IN THE HIGH COURT OF LESOTHO
CIV/APN/522/2009
In the matter between:-
‘MATHAABE RASELESO APPLICANT
AND
PRINCIPAL SECRETARY MINISTRY OF HEALTH 1ST RESPONDENT
MINISTRY OF HEALTH & SOCIAL WELFARE 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice M. Mahase
On the 5TH May, 2011
Civil Procedure – Motion Proceedings – Nomination to participate in Survey – Legitimate Expectation – Withdrawal from Survey – Audi alterem Principle.
The applicant is claiming from the respondents the sum of M63,000.00 (sixty three thousand maloti) as the amount she legitimately expected to obtain from her participation in the Lesotho Demographic and Health Survey Project.
The application is being opposed by the respondents. Facts which precipitated into the launching of this application are the following:-
The applicant who is a Senior Nursing Officer in the Ministry of Social Welfare, was sometime in August 2009, nominated to participate in the Lesotho Demographic Health Survey Project. Her nomination was made by the Director of Mental Health.
Subsequent to her said nomination applicant underwent some training in data collection for a period of one month. This was a pre condition/prerequisite for that project. The training in data collection was to last for three months, after which she would then formally assume duties for data collection for three months. The said training took place at Thaba-Bosiu.
Certain benefits in the form of money were to be paid to each nominated participant in this training.
The applicant duly commenced the relevant training and passed all the tests which participants had to sit for. Applicant was according, to the plan, supposed to assume the said duties on the 16th October, 2009.
However, on an undisclosed date, the applicant was informed or advised by the Coordinator of the survey that it has since been directed; (presumably) by the Chief Nursing Officer who was the applicant’s supervisor, that she (the applicant’s supervisor) has since been decided that her name (applicant’s) be withdrawn from the survey and that indeed her name had been withdrawn from the survey in terms of the directives given by the Chief Nursing Officer.
Applicant has attached to her founding papers annexure “A” as proof of the letter for her nomination. It will be readily seen from the annexure to annexure “A” dated the 22nd July 2009; that in fact the applicant who was then working and or stationed at Mohlomi hospital was one of the people/nurses nominated to participate in the said survey.
It is applicant’s case that the nomination into the survey, the training which she undertook as well as the communication to her that she has successfully passed the relevant tests, entitled her to certain benefits; to wit the sum of M63,000.00 alluded to above which benefits she would have received on or about the 16th October 2009.
Applicant was, according to contents of her founding affidavit – vide paragraph 9 never given any hearing when her name was withdrawn from the survey in question.
It is her further averment that subsequent to her nomination and training in this project and after having passed the tests in question, she had legitimately expected to be paid all the benefits of the survey, which benefits she alleges she was entitled to after successfully having met all the requirements of the survey. Vide paragraphs 9 and 10 of her founding affidavit.
It must be indicated at the outset that there is nothing ex facie annexure “A” indicating that applicant and others who were nominated and who successfully passed the tests in this regard would among others be entitled to be paid the sum of M63,000.00.
Also, and further, this Court notes that there is no formal written notice or letter to the effect that the applicant’s name should be withdrawn from the list of nominated participants in this survey. Applicant is also praying that she be granted costs of suit in the event of opposition of this application, and also that she be granted further and or alternative relief.
The respondents oppose this application. The reasons for their opposition appear from paragraph 5 of their heads of argument; under the heading, respondents’ submissions and at paragraph 4 of the opposing affidavit, deposed to by one Dr. Karabo Mokobocho – Mohlakoana (The Principal Secretary in the Ministry of Health and Social Welfare).
In a nutshell, they oppose the application for the following reasons:-
- That when she was so nominated or appointed to take part in that survey, applicant was a nurse or that she then held a position of a nurse. As such she was eligible for nomination into that survey. See annexure “AG1” of opposing affidavit.
- That she was subsequently promoted to the position of Senior Nursing Officer on the 27th August 2009, and so she could no longer take part in the survey and data collection. In other words, her promotion to the position of a Senior Nursing Officer rendered her in eligible to participate in that survey.
I pause to observe that the two letters, annexures “A” and “AG1” – attached to the applicant’s founding affidavit and to the opposing affidavit of DR. Mokobocho – Mohlakoana are respectively dated the 22nd July 2009. It will be readily noticed that in annexure “AG1”. The Director of Health, Planning and Statistics has specifically requested the Director of HIV, STI and AIDS etc to nominate two nurses to participate in this important exercise. There is no indication of the specific position of nurses to be so appointed.
In annexure “A”, on the other hand, the Director Health Planning and statistics, has requested the Director, Mental Health to nominate two officers (not two nurses) to participate in this important exercise.
Going back to the reasons for opposition of this application. It is further the respondents averment that applicant was duly promoted to the position of Senior Nursing Officer and was then informed that as such, she was no longer eligible to attend the training in data collection survey.
The applicant denies this fact and says that she never agreed to be so promoted. She also says that she was never given a hearing before her name was withdrawn from the survey, and that this is contrary to the rules of natural justice.
The respondents do not deny that in fact the applicant had passed the test that she sat for after the training in question. Neither do they deny that the applicant had been so nominated to take part in that survey; nor do they deny that she was never given a hearing before her name was withdrawn from the survey after she was promoted to the position of Senior Nursing Officer, thereby rendering her ineligible to participate in the survey.
As has been pointed out above, it is the applicant’s averment that when she was nominated to take part in that survey and when she passed the requisite tests she had expected to be paid the sum of M63,000.00, which amount of money was set aside as a benefit for each of the individuals who had taken part in the data collection survey project.
There is, however, no evidence to back up or support that indeed successful participants in that survey would be entitled to be paid the said sum of money, once after they had collected such data as is claimed by the applicant. There is no doubt in the mind of this Court that ex facie annexure “A”, applicant was nominated to participate in this data collection survey or project.
Indeed once she was so nominated and went ahead to attend the training course in this regard, she legitimately expected to benefit from such an exercise. In other words, her nomination and participation in this survey raised her expectations that she would benefit by whatever means. Her expectation that she would benefit or that she would be advantaged and privileged by her nomination and participation in this survey; which survey has been described as being a very important exercise are not without basis.
The principle of a legitimate expectation has been dealt with and discussed in a number of cases; to wit to refer; but to a few:-
- Administrator Transvaal v. Traub and Others 1989 (4) SA 731 at 738 D-F
- National Director of Public Prosecutions v. Phillips and Others 2002 (4) S.A 60 at 63.
It was held, in the latter case that the requirements for the legitimate expectation included that:-
(i) The representation underlying the expectation had to be clear, unambiguous and devoid of relevant qualifications;
(ii) The expectation had to be reasonable;
(iii) The representation had to have been induced by the decision – maker; and
(iv) The representation had to be one which it was competent and lawful for the decision-maker to make, without which the reliance could not be legitimate.
It has accordingly been submitted on behalf of the respondents that the alleged expectation of the applicant does not meet all of the above-stated requirements. The reason, so the averment of the respondents goes; being that the appointment or nomination into the survey was dependent on certain qualifications.
The respondents have not elaborated on what they refer to as certain qualifications. However, it is a matter of common cause that in terms of the contents of annexure “A” the sole reason why applicant was nominated to take part in that survey is because she was a nurse at that time. That, ex facie, annexure “A” and the respondents’ submissions in their head of argument, the only reason why applicant was so nominated is because she was a nurse at that time – see also annexure AG1 dated the 22nd July, 2009.
There are no other additional qualifications or conditions stipulated in annexure AG1, which additional qualifications could have been the reason why the applicant’s nomination was later withdrawn sometime after she had not only participated in the training in preparation for that survey but she had also passed the relevant tests. Regrettably, there is no letter or any documentary proof indicating that the applicant’s name was withdrawn from those nominated to participate in that survey. Parties have, however joined issue that applicant’s name was later withdrawn from those who had been nominated to take part in that survey. It is not clear as to when exactly her name was so withdrawn.
Applicant denies that she and respondents had agreed that her name be withdrawn from the said survey after she was promoted or appointed to the position of a Senior Nursing Officer. Applicant says that she was given a go ahead to continue with the survey and the intended data collection.
The respondents, on the other hand say that applicant had agreed to such a withdrawal of her name from the said survey and that applicant was consulted and heard on this issue before the said withdrawal. The respondents have not supported their allegation or averment to this effect by any means. They have neither attached nor annexed a copy of the minutes of the meeting in which the matter pertaining to such a withdrawal of the applicant’s name was discussed. They have, further not attached to their papers, any correspondence of whichever nature as proof of the fact that indeed, applicant was given an opportunity to say why her name should or should not be withdrawn from that survey.
The respondents deny in abstract that applicant was given a go ahead to attend the training in question. In fact, respondents deny that after having undergone training the applicant was adviced that she should assume duties in data collection.
In complete contrast to other issues, the issue pertaining to the alleged disputed facts has not at all been documented by the respondents who are seniors of the applicant.
In fact, and to be precise, the respondents are blowing hot and cold over the issue as to the nomination of and approval of her to participate in that survey after her promotion to a higher position. It is the considered view of this Court, and in the light of the attendant surrounding circumstances that there is no doubt that the applicant was duly appointed to partake in this so called important survey.
It is further the considered view of this Court that the subsequent withdrawal of the applicant’s name was done without her having been afforded a hearing. Her right to be heard before such a decision which adversely affected her benefits were violated.
This brings me to the issue regarding the effect of her nomination to participate in that survey. Applicant has clearly spelt out at paragraph 4.1 (a) and (b) of her heads of argument what the effect of that nomination would be.
It has already been indicated above that there is a dispute of fact as to what later transpired between the applicant and the respondents after the applicant was promoted to the position of a Senior Nursing Officer. I need not repeat same safe to observe that her participation in that survey to finality was cut short by her promotion by the respondents to a higher post in the nursing profession.
I observe also that the applicant is not supported by her trainers that she indeed fully attended and or underwent the training in preparation for her to assume duties for data collection. She has also not filed any kind of proof showing that indeed she has so attended and passed that training.
The allegation or the averment that she successfully attended and passed the relevant tests in preparation for her to assume duties of data collection is a bare one.
The respondents have argued that in fact, applicant was nominated to participate in the said survey but that her nomination was cut short and her name withdrawn from the survey when she was promoted. They argue further that subsequent to her promotion, which promotion she is alleged to have accepted, she ignored orders or calls or directives from her seniors to the effect that she was no longer eligible to attend that training – vide annexure AG3.
Applicant has not pleaded issuably to this averment. Applicant has also not pleaded issuably to the averment that she was expected to have reported to her work station following her new appointment as a Senior Nursing Officer on the 1st October 2009 – refer to annexure AG2.
The applicant alleges that in fact she was nominated to participate in this survey in August 2009 and that the said training was to take one month. She does not state the exact date in August 2009 when she assumed training in the survey. She has also not disclosed when exactly she completed the training and passed the tests in question. Neither does she disclose in her papers when exactly the three months for data collection was to resume.
These are important and relevant issues which should have been disclosed by the applicant. This is moreso in the light of the fact that her promotion was presumably done before the end of August 2009. It is a matter of common cause that on the 27th August 2009, the applicant was one of the newly promoted nurses who attended a meeting of Senior Nursing Officers; vide annexure AG2.
The only inference which can be drawn from the minutes of the 27th August 2009 is that in August 2009, applicant was already a Senior Nursing Officer and was therefore not eligible to participate in this survey. Applicant has not controverted the contents of the 1st respondent at paragraph 4 of the opposing affidavit, to the effect that her promotion to the position of a senior nursing officer, subsequent to her nomination to participate in that survey; automatically disqualified her from continuing in the participation of the said survey. The uncontroverted allegations are therefore taken as having been admitted. Vide Plascon – Evans Paints v Van Riebeeck Paints 1984 (3) 623 at 624.
See also Ebrahim and Another v. Georgoulas and Another 1992 (2) S.A. 151.
The applicant alleges that she would be entitled to payment of the sum of M63,000.00 (sixty three thousand Maluti) for the period of the three months in which she would be carrying out the survey. It is her case that had it not been for the withdrawal of her name as one of the participants in that survey, she had expected to be paid or to have benefitted from that survey in that amount.
The applicant so alleges without her having provided any kind of proof in support of her claim of the sum of sixty three thousand Maloti. Applicant contents that the said withdrawal of her name from the data collection survey was done without her having been given a hearing. She maintains that since she had not only attended the training in question, but that since she had also passed the requisite tests, she is therefore entitled to and or that she had legitimately expected to reap the benefits in that said amount of money.
The respondents deny the above and they in fact say that applicant has ignored all orders or directives that she should not continue her participation in that training once after she was notified and had agreed to be promoted to the position of a senior nursing officer.
Put conversely, it is the applicant’s contention that whether or not she has ultimately and actually participated in the data collection survey after she had successfully participated in the training in question and after she had passed the relevant tests, her nomination to participate in that exercise raised her expectations and she is therefore entitled to payment of that said amount of money.
Reliance in support of applicant’s case in this regard is placed up the often – cited case in our jurisdiction; to wit:-
Noka-Nts’o Primary School and Others v. Mankalimeng Khaboliso and Another, LLR-LB 1999-2000 page 190 at page 196.
Of course, its case has its unique circumstances. In the said Noka-Nts’o case (supra), the parents of the expelled children had not at all been afforded a hearing before a drastic step of expelling their children from school was taken. In the instant case, applicant was duly informed of her promotion to the position of a senior nursing officer and she is alleged to have accepted or agreed to such a promotion, which promotion resulted in her being rendered ineligible to further participate in the survey. Applicant has not denied that she was not only so notified but she has also not pleaded issuably to the averment that she was informed to desist from attending the training but to report to her new duty station. Vide annexure AG3 of respondents opposing affidavit and paragraph 4 of respondents’ heads of argument. Indeed there is no way in which applicant could have attended the meeting of senior nursing officers if she had not been so promoted to that position and accepted same.
Applicant has also not respondent to respondents annexure “AG3”. Contents therein should then be taken to have been admitted. Vide Plascon-Evans Paints Ltd v. Van Reibeeck Paints (PTY) Ltd 1984 (3) 623 (A). Applicant cannot now be heard to say that she was never informed nor heard on the issue pertaining to the withdrawal of her name from that survey. She is estopped from doing so once after she attended a briefing meeting of the newly promoted Senior Nursing Officers.
This now brings me to the actual claim of M63,000000 which amount applicant alleges is her entitlement or benefit she had legitimately expected to be paid from her participation in that survey.
I note that other than the undisputed nomination of her to participate in that survey, there is no other ground, no any basis upon which she relies in support of the averment that respondents have to consequently pay her that amount of money. There is no contractual obligation nor any documentary proof which indicates that she and others so nominated to participate in that survey were as of right entitled to be paid the said some of money.
Put conversely, the applicant has not substantiated her claim that she is entitled to payment in the sum of M63,000.00 following her nomination to participate in that survey. One does not know on which basis she claims that huge sum of money; neither has she indicated how she has arrived at that figure.
Even assuming without conceding that she was entitled to payment of this sum of money as she alleges; and which fact is denied by the respondents, applicant should not have approached this Court by way of motion/applicant proceedings because there is a dispute of fact in existence and in this regard. She should have foreseen that. She was made aware immediately on her promotion that such a promotion to a higher position disqualified her from further participation in that survey. Further on, she had not actually assumed data collection duties when her nomination to participate therein was withdrawn.
It has not been gainsaid by the applicant that all participants did not only have so go for training but that they had to go further to collect data after that training. She never went out to collect data and as such she had not, strictly speaking, done any work of collecting data after she had underwent the training in question.
A proper reading of the conditions under which she had to undergo training is that ultimately she had to go out to collect data. This latter portion which would have probably been the final and most important or a core factor of that survey was never carried out by the applicant once when she was promoted to a higher position. How then could she expect to be paid for the part of the survey which she never carried out?
There is also another issue which has raised a real dispute of fact thereby rendering the applicant’s claim incapable of being decided on the papers as they stand. This is that contrary to what the applicant alleges that she was given a green light to continue with the training in that survey after her promotion to higher position; the respondents deny this fact. They in fact wrote to applicant annexure AG3 when it came to their notice that applicant had not resumed duties at her new duty station after her promotion.
This is an issue which cannot be decided on the papers as they now stand without oral evidence being adduced. This being application proceedings, the applicant must stand or fall by her papers.
It is accordingly the considered view of this Court that taking into account all the surrounding circumstances of this case, and in the light of the existence of the disputes of fact alluded to above, this application should be refused and it is accordingly dismissed with costs to the respondents.
M. Mahase
Judge
For Applicant: Mr. T.J. Mokoko
For Respondents: Mr. L. Mokobosho
