CIV/APN/21/81

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

RORISANG
CHURCHILL MOKHAHLANE Applicant

v

MINISTER
IN CHARGE OF THE PUBLIC

SERVICE &
THE SOLICITOR GENERAL Respondents

JUDGMENT

Delivered
by the Hon. Mr. Justice F.X. Rooney on the 2nd day of February, 1982.

Mr, Sello
for the Applicant Mr, Mafisa for the Respondents

The
applicant was a public servant until the 7th October, 1980 when he
received a letter from the Permanent Secretary (Cabinet Personnel)

informing him that he had been removed from office by way of
dismissal. This action was prompted by the belief that he was
disloyal
and had consorted with people who were engaged in subversive
activities designed to achieve the overthrow of the Government. The

rights and wrongs of the applicant's conduct in this regard are not
material to the determina­tion of this dispute.

In his
notice of motion the applicant sought an order in the following
terms:

1. Setting
   aside the Applicant's purported dismissal by the Respondents and
   directing the Respondents to forthwith re-instate applicant
   in his
   position;

   
   

2. Directing
   the Respondents to pay to the Applicant all the Applicant's arrear
   salary calculated from, and including the month of
   June 1980;

   
   

3. Directing
   the Respondents to pay the costs of this application;

   
   

4. Granting
   the Applicant such further and/or alternative relief as the Court
   may deem Just."

   
   

2

It is the
applicant's contention that his dismissal from the public service was
not carried out in accordance with law and it is
therefore null and
void and has no force or effect.

The
rights and obligations of members of the public service of Lesotho
are governed by the Public Service Order 1970 (as amended).
No public
officer may be retired or dismissed except in accordance with the
provisions of that Order and the regulations made thereunder.
The
retirement or dismissal of a member of the public service procured
contrary to the provisions of the Order is a nullity. Such
public
servant is not confined to a remedy in damages, but is entitled to
claim reinstatement. (Schierhout v. Minister of Justice
1926 A.D.
99). The history of the events leading up to the dismissal of the
applicant can be stated briefly.

The
applicant was employed as a technician in the Ministry of Water,
Energy and Mining in March 1974. On the 1st January, 1980 he
was
arrested by the police at Quthing. He was detained until the 18th
March when he was released without any charge of criminal
activity
being preferred against him. He resumed his duties until June when he
was informed by a letter from the Chief Water Engineer
dated 6th
June, 1980 that he was interdicted with immediate effect.

This was
followed by a form of Notification of Interdiction dated 12th June,
1980 which advised the appli­cant that he was alleged
to have
contravened Sections 5(1) and 10(1) of the General Rules of Conduct.
He was further advised that as a result, his continued
presence in
office constituted a threat to good relations with the public and
good discipline. Reference was made to Public Service
Commission Rule
5-21(5). In a separate letter, the applicant was advised that during
the period of interdiction he would not be
entitled to draw any
salary.

Sometime
after the receipt of this document, the applicant wrote a letter to
the Permanent Secretary of hie Department setting out
the reasons why
he should be

3

dismissed.
In the meantime, on the 25th June, 1980 proceedings were instituted
for his removal from office, or retirement under
Rule 6-01 of the
Public Service Commission Rules 1970. At a meeting held on the 11th
July, 1980, the applicant's case was considered
by the Public Service
Commission. The minute reads

"Commission advised that the officer be notified in writing that
his dismissal from the service is contemplated on the grounds
already
disclosed to him and he be given an opportunity of replying thereto
within 7 days".

On the 29th July, 1980 the applicant was advised as follows :

"Dear Mr. Mokhahlane,

You are hereby informed that due to the incidences you already know
of your arrest In Quthing from 31st January, 1980 and the
interdiction from the service, it has been proposed that you advance
in writing the reasons why you feel action of dismissal should
not be
taken against you within seven days.

Sgd ???

for PERMANENT SECRETARY. "

When the
Public Service Commission met again on the 13th August, 1980, it
minuted

"After careful consideration of the officer's representations,
was satisfied that the officer did connive with Terrorists.
The
Commission therefore advised that the officer be removed from office
by way of dismissal".

On the
7th October, 1980 the applicant was informed by the Permanent
Secretary Cabinet (Personnel) that he had been removed from
office by
way of dismissal.

Part 2 of
the Public Service Order 1970 deals with the conduct of public
officers. Section 5 defines a breach of discipline. Sub-section
5(2)
lays down that if the breach of discipline is a criminal offence the
record of the trial and conviction shall be sufficient
proof of the
commission by him of that offence.

Part 2 of
the Order also provides for the conduct of public officers and
proceedings against them for breach of discipline and the
punishment
which may be imposed on an officer "who has been proved to have
committed a breach

of
discipline"

4

(Section
6(1)). The punishments include removal from office by dismissal
(6)(1)(a). A public officer may also be retired at prescribed
ages or
In prescribed circumstance. These include abolition of office or
redundancy (6) for the purpose of facilitating improvement
in the
organisation of the department in which he serves (7) medical grounds
(8) and marriage in the case of a female officer (10).

Section
12 (9) reads

"Every public officer is liable to be retired or permitted to
retire if, having regard to the conditions of the public service,
the
usefulness of the officer thereto and all the other circumstances of
the case, his retirement is desirable in the public interest".

The
Minister Is empowered under Sec. 4 of the Order to make regulations
that are in his opinion necessary or expedient for giving
effect to
the purpose, principles and provisions of the Order. Such regulations
under 4 (v) include those "exercising disciplinary
control over
persons holding or acting in such offices and interdicting and
removing such persons from office". The regulations
are
contained in the Public Service Commission Rules 1970 (as amended).
Part 5 of the Rules govern discipline and Part 6 other
proceedings.

In this
case the respondent contends that the applicant's removal was
procured by the application of Rule 6-01 on the grounds that
he is
unfitted for his duties (1)(b) and that the public interest so
requires (1)(e). In those circumstances Rule 6 (3)(c) empowers
the
Public Service Commission to advise the Minister to order "that
the officer be removed from office by way of dismissal
or compulsory
retirement or permission to retire or otherwise". In reply, the
applicant argues that Part 6 of the Public Service
Commission Rules
1970 to the extent that it imposes punishment on an officer without
such office having been proved to have committed
a breach of
discipline, is ultra vires the pro­visions of the Order.

It was
held by Isaacs A.J. in CIV/APN/73/78 Koaho v. The Solicitor General
(unreported).

5

"On a consideration of Rules 5-21 (power to interdiction) and
6-01 (Proceedings for removal from office or reduction in rank
or
salary), it seems to me that they are indepe­ndent of each
other".

This view
was accepted by the Court of Appeal in the same case (C. of A. (CIV)
No. 3/80)(unreported).

When the
applicant was interdicted from duty, he was referred to Sections 5
and 10 of the Order and to Rule 5 of the Rules. The
letter of the
29th July, 1980 which invited him to "advance in writing the
reasons why you feel the action of dismissal should
not be taken
against you" made no reference to the proceedings which had
already been instituted against the applicant under
Part 6 of the
Rules. He may have expected to have been dealt with under Part 5 and
to have received a charge sheet under 5-42 and
had his case heard
under 5-61. This was not to be because of the independent proceedings
commenced against him.

Where a
public officer is not dealt with in accordance with the procedure set
out in Part 5 of the Rules he may fall under Part
6 if the
circumstances bring him within the provisions of Part 6-01 which
reads as follows :

1. A
   head of department may propose in writing to the (Senior Permanent
   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 –

   
   

1. that
   he has been convicted of a criminal offence, and that disciplinary
   proceedings under Part 5 are unnecessary or inappropriate.

   
   

2. that
   he is unfitted for his duties;

   
   

3. that
   he is incapable of carrying out his duties efficiently;

   
   

4. that
   he has attained the age prescribed in section 12(2) of the Public
   Service Order 1970;

   
   

5. that
   the public interest so requires;

   
   

6. that
   his work or conduct while on probation or trial has been
   unsatisfactory;

   
   

7. that
   the terms of his contract or temporary appointment so provide,

   
   

8. that
   an office that is one of two or more similar offices, has been or
   is to be abolished, and that it is necessary to

   
   

6

determine
which one of the officers holding them should be removed from office.

2. The
   head of department shall supply information in support of his
   proposal and he shall apply for direction concerning the procedure

   to be applied. He shall report to the (Senior Permanent Secretary),
   for reference to the commission, the result of the application
   of
   that procedure.

   
   

3. The
   commission may after the completion of any proceedings under
   directions given under paragraph (2) advise that the Minister
   should
   –

   
   

1. order
   that no further action be taken in the matter; or

   
   

2. order
   that the officer's salary or rank or both his salary and rank be
   reduced to an extent specified; or

   
   

3. order
   that the officer be removed from office by way of dismissal or
   compulsory retirement or permission to retire or otherwise.

   
   

4. If a
   head of department is the subject of a proposal under this rule the
   Senior Permanent Secretary may make that proposal and
   may do all
   things that are assigned to a head of department in these rules. For
   that purpose a reference to a head of department
   in these rules and
   in proceedings is construed as a reference to the Senior Permanent
   Secretary."

   
   

When the
case of the applicant was referred to the Public Service Commission,
it had a number of options open to it. The Commission
could advise
the Minister to order that no further action be taken or to order
that the applicant be removed from office by way
of compulsory
retirement or permission to retire or otherwise. What the Commission
could not do was to advise the Minister to dismiss
or otherwise
punish the applicant.

A
punishment can only be imposed on an officer who has been proved to
have committed a breach of discipline under Section 6 of the
Public
Service Order. The applicant had not absented himself from his
official duties (Sec.6(3)). No formal charge alleging a breach
of
discipline had been made against him under Rule 5-42. He had not been
convicted of a criminal offence and did not fall within
the purview
of the Rule 6-01(a).

The
Public Service Commission made an error in its advice to the
Minister. This must be corrected. It will be sufficient to meet
the
justice of the case if the

7

status
quo ante is restored and the Public Service Commission is given a
further opportunity to consider the position.

I
therefore make the following order :

1. That
   the order of the Public Service Commission dated 13th August, 1980
   that the applicant be removed from office by way of dismissal
   is set
   aside. Any subsequent order made by the first respondent is likewise
   set aside.

   
   

2. The
   respondents are directed to re-instate the applicant in the position
   which he was as a member of the public service of Lesotho

   immediately before the meeting of the Public Service Commission held
   on the 13th August, 1980.

   
   

3. For
   the purposes of Rule 5-22 the period of three months mentioned
   therein is deemed to have commenced on the 12th June, 1980
   and to
   have been interrupted between 13th August, 1980 and the date of this
   judgment (both days inclusive) so as to enable the
   Minister to
   consult the Commission as if the three months' period referred to in
   Rule had not been inter­rupted by the dismissal
   of the
   applicant.

   
   

4. That
   the Respondents pay the applicant's costs of this application.
   

   
   

F.X.
ROONEY

JUDGE

2nd
February, 1982.

Attorney
for the Applicant . Messrs. Mohokare, Sello & Co.

Attorney
for the Respondent : Law Office.