that if this was true it was more reason why
there should have been removal of this
Applicant by way of transfer. They may be
correct. If it was not the Court would have no way of judging it. This is
because essentially
what concerns the Court as and when reviewer of conduct of
public servants can be said to be procedural impropriety, not substantive
reasons and such like, for transfer of public servants.

Indeed where a letter which the Accountant General has written did not
disclose whose decision it was to transfer the Applicant it
can only be awkward
in the observation of the Court, but without evidence as to how letter
indicating transfer are normally drawn,
Mr. Nteso's attack, in the absence of
evidence or authority merely amounts to speculation. The Court was bound to
accept that this
is the normal way of writing such letters. It is safer not to
prescribe unnecessarily in the circumstances. Indeed this Applicant's
complaint
before Mr. Sekatle has been with regard to the absence of signature of Principal
Secretary as indicated above. Secondly
that Public Service has by circular
embargoed transfer of Accounting cadre. And lastly that the Applicant did not
follow right channels.
It did not appear that Applicant's case was that the
transfer had not emanated from none other than the right authority but that
the
maker of the decision was not shown in the letter. In other instances of
transfers or dismissals the operative words are that
"I am directed" (see
Mamonyane Matebesi v The Director of Immigration 1997-1998 LLR 455 at 488. To
me the distinction is more apparent
than real. In those instances

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(Matebesi case) the writer does not disclose who has made the decision. I
find no reason to disbelieve Mr. Sekatle that the Minister
has made the
decision. This I say having been given the background of the tension between the
Applicant and the Commissioner of Lands.
I found it quite untenable that the
Applicant said that she felt the Principal Secretary for Local Government should
have been the
one to be transferred. It did not matter how altruistic the
Applicant may have been in her attitude towards things that were not
going right
at the Ministry at which she was posted. As I said before the concern of the
Court as at present is procedural impropriety
of the transfer of Applicant from
one Ministry to the other.

The Court agreed that the matter did not qualify for urgency inasmuch as
the Applicant had failed to allege and prove grounds upon
which urgency was
based in this application. See Attorney General v Tšeliso Matela 1999-2000
LLR and LLB and Franken v Ministry
of Works 1981(2) LLR 327 at 332. This I say
quite unrelated to the following incidents in the history of this application.
Firstly
after receipt of the letter annexure "A" the Applicant did not proceed
to Court but contacted Mr. Sekatle to complain which meeting
the Applicant
called a confrontation. Secondly the Applicant must have as a fact taken
occupation of a post in the next Ministry
that is why she observed that there
was no work allocated. In any event whether or not she had removed it is not
clear why the matter
was urgent according to the Applicant's say so. Thirdly,
the order was allowed to lapse by the Applicant. Perhaps that was explainable
but it militated against the matter being regarded as an urgent one.

Inasmuch as the Applicant is seeking an interdict whose grounds she
should have proved she would not have been able to prove any irreparable
ham.
Furthermore it did not help where the Applicant would not have been able to
prove a right on her part as required in Setlogelo
v Setlogelo 1914 AD 221. See
Attorney General v Tšeliso Matela (supra) for which the application ought
to be dismissed.

-8-

Much as it was shown that the Applicant had demonstrated no prejudice if
she was transferred and much as I concluded that the counselling
by Mr. Sekatle
constituted a hearing in the circumstances of the case I did not agree with Mr.
Mapetla that the case of Mamonyane
Matebesi v Director of Immigration (supra)
decided that there was no need to grant a public servant a hearing before
transfer. Displacement
of a hearing has resulted from practical consideration
e.g. absence from work. That is why this displacement is qualified by the
learned judge of the Court of Appeal Gauntlett JA in Matebesi case at page 465
where he says:

"In my view there can be no doubt that the terms of section 6(3) of
Public Service Order 1970 permit the displacement of audi in appropriate
circumstances. They do not however themselves oust its operation ex lege and in
all cases ". (My underlining)

In any event I have decided that there was a hearing afforded to the
Applicant. It may after all have been after the letter from the
Accountant-General and to that extent if after the decision to transfer see OK
Bazaars (1929) Pry Ltd v Suzan Makara C of A (CIV)
No.8/92, January 1993. In
that case Mahomed P emphasized what was required as: Firstly, notice of intended
action Secondly, a proper
opportunity for him to present his case." (Page 10)
At the top of the page before quoting from a case by Colman J learned Judge
President
had said: "What will be fair in a particular case, will depend on the
circumstances of that case " Meaning that the hearing could
still be afforded
after the decision was reached. Then is the question of whether there was
prejudice.

Prejudice which makes a hearing before transfer imperative may come in
two ways to a civil servant who is to be transferred. Firstly
where personal
circumstances are such that such a servant is to be granted a reasonable time.
And secondly where the notice is itself
too short. Again this depends on the
circumstances of each individual cases. See 'Matsepo Mohale and Another v
Principal Secretary
for Health and

-9-

Another 1991-1996(1) 634 at page 640. That is whether a hearing would or
would not have been required before the actual transfer depends
on prejudice to
the public servant. According to Mamonyane Matebesi's case (supra) the denial of
a hearing should be an exception.
I disagreed therefore that the case is
authority for the proposition that a hearing is not necessary.

I found that the Applicant was given sufficient notice to move to her new
duty station, regard being had to the fact that there was
really no prejudice
that she stood to suffer by being moved from one Ministry to another within one
(1) kilometre of each other.

The application ought to fail.

The application was dismissed with
costs.

T Monapathi

Judge

10^th December, 2001