C of A
(CIV) 2/05

CIV/APN/418/04

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

MINISTER
OF HOME AFFAIRS 1st APPELLANT

MINISTER
OF PUBLIC SERVICE 2nd APPELLANT

COMMISSIONER
OF POLICE 3rd APPELLANT

ATTORNEY
GENERAL 4th APPELLANT

and

MAMPHO
MOFOLO RESPONDENT

11 and 20
April 2005

CORAM :
STEYN P

GROSSKOPF JA

MELUNSKY JA

Summary

Police
officer - retirement of - whether retired under regulation 11(1) or
11 (2) of regulations made under Police Service Act,
1998 -
regulation 11(1) does not contemplate a prior hearing - whether
regulations ultra vires - rights of the officer to be heard
prior to
retirement - regulation 11(1) interferes with existing rights -
presumption against retrospectively - regulation 11(1)
does not apply
to police officers who had acquired rights to retire at age of 55.

2

MELUNSKY
JA:

[1] The
main issue that has to be decided in this appeal is whether the
respondent, an inspector in the Lesotho Mounted Police Service
("the
LMPS"), was obliged to accept compulsory retirement on reaching
the age of 50, as the appellants contend, or whether,
as she
maintains, she is entitled to remain a member of the LMPS until she
becomes 55 years of age. The respondent was 50 years
old when she
deposed to her founding affidavit on 16 August 2004 but the date when
she reached that age does not appear from the
record. The parties are
in agreement that before the promulgation of regulations made under
the Police Service Act, 7 of 1998 ("the
Act"), the
respondent would have retired at the age of 55 years but there is a
dispute whether this retirement age arose out
of a practice that had
evolved or whether it was based on a statutory right. The
interpretation, application and validity of the
regulations, insofar
as they deal with the retirement of members of the LMPS, are
therefore crucial to the outcome of this appeal.

[2] The
regulations were published under Legal Notice 202 of 2003 ("the
2003 regulations"). Regulation 11, which deals
with the subject
of

3

retirement,
was amended by regulation 3 of regulations promulgated under Legal
Notice 95 of 2004 ("the 2004 regulations").
The relevant
provisions of regulation 11, as amended, read:

"11 (1) Subject to this regulation, a Police Officer shall
retire from the Police Service, and shall be so retired on attaining

the age of 55 years in the case of a Senior Officer and the age of 50
years in the case of a subordinate officer and other ranks.

2. The
   Commissioner may, having regard to the conditions of the Police
   Service and after consultation with the Police Authority,
   retire a
   member of the Police Service before or after the member concerned -

   
   

1. in
   the case of a senior officer, attains the age of 55 years; and

   
   

2. in
   the case of subordinate officer attains the age of 50 years.

   
   

2. .................................

   
   

2. .................................

   
   

2. Where
   the Police Authority is of the opinion that it is in the public
   interest to retain the services of a police officer beyond
   retiring
   age, the officer may if so willing, be retained from time to time by
   the Commissioner, for further periods that shall
   not in the
   aggregate exceed 5 years".

   
   

Two
matters require to be noted : the first is that the only material
amendments introduced by the 2004 regulations relate to the
ages for
retirement. Before amendment the ages for retirement were
considerably lower - 45 years in the case of a senior officer
and 40
years in the case of a

4

subordinate
officer and other ranks. Secondly, at all material times the
respondent was a subordinate officer for the purposes of
the
regulations.

[3] The
respondent was appointed to the Police Service in 1975, apparently on
a temporary basis. Her appointment became permanent
in 1984 and
consequently she became entitled to a pension on her retirement. On
17 June 2004 the respondent was informed of the
contents of a
wireless message sent to Superintendent Sehlabo of the LMPS
instructing him to make his subordinates

"....................aware of the contents of regulation 3(b) of
the LMPS Administration (Amendment) Regulation 2004 which
provides
that such officers shall retire at the age of 50".

The
message added :

"Officers who are going to be affected by this regulation are
those who have or will attain 50 years of age after this regulation

(amendment) became effective as the law doesn't apply
retrospectively".

Regulation
3(b) of the 2004 regulations was substantially a re-enactment of
regulation H(2) of the 2003 regulations, the only important

difference being the alterations to the ages of retirement, which I
have already noted. Consequently the message might more appropriately

have referred to

5

"regulation
H(2) of the LMPS regulations, as amended. It may also be noted that
regulation 3(a) of the 2004 regulations did
nothing more than delete
the ages of 45 years and 40 years in regulation 11(1) and replace
them with the ages of 55 years and 50
years respectively.

[4] On 30
June Superintendent Sehlabo was instructed by wireless to inform the
respondent that she should"............proceed
on leave pending
retirement w.e.f. 23.07.04 to 24.11.04"and that a "formal
letter" would follow. Subsequently the
respondent received the
letter written on behalf of the Commissioner of Police ("the
Commissioner") on 29 June. In the
letter the respondent was
informed that she should proceed on 85 days' leave "pending
retirement" with effect from 23
July to 24 November 2004, which
would be her last day of service.

[5] As a
result of the communications mentioned above, the respondent
instituted proceedings on motion. On 3 September 2004, Peete
J
granted an order which in para 1 called upon the appellants to show
cause, if any why:

6

"(a) The ordinary rules of this Honourable Court pertaining to
periods and mode of services shall not be dispensed with on
account
of the urgency of this matter.

2. An
   order shall not be made declaring the applicant's purported
   compulsory retirement from the police service null and void.

   
   

2. An
   order shall not be made reinstating applicant to her position in the
   Lesotho Mounted Police Service.

   
   

2. (d)
   An order shall not be made declaring respondents' failure to give
   applicant reasonable notice of the intention to retire her

   compulsorily an illegal act.

   
   

2. Respondents
   or their servants shall not be restrained and interdicted from
   withholding applicant's salary pending the finalisation
   of this
   application.

   
   

2. Alternatively,
   directing the respondents to determine and pay applicant's pension
   as if she retired at the age 55 years.

   
   

2. Respondents
   shall not be directed to pay the costs of this application.
   

   
   

2. Granting
   applicant further and/or alternative relief."

   
   

Para 2 of
the order directed that para 1(a) and (e) thereof were to operate as
interim relief with immediate effect.

In her
founding affidavit the respondent made it clear that she was under
the impression that she was being retired by the Commissioner
in
terms of regulation 11(2) (as amended) and that this belief was
induced by the reference to regulation 3(b) of the 2004 regulations

in the first wireless message. It was only on 14 September that the
Commissioner (the third appellant in this appeal) wrote to
the
appellant advising her that her

7

retirement
with effect from 24 November was in terms of regulation 11 as amended
by regulation 3(a) of the 2004 regulations. That
is how matters stood
when the application came before Majara AJ on the extended return
day. For various reasons, some of which
will be referred to in this
judgment, the learned judge granted the respondent's application with
costs, thereby impliedly confirming
the rule nisi. It is against that
order that the appellants appeal to this court.

[6] The
learned judge decided to deal with the application on the basis that
the respondent had been retired by the Commissioner
under the
provisions of the amended regulation 11(2). She considered that in
terms of this regulation the respondent was entitled
to a hearing or
the right to make representations before the Commissioner retired her
but was afforded no such right. The learned
judge was undoubtedly
correct in holding that the audi alteram partem maxim had to be
applied before the Commissioner acted in
terms of regulation H(2).
This much was conceded on the appellants behalf. Counsel for the
appellants submitted, however, both
before us and in the Court a quo
that the respondent, having reached the age of 50, was obliged to
retire in terms of regulation
11(1) ; that the reference to

8

regulation
3(b) in the first wireless message was clearly erroneous; that the
error who obvious if regard was had to the wireless
communication as
a whole ; and that the error was corrected by the letter of 14
September 2004.

[7] The
Court a quo rejected these submissions, mainly on the ground that it
would be unfair to the respondent to permit the appellants
to "change
their stance at this stage," i.e. after the rule nisi had been
granted. The learned Judge added :

"............to allow a decision maker to wait until after an
employee has approached the Court and been granted an interdict
and
only then purport to make a new case would be a grave injustice to
such an employee."

I have a
different view of the matter. The appellants were not before Peete J
when he granted the rule, although service of the
papers had been
effected on them some five days earlier. They filed their opposing
papers on 21 September. In the opposing affidavit
the Acting
Commissioner made it clear that the reference to regulation 3(b) in
the first wireless message was "a mistake"
and that the
relevant regulation was intended to be 11(1) as amended. It is
important to note that the appellants did not change
their stance or
alter the basis of their defence during the course of the litigation.

9

What they
did was to attempt to correct an erroneous impression that might have
been created by a wireless message which was sent
before the
litigation commenced. There is no reason why they could not do so.
What the learned Judge should have done was to have
had regard to the
affidavit of the Acting Commissioner and not, in effect, to treat it
as pro non scripto.

[8] The
wireless message in question contained two inconsistent statements -
that regulation 3(b) (regulation 11(2) as amended)
was of application
and that in terms of the regulation the respondent was obliged to
retire at the age of 50 years. But regulation
11(2), as amended by
3(b), does not provide that an officer shall retire at the age of
fifty. Compulsory retirement on the grounds
of age is provided for
only in regulation 11(1) as amended by 3(a) in 2004. This provides
ample support for the Acting Commissioner's
assertion that the
incorrect section was quoted in the message. I add that when faced
with the inconsistencies which are so apparent
in the wireless
communication, the respondent could have sought clarification from
the Commissioner before commencing legal proceedings.
More
importantly the respondent suffered no real prejudice once she became

10

aware of
the Commissioner's error. She had the right to respond to the Acting
Commissioner's allegations in her replying affidavit
and she did so.

Moreover
she was, in the circumstances, entitled to expand upon the averments
contained in her founding affidavit and, if so advised,
she could
have applied to amend the notice of motion. I do not agree that the
respondent was subjected to unfairness or that she
suffered an
injustice -much less an injustice that was grave - due to the
appellants' desire to put their defence properly before
the court,
nor did her counsel, in argument before us, point to any respect in
which she was prejudiced. It was and remains the
appellants'
contention that the respondent was obliged to retire by the operation
of law in terms of regulation 11(1) as amended
on reaching the age of
50 years. What will be considered in due course is whether this
contention is correct.

[9] On
the respondent's behalf it was argued that even if regulation 11 (1)
applies to the case, considerations of fairness required
that she
should have been given the opportunity to make representations before
the regulation was implemented or made applicable
to her. This
submission was

11

predicated
on the assumption that immediately before the regulations came into
operation the respondent had a statutory right to
remain in service
until she reached the age of 55 years. Whether she had such a right
or merely an expectation, as the appellants
submit, is also a matter
that will be adverted to later, for even if the respondent's
retirement age had previously been governed
by statute, principles of
fairness or natural justice cannot be imported into regulation 11(1)
in the manner suggested by the respondent's
counsel. Principles of
fairness arise where a statute confers administrative powers on a
functionary, particularly the right to
make a decision that might
adversely affect a person. In such circumstances, as Lord Mustill
aptly put it in Doody v Secretary
of State [1993] 3 All ER 92 (HL) at
106 :

"Since the person affected usually cannot make worthwhile
representations without knowing what factors may weigh against him,

he is informed of the gist of the case he has to answer."

[10] The
well-known maxim of audi alteram partem is frequently invoked. It was
described as "sacred" by Stratford ACJ
in Sachs v Minister
of Justice 1934 AD 11 at 38 and so it is in its proper setting,
namely, when a statute empowers a public official
to give a decision
which may prejudicially affect the property or liberty of an
individual. The maxim does not apply where no

12

administrative
action is contemplated or where no decision needs to be given by an
official or body. No administrative action is
envisaged in regulation
11(1), nor does the regulation make provision for a decision to be
given whereby its terms are to be implemented
or applied to a member
of the LMPS. The regulation simply prescribes the retirement ages of
members of the police service and,
according to its provisions,
retirement becomes effective by the operation of law and not due to
the action of an official. Consequently
the argument put forward by
the respondent's counsel cannot succeed on this point.

[11] A
further argument put forward by the respondent's counsel was that the
first appellant ("the Minister") was not
authorised by an
Act of Parliament to regulate on the ages of retirement of members of
the LMPS. This argument was upheld by the
learned judge a quo. The
enabling provision which is applicable to this appeal is section 84
of the Act which, under the heading
Regulations, reads:

"84 (1) The Police Authority may, after consultation with the
Commissioner, and, in respect of matters concerning pay, allowances,

leave entitlement, pensions and compensation for death or injury on
duty, the Minister responsible for the Public Service and the

Minister of Finance, make regulations relating to the government,
administration and conditions of service of the Police Service.

13

2. Without
   prejudice to the generality of subsection (1), regulations under
   this section may make provision with respect to all or
   any of the
   following matters

   
   

1. the
   ranks to be held by police officers;

   
   

2. the
   qualifications for appointment and promotions of police officers;

   
   

3. the
   definitions of offences against discipline and the penalties
   therefore;

   
   

4. pay,
   allowances and leave entitlement of police officers;

   
   

5. pensions
   and compensation for death or injury while on duty; and

   
   

6. the
   issue, use and return of police uniform, equipment and
   accoutrements;

   
   

Provided
that Regulations in relation to appointments and promotions shall
provide that all such appointments and promotions shall
be on the
basis of merit".

[12] The
argument advanced on the appellant's behalf, as I understood it, was
that subsection (1) deals with the general power to
make regulations
but that subsection (2) specifies the particular subjects or items
that could be covered by such regulations,
in other words that the
Police Authority, being the Minister, could make regulations only in
respect of the matters set out in
section 84(2). This submission
appears to ignore the clear grammatical words used in the section.
Subsection (1) provides that
the Minister may make regulation under
three main headings -

"the government, administration and conditions of service of the
Police Service".

14

Subsection
(2) does not, however, in any way limit the general powers given, to
the Minister under section 84(1). The opening expression
in
subsection (2) - "without prejudice to the generality of
subsection (1)" -makes this quite clear. There is no need
to
consider this argument any further.

[13] The
learned judge a quo, however, held the regulations were, in effect,
ultra vires, not because subsection (2) limited the
Minister's power
to regulate only to the specific subjects in that subsection, but on
the more general ground that

"nowhere in the regulations [ presumably, the Act] has the
Minister either expressly or impliedly, been authorised by Parliament

to make regulations relating to the age [of] retirement of Police
Officers."

A similar
approach was adopted by the respondent's counsel in his heads of
argument but this was not, quite correctly, pursued with
any vigour
at the hearing of the appeal. The expression "conditions of
service" in subsection (1) is obviously intended
to be a
reference to conditions of service of members of the LMPS. Moreover
the phrase clearly means the terms of the contracts
of employment of
police officers and not the physical conditions or

15

circumstances
surrounding officers during such employment (cf. The construction
placed on "conditions of labour" and "conditions
of
employment" in Wholesale Coal Supplies Ltd v Goodman, 1933 TPD
321 at 329-330). The duration or term of period of a service
contract
is an element, if not an essential requirement, of such a contract
(see Joubert fed) Law of South Africa vol 13 (first
reissue) Part I,
paras 87 and 100). It must follow, therefore, that once the Minister
is given the power to regulate on the conditions
of service of police
officers, he has the right to specify for how long the contract is to
endure and when and under what circumstances
it may terminate. In
Wholesale Coal Supplies Ltd v Goodman (supra) it was held that where
the Minister had power under the statute
to provide for conditions of
employment, he could lawfully prescribe the period of notice to
terminate it. Similarly, and pursuant
to section 84 of the Act, the
Minister may by regulation prescribe when and under what circumstance
members of the police service
may be required to retire. In the
result regulation 11 (as amended) is not ultra vires.

[14] The
way is now clear to consider the most critical aspect of this appeal
which is whether regulation 11(1) applies to police
officers who were

16

entitled
to a pension by statute when the regulations became effective. It is
not strictly

necessary
to deal with regulation 11(2) in this regard for the simple reason
that the Commissioner did not retire the respondent
in terms of that
provision. The application of regulation 11(1) needs to be considered
in the light of the presumption against
the retrospective operation
of the law. The presumption may be applied in two different contexts:
first, where a statute operates
backwards, i.e. if an Act provides
that at a past date the law shall be taken to be that which is not,
sometimes referred to as
retroactive operation, and second, when a
statute interferes with existing rights and obligations (see Van Lear
v Van Lear 1979
(3) SA 1162(W) at 1164 E-F). We were referred by the
respondent's counsel to section 27C of the Interpretation (Amendment)
Act,
4 of 1993, which reads :

"Subsidiary
legislation shall not be expressed to take effect from a date before
the date of its publication in the Gazette
where if the legislation
so took effect -

1. the
   rights of a person (other than the Government of Lesotho or a
   statutory corporation) existing at the date of publication would
   be
   affected in a manner prejudicial to that person; or

   
   

2. liabilities
   would be imposed on a person (other than the Government of Lesotho
   or a statutory corporation) in respect of any act
   or omission before
   the date of publication, and where any subsidiary legislation
   contains a provision in contravention of this
   section that provision
   is void and of no effect".

   
   

17

[15] The
regulations now in issue are subsidiary legislation and for this
reason it was argued on the respondent's behalf that

"their retrospective effect is of no effect and void in as far
as appellants purport to apply them to the respondent
retrospectively".

Section
27C deal with only the first sense in which retrospectivity is used,
i.e. where it is expressed (my emphasis) to take effect
from a date
before the date of its publication in the Gazette. No such expression
appears in regulation 11. Thus section 27C is
of no application to
this matter but what still remains to be considered is whether
regulation 11(1) interferes with or takes away
a vested right
acquired by the respondent.

[16] This
is the stage at which it becomes necessary to decide whether, before
the regulations were promulgated, the respondent
had a statutory and
legal right to retire at the age of 55 years or whether, as the
appellant contends, she did not have a right
but merely an
expectation arising out of a practice that had developed. To decide
the matter, it is necessary to have regard to
some of the more
important statutory provisions which, where

18

practicable,
I shall attempt to summarise as briefly as possible. These provisions
are :

(i) The Pension Proclamation, No 4 of 1964 provides in section 6(1)
(a) (i) for the payment of a pension to an officer if inter
alia he
retired from public service under the Government of Lesotho on
reaching the age of 55 years. Section 8 of the Proclamation
provided
for compulsory retirement at the age of 55 or at the age of 45 on six
months notice.

(ii) Both of the aforesaid provisions were repealed, the former by
Pension (Amendment) Order 39 of 1970 which provided for payment
of a
pension if an officer retired from public service under the
Government of Lesotho "on or after he attains an age at which
an
office is, by any law to be vacated." Section 8 of the 1964
Pensions Proclamation was eventually replaced by section 12(1)
of the
Public Service Order 21 of 1970 which read:

"Subject to the other subsections of this section, a public
officer shall have the right to retire from the public service
and
shall be so retired, on attaining the age of fifty-five years".

19

I shall
advert to the other subsections later. All that needs to noted now is
that section 2(1) of the Public Service Order defined
a public
officer as " a person holding or acting in any public office."

(iii) Subsequently the Police Order, 26 of 1971 came into operation.
No retirement age was prescribed under this Order but the

Commissioner did have the power to retire a member of the Force on
certain specified grounds such as a "reduction of
establishment",
medical grounds, habitual inattention to orders
or general incompetence (section 29).

(iv) The Lesotho Mounted Police Regulations 1972 were promulgated
under the Police Order 1971. Regulation 14 read :

"The grants of pensions and gratuities to all members of the
Force shall be governed by the Pensions Proclamation 1964."

[17] I
pause here to make the following observations:

(i) When the respondent joined the Police Service in April 1975, her
conditions of service were governed by the Police Order. Her

20

retirement age, however, was not dealt with in the order but
regulation 14 applied the provisions of the Pensions Proclamation

1964 to "all members of the Force."

(ii) Notwithstanding the provisions of regulation 14, most of the
relevant provisions of the Pensions Proclamation 1964, had already

been repealed. It may be noted that regulation 12 of the 2003
regulations also applies the Pensions Proclamation 1964 to members
of
the police service.

[17] The
Public Service Order 1970 was repealed by the Public Service Act 13
of 1995. Sections 30(1) and (2) of this Act read:

"(1) Subject to the provisions 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."

   
   

These
sections are similar to the provisions contained in the sections
12(1) and (2) of the repealed statute.

21

[18] The
final statute which needs to be mentioned is the Act (the Police
Service Act 1998) which repealed the Police Order of 1971.
Section
85(2) (a) of the Act provides that a serving member of the LMPF shall
continue to be a member of the Police Service "as
if he had been
appointed under the provisions of this Act." Section 31 of the
Act gives the Commissioner the right to retire
police officers on
grounds similar to those contained in section 29 of the Police Order
1971.

[19] The
appellants' counsel submitted before us that the Public Service Order
1970 and its successor, the Public Service Act 1995,
did not apply to
members of the LMPS once the Police Service Order 1971 came into
force. The reason is the following, according
to the argument: the
Police Service Order 1971 and its successor, the Police Service Act
1998 are self-contained Acts dealing only
with the police services;
and that while police officers are "public officers" for
the purposes of both the 1970 Public
Service Order and the 1995
Public Service Act, they are no longer treated in the same way as
other public servants, as their conditions
of service are governed by
separate legislation, i.e. the Police Service Statutes. As such the
respondent had no legal right to
retire at the age of 55 and the
question of restrospectivity was

22

irrelevant.
We were not, however, referred to any provision of the Police
legislation that expressly excluded members of the police
from the
operation of the retirement enactments of the Public Service Acts.
There is nevertheless considerable force in these submissions
and
they are strengthened by some of the provisions in the Public Service
legislation relating specifically to retirement. These
are referred
to in para [20] below.

[20] In
terms of the police legislation certain important rights and powers
are reserved for the Commissioner and the Minister.
Thus in terms of
this legislation it is the Commissioner, subject to the direction of
the Minister in certain instances, who has
the general control of the
administration of the Police Service in his hands (see section 5 of
the Police Order, 1971 and section
13 of the Act) and there is
certainly no indication that any other Minister, person or body may
be involved in the affairs of the
Police Service. But under the
retirement provisions of the Public Service statutes certain powers
and duties in relation to the
retirement of officers are given to the
Minister responsible for the public service, the Principal Secretary
and the Public Service
Commission (see sections 12(4), (5), (7) and
10 of the Public Service Order, 1970 and sections 30(2) to 30(8) of
the Public Service

23

Act,
1995). These provisions, while not in conflict with the powers of the
Commissioner and Minister under the Police legislation,
do encroach
upon the administrative powers and functions of these officials.

[21] On
the other hand the compelling argument advanced by the respondent and
expressed in the judgment of the learned judge a quo
is that the
retirement date of members of the Police Service since 1971, if not
earlier, would have had no statutory basis unless
the Public Service
retirement laws applied to them. Furthermore, police officers, in
respect of retirement provisions, would be
treated differently to all
other public officers. Effectively this would mean that police
officers would, as counsel for the appellants
put it, have nothing
more than an expectation to retire at the age of fifty-five. What is
more, there would be no general statutory
power by the responsible
authority to compel a member of the LMPS to retire before reaching
that age or the right to extend the
retirement age. There may be
substantive reasons for compelling a police officer to take early
retirement (see sections 30(5) and
(8) of the Public Service Act
1995) or for extending the retirement date beyond the age of 55 years
(see sections 30(6) and (7)
of the said Act).

24

[22] In
weighing up the respective arguments I have come to the conclusion
that the submissions of the respondent should prevail
for the
following reasons:-

1. The
   provisions of the Public Service statutes are wide enough to apply
   to all "public officers", including police officers,

   according to the definitions and the ordinary grammatical meaning of
   the words. This is accepted by the appellants.

   
   

2. It
   is unlikely that the legislation would have excluded police officers
   for over 30 years from the retirement provisions that
   applied to all
   other public officers. Prima facie it may be assumed that the
   legislature intended to treat all public officers
   on the same
   footing in the absence of specific provisions to the contrary. In
   fact the Pension Proclamation 1964, although repealed,
   was expressly
   applied to police officers (see paras [16(iv)] and [17]above.

   
   

3. Had
   it been the intention of Parliament to exclude police officers from
   all of the provisions the Public Service Act this would
   probably
   have

   
   

25

been clearly stated in the enactments. It is not sufficient, in my
view, to hold that the retirement provisions were excluded by

implication or inference. Although it may be possible to imply or
infer such an exclusionary term, the implication is not a necessary

one and the inference falls far short of being irresistible.

4. The
   retirement provisions exist not only for the benefit of the public
   officer but also for the benefit of the Ministers and senior

   officials in the control of the departments, as I have pointed out.
   It is therefore reasonable to assume that the legislature,
   apart
   from giving adequate protection to members of the public service,
   would also have had regard to the reasonable requirements
   of the
   officials in control of the administration of the Government of
   Lesotho by permitting such persons also to have some say
   in the
   retirement ages of employees.

   
   

[23] All
of these considerations lead to the conclusions that police officers
did have statutory rights in respect of retirement
before the 2003
regulations became of force and effect and that the retirement
provisions did not have obscure origins in an undefined
practice.
Incidentally this, too, seems to

26

have been
the view of the Principal Secretary for Home Affairs according to a
circular issued on 7 September 1998.

[24] The
final question is whether regulation H(1) applies to all police
officers, including those with a statutory right to a pension
before
the 2003 regulations (as amended) came into effect. This is where the
presumption against retrospectivity in the second
sense in which I
have used it in para [15] above needs to be considered. In this
sense, as I have mentioned, a statute is said
to be retrospective
when it takes away or interferes with an existing right (see the
discussion in Cape Town Municipality v F Robb
& Co Ltd 1996 (4)
SA 329 (A) at 350G - 35ID). The presumption is based on notions of
fairness but it nevertheless remains a
presumption - albeit it a
"strong presumption" as Baxter points out in Administrative
Law at 355. It is so fundamental
a principle and has been so
frequently applied that it would be an act of supererogation for me
to say more than that the scope
of legislation which seeks to remove
vested rights should be restrictively interpreted. Important as the
presumption is, however
the legislature in general is free to depart
from it either expressly or by implication. The right

27

to
enfringe would seem to apply to regulations in addition to Acts as
section 24 of the Interpretation Act, 19 of 1977 provides:

"Subsidiary legislation shall have the same force and effect and
shall be as binding and shall be constructed for all purposes
as if
it had been contained in the Act under which it was made."

[25]
Counsel for the appellants submitted that the presumption was
rebutted by the very words employed in regulation 11(1). This
was so,
he argued, because of the peremptory nature of the provisions. The
fact that the regulation enacts that a police officer
"shall
retire from the Police Service, and shall be so retired" does
not address the question. Those words do not mean
the regulation
should be construed so to apply to all police officers, irrespective
as to whether the officer had already acquired
a right to retire at a
later date. Nor are there any other provisions, either in the Act or
in the regulations, which, whether
expressly or by implication, would
justify this Court in holding that the presumption against
retrospectivity has been excluded
in regulation 11(1). This leads
inexorably to the conclusion that the regulation does not apply to
the respondent and that she
was not obliged to retire on reaching the
age of 50 years. This conclusion is not affected by the fact that the
respondent's right
to remain in employment under the earlier

28

legislation
was not unqualified : for although she could have been required to
retire earlier in terms of section 30(2) of the Public
Service, 1995,
this did not occur.

[26] I am
not convinced that I would have reached a different conclusion even
if the respondent had a legitimate expectation, based
on a practice,
and not a statutory right, to retire at the age of 55 years. While it
is not strictly necessary to decide the point,
the following factors
seem to be relevant:

1. Although
   the Supreme Court of Appeal in South Africa has held that a
   legitimate expectation relates to procedural matters only
   (see Meyer
   v Iscor Pension Fund 2003 (2) SA 715 at 732 A-E and the authorities
   referred to therein), it has also been held and,
   in my view, not
   without merit, that

   
   

"the legitimate expectation refers to the rights sought to be
taken away and not the right to a hearing." (see Mokoena
and
Others v Administrator. Transvaal 1988 (4) SA 912 (W) at 918 D)

29

2. In
English law the doctrine of legitimate expectation includes the right
to a claim for substantive relief and not only the right
to
procedural fairness.

3. 3.
   In Meyer's case (supra) the Court left open the difficult question
   whether the English doctrine of substantive relief should
   be
   incorporated into South African Law (at 733 I to 734 A). It is also
   not a question that needs to be dealt with in this case.
   The
   respondent does not seek substantive relief. The appellants concede,
   however, there was a practice which entitled police
   officers to have
   an expectation of retiring at the age of 55 years. One question that
   arises is whether the respondent should
   be in a less advantageous
   position because her expectation was based on a settled practice and
   not on a legal right. It may be
   observed that in cases of procedure
   an established practice or policy has been held to be sufficient to
   give rise to a legitimate
   expectation that a decision-maker should
   act fairly (see the authorities quoted in Administrator Transvaal
   and others v Traub
   and Others 1989 SA 731 (A) at 756 G to 757 E and
   the remarks of Corbett CJ at 761 I to 762 B). It is certainly
   conceivable

   
   

30

that consideration of fairness might also require that legislation
that removes an expectation, based on an established practice,
to
receive a certain benefit, should be construed in accordance with the
presumption against the interference or removal of existing
rights.
This aspect was only touched on in argument before us and in view of
its importance I hesitate to express a firm conclusion
on the matter.
Moreover it is not necessary to do so in view of the finding that the
respondent's expectation was based on a legal
right.

[27]
Three important points remain. First, this judgment is concerned only
with regulation 11(1) as amended. It is emphasised that
we express no
opinion on whether or nor regulation 11(2) or any of the other
regulations are retrospective in their operation.
Second, although it
has been found the regulations are not ultra vires insofar as they
apply to conditions of service generally,
no argument was addressed
to us on whether the Minister was authorised by the Act to make
regulation having an retrospective effect
and, if not, what would the
result be if the regulations were found to be restrospective in their
operation. We therefore express
no opinion on this subject either.
Thirdly we do not find it necessary to decide whether the

31

respondent
would have been entitled to rely on the presumption against
retrospectivity had we been of the view that she had no right,
but
only an expectation, to remain in employment until retiring at 55
years of age.

[28] To
sum up, therefore:

1. Regulation
   11(2) does not apply to this appeal. The Commissioner did not intend
   to retire the respondent in terms of this regulation.
   His real
   intention was to inform the respondent that she was obliged to
   accept compulsory retirement in terms of regulation 11(1).
   The
   litigation had to be dealt with on that basis.

   
   

2. The
   respondent was not entitled to a hearing or the right to make
   representations under regulation 11(1). The regulation applied
   by
   the operation of law and not due to the exercise of a decision by an
   official.

   
   

32

3. Regulation
   11 is not ultra vires to the extent that the Minister is precluded
   from regulating for the retirement of police officers.
   The Act
   authorises him to make regulations in respect of conditions of
   service of police officers this includes the right to
   make provision
   for retirement of members of the LMPS.

   
   

4. Prior
   to the coming into force of the regulation the respondent had the
   statutory right to retire at the age of 55 (subject to
   certain
   qualifications) and not a mere expectation to retire at that age.

   
   

5. Regulation
   11(1), according to its terms and the terms of the empowering Act,
   should not be interpreted so as to operate retrospectively.
   There
   are no sound reasons for holding that the regulation should be
   construed so as to remove the respondent's statutory right
   to retire
   at the age of 55 years. Accordingly the right of subordinate police
   officers to retire at the age of 55 has not been
   taken away by
   regulation 11(2). No opinion is

   
   

33

expressed on whether the other regulations, including regulation
11(2), operate retrospectively.

[29] For
the reasons set out above, the appeal is dismissed. However it is
necessary to adjust the order of the Court a quo. It
is therefore
ordered that:

1. The
   appeal is dismissed with costs;

   
   

2. The
   order of the court a quo is set aside and is replaced with the
   following:

   
   

"Paragraphs 1(b), (c), (e) and (g) of the rule nisi issued on 3
September 2004 are confirmed."

LS
MELUNSKY

JUDGE OF
APPEAL

I agree

J STEYN

I agree

FH
GROSSKOPF

JUDGE OF
APPEAL

For the
appellants : TS Putsoane

For the
respondent: EH Phoofolo