CIV/APN/428/98

IN THE HIGH COURT OF LESOTHO
In the matter
between:-
MORAPELI MOTAUNG APPLICANT

and

ATTORNEY
GENERAL 1^st RESPONDENT

PUBLIC
SERVICE COMMISSION 2^nd RESPONDENT

JUDGMENT

Delivered by the Honourable Mr Justice S.N. Peete on the
27^th June, 2001

On the 26^th October 1998 the applicant lodged
an urgent application on notice to the respondents in which he sought
an order couched in the following
terms:-

"1, Directing second respondent to deliver within
fourteen (14) days of service upon hereof, a full record of its
proceedings,
decision and reasons for its refusal to accept the
applicant's retirement from the Public Service.

2

2. A Rule Nisi be and is hereby issued returnable on the
date and time to be determined by this Honourable Court calling upon
the
respondents to show cause (if any) why:

1. 
   The retirement of applicant from the Public Service
   shall not be declared to have been lawful and effective as of the
   31^st of March 1998.

   
   

2. 
   Section 30 (6) of the Public Service Act 1995 shall not
   be declared
   unconstitutional as being ultra vives section
   136 (11) of the Constitution of Lesotho 1993.

   
   

3. 
   The applicant shall not be declared pensionable as from
   the 31^st March
   1998.

   
   

4. 
   Respondents shall not be directed to pay applicant's
   pension with effect from the 31^st day of March 1998.

   
   

5. 
   Respondents shall not be directed to pay costs hereof.

   
   

6. 
   Applicant shall not be awarded such further and/or
   alternative relief

   
   

7. 
   The purported dismissal of applicant from Public
   Service be declared
   null and void and of no force and effect."

   
   

3

In his founding affidavit the applicant states that he
was first employed as a public officer on the 13^th
February 1967 and has since held various government positions
including those of Principal Secretary and Director of Sports.

He states that on the 18^th February 1998 he
wrote a letter tendering his retirement from the civil service. He
was fifty-four (54) years old then having been
born on the 12^th
March 1954. His letter reads:-

"P.O. BOX 52, MASERU 100 18 February 1998

The Principal Secretary,

Ministry of Tourism Sports and Culture,

P.O. Box 52

MASERU

Lesotho

Dear
Sir,

RETIREMENT FROM THE CIVIL SERVICE

Pursuant to Section 30 (3) of the Public Service Act of
1995 I hereby tender my early/optional retirement from the civil
service.

I have sixty-eight (68) days of leave due to me. I will
be on leave starting from 19^th February 1998 to the 31^st
March 1998.

I submit my other thirty (30) days of leave in lieu of
one month notice for my retirement starting from 1^st April
1998.

Yours sincerely,

A.M. MOTAUNG DIRECTOR OF SPORTS."

4

He states that he went on leave and had no response from
the second respondent until the 28^th May 1998 when he
received a letter from the Principal Secretary - Tourism which
informed him that his retirement under section 30
(3) of the Public
Service Act 1995 had not been accepted and that since his leave
ending March 31 had expired he was expected to
be on duty. The letter
reads as follows:-

"07 MAY,1998

Mr A.M. Motaung P.O. Box 52 MASERU

Dear Sir,

Reference is made to your letter dated February 18, 1998
in connection with proposed retirement from the Public Service in
terms of
Section 30 (3) of the Public Service Act No. 12 of 1995.

Arising out of the 4004^th Minutes dated May
4, 1998, Item 1029/98, the Commission having looked into the legal
opinion from the Ministry of Law and Constitutional
Affairs, the
Commission resolved that your retirement under Section 30 (3) of the
Public Service Act 1995 has not been accepted.

You are further reminded that your leave/annual Holidays
which started from February 19^th 1998 up to and including
March 31, 1998 has expired, but you have not reported for duty.

Yours faithfully

M.T. MOHAPELOA PRINCIPAL SECRETARY"

5

He further states that according to the minutes of the
Public Service Commission at its 4004^th Meeting held on
the 4^th May 1998, the Commission held that

"Arising out of the 3978^th minutes, item
579/98, having looked into the Legal Opinion from the Ministry of Law
and Constitutional Affairs

resolved that the officer's retirement under section 30
(3) of the Public Service Act 1995 be not accepted."

This
"Legal Opinion" stated in part-

"... I would advise that where officers are facing
disciplinary proceedings and they apply for an early retirement
(between 45
and 55) during the pendency of such proceedings, such
application should be refused on the same ground that there are
disciplinary
proceedings pending against them. Thus Mr Motaung's
application for early retirement should be refused accordingly. Even
if permitting
his early retirement would have no effect on the
disciplinary proceedings against him (question which is debatable at
this stage)
I consider that it is better to err on the side of
caution."

It is not in dispute that when he tendered his
retirement on the 18^th February 1998, the applicant knew
that was facing certain disciplinary charges involving some monies
allegedly used by him without
authority.

He states on the same day 28^th May 1998 he
again received a letter from Principal Secretary -Tourism which read
as follows:-

6 "22^nd MAY, 1998.

Mr M. Motaung, P.O. Box 52, MASERU. 100

Dear Mr Motaung,

I wish to refer you to my letter of 7^th May,
1998 in which I informed you that your application for early
retirement has not been accepted by the Public Service Commission
and
that your leave period comes to an end on 31^st March 1998.

We note that up to now you have not reported to work or
even provided us with any explanation for your absence. Neither have
any arrangements
been made for this absence.

We further note your continued involvement in politics
as a Civil Servant and it this respect I would like to remind you of
the provisions
of Section 14 (I) (K) (i) (ii) (iii) and (iv) and
Section 14 (1) (d) of the Public Service Act 1995.

Given the contents of paragraphs 2 and 3 above you are
required to respond within 7 days why disciplinary action cannot be
taken against
you.

Yours faithfully,

M. MOHAPELOA PRINCIPAL SECRETARY"

He maintains in his affidavit that the resolution by the
second respondent not to accept his retirement is unlawful in that it
violates
the spirit of section 30 (6) of the Public Service Act 1995
in that upon its own admission the second respondent acted

7

on the basis of a "legal opinion they had received
from the Ministry of Law and Constitutional Affairs" and not
having looked
into "the conditions in the Public Service"
as required by section 30 (6) of the Public Service Act. He further
states
that the resolution was actuated by malice and sought to
victimise him for having engaged in party politics and standing as a
candidate
for the Basotho National Party at the Lithabaneng
Constituency No.35.

He further contends that the second respondent omitted
to call upon him to make representations in contradiction to the
legal opinion
upon which the commission based its decision.

He goes on to state that on the 18^th August
1998 he received yet another letter which read as follows:-

"18^th AUGUST 1998

MR MORAPELI MOTAUNG C/O MINISTRY OF TOURISM, SPORTS &
CULTURE P.O. BOX 52 MASERU - 100

Dear Mr Motaung;

Per your letter dated 18^th February 1998, you
had applied for an early retirement, simultaneously taking leave
which was to end and did end on the 31^st March 1998. You
are aware that at the end of your said leave you failed to report for
duty notwithstanding that the results of your
application for early
retirement were still pending and unknown.

8

You have now started to be seen and heard in public
places in the country vehemently campaigning under the banner of a
political party
to be elected to the National Assembly in the past
general elections. Thus you eventually contested the elections
standing as a party
candidate in the Lithabaneng Constituency.

On the 07 May, 1998, you were notified of the refusal of
your application for early retirement and warned to attend to your
official
duties. To - date you have ignored the warning and you
continue unabated your said political activities, without any word
whatsoever
as to your responsibilities as a public officer.

All the above considered, I am considering making a
proposal to the Public Service Commission to remove you from office
in the public
interest. If you have anything to say in relation to
the above proposal, do so in writing and submit the same to my office
within
three (3) days of the receipt hereof.

Yours sincerely;

M.T. MOHAPELOA PRINCIPAL SECRETARY"

In response to these allegations, the respondents filed
their notice of intention to oppose the application and attached the
answering
affidavits of Mr Mohapeloane Teboho Mohapeloa (Principal
Secretary - Tourism) and Mr Lillo Mosala, the Chairman of the Public
Service
Commission. In his lengthy affidavit, the Principal Secretary
states that the applicant, having applied for an early retirement in
March, deserted the civil service even before he got a response from
the Public Service Commission and (a) failed to resume his duties
when his leave expired at the end of March, thus repudiating his
contract and (b) began active party politicking as Basotho National
Party Candidate in contravention of the Public Service Act 1995
Section 14 (1) (k) which reads:-

9
"(k) a public officer shall not

(i) be an active member of a political party, (ii)
speak in public on any party political matter, (iii) take an
active
part in the support of any candidate in an election, (iv)
do anything by word or deed which is calculated to further the party
political interests of any political party."

He states that in view of the fact that the applicant
knew that at the time of lodging his notification to retire, there
were serious
disciplinary charges "of the nature of embezzlement
of public funds," notice to retire was a mere ruse to escape and
evade
those disciplinary proceedings then pending against him.

He states that before it exercised its discretion under
section 30 (6) of the Public Service Act 1995, the Public Service
Commission
was entitled to seek legal opinion which opinion it could
consider in applying its mind to the issue of retirement of the
applicant.
He states that the decision for rejecting the early
retirement was, in all the circumstances reasonable; he refutes the
applicant's
contention that he ought to have been granted a hearing
before the commission come to a decision on the retirement issue
because,
so he argues, the decision not to accept retirement in no
way prejudiced the applicant vis-a-viz his status as a Director of
Sports
or his emoluments.

In his supporting affidavit, Mr Lillo Mosala, the
Chairman of the Public Service Commission briefly states:-

10

4.

"Basically, the driving force behind the
Commission's decision to turn down applicant's retirement was
considerations of public
policy and national interest, in that as the
Commission we viewed it as undesirable that applicant should be
allowed to retire in
circumstances where he was facing such serious
disciplinary charges involving substantial public funds. We
considered that if we
had allowed applicant's retirement in all the
circumstances, we would have set a very dangerous precedent as it
would open a way
to delinquent public officers taking refuge into
early retirement when facing disciplinary charges. Simply put,
applicant's early
retirements was viewed, in all the circumstances of
the case, as clearly fully stated in the answering affidavit, as an
attempt to
defeat the ends of justice and to avoid facing
disciplinary proceedings. We could not be a party to that.
Consequently, the application
was rejected. Experience has taught us
that once in retirement, an officer's whereabouts and guarantee that
he will attend to disciplinary
cases pending against him become a
problem, in as much as there is no machinery in the law to ensure
attendance in such circumstances.
Incidentally it was not revealed in
the application the reasons for early retirement. We arrived at this
decision in good faith as
the Commission. The Ministry of Tourism,
where applicant was attached, was accordingly informed of the
decision and they in turn
informed applicant."

He
goes on to state that-

"once legally advised, we had a choice either to
take the advise or to reject it. We had debated the opinion and the
advice and
the matter generally and at the end of the day adopted it
and decided accordingly. We acted wholly within our rights."

In his replying affidavit the applicant contends that-

11

"The conduct of second respondent in keeping quiet
until today has been of such a character as to lead me to believe
that he
had accepted my suggested retirement ... thus, the second
respondent is estopped by conduct from raising the issue that I just
took
a French leave."

"...It was in law incumbent upon the second
respondent to advise me timeously, that is before I retired whether
or not they accepted
or had a problem with my retirement for early
retirement.... I must emphasise, I was not applying for early
retirement but I was
notifying the commission of my said retirement.
The Commission having not objected to my said notification, I was
entitled to proceed
on retirement as I did."

According to the applicant therefore he began his
retirement on the 1^st April 1998 and that he did so before
and without knowing whether the second respondent had come to any
decision (negative or positive)
upon his notification for retirement.

The Law - Public Service Act No. 13 of 1995

"Retirement at prescribed ages or in prescribed
circumstances

30. (1) Subject to the provision 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.

   
   

3. 
   A public officer may at any time before or after
   attaining the age of forty-five years retire from the public service
   and shall
   give written notification to the relevant Principal
   Secretary of his wish to be retired from the public service.

   
   

12

(4) Where notification is given under subsection (3)-

1. 
   at least six calender months prior to the date on which
   the officer attains the age of forty-five years, the officer shall
   be retired
   on attaining that age; or

   
   

2. 
   less than six calendar months prior to the date on
   which the officer attains the age of forty-five years, the officer
   shall be retired
   on the first day of the seventh month following the
   month in which that notification is received.

   
   

5. 
   Notwithstanding subsection (2), the Commission may
   having regard to the conditions of the public service and after
   consultation
   with the Minister, retire a public officer from the
   public service before or after the public officer attains the age of
   forty-five
   years.

   
   

6. 
   The Commission may, having regard to the conditions of
   the public service, not allow a public officer from retiring from
   the public
   service under subsection (3).

   
   

7. 
   If in the opinion of the Minister it is in the public
   interest to retain a public officer in office beyond retiring age,
   the officer
   may if willing, be retained from time to time by the
   Commission for further periods that shall not exceed in the
   aggregate five
   years." (My underlining)

   
   

In
my view the following position obtains:-

(a) Upon reaching the age of fifty-five a public officer
shall retire from the public service unless retained under subsection
(7)
of section 30 of the Public Service Act 1995.

13

2. 
   An officer who has attained the age of forty-five and
   above (but below fifty-five) may in the discretion of the Public
   Service Commission
   be retired from the public service.

   
   

3. 
   An officer who has attained the age of forty-five who
   wishes to retire from public service must give a written
   notification to his
   Principal Secretary.

   
   

4. 
   An officer who wishes to be retired on his attaining
   forty-five must
   lodge his notification six (6) months prior to
   his retirement date.

   
   

5. 
   An officer who gives his notification less than six
   months before his
   attaining forty-five, shall be retired on the
   first day of the seventh month following the month in which that
   notification is received.

   
   

6. 
   The Public Service Commission at its discretion and
   after consultation with the Minister (Public Service) retire a
   public officer
   from public service before or after the officer
   attains the ages of forty-five.

   
   

7. 
   Having regard to the conditions of the public service,
   the Commission
   may not allow a public officer from retiring from
   the public service
   under section 30 (3).

   
   

14 Coming to the facts of the instant case the following
are salient features:-

1. 
   The applicant was fifty-three (53) years 11 months when
   he tendered his resignation.

   
   

2. 
   He would turn fifty-five on the 12^th March
   1999.

   
   

3. 
   There were pending disciplinary proceedings against him
   at the time. - see Motaung vs Principal Secretary - Tourism -
   1997-98 LLR
   317.

   
   

4. 
   Applicant was informed of the decision of the
   Commission not to accept his retirement on the 28^th May
   1998 (some 99 or 100 days after his February letter for retirement)

   
   

5. 
   That the Commission in resolving not to accept the
   applicant's
   retirement "looked into the legal opinion from
   the Ministry of Law and Constitutional Affairs". No mention
   being made
   of "having regard to the conditions of the public
   service."

   
   

Advocate Mosito, for applicant, contends that in paying
regard to the legal opinion as it purported to do, the Commission
misdirected
its discretion and considered a non-jurisdictional fact.
He submits therefore that in failing to have regard to the
"conditions
of the Public Service," the resolution was
improperly arrived at and must be struck down as null and void as
being ultra vires
section 30 (6) of the Public Service Act 1995.

15

The legal opinion which was looked into by the
Commission opined that applicant's retirement should be refused
because applicant was
then facing disciplinary charges and this was
adopted by the Public Service Commission. Was this consideration a
condition of the
public service? The 1995 Act does not define what
these conditions are. Concise Oxford Dictionary defines "condition"
as

"state of being or fitness of a person".

"Circumstances esp. those affecting the functioning
or

existence of something."

On the other hand, conditions of public service in my
view must necessarily and purposively mean circumstances pertaining
to the employment
status of the public servant. See Wholesale Coal
Supplies vs Goodman - 1933 TPD 330; Goodwin vs Minister of Labour
1951 (2) SA 611;
Dental Association of South Africa vs Viljoen - 1970
(3) SA 733 A.D; 1970 (1) SA 537. If a public servant is facing
disciplinary
charges which are already pending, his employment status
is in balance and that fact must certainly be taken into
consideration in
deciding whether to retire him or not. Whilst the
applicant had at his age, an equitable right to expect that he could
be retired,
things being normal, he knew that serious disciplinary
proceedings were pending against him at the time. Until these
disciplinary
proceedings were finalised, the Public Service
Commission had a legitimate interest to see that the applicant
continued being a civil
servant in order that if found guilty,
appropriate punishment could be prescribed. This is so because
section 137 of the Constitution
of Lesotho vests in the Commission
the power to exercise disciplinary control over

16

civil servants and an early retirement would
pre-emptively defeat the exercise of the disciplinary proceedings. I
am also of the view
that the provisions of section 23 of the Public
Service Act do not apply to cases of retirement, but only to those of
resignation.
Resignation is a somewhat unilateral act of the employee
(Ex Parte Moodley - 1968 (4) SA 622) whereas retirement requires by
law
acceptance of the Public Service Commission.

I cannot, in the circumstances of this case, hold that
the second respondent in exercising its discretion not to accept the
applicant's
retirement acted wrongly or improperly or was actuated by
malice towards the applicant nor can it be said that regard to the
legal
opinion misdirected the exercise of its discretion under
Section 30 (6) of the Act. "Conditions of public service"
are
multitudinous and indeed, in my considered view, include
discipline of the public servants. To retire a public servant against
whom
the Commission had preferred charges (as yet not adjudicated
upon) would be an exercise in futility because section 23 of the Act
would not come to the aid of the Commission after applicant had
retired. In fact the applicant could successfully challenge the
jurisdiction
of the adjudicator in any post-retirement proceedings.
Retirement per se involves the drastic alteration; it is in fact an
extinction
of conditions or terms of employment. On retirement, a
civil servant relinquishes his status as such, along with its rights
and duties,
he becomes eligible to pension and other benefits. Indeed
he ceases to be under the effective control of the Public Service
Commission,
and no disciplinary punishments can be meted to him.

In my view, the Public Service Commission is by law the
constitutional and statutory repository of the discretion to
determine the
conditions of the public service or its

17

state of affairs. (SA Defence and Aid Fund vs Minister
of Justice 1967 (1) SA 31.

I don't think it is the function of the court to
determine whether the requisite conditions of service or state of
affairs existed
in an objective sense without usurping the functions
of the Commission. But if, for example, the Commission based its
refusal upon
the fact that the applicant was engaged in party
politicking, I would say it acted mala fide or perhaps unreasonably.
But that is
not the case here. Retirement, unlike resignation, is not
a unilateral act and in the circumstances of this case, the applicant
could
only lawfully retire after the Commission had accepted his
retirement. That the Public Service Commission delayed its final
decision,
while not worthy of any praise, could not entitle the
applicant to assume that his retirement had been accepted. He took no
active
steps to ascertain the position and individually came to
assume that he had been retired. It was a risk that he took whereas
prudence
could have made him to inquire from the Commission the
outcome of his case so that he could begin a new life elsewhere.

Assuming that his retirement was not as effective as
from the 31^st March 1998 - as he claims - the retirement
of the applicant could only have begun on the 13th March 1999 when he
turned fifty-five.
By that date the applicant was, through his own
choice and election, no longer in the civil service.

What remains next to be determined is whether the
summary dismissal of the applicant by the Commission on the 17^th
November 1998 was in the circumstances of the case lawful. The
relevant letter reads-

18

"Ministry of Tourism, Sports & Culture,

P.O. Box 52,

MASERU 100

17^th November, 1998

TSC/P/4313

Mr A.M. Motaung, P.O. Box 52, MASERU 100

Dear
Sir,

You are informed that the Commission resolved that you
be removed by way of dismissal without disciplinary proceedings with
effect
from 1^st July 1998 in terms of Public Service
Commission Rule 6-01 (e) of 1970 reads together with section 14 (1)
(d) of the Public Service
Act 1995.

Yours faithfully,

M.T. Mohapeloa Principal Secretary"

Rule 6-01 (e) reads-

"(1) A head of department may propose in writing to
the (Government Secretary) for reference to the Commission the
removal of
an officer from office or his reduction in rank or salary
on one or more of the following grounds-

19

(a)

2. 
   

   
   

3. 
   

   
   

4. 
   

   
   

(e) that the public interest so requires"

The 1970 Public Service Order was repealed by the Public
Service Act 1995 whose Section 14 (1) (d) reads-

"General rules of conduct

14.(1) A public officer shall comply with the
following general rules of conduct

(a)

(b)

(c)

(d) a public officer shall not be absent from official
duties during office hours without leave or valid excuse."

Section 27 of the Act states-

"(1) The following punishments may be imposed on
a public officer who has been proved to have committed a breach of
discipline.

20

1. 
   dismissal from office;

   
   

2. 
   removal from office by compulsory retirement;

   
   

3. 
   

   
   

4. 
   

   
   

5. 
   

   
   

(f)

(g)

(h)

(i)

(2) The imposition of a punishment under subsection
(1) may be postponed for a period not exceeding 6 months."

It is not in dispute that when the applicant's leave
holiday expired on March 31,1998, the applicant never again reported
for duty
since 1^st April, 1998.

It is also not in dispute that the letters dated 7^th
May 1998 and 22^nd May 1998 were received by the applicant,
and that the latest letter was written on 18^th August 1998
advising applicant that a proposal would be made to the Commission to
remove him from office in the public interest and
was invited to
respond in writing within three days. He did not make any response.

It seems to me that dismissal from office can only come
about under section 27 of the Public Service Act of 1995 and that the
breach
of discipline must be proved under Part 3 of the Act dealing
with disciplinary proceedings which involve a charge

21 (section 19), and an inquiry (section 21) during
which the officer shall have the right to be present and to be heard
either personally
or through his representative, to cross-examine any
person called as a witness in support of the charge and to give
evidence himself
or call other persons as witnesses. In the present
case, none of these occurred in the summary dismissal of the
applicant. He was
not served with the charge upon which his ultimate
dismissal was premised. He only received the letter of dismissal
dated 17^th November 1998. I cannot sensibly reconcile the
provision of Rule 6-01 of the Public Service Commission Rules 1970
with the clear
provisions of the Public Service Act 1995. The
applicant, despite his absence from office, could still be contacted
and should have
been served with a formal charge. He ought to have
been given a fair hearing as mandated under section 21 of the 1995
Act - See Nthejane
vs National Motors Co.- 1991-96(2) LLR 833:
Bongani Tsotsi vs IDM -1985-1990 LLR 384.

"Valid excuse" under section 14 (1) (d)
imports an explanation of some kind from the absconding officer. See
Matebesi vs
Director of Immigration - 1997-98 LLR 455 which however
considered the repealed Public Service Order 1970 (section 6 (3)
thereof).
It is clear however that in the 1995 Act there is no clause
limiting the right to be heard before being dismissed.

Speaking about section 6 (3) of the 1970 Public Service
Order Gauntlett JA had this to say-

22

"This provision would appear to be underpinned by
the practical difficulty which will often arise in an instance of
protracted
absenteeism or desertion. Either undermines the capacity
of the employer to investigate the situation properly and
expeditiously.
The ability of the employer conveniently and swiftly
to ascertain from the absentee employee why she is absent must nearly
always
be difficult; if not impossible. On the facts of this matter,
that was indeed the case here."

Under the Public Service Act of 1995, it seems to me,
that an absconding or deserting officer cannot be summarily dismissed
without
a hearing as was the case under the 1970 Public Service
Order. I therefore hold that the purported summary dismissal of the
applicant
under Public Service Rule 6-01 was inconsistent with the
provisions of the Public Service Act of 1995. In passing it must be
mentioned
that the Minister responsible for the Public Service should
be advised to make appropriate regulations under the Public Service
Act
of 1995. Old rules and regulations made under a repealed
legislation are usually not always consistent with a new legislation.
This
is important because the 1995 Public Service Act was passed
after the promulgation of the 1993 democratic Constitution of
Lesotho.

I do not find it necessary to make a declaration on the
constitutionality or otherwise of section 30 (6) of the Public
Service Act
1995 because the section in no fetters the powers and
discretion of the Public Service Commission. It is a general
sub-section which
seeks to facilitate the work of the Commission. It
is advisory and permissive and in no way seeks to direct or control
the Commission
in the exercise of its functions (Section 137 (11) of
the Constitution).

23

The application is therefore dismissed with costs
regarding prayers 2 (a) (b) (c) (d). Prayer 2 (g) of the application
succeeds with
costs.

JUDGE

For Applicant : Advocate Mosito
For
Respondents : Advocate Masoabi