CIV/APN/324B/2001
IN THE HIGH COURT OF LESOTHO
In the matter between:
'MANKALIMENG MATSOHA (duly assisted) 1st APPLICANT
ELSIE NTSOHI (duly assisted) 2nd APPLICANT
MOHALETSANA QHOBELA 3rd APPLICANT
AND
DIRECTOR OF POSTAL SERVICES 1st RESPONDENT
PRINCIPAL SECRETARY MINSTRY OF
TRANSPORT AND COMMUNICATIONS 2nd RESPONDENT
PUBLIC SERVICE COMMISSION 3rd RESPONDENT
ATTORNEY-GENERAL 4™ RESPONDENT
JUDGMENT
Delivered bv the Honourable Mr. Justice G. N. Mofolo On the 12th day of August 2005
By my standard, this application took quite sometime to decide for it was reserved to 24 March, 2005 but unfortunately there were intervening cases which cried for decision. Apart from this Court considered this is a case in its own class deserving cool, unhurried treatment. This was at least explained to Counsel. Applicants are members of the Postal Services and according to papers before me they were suspended in or about September, 1996 and among the provisions for suspension while they were suspended without pay they were not to seek alternative employment. Later, the Public
Service Commission had reversed the Permanent Secretary's decision" and placed applicants on half-pay. Also, sometime in 1997 criminal charges were preferred against applicant and to date they are pending before the subordinate court, Maseru.
Applicants have drawn the Courts attention to the fact that "all civil servants who are under suspension are on full pay and it is their legitimate expectation that they be treated likewise". Accordingly, it is this Court's view that the sole factor to be decided in this application is whether there is authority for the proposition that public servants on suspension are, without
exception, placed on full pay. While I am on this subject, perhaps it will be useful to quote relevant legislation in this regard.
According to section 21 of the Public Service Act, 1995, the clause empowers head of department to suspend an officer from duty though the Commissioner "may order payment to that officer of the whole or a portion of his salary or benefits may be made", the central issue being that "during suspension the suspended officer is not entitled to payment of any salary or benefits as of right —."
2
As we have seen above, the Commission revised the Permanent Secretary's decision by placing applicant on half-pay.
It was in pursuit of their dissatisfaction of being placed on half-pay that applicants approached this Court seeking an order in the following terms :-
Declaring applicant's suspension from the Public Service on half pay since 1996 unfair.
Directing respondents to pay to applicants arrears of salary from the date of the purported suspension to the date of judgment.
Directing respondents to re-instate payment of the applicant's full salary pending the outcome of the criminal proceedings against them.
Costs of this application.
Further and/or alternative relief.
Respondents have opposed the application and on page 13 of the paginated record is the Notice of Intention to oppose running from page 13 to page 14 and on page 17 are paragraphs 7 and 8 at the end of which a Deponent has signed, I have looked at the index and against No. 8 of the Index is "Answering Affidavit of Matsepo Ramakoae (Molise) shown to be 15-17 meaning, I think, that the Answering Affidavit is to be found on pages
3
15-17. However, as I have shown above, there are no pages 15 and 16 there being, pages 13, 14 and 17.
I have for times without number been on record to say counsel is to take the utmost precaution to edit record of proceedings to ensure that it is properly paginated and that every minor details of documents are in the file for as it is, there's too much pressure on Courts to complete judgments timeously and albeit a necessary requirement making it absolutely un-heard of for judges to scurry around looking for missing documents and details which as I have said are to be in the record of proceedings. 1 will, however, give respondents the benefit of doubt and find that the application was in any event opposed afterall necessary details as to opposition are to be found in respondents' Heads of Argument.
In this application a point of law in limine was taken by respondents and the Court was also addressed on merits. However, when the application came for argument quite wisely I should say Mr. Mapetla for the respondents abandoned the point in limine preferring to argue the application on merits.
4
Before me Mr. Mosito has submitted he is challenging suspension and half-pay. I have already shown above that in their application applicants have challenged half-pay. This Court has also read the Founding Affidavit of the 1st applicant 'Mankalimeng Matsoha and finds "suspension" has been only referred to in passing and not challenged. Perhaps paragraph 8 of the Founding Affidavit is worth bringing into full focus.
It reads :-
"I wish to take this Honourable Court into my confidence and state that as a matter of practice all civil servants who are under suspension are on full pay. As a result our differential treatment in this regard is disconcerting. We have been advised by our attorney of record and verily believe same to be true and correct that legally the said practice of giving suspended civil servants their full pay raises on our part the legitimate expectation that we will be treated likewise.
We have been on half-pay since our suspension and this has placed considerable strain on our lives and those of our families. We have written and caused our attorney of record to write several letters to the respondent pleading for re-instatement of payment of our full salary but to no avail. We thus are left with no option but to approach this Honourable Court in the manner we have done." (My emphasis).
I am of the view that, what is challenged is 1/2 pay and not suspension. Mr. Mapetla has also submitted first, courts cannot interfere with legislative authority by substituting its own decision for that of the Public Service Commission for if applicants were dissatisfied
with 1/2 pay they should have approached the Public Service Commission on review instead of coming to
5
Court on a declaratory. He has also disputed there is precedent in our Courts placing suspended public officers on full pay and I intend answering Mr Mapetla though not necessarily seriatim.
As to the role of Courts in administrative matters, I have always understood the Court's role to be one of control within limits. Thus in Sachs v Minister of Justice, Klopperberg v Minister of Justice, 1964 (1) SA 813 (D) a case having to do with security legislation Henning J had occasion to observe:
"—Where, as in the instant case, a statute vests in the Minister the discretion to decide whether the disclosure of
information will be detrimental to public policy, the Minister's discretion is final. The Court is bound to accept his statement that he has duly exercised his discretion, unless it is shown that he acted mala fide or under a misconception."
Reading the above case closely, is seems to me when the legislature vests power on an organ of government to decide in the first place, the organ's decision may not be interfered with or as it is often said, a Court cannot substitute its own decision for that of the organ vested with legislative power and with respect this is Mapetla's argument. I wonder if Mr. Mapetla's argument would hold regard being had to the proviso namely "unless it is shown that he acted mala fide or under a misconception." Has to be recalled though that Mr. Mapetla's argument is two-pronged, namely:
6
That while the Principal Secretary suspended applicants the matter had landed on the Public Service Commission which, applying its statutory discretion had reversed the Principal Secretary's decision by placing applicants on half-pay and. it was necessary in the circumstances that applicants approach once more the Public Service Commission for a revised version of their salaries while on suspension
That this Court cannot substitute its own decision for that of the Public Service Commission as the Appeal Court has found in the uncited case of Chobokoane decided recently.
As for (1) above; I don't know how applicants would approach the Public Service Commission but if it's by way of review 1 doubt the Public Service Commission has such a procedure. Although 1 have enumerated two factors for determination, this is without prejudice to other factors raised by Mr. Mapetia mentioned by me above which will also receive attention.
The controversy between the role of Courts vis-a-vis administrative organs has raged for quite a while culminating in my view in the illustrious Liversige v Anderson (1942) AC 206 case in which under the British Defence Regulations the Secretary of State for Home Affairs had ordered the detention of a person whom, by reason of his involvement wish German nationals and his active support of national socialism the secretary believed him to be of hostile associations and a threat to public safety. Has to be remembered it was during the war years and the security of the state at risk. As is well-known, Lord Atkin in support of his contention spoke of "amid
7
the clash of arms. Courts speak the same language in war as in peace" but despite his "vigorous and celebrated*" dissent the majority of the House of Lords held that the honest, subjective "satisfaction" of the Secretary was sufficient for a valid detention order and the Court could not question the grounds for his "satisfaction" for the reason that the Court was not in the same position as the Secretary to assess the danger posed by the detainee, nor did it have the same access to information, much of which was "of a confidential character."
The majority decision in Liversige v Anderson above is the bedrock of Mr. Mapetla's contention that the Court is not privy to information at the disposal of applicants' authorities. And while this is true, I am wondering whether this Court is being told that because of the sensitivity and maybe subtle machinations associated with theft cases the Court cannot interfere despite the unreasonably long time applicants have been suspended and put on half-pay, a period well-neigh ten (10) years, it is justifiable for administrative
authorities to sit on their laurels without prosecuting applicants. If so, this is unfair and travesty of justice which this Court cannot watch silently for now that applicants are before Court the Court cannot but grant relief if circumstances deserve it.
8
While the proposition that in administrative matters a Court cannot substitute its own decision for that of the administrative organ stands, the requirement is not of blankets application seeing it has undergone considerable metamorphosis. Apparently now the objective approach advanced by Lord Atkin enjoys judicial support and it is popular in England where Liversige v Anderson is almost completely forgotten and Courts insist on examining the soundness of the factual basis on which discretionary power has been exercised. In the instant application, in the beginning the factual basis of putting applicants on half-pay was sound being supported by the statute on account of the discretionary power of the commissioners, but this has been eroded by the fact that applicants have been on half-pay for an unreasonably long time without being brought to justice and in the circumstances they have suffered prejudice. In this regard Professor Wade has been credited with having said; "Courts have an ingrained repugnance of legislative devices for making public authorities judges of the extent of their own powers, or of exempting them from judicial control (Wade p.394). It is said English courts have stopped short of reviewing matters of "pure judgment" (see Secretary of State for the Home Department, exparte Khawaja (1984) AC 74, 110 T-G) and French courts have gone a step
9
further and will set aside administrative decisions where there has been an "obvious error of judgment" - see Cf Schwartz French Administrative Law 232ff. In South Africa courts have never completely accepted that subjectively phrased powers the final say in the hands of administrative officials alone and although the majority decision in Liversige v Anderson has been influential judges do, sometimes, distinguish it or reject it completely - see Kellersmann v Minister of the Interior, 1945 TPD 179, 189ff; Minister of the Interior v Bechke, 1948 (3) SA 409 (A), 443; Tefu v Minister of Justice, 1953 (2) SA 61 (T) 67 and e.g. Watson v Commissioner of Customs and Excise, 1960 (3) SA 212 (N), 216; United Democratic Front (Western Cape Region) v Theron NO 1984 (1) SA 315 (1) 323B-E; Ndabeni v Minister of Law and Order, 1984 (3) SA 500 (D), 512-13. Cf the remarks by De Beer J in Michel v R 1944 OPD 227, 249-50.
There is also authority for the proposition that unlawful administrative decisions may also be set aside or under certain circumstances
corrected by the Supreme Court and in this regard a classic statement is to be found in Johannesburg Consolidated Investment Co v Johannesburg Town Council, 1903 TS 111,115 (emphasis added) where Innes CJ said:
10
"Whenever a public body has a duty imposed on it by statute, and disregards important provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of the duty, this Court may be asked to review the proceedings complained of and set aside or correct them. This is no special machinery created by the Legislature; it is a right inherent in the Court, which has jurisdiction to entertain all civil causes and proceedings arising (within its territorial jurisdiction — (and) is such a case as falls within the ordinary jurisdiction of the Court."
Generally speaking, a court will decline to provide a remedy where the applicant is undeserving as where there is no clear right and somehow the applicant is tarnished. The gist of the need to set aside or correct an administrative decision lies in the unlawful or irregular decision by the administrative organ and I may add any accompanying unfairness.
According to Baxter's Administrative Law p. 681, "the function of judicial review is to scrutinize the legality of administrative action, not to secure a decision by a judge in place of an administrator "for, as a general principle, the Courts will not attempt" to substitute their own decision for that of the public authority "in that if an administrative decision is found utra vires the court will usually set it aside and refer matter back to the authority for a fresh decision or, as Mr. Mapetla has contended, in the first place refer the matter back to the authority for a fresh decision. It has been said to do otherwise" would constitute an unwarranted usurpation of the powers entrusted to the public authority by the legislature —." - "—see
11
Bonnievale Wine and Brandy Co. Ltd v Gordonia Liquor Licencing Board (1953) (30 SA 500 (C), 503 per Van Winsen J. of Vries v Du Plessis NO 1967 (4) SA 469 (S), 482 CD; and it was emphasized in Jonannesburg City Council & Administrator, Transvaal, 1969 (2) SA 72 (T), 76 by Hicmstra J that "the ordinary course is to refer back because the court is slow to assume a discretion which has by statute been entrusted to another tribunal or functionary.
In exceptional circumstances though, the principle is departed from for the overriding principle is that of fairness and as was said by Holmes,
AJA:
"— The Court has a discretion, to be exercised judicially upon a consideration of the facts of each case, and — although matter will be sent back if there is no reason for not doing so, in essence it is a question of doing fairness to both sides."
It has been said from cases (Baxter p. 682 footnote 40 and cases therein quoted) it appears courts recognize at least four situations in which they will be justified in correcting the decision by substituting their own:
Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter where the decision of the public authority would be a mere formality.
Where further delay would cause unjustifiable prejudice to the applicant.
12
Where the tribunal or functionary has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again.
Where the court is in as good a position to make the decision itself (ibid pp 682-685.
I am of the view that given the circumstances of this case the end result is a foregone conclusion and it would be a waste of time to order the commission to reconsider its decision having regard to the fact that further delay would cause unjustifiable prejudice to the applicants.
It has also been said a declaratory order does no more than declare whether actual pending administrative action is lawful. In the English Court of the Exchequer, the Court has awarded relief against the Crown, in judgments which were usually declaratory in form.
While the jurisdiction disappeared when the court's general equitable jurisdiction passed to the Chancery in 1841, it became popular in ordinary civil actions against the crown following the decision in Dyson v. Attorney-General in (1911) KK 410; see also Geldenhuys and Neethling v Benthin 1918 AD 426, 439-40. South African courts themselves began to develop the remedy (Act 37 of 1988) and until the enactments of the first crown
13
Liability Act at the Cape (Act 37 of 1988) the courts could not award damages against the Crown. However, in the cases that followed, it appears the Crown simply acquiesced, taking no objection to the Court's jurisdiction. Although not provided for by the Union Crown Liability Act above, the Act prohibited the enforcement of judgments given against the Crown by legal process. From the point of view of Courts, it will be seen that the declaratory remedy was severely inhibited for the Courts would not grant a declaratory order where parties were simply in dispute over the nature of their relative rights or where the infringement or rights were merely feared or anticipated. For the order to be granted, a "concrete invasion of right had to have taken place (see pp. 698-99 Baxter above).
By decision in ex parte Farquhas, 1938 TPD 213, South African courts have recognized declaratory orders where Barry J advocated for encouragement of the orders saying:
"I wish to associate myself with the remarks made by Farwell J. (in Dyson v Attorney-General (1911) 1 KB 410) in dealing with the procedure as provided in England. He was of the opinion that it was in the public interest to provide a speedy and easy access to the Courts for a person who has any real cause of complaint . against the exercise of statutory powers by Government departments and Government officials, and I may add by public bodies generally. As he points out, the procedure will not be abused, because the Court is not bound to make a declaratory order and would refuse a declaratory order except in proper cases —."
14
It has been said a declaratory order is useful in that it may simply declare the unlawfulness of the action in question and leave it to the authority to act in whatever manner it deems fit to correct the situation (see Shaban v Culemborg Banking Corporation Ltd, 1962 (2) SA 450 (W), 451), This is exactly what applicants are availing themselves of, complaining against the exercise of statutory powers by government officers and government departments. Not only this, applicants have been on half-pay for an inordinantly long and unreasonable time and I have no doubt this will be a wake up call to these government officials and departments to seriously consider what to do with applicants considering the serious neglect of their individual rights and immunities.
I must also consider one of Mr. Mapetla's contentions raised in Ramoholi's case found in Lesotho Law Reports and Legal Bulletin 1997- 98 p. 367. This was a case in which Ramoholi was suspended from duty without pay. He was, it would seem, suspended by the Principal Secretary for the Ministry of Education. Applicant did not go via the Ministry or government structures to redress his complaint but came straight to Court for a declaratory regarding his suspension without pay.
15
The Court per Maqutu J. had amongst other things held:
"The fact that applicant was suspended without pay was an infringement upon his right.''
Like in the present application, Ramohofi's interdiction in terms of the statute prevented him seeking alternative employment and to this effect at p.375 Maqutu J. had found that "to the suspended official suspension without pay is definitely punishment." In course of his judgments at p. 376 Maqutu J. had also found the granting of a declaratory order was discretionary. Also, in Swart and Others v Minister of Education and Culture, House of Representatives and Another 1986 (3) SA 331 (C) at p. 348 F-I Selikowitz AJ is reported to have said:
"—I do not wish to enumerate nor lay down the factors that ought to be considered in reaching this decision, but there can be little doubt that the hardship that a suspended person may suffer if the suspension is for any appreciable length of time would have to be given substantial weight."
In so far as Chobokoane's case is concerned (C of A (CIV) 17/2003 (unreported this Court is of a very strong view that the present case is distinguishable from Chobokoane's case. Chobokoane's hands or record was not clean, he was convicted and sentenced of a serious crime. The High Court acting as it did was motivated by interest of minor children and the fact that the relationship between Chobokoane and his wife seemed improved. The judgment was not in sympathy with Chobokoane but the
16
best interest of third parties though quite correctly the Appeal Court found this Court would not substitute its own decision for that of the Judicial Service Commission. On the contrary, this is a hardship case without light at the end of the tunnel considering, as I have said, applicants have been suspended for well-neigh 10 years on half-pay without charges being brought against them. That they have not been charged is no fault of theirs nor are they responsible for the financial burden they have to endure.
This Court has rejected Mr. Mapetla's submissions in their entirely since it appears to this Court that it is in the nature of some heads of government departments and ministries to take advantage of government statutes and punish some civil servants by placing them at a disadvantage in suspending them and not prosecuting them. This application is granted to the effect that applicants are to be paid their full salaries from the date of their suspension up to and including finalization of any criminal proceedings that may be brought against them. Respondents will severally and jointly the one to pay and others to be absolved pay costs of this application.
17
G.N.MOFOLO
JUDGE
For the Applicant: Mr. Mosito
For the Respondents: Mr. Mapetla
18
