CIV/APN/69/82

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

MICHAEL
MOCASI Applicant

v

SOLICITOR
GENERAL Respondent

JUDGMENT

Delivered
by the Hon. Acting Judge Mr. Justice J. Unterhalter on the 3rd day of
December 1982

The
Applicant by Notice of Motion seeks an order setting aside his
purported retirement from the service of the Lesotho Government
and
directing the Lesotho Government to re-instate him in the position
that he held immediately prior to his purported retirement
from the
Civil Service.

It is
admitted on the papers that the Applicant was a Civil Servant and
that on the 19th November 1981 he received from the Head
of the
Department of Transport and Traffic in which Department he held a
position, a letter informing him that the Ministry had
made a
recommendation that he be retired in the public interest. The reason
for the recommen­dation was stated, this being
in effect that the
Applicant owned a motor vehicle the documentation of which was false.
The Applicant replied in a letter dated
the 21st November 1981 and
stated that the proposal to retire a public officer on permanent and
pensionable terms was to be dealt
with under Part 3 of the 1970
Public Service Order. He stated further that the proposal was not
made in terms of any of the provisions
of that Part and that he had
therefore not had an adequate opportunity to defend himself. He
claimed in effect that the documents
had not been proved to be false
and referred to his letter addressed to the Secretary of the Public
Service Commission and dated
the 17th July 1981 wherein he mentioned
certain documents

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relating
to a vehicle that he had obtained from the seller of the vehicle.

On the
4th February 1982 the Permanent Secretary Cabinet (Personnel) wrote
to the Applicant and stated that after careful consideration
of the
report from the head of the Department in which he had served and the
representations submitted by him thereon, approval
had been given for
his retirement under Public Service Commission rule 6-01 (1)(e). The
letter concluded that he was retired from
the service in the public
interest with effect from the date of receipt of the letter.

The
Applicant submits that his purported retirement in the public
interest is unlawful and therefore null and void on the ground
that
such retirement constituted impo­sition of punishment on him
without first proving him guilty of a breach of discipline.
He
submitted further that the imposition of punishment is contrary to
the provisions of section 6 of the Public Service Order No.
21 of
1970 and that the unproved facts alleged against him could not form
the basis for his retirement "in the public interest".
He
concludes that the Minister in charge of the Public Service could not
in all the circumstances of the case have been satisfied
that it was
desirable for him to be retired in the public interest, the Minister
was wrong in arriving at the decision that he
had arrived at, and he
therefore prayed for the relief as set out in the Notice of Motion.

The
Respondent in the answering affidavit denied that the retirement of
the Applicant was unlawful or that it constituted imposition
of
punishment on the Applicant. It was submitted that the Minister had
acted within his powers pursuant to the provisions of Rule
6-01 of
Part 6 of the Public Service Commission Rules and in accordance with
section 12(9) of Part 3 of the Public Service Order
21 of 1970.

At the
hearing of the matter the Court informed Mr. Radebe for the Applicant
and Miss Fanana for the Respondent that in annexure
'B' to the
Applicant's founding affidavit there was a reference to a photocopy
of a report which the

3

Applicant
apparently had submitted to the Public Service Commission. It was
requested that a copy of this report be made available
to the Court
and that it be served upon the Respondent and this was done. From a
study of that report,which is marked Annexure
'B1' to the founding
affidavit, it appeared that further correspondence had passed between
the Applicant and the Public Service
Commission, namely a letter
dated the 7th July 1981 and a copy of a letter from the Law Office
attached to the letter of the 7th
July 1981, the copy of the Law
Office letter being dated the 11th February 1981. The Registrar was
requested to communicate with
both attorneys and obtain copies of
these letters and arrange for them to be delivered to the Respondent,
and this likewise was
done. These are further annexures to Annexure
'B'. The letter from the Law Office records that in the case of an
imported second-hand
motor vehicle, once a certificate has been
issued under section 11(2)(d)(iii) of the Road Traffic and Transport
Order 1970 there
is no need to procure a certificate from the Lesotho
Police.

Section
12(9) of the Public Service Order No. 21 of

1970
reads as follows :

"Every Public Officer is liable to be required 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."

It was
submitted on behalf of the Applicant that the factors referred to in
this sub-section must be determined objectively and
not be the
subject of the opinion of the official who is entrusted with the
exercise of the power of requiring or permitting the
retirement of a
public officer. The distin­ction relating to jurisdictional facts
is stated in South African Defence and Aid
Fund and Another v.
Minister of Justice, 1967(1) S.A. 31 C.P.D. by CORBETT, J. at page 34
H. The learned Judge says :

"Upon a proper construction of the legislation concerned, a
jurisdictional fact may fall into one or other of two broad
categories.
It may consist of a fact, or state of affairs, which,
objectively speaking, must have existed before the statutory power
could
validly be exercised.

4

In such case, the objective existence of the jurisdictional fact as a
prelude to the exercise of that power in a particular case
is
justiciable in a Court of law. If the Court finds that objectively
the fact did not exist, it may then declare invalid the purported

exercise of the power (see e.g Kellerman v. Minister of Interior.
1945 T.P.D. 179; Tefu v. Minister of Justice and Another, 1953(2)

S.A. 61 (T)). On the other hand, it may fall into the category
comprised by instances where the statute itself has entrusted to
the
repository of the power the sole and exclusive function of
deter­mining whether in its opinion the pre-requisite fact,
or
state of affairs, existed prior to the exercise of the power. In that
event, the jurisdictional fact is, in truth, not whether
the
prescribed fact, or state of affairs existed in an objective sense
but whether, subjectively speaking, the repository of the
power had
decided that it did. In cases falling into this category the
objective existence of the fact, or state of affairs, is
not
justiciable in a Court of law. The Court can interfere and declare
the exercise of the power invalid on the ground of a non-observance

of the jurisdictional fact only where it is shown that the repository
of the power, in deciding that the pre-requisite fact or
state of
affairs existed, acted mala fide or from ulterior motive or failed to
apply his mind to the matter."

Section
4(1) of the Public Service Order 1970 reads in part as follows :

"Subject to the provisions of this or any other law relating to
the public service, the Minister may (subject to the prior

concurrence of the Minister responsible for finance in respect of
anything involving the expenditure of public funds) do all things

that are in his opinion necessary or expedient for giving effect to
the purposes, principles and provisions of this Order or for
enabling
effect to be given thereto, and in parti­cular but without
prejudice to the generality of the foregoing the Minister
may make,
alter or revoke provision for all or any of the following matters by
means of rules or regulations published in the Gazette,
or by other
means."

Although
this sub-section empowers the Minister to make rules or regulations
the governing provision is that the Minister may do
all things that
are in his opinion necessary or expedient for giving effect to the
purpose, principles and provisions of the order.
If this is read with
section 12(9) of the Order in relation to the question as to who is
to decide the desirability of the retirement
of a public officer in
the public interest, then, in my view, it is the Minister whose
opinion in the final resort

5

is to
give effect to the provision. It follows therefore that the
jurisdictional facts referred to in section 12(9) of the Public

Service Order No. 21 of 1970 are in the second category stated by
CORBETT, J. in the case referred to above. This being so, and
again
applying the principles stated in that case, it is for the Minister
to decide whether having regard to the conditions of
the Public
Service, the usefulness of the Applicant in the present matter and
all the other circumstances of the case the retirement
of the
Applicant is desirable in the public interest. The Court can only
interfere where it is shown that the Minister in deciding
that this
was the state of affairs, acted mala fide or from ulterior motive or
failed to apply his mind to the matter.

Section
12(9) of the Order together with other sub­sections of that
section appear to be directed to the correction of organisational

situations in the public service. Thus, if a particular function is
no longer required to be performed in a particular department
of the
public service or the particular public officer with a particular
skill is no longer needed because the Department does
not require
that particular service or because the service can be obtained
outside the Department, it may be desirable to dispense
with the
services of such public officer and it may be desirable in the public
interest that the cost to the State of his services
be ended. With
this is to be contrasted the provisions of Part 2 of the Order
regarding the conduct of public officers and their
liability to
discipline. In terms of section 5(1)(a) of the Order an officer
commits a breach of discipline if by any act or omission
he fails or
refuses to comply with a provision of Part 2, Section 10(1) of the
Order requires every public officer to comply with
stated general
rules of conduct and among these he is required not to commit a
criminal offence. Section 6(1) provides for punishments
that may be
imposed on an officer who has been proved to have committed a breach
of discipline and amongst such punishments is
removal from office by
compulsory retire­ment or by permission or requirement to retire,
or otherwise.

On the
facts of the present matter the letter of the

19th
November 1981 addressed to the Applicant by an officer

6

in the
Ministry of Transport and Communications suggests that the Applicant
has contravened the provisions of the Road Traffic and
Transport
Order 1970. Section 11(2) of that Order as amended by section 2 of
Act No. 26 of 1978 provides that an application for
registration of a
motor vehicle shall be accompanied in cases of motor vehicles
imported into Lesotho by a certificate from the
Lesotho Police unless
such certificate has already been issued by the police authorities of
the place where the motor vehicle is
acquired, to the effect that the
vehicle is not suspected of having been unlawfully acquired. Section
129 of the Order makes it
an offence for a person to use a
certificate knowing that it has been counterfeited. The letter
addressed to the Applicant states
that the documentation in regard to
the car referred to in the letter is false. It is clear therefore
that a criminal offence is
alleged.

Section
4(1) of the Public Service Order 1970 gives the Minister power to
make provision by means of rules for a number of matters
and among
these are the exercising of disciplinary control over persons holding
or acting in offices in the public service and
the removing of such
persons from office. Such rules were made in terms of Legal Notice
No. 12 of 1970, Part 5 of those rules being
in regard to discipline
and Part 6 being in regard to other proceedings, among these being
proceedings for removal from office
or reduction in rank or salary.
Part 5 contains detailed provisions in regard to the alleging of a
breach of discipline, the appointment
of adjudicators to investigate
such breach, the service of the charge sheet upon an officer against
whom a charge has been made,
the plea and reply to the charge, notice
of time and place of hearing in regard of the charge, and the hearing
of the case of breach
of discipline. Suffice it to say that these are
very carefully drawn provisions to ensure that an officer in the
public service
charged with breach of discipline has a full and
adequate opportunity of knowing of the charge, hearing and testing
the evidence
in support of the charge, leading evidence in rebuttal
of the charge and making submissions in regard to his defence.

7

Rule 6-01
provides that 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 on the ground that the public
interest so requires. He is required to supply information
in support
of his proposal and to apply for directions concerning the procedure
to be applied. There is no provision for a hearing
such as is
required in terms of Part 5 of the Rules.

Section
19(1) of the Public Service Order 1970 provides that the power to
remove from office persons acting in offices in the public
service
are exercised after consultation with the Public Service Commission.
There are certain exceptions to this but they do not
apply in the
present matter. Section 20(1) provides that the Public Service
Commission shall make recommendations in those cases
where it is
required to be consulted concerning the exercise of power in regard
to disciplinary control over persons in the public
service or in
regard to the removal of such persons from office. It is the head of
a Department who makes submissions to the Commission
either in regard
to finding and punishment resulting from disciplinary proceedings or
in regard to the removal of an officer from
office on the ground,
among others, that the public interest so requires. The matter is
therefore initiated by the head of the
Department and he has certain
powers in terms of the rules.

One would
have expected in the light of the allegations made against the
Applicant that the head of the Department concerned would
have
initiated an enquiry for a breach of discipline. Had he done so there
would have been a full investigation in terms of the
provisions of
rule 5 with an opportunity afforded to the Applicant to prove his
innocence if such were the case, and an opportunity
to the head of
the Department to prove the guilt of the Applicant if that were the
case. Instead the head of the Department made
use of his powers in
terms of rule 6 to recommend the removal of the Applicant from office
on the ground that it was in the public
interest so to do, thereby
depriving the Applicant of his right to meet the charge that had been
preferred against him.

8

The
initiation of proceedings in terms of Rule 6 is linked in its context
with the organisational requirements to which I have referred
earlier
when examining the terms of section 12(9) of the Public Service
Order. From this it follows that it was not intended that
this rule
should be used in order to obviate the need to conduct a
discip­linary inquiry should the circumstances be such that
a
disciplinary inquiry was called for.

In Evans
v. Public Service Commission and Minister of Justice, 1920 T.P.D. 170
BRISTOWE, J. in examining legislation in South Africa
regarding
conditions of employment of public servants said the following at
page 173:

"Now under the general law a civil servant holds office at the
will of the Crown, and can be discharged at a moment's notice
without
any reasons being given. If that is the case he can equally be
discharged although the Minister may be influenced by wrong
reasons,
or by no reasons at all. It seems to me, therefore, that apart from
the Public Service and Pensions Acts, no complaint
could have been
raised against a summary dismissal. These Acts have however
interposed certain machinery between the civil servant
and the
arbitrary power of the Crown. They are for the protection of the
civil servant, and they modify in his favour the rigour
of the common
law. But the result is that a public servant is bound solely by the
statutes. Whatever rights those statutes give
him he possesses."

Rule 1-03
states certain general principles of procedure as follows :

1. Subject
   to the provisions of the Public Service Order 1970, the commission
   regulates its procedure generally in accordance with
   the principles
   set out in this rule.

   
   

2. In
   exercising their respective powers andduties the Minister and the
   commission have a common interest in maintaining a just balance

   between two considerations namely-

   
   

Protection of the State

The public interest in developing and maintaining an efficient and
economical public service, in the provision of good public
administration and in the consequent need to protect the State
against public officers who might abuse their positions by
inefficiency,

9

wastefulness, laziness, corruption, discourtesy and other misconduct.

Protection of Public Officers

The public interest in developing and maintaining a contented career
public service that has high morale and that is efficient,

economical, industrious, honest, loyal, courteous and well-behaved,
and in the consequent need to protect public officers from

favouritism and victimisation of a kind that would harm the
development and maintenance of those qualities."

It is
similarly the task and duty of the Court to hold a just balance
between protection of the State and protection of public officers.

There is
no protection for the Applicant in the circumstances of the present
matter if, in regard to the allegations made against
him, he is not
to be given the opportunity of defending himself because the head of
his Department has decided that he will justify
his recommendation to
the Commission on the grounds that the public interest requires the
removal of the Applicant from office,without
there being an
obligation on the part of the head of the Department or others to
disclose the reasons for such decision. There
is adequate protection
both for the State and for the Applicant if the procedure laid down
in rule 5 were followed. If the charge
were brought home to the
Applicant he could be removed from office in terms of section 6(1)(b)
of the Public Service Order. And
if it were not brought home to him
then there would be no reason for his removal from office on the
grounds that were outlined
in the letter of the 19th November 1981
that was addressed to the Applicant,

On the
papers before me I am of the view that the head of Applicant's
Department in making the recommendation that he did in terms
of the
powers vested in him by rule 6-01 of the Public Service Rules 1970
was using those powers in order to deny the Applicant
his right to
have an investigation in terms of rule 5 into the allegation made
against him. In Van Eck N.O. & Van Rensburg
N.O. v. Etna Stores,
1947(2) S.A. 984 A.D. DAVIS, A,J. quoted the remarks of DE VILLIERS,
C.J. in Orangezicht Estates Ltd. v. Cape
Town

Council,
(23 S.C. 297, at 308) as follows :

10

"The Court has more than once expressed the opinion that powers
given to a public body for one purpose cannot be used for
ulterior
purposes which were not contemplated at the time when the powers were
conferred."

At page
997 DAVIS, A.J.A. said :

"I can draw no distinction between a public body and a public
official; indeed I can see no ground why the principle should
even be
confined to them. It seems too that the principle is of far more
general application, and that private persons or corporations
could
certainly not be in a better position. To pretend to use a power for
the purpose for which alone it was given, yet in fact
to use it for
another, is an abuse of that power and amounts to mala fides."

The
learned Judge said that he was not attaching any moral obliquity to
the officers upon whose conduct he was commenting, adding
that they
were acting in what they conceived to be the public interest.
Similarly in the present matter the officers concerned
with the
decision no doubt believed themselves to be acting as they did in the
public interest. But nevertheless they used a power
given for one
purpose for another and entirely different purpose.

The
Lesotho Court of Appeal considered a related

matter in
the case of the Minister of Public Service and the Solicitor General
v. R.C Mokhohlane, C. of A. (CIV) No. 5 of 1982.
The majority
decision was to the effect that the Public Service Order No. 21 of
1970 authorised the making by the Minister of rules
providing for the
dismissal of a public servant on the grounds set forth in chapter 6
of the rules. There was no examination of
the question as to whether
on the facts of that case there had been an abuse of the powers
conferred by rule 6.

In
National Transport Commission and Another v. Chetty's Motor Transport
(Pty) Ltd., 1972(3) S.A. 726 A.D. HOLMES, J.A. was considering
a
decision of the commission. At page 735 E the learned Judge said :

"The legislature has appointed it as the final arbiter in its
special field and, right or wrong, for better or worse, reasonable
or
un­reasonable, its decision stands-unless it is vitiated by proof
on review in the Supreme

11

Court that ...... the commission failed toapply its mind to the
issues in accordance with the behests of the statute end the tenets

of natural justice: in other words that, de jure, it failed to decide
the matter at all."

In my
view having regard to the terms of section 12(9) of the Public
Service Order No. 21 of 1970 the Minister did not apply his
mind as
these principles require. He was not considering a situation
contemplated by section 12(9) of the Order. He was considering
a
situation contemplated by section 6(1)(b) of the Order. Had he
applied his mind as the law requires him to do he would not have

accepted the recommendation made in terms of rule 6, but would have
called for the submission of a report after the conclusion
of an
investigation in terms of rule 5. Not having done so the decision
must be set aside by the Court.

In his
dissenting minority judgment in the case of Minister in Charge of
Public Service and the Solicitor General v. R.C. Mokhohlane.
C. of A.
(CIV) No. 5 of 1982 GOLDIN, J.A. set aside the order that the
Respondent be removed from office by way of dismissal. He
held,
however, that it would be unjust and not in the interests of the
public service merely to order his reinstatement,because
it was not
then known whether or not a charge of breach of discipline could be
proved. He decided that the Appellants should be
afforded their right
to follow a proper course. In my view this is the correct procedure
to follow in the present matter. The order
of the court is as follows
:-

1. The
   decision dated 4th February 1982 that the Applicant is retired from
   the service in the public interest with effect from the
   date of
   receipt of the letter containing that decision is set aside.

   
   

2. The
   persons vested with the powers of determining whether or not the
   Applicant is liable to disciplinary proceedings in terms
   of part 2
   of Public Service Order 1970 as read with part 5 of Public Service
   Commission Rules 1970 are entitled so to determine.

   
   

3. Upon
   failure to proceed or act as provided in paragraph 2 above within
   three months from date hereof it is ordered that

   
   

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Applicant
be reinstated to the position which he occupied in the public service
immediately prior to the direction that he be retired.

4. The
Respondent as representing the Government of Lesotho is to pay the
costs of this application.

J.
UNTERHALTER

ACTING
JUDGE

3rd
December, 1982.

For the
Applicant : Mr. Radebe

For the
Respondent : Miss Fanana.