CIV/APN/355/03
IN THE HIGH COURT OF LESOTHO
In the matter between:
RETHABILE SAMSON MALATALIANA APPLICANT
AND
THE CHAIRMAN P.S.C 1st RESPONDENT
THE COMMISSIONER OF LANDS(a.i) 2nd RESPONDENT
THE ATTORNEY GENERAL 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Mr Justice T. Nomngcongo on the 4th day of August 2004
On the 26th June 2003, the applicant herein was informed by a letter signed by the Commissioner of Lands a.i. that at it's 5201st meeting the Public Service Commission had resolved on the 27th May 2003 that he be dismissed from office. This followed a disciplinary hearing which on the 15th November 2002 had imposed a punishment of" dismissal from office" in terms of section 27 (1) (a) of the Public Service Act No. 13 of 1995. On the 27th August he launched the present proceeding seeking relief in the following terms:-
Setting aside the dismissal from office of the applicant.
The reinstatement of the applicant with immediate effect.
Costs of suit in the event that the respondents oppose this application.
Further and/or alternative relief.
The reasons for the relief sought are set out in his founding affidavit and may be summarised as follows:
The prosecutor in the disciplinary case discredited his own witness and the adjudicator allowed this procedure and expunged the evidence of that witness from the record in contravention of section 274 of the Criminal Procedure and Evidence Act 1981. This, applicant says constituted a gross irregularity.
Applicant calls into question the credibility of the witnesses for the prosecution whom he says he should have but did not cross-examine
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because he did not have the benefit of legal advice.
Applicant was "puzzled and befuddled by the language the Tribunal used viz, words like Re-examination.."
This application was opposed and Mr Sekoati present counsel for the respondents filed an affidavit on their behalf. Mr Sekoati had also been a prosecutor in the disciplinary proceedings that gave rise to this application. In reply the applicant took issue with that fact saying it was undesirable that he should be both counsel and a witness. It may well be so, but I may point out that it is not unknown that legal practitioners should file affidavits in proceedings that they took part in. I do not wish to take the matter up any further than that. The crux of the respondents opposition is that the proceedings were not a trial such as would invoke the provisions of the Criminal Procedure and Evidence Act. Mr Sekoati also dealt with the question of the credibility of the witnesses and finally that applicant was never denied the opportunity to cross-examine the witnesses. There
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is a lot of merit in the points made on behalf of the respondents.
I would first of all generously assume that what the applicant purported to do when he approached the court as he did was to ask me to review the proceedings of the disciplinary tribunal in terms of Rule 50 of the Rules of Court. I say I assume so because there is no specific prayer for review and the prayers fall for short of the requirements of the Rule vide Rule 50 (1)
(b) which provides for instance:
"Such notice shall call upon all persons to whom the notice is addressed to show cause why such decision should not be reviewed and corrected or set aside and the notice shall call upon the magistrate presiding officer or chairman, officer or person (as the case may be) to despatch, within fourteen days of receipt of the notice to the Registrar the record of such proceedings..." (My underlining).
The applicant's complaint that a certain provision of the Criminal Procedure and Evidence Act was not complied with misses the nature of
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the proceedings that heard his disciplinary case. The proceedings were not a criminal trial as contemplated in the act and there was no need that they comply with it in any detail or at all. All that is required of the tribunals of that nature is that they afford persons who appear before it a fair hearing s in its broadest sense. They were not bound by technical niceties. It was thus put by Lord Loreburun, the English Lord Chancellor:
" I need not add that in doing either they must act in good faith and listen fairly to both sides, for that is the duty lying
upon everyone who decides anything. But I do not think that they are bound to treat such a question as though it were a trial. They have no power to administer the oath, and need not examine the witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view" Board of Education v RICE [1911] A.C. 179. Also see ADMINISTRATIVE LAW by H.W.R. WADE (3rd. Ed.) P. 192.
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The applicant also challenges the credibility of witnesses. It is trite that that is eminently a matter for appeal that could not be brought before this court. It is provided for by section 25 of the Public Service Act, which for undisclosed reasons the applicant did not avail himself of.
The complaint that had he been legally advised he might have cross-examined the witness also has no merit. He was never denied the
right to legal representation and if he did not avail himself of it, he only has himself to blame. In any case as alluded to this was not a criminal trial where he had a right to legal representation and to be advised of such right. He received a fair hearing and was afforded the opportunity to cross-examine witnesses, of which in respect of one witness he took full advantage and in respect of the other two pointedly said they were talking the truth and that is why he did not take such advantage.
As regards the point that language was used that "puzzled and befuddled" he mentions significantly the one incident of
re-examination and I pretty
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sure he cannot point to any other in that record. I refuse to believe that anyone could ask a person to re-examined himself; the assertion only has to be made to be disbelieved.
There is no merit at all in this application. It is dismissed with costs.
T. NOMNGCONGO
judge
FOR APPLICANT : MR HOEANE
FOR RESPONDENTS : MR SEKATI
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