CIV/APN/445A/2000
IN THE HIGH COURT OF LESOTHO

In the Application of:

PAPALI MALEFANE Applicant

and

MINISTRY OF LAW AND CONSTITUTIONAL AFFAIRS 1^st
Respondent
MINISTRY OF PUBLIC SERVICE 2^nd Respondent

ATTORNEY
GENERAL 3^rd Respondent

JUDGMENT

Delivered by Honourable Mr. Justice B.K. Molai on 14^th
day of August, 2001

The applicant herein filed, with the Registrar of the
High Court, a Notice of

2 Motion in which she moved the court, ex-parte, for an
order framed in the

following terms:

"1. Rule nisi be issued calling upon respondent to
show cause why the following prayers cannot be made absolute.

1. 
   Interdicting the respondents from transferring
   the
   applicant to the Ministry of Justice pending
   finalisation of this
   application.

   
   

2. 
   Granting Applicant access to her office in the
   1^st
   Respondent Ministry forthwith
   pending
   finalisation of this application.

   
   

3. 
   Reviewing and setting aside the decision to
   transfer
   applicant from her substantive post.

   
   

4. 
   Cost of suit.

   
   

5. 
   Further and / or alternative relief.

   
   

2. That prayers 1 (a) and (b) should operate with
immediate effect."

It is, perhaps, convenient to mention by way of
background that the applicant is a civil servant, in the Government
of Lesotho, attached
to the Drafting section of the 1^st
Respondent Ministry as the Principal Assistant Parliamentary Counsel.
Her immediate superior is the Parliamentary Counsel, one Ntebaleng
Morojele-Maseela, who is the head of the Drafting Section.

3
On 31^st March 2000 the applicant
received, from the Parliamentary Counsel,

a memo of the same date, in which the latter complained
about the former's repeated absenteeism from work, without leave. The
memo
(annexure P.M.M.4), which was, inter alia, copied to the 3^rd
respondent and the Deputy Attorney General, concluded by inviting the
applicant to give reasons, if any, why disciplinary action
could not
be taken against her. On 15^th June 2000, the Parliamentary
Counsel addressed, to the 3^rd respondent, another memo
(annexure P.M.M.5) from which it appeared that the applicant had, on
5^th April 2000, written, to the Parliamentary Counsel, a
letter which was, however, not annexed to the papers placed in the
file before
me. I have not, therefore, been favoured with the
contents of the applicant's letter of 20^th April 2000.

Be that as it may, the gist of annexure P.M.M.5 was that
the applicant persisted in her negative attitude e.g. she came in and
went
out of the office as she pleased and never reported anything to
the Parliamentary Counsel in her capacity as the head of the Drafting
Section. As a result, it was becoming increasingly difficult for the
Parliamentary Counsel to run the Drafting Section of the 1st
Respondent Ministry efficiently. Consequently, the Parliamentary
Counsel requested that, in the interest of the smooth running of
the
Drafting Section, the applicant be transferred to some other Section
or Department.

4
It would appear that the 3^rd respondent
referred annexure P.M.M.5 to the

Deputy Attorney-General for necessary action. Wherefore,
the Deputy Attorney-General addressed a letter, dated 16^th
June 2000, to the applicant, requesting the latter to respond to
annexure P.M.M.5. By her letter of 6^th July 2000 (annexure
P.M.M.7), the applicant did comply with the request and denied the
accusation that she had a negative attitude
towards the Parliamentary
Counsel. As proof thereof, she referred the Deputy Attorney-General
to her letter of 5th April 2000. As
it has already been pointed out,
earlier in this judgment, the applicant's letter of 5^th
April 2000 is not annexed to the papers placed before me, in this
case. I have, therefore, no way of knowing its contents. In the
contention of the applicant, there was no justification for
transferring her from the Drafting section of the 1^st
respondent Ministry to some other sections or Departments.

On 21^st July 2000, the 2^nd
respondent addressed, to the applicant, a letter (annexure P.M.M.1)
in which the latter was advised that it had been decided to transfer
her from the Drafting section of the 1^st respondent
Ministry to the Ministry of Justice and Human Rights, with effect
from Monday, 24^th July 2000. Annexure P.M.M.1 reads, in
part:

5 "Dear Madam,

I wish to inform you that it has been decided that you
be transferred from the Ministry of Law and Constitutional Affairs
(Drafting
Section) to that of Justice and Human Rights. You will be
held against the position of Senior Legal Aid Counsel, Grade G for
the
time being.

You are requested to report to the Principal Secretary,
Ministry of Justice and Human Rights by Monday 24^th July,
2000.

Kindly note that your terms and conditions of service in
other respects will however, remain the same.

Yours faithfully

T. Mathealira

for Principal Secretary

Ministry of the Public Service"

(my underling)

The applicant referred annexure P.M.M.1 to a firm of
Legal Practitioners who, on 26^th July 2000, wrote, to the
2^nd respondent, a letter, annexure P.M.M.2, in which they
challenged the transfer. The grounds upon which the transfer was
challenged
were firstly, that as the Principal Assistant
Parliamentary Counsel the applicant was on Grade 14 (H). The position
of Senior Legal
Aid Counsel to which she was being transferred, in
the Ministry of Justice and Human Rights, was, however, on Grade 13
(G). In the
contention of the Legal Practitioners the applicant's
transfer amounted, therefore, to her demotion which was irregular

6 inasmuch as she had not been afforded prior
opportunity to be heard. Secondly,

the author of annexure P.M.M. 1, namely Mathealira, had
no power to transfer or demote the applicant. That was the
prerogative of
only the Public Service Commission.

I have underscored the words "I wish to inform you
that it has been decided," to indicate my view that T.
Mathealira merely
passed the information that the decision to
transfer the applicant had been taken. The words do not necessarily
imply that T. Mathealira
is the person who has actually taken the
decision to transfer her.

In reply to annexure P.M.M.2, the 2^nd
respondent addressed, to the applicant's legal representatives, a
letter, dated 1^st August 2000, in which it was denied that
the applicant's transfer amounted to a demotion. In the contention of
the 2^nd respondent, it was a redeployment, within the
Public Service, made by the Minister responsible for the Public
Service, in accordance
with the provisions of the Public Service Act,
1995.

Consequently, the applicant approached this court with
the application for

relief, as prayed in the notice of motion. The
application was, on 20^th November

7
2000, moved before Ramodibedi J who, however, took
the view that there was no

urgency shown in the founding affidavit. He,
therefore, ordered that the application should proceed in the
ordinary way, as being
one on notice.

Thereafter, the respondents filed notice of intention to
oppose. The answering and the replying affidavits were duly filed by
the
respondents and the applicant, respectively. In as far as it is
relevant, the facts disclosed by the affidavits are not really in
dispute that the applicant was transferred/moved by the Minister
responsible for the Public Service from the Drafting section of
the
1st respondent Ministry to the Legal Aid Department of the Ministry
of Justice and Human Rights. However, the applicant averred
that the
power to appoint/transfer civil servants in the Public Service was
vested in the Public Service Commission and not the Minister
responsible for the Public Service. In the contention of the
applicant, her transfer was actuated by nothing but malice and as a
sort of punishment for her alleged absence from work.

Ntebaleng Morojele-Maseela, the head of the Drafting
Section of the 1^st respondent Ministry deposed to an
answering affidavit in which she averred that the reasons for her
request that the applicant be
transferred from the Drafting Section
were clearly set out in the Memorandum she had addressed to the

8 Attorney-General on 15^th June 2000
(annexure P.M.M.5), namely that the

relationship between herself and the applicant had
become intolerable due to the latter's negative attitude towards her.
The deponent
further averred that until the end of August 2000 the
Drafting section of the 1^st respondent Ministry had been
operating from the Post office Building, in Maseru. However, early in
September 2000 she was instructed
to move the office of the Drafting
section to the Government complex at Qhobosheane. The move was
effected during the period from
6^th to 8^th
September 2000. The applicant, who had neither vacated her office nor
handed over her files, despite the fact that she had been transferred
to the Ministry of Justice and Human Rights, was not present during
the three days when the Drafting section moved from the Post
Office
Building to the Government Complex, at Qhobosheane. The files and the
furniture she had been using were moved, in her absence,
and locked
in one of the new offices of the Drafting section, at the Government
complex. The office was kept under lock and key on
the instructions
of the Director of Administration, one Mr. Maluke, who wanted the
applicant to come and explain to him why she had
not taken the
transfer to the Ministry of Justice and Human Rights.

In her averment, about four days after the Drafting
section had been moved from the Post Office Building to the
Government Complex,
the deponent received,

9
from one of the clerical assistants, a leave form
completed and signed by the

applicant (annexure N.M.I). The leave applied for was
for the period from 6^th to 8^th September 2000.
According to her, the deponent could not approve annexure N.M.I
because the applicant had long been transferred to
the Ministry of
Justice and Human Rights, she was, therefore, no longer under her
supervision.

A few days later, but still in September 2000, the
applicant came to the deponent's new office and demanded the keys to
her new office
at the Government Complex. The deponent told her that
she should first go and see the Director of Administration under
whose instructions
she (deponent) had locked the office. The
applicant then left, saying she was going to the Director of
Administration. That was the
last time the deponent saw the applicant
who had since neither came to her office nor reported for work at the
Drafting section of
the 1^st respondent Ministry.

The deponent averred that she did not know if the
applicant had any personal documents in the office in which the files
and furniture
she had been using were locked e.g passport and cheque
book. The deponent would, however, have no objection to accompany the
applicant
into the office in which the files and the furniture she
had been using were locked, for the sole purpose of collecting her

10 personal belongings, but certainly not to use the
office or remove any Government property.

In my view, it is clear from prayer l(b) and the facts
disclosed by the affidavits that what the applicant wants is not only
to remove
her personal belongings from the office in which the files
and the furniture she had been using are locked at the Government
Complex.
She wants access to that office so that she can use it
pending finalisation of this application. That is what the deponent
is objecting
to because, in her contention, the applicant has been
transferred to the Ministry of Justice and Human Rights where her
office is
waiting for her. After she had been transferred to the
Ministry of Justice and Human Rights, the applicant simply has no
office to
use at the Drafting section of the 1st respondent Ministry.
In the light of all what she had averred in her answering affidavit,
the deponent denied, therefore, the applicant's averment that her
transfer was actuated by nothing but malice.

The deposition of Ntebaleng Morojele-Maseela that the
applicant had a negative attitude towards her and her transfer was
not, therefore,
motivated by malice, was corroborated by Semano Henry
Sekatle who also deposed to an answering affidavit in which he
averred that
he was the Principal Secretary for the

11

2^nd respondent Ministry. The responsibilities
of his Ministry included, inter alia, the promotion of efficient,
stable and disciplined
Public Service, in the Government of Lesotho.
The deponent further averred that, over a period of time, he came to
know of the conflict
between the applicant and Ntebaleng
Morojele-Maseela with the resultant inefficiency in the Drafting
section of the 1st respondent
Ministry. In order to resolve the
problem, he was eventually requested to recommend to the Minister
responsible for the Public Service
to have the applicant transferred
from the Drafting section of the 1st respondent Ministry to the Legal
Aid Department of the Ministry
of Justice and Human Rights. In that
regard, he was furnished with annexures P.M.M.5 and P.M.M.7. A
reading of the annexures left
no doubt in his mind that there
existed, between the applicant and Ntebaleng Morojele-Maseeela, a
conflict with the resultant inefficiency
in the Drafting section.
Consequently, he did recommend to the Minister responsible for the
Public Service that the applicant be
redeployed from the Drafting
section of the 1^st respondent Ministry to the Legal Aid
Department of the Ministry of Justice and Human Rights.

The Minister responsible for the Public Service,
Pakalitha Bethuel Mosisili, also deposed to an answering affidavit in
which he confirmed
that he had been approached by Semano Henry
Sekatle with a request to consider the redeployment

12
of the applicant from the 1st respondent Ministry
to the Ministry of Justice and Human Rights. After considering the
circumstances
outlined in the affidavit of Semano Henry Sekatle and
the recommendation made therein, the deponent decided, in the
interest of efficiency,
to transfer the applicant as recommended. He
informed Semano Henry Sekatle of the decision and directed him to
implement it. The
deponent denied, therefore, the applicant's
averment that her transfer had been actuated by malice and as a sort
of punishment.

The 3^rd respondent deposed to an answering
affidavit in which he averred that he too was opposing the
application on the grounds set out
in the affidavits filed, on behalf
of the 1st and the 2^nd respondents. He further averred
that he had appointed the firm of Webber Newdigate to represent all
the respondents in this case.

It is clear from the facts, disclosed by affidavits,
that the contention of the applicant is that she did not have a
negative attitude
towards Ntebaleng Morojele-Maseela, the head of the
Drafting section in the 1st respondent Ministry. She had, therefore,
a cordial
working relationship with her. This is, however, denied by
Ntebaleng Morojele-Maseela.

13
I have had the occasion to read through annexures
P.M.M.4, P.M.M.5 and

P.M.M.7 which leave me with no other impression but that
the two ladies did not work happily together. In this regard, I find
support
in the answering affidavits of Semano Henry Sekatle and the
Minister responsible for the Public Service who both averred that
they
too had read through the Annexures and got the same impression,
Viz. that the working relationship between the applicant and
Ntebaleng
Morojele-Maseela was not harmonious, at all. Hence, the
recommendation and the decision by Semano Henry Sekatle and the
Minister
responsible for the Public Service, respectively, to have
the applicant transferred from the Drafting Section of the 1st
respondent
Ministry to the Legal Aid Department of the Ministry of
Justice and Human Rights.

There was, in my finding, nothing wrong in separating,
in the interest of the efficient running of the Drafting section of
the 1^st respondent Ministry, the applicant and Ntebaleng
Morojele-Maseela by transferring the former from the Drafting Section
of the 1^st respondent Ministry. Assuming the correctness
of my finding, the salient question that immediately arises for the
determination of
the court is whether or not the Minister responsible
for the Public Service was empowered to redeploy/transfer as he did,
the applicant.
It was argued, on behalf of the applicant, that her
redeployment or transfer from the position of Principal

14 Assistant Parliamentary Counsel (Grade H) she held in
the 1st respondent Ministry to that of the Senior Legal Aid Counsel
(Grade
G) in the Legal Aid Department of the Ministry of Justice and
Human Rights amounted to a removal from office or demotion. However,
that was the prerogative of the Public Service Commission and NOT the
Minister responsible for the Public Service. In this regard
the court
was referred to S. 137 (1) of the Constitution of Lesotho, 1993. The
section reads:

"137 (1) Subject to the provisions of this
Constitution, the power to appoint persons to hold or act in office
in the Public
Service (including the power to confirm appointments),
the power to exercise disciplinary control over persons holding or
acting
in such offices and the power to remove such persons from
office shall vest in the Public Service Commission." (My
underlings)

I have underscored the words "to remove from
office" in the above cited

S. 137 (1) of the Constitution to indicate my view that
in the context in which it is used the word "remove" means
to dismiss
from office and not just to change from one office to
another. In this view, I find support in the Concise Oxford
Dictionary (9^th ed.) which defines the verb "remove"
as meaning, inter alia, to get rid of; to eliminate; to cause to be
no longer present
or available. On the other

15 hand the word transfer is defined as meaning to
change to another group, club,

department, etc.

The facts disclosed by the affidavits leave no doubt, in
my mind, that the decision of the Minister responsible for the Public
Service
was not that the applicant should be removed/dismissed from
office. That was admittedly the function of the Public Service
Commission
and not the Minister. What the Minister did decide was
that the applicant should be transferred/redeployed from the Drafting
Section
of the 1^st respondent Ministry, where she had been
doing the work of Principal Assistant Parliamentary Counsel, on
salary scale Grade H (14),
to the Legal Aid Department in the
Ministry of Justice and Human Rights, where she would be doing the
work of Senior Legal Aid Counsel
which position was on salary scale
Grade G (13). Annexure P.M.M.1, the instrument by which the applicant
was transferred, made it
quite clear that, apart from the fact of her
transfer, the, applicant's other terms and conditions of employment
remained the same.
Thus, for example, she would be working as Senior
Legal Aid Counsel which position was on salary scale- Grade G (13),
but still be
paid on salary scale - grade H (14) which was the salary
she earned while working as Principal Assistant Parliamentary
Counsel.

16
In deciding to transfer/redeploy the applicant,
as he did, the Minister

responsible for the Public Service did not, in my
finding demote her. He merely exercised the powers vested in him by
the Public Service
Act, 1995 of which

subsection (2) (viii) of section 9 clearly provides, in
part:

"(2) Without limiting the generality of subsection
(1), the Minister may make provision for all or any of the following
matters:

(0

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

(viii) redeployment of public officers within the public

service; "

Assuming the correctness of my finding, it follows that
the question I have, earlier in this judgment, posted viz. whether or
not
the Minister responsible for the public service was empowered to
transfer the applicant, as he did, must be answered in the
affirmative.
That granted, I am of the view that prayer (c) of the
notice of motion cannot succeed. In my judgment, that is sufficient
to dispose
of the whole application and it will be merely academic to
proceed to deal with the other prayers in the notice of motion.

17

In the result, this application ought to be dismissed
with costs. It is accordingly ordered.

B.K. MOLAI
JUDGE

For Applicant : Mr. Matooane For
Respondent : Mr. Molyneaux