CIV/APN/21/01
IN THE HIGH COURT OF LESOTHO

In
the matter between:-

CHAKA LEHATA APPLICANT

and

THE COMMISSIONER OF POLICE 1^st RESPONDENT

THE MINISTER OF HOME AFFAIRS 2^nd RESPONDENT

THE ATTORNEY-GENERAL 3^rd RESPONDENT

JUDGMENT

Delivered by the Hon. Mr. Justice G.N. Mofolo on the
20^th day of September, 2001.

After lengthy argument, Mr. Molapo for the applicant
conceded that the application had to do with applicant's first
interdiction and
that the ultimate dismissal was subject-matter of a
different application. He has said that applicant's case is contained
in para.4
of the applicant's founding affidavit; further that in the
present application there is no challenge of the principle of the
audi
rule.

2

For the sake of clarity, perhaps it is advisable to
advert to the application in full which reads:-

Take Notice that an Application will be made on behalf
of Chaka Lehata (hereinafter referred to as Applicant) on the 24^th
day of January, 2001 at 9.30 hrs. or so soon thereafter as counsel
for the applicant may be heard for the following relief and an
order
in the following terms:-

1. 
   Declaring the interdiction from duty on half
   pay
   applicant unlawful and of no force and effect.

   
   

2. 
   Directing and Ordering the 1^st and 2^nd
   respondents to
   pay all outstanding arrears on the monthly salary
   of
   Applicant and benefits with interest at the rate of
   18.5%
   per month from the date of interdiction to date
   of dismissal.

   
   

3. 
   Directing and Ordering the 1^st and 2^nd
   respondents to
   pay all outstanding arrears on the monthly salary
   of
   Applicant and benefits with interest at the rate of
   18.5%
   per month from date of reinstatement to the
   time when the
   respondents may lawfully interfere
   with applicant's salary.

   
   

4. 
   Directing and Ordering the 1^st and 2^nd
   respondents to
   continue to pay applicant his full salary from the

   
   

3 police service pending the results of the Appeal.

5. 
   That the respondents be ordered to pay costs of
   this
   application.

   
   

6. 
   Such further and/or alternative relief as may
   be
   considered appropriate.

   
   

With respect, this is a most confused and extremely
inelegant application making it extremely difficult to determine,
from the application,
exactly what the applicant wants. It was only
on this court taking Mr. Molapo to task that he elicited what the
application was all
about and as I have said above he has said the
substantive and material aspect of the application is contained in
paragraph 4 of
the Founding Affidavit which reads:-

I humbly submit that my interdiction on half pay is
unlawful and unconstitutional as at that stage I was merely a suspect
and the
First Respondent had no powers to interfere with my property
i.e. my salary until the disciplinary hearing or criminal proceedings
are instituted and finalized against me.

As I understand Mr. Molapo all that is being claimed is
full salary from the time of interdiction to the time applicant was
convicted
or perhaps dismissed from the police service.

4

On 21 August, 2000 as a result of applicant's conviction
on the Internal Security (General) Act, 1994 the Commissioner of
Police had
dismissed the applicant from the Police Service and on
appealing against his conviction the Commissioner of Police had
reversed his
earlier decision to discharge the applicant from the
Police Service (vide letter of 06 September, 2000) so that
effectively, until
applicant's appeal is heard the applicant can
safely be treated as within the Police Service.

Applicant's case, however, is that on being interdicted
he should not have been interdicted on half pay but on full pay on
the ground(s)
that:

1. 
   his salary is his right and it cannot be interferred
   with before there is an adverse finding against him. I have
   understood such
   adverse finding as being final
   against the
   applicant.

   
   

2. 
   he says his salary is his constitutional right
   which
   may not be interferred with until a final verdict
   against
   him.

   
   

This court is going to operate from the premise that
from the time applicant was interdicted to date and pending the
result of the
appeal, applicant is on half pay and that, should the
applicant have his way, he is to be paid the difference between his
half pay
and full salary with the effect from

5 when he was interdicted to the result of his appeal.

From the Commissioner of Police letter of interdiction,
applicant was interdicted in terms of sec.25 of the Police Order,
1971. Now,
sec. 25 of the Order reads:-

' Any member of the Force other than a senior officer
may be interdicted from duty at any time by the Commissioner or by
any senior
officer generally or specially authorised for this purpose
by the Commissioner until the determination by the Commissioner of
any
proceedings against him under this Order but he shall not by
reason of such interdiction cease to be a member of the Force.'

Provided that the powers, privileges and benefits
enjoyed by him as a member of the Force shall, during his
interdiction, be in abeyance
but he shall continue to be subject to
the same responsibilities, discipline and penalties and to the same
authority as if he had
not been interdicted.

Provided further that the Commissioner in his discretion
may order payment to such member of an allowance during the period of
his
interdiction; and if the said proceedings terminate in his favour
such member shall be entitled to payment in full of his emoluments
for the whole period of his interdiction

6

while he was a member of the Force less any
allowance already drawn.'

The section allows the Commissioner of Police to
interdict a member of the force like the applicant pending any
proceedings against
the member and this is what the Commissioner of
Police has done. The first proviso is that powers, privileges and
benefits enjoyed
by the member will be freezed notwithstanding that
for all intends and purposes he will be treated as a policeman. The
second proviso
gives the Commissioner of Police a discretion as to
payment during the period of interdiction. In his discretion the
Commissioner
of Police placed the applicant on half pay and it is
this that this court must decide namely, whether the Commissioner of
Police
used his discretion properly.

Mr. Molapo for the respondent has referred to sec. 17(1)
of the Constitution which reads:-

'No property, movable or immovable, shall be taken
possession of compulsorily, and no interest in or right over any such
property
shall be compulsorily acquired,____.'

and I wish, in addition, to refer to sub-section 2
thereof which reads:-

Any person having an interest in or right over property
which is compulsorily taken possession of or

7

whose interest in or right over any property
is
compulsorily acquired shall have a right to direct
access to
the High Court

As it is, sub-section 2 allows any party aggrieved to
approach the High Court to have his grievances addressed and it may
be said
it was in the light of this sub-section that B.M. Mepola v.
Commissioner of Police (CIV/APN/24/98) was decided for the section
clearly
gives the High Court the right to review any administrative
decisions taken relating to individual property.

In determining the law applicable, the first proviso to
sec.25 above cannot be ignored for, according to the proviso,
although an
interdicted policeman's powers, privileges and benefits
enjoyed by him are placed in abeyance during the period of
interdiction,
he continues to be subject to the same responsibilities
discipline and penalties and to the same authority as if he had not
been
interdicted' meaning, though interdicted, he operates for all
intends and purposes as if he had not been interdicted; according to
the second proviso, though operating as if he had not been
interdicted the Commissioner of Police is given a discretion to
determine
what allowance such an interdicted person may be paid. In
effect what this means is that though the subject operates like any
policeman
and is subject to the same strains and stresses of police
duty, simply because there are proceedings

8

against him the result of which is unknown he has to be
put on an allowance which is invariably not his full salary. What's
worse,
though during the period of his interdiction he has been
performing maximum duties like any fully paid policeman, should he,
in the
end, lose his case, he loses even that which he has worked
for.

I cannot think of a more unfair dispensation. A man
working at maximum capacity is entitled to be paid at maximum
capacity and applicant's
maximum capacity is his full salary.
Administrative discretion has to do with rules of natural justice and
fair play. I am of the
view that applying his discretion, the
Commissioner of Police did not apply it fairly and reasonably but
disproportionately having
regard to the implications of sec.25 above.

Mr. Motanyane has submitted since the applicant has not
replied to the Answering Affidavit, that in the circumstances the
first respondent's
assertions are to be preferred. There is nothing
in the respondent's Answering Affidavit for all it says is that the
1^st respondent has merely applied the law. I have already
said that in applying the law the 1^st respondent did so
unreasonably. What's more, the conduct of affairs complained of was
subject matter of the Police Order, 1971 and
not the Police

9 Service Act, 1998.

Accordingly, this court grants the application with
costs to the extend that the applicant be paid his full salary with
effect from
the date of his interdiction to the determination of his
appeal.

G.N. MOFOLO

JUDGE
18^th September, 2001.

For the Applicant: Mr. Molapo

For the Respondents: Mr. Motanyane