C of A (CIV) 11 of 2000
L v d H JJG* MEK
Attorney-General and Director of Prisons v Mahloka
The question in this appeal was whether the Director of Prisons has the power to interfere in a disciplinary award under the Prison Rules.
He does not: the Prison Rules do not entitle him to interfere in such a case. The relevant Prison Rules are not ultra vires the Prisons Proclamation (as amended).
The appeal was accordingly dismissed.
C of A(CIV)ll of 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
THE ATTORNEY-GENERAL First Appellant
DIRECTOR OF PRISONS Second Appellant
MOTOKO MAHLOKA Respondent
6, 13 October 2000
Coram: Van den Heever JA
The respondent successfully applied to the High Court (Peete J) for an order declaring his purported dismissal by the first appellant from his position as a warder in the prison service invalid, and reinstating him. The appellants now appeal against that order.
The material facts are few. On 9 July 1996 the respondent appeared before a disciplinary board at Hlotse. He was formally charged with contravening Rule 156 (7) of the Lesotho Prison Rules (GN 27 of 1957) by contributing to the escape of a prisoner from Leribe Prison through carelessness or neglect. The hearing was
conducted by an assistant senior superintendent in the prison service. The respondent was found guilty as charged; the sanction imposed was a severe reprimand (in terms of Prison Rule 163 (1) (b) (ii)). The respondent did not appeal. The Divisional Superintendent (North), on receiving the record, made comments on it critical of the sanction. It was considered to be disproportionately light. He recommended instead that the respondent be dismissed. The record was then forwarded to the Director of Prisons, who thereupon wrote to the respondent:
"On the review the conviction was confirmed and the award varied to a dismissal. You were given chance to show cause if any, why you could not be dismissed from the service and you failed."
The affidavits filed in the application to the High Court which ensued are largely concerned with the question whether the respondent indeed received an adequate opportunity to be heard before the award was varied in this way and he was dismissed. A crisper legal issue however emerged, and was determinative of the result. This was whether the Director had the power to do what he did: to treat the referral of the matter to him as a review, and thereafter to set aside the reprimand and substitute it with the sanction of dismissal. Peete J held that he had no such power, and accordingly granted the application.
The appellants' argument is simple. It starts by conceding that Prison Rule 163 (1) (b) empowers "[a]n officer in charge determining a case" to make what the Rule describes as an "award" (which may include a severe reprimand), while Prison Rule 163 (1) (c) in contrast authorises him to make one of a number of prescribed "recommendations". The sanctions listed under "recommendations" are all more severe, and include dismissal.
The argument then accepts that the procedure which must follow a disciplinary hearing in the prisons service is laid down in Prison Rule 165 (1), and that this continues the distinction drawn between an award and a recommendation. The Rule provides.
"165. (1) The officer in charge shall enter on the charge sheet any caution, award or recommendation, and any order, made by him under rule 163, and shall show the charge sheet and such entries to the officer, who shall initial the charge sheet. The award or recommendations, and any order, shall be reported to the Director, who shall take the following action:
if the charge is dismissed, or is dealt with by caution under paragraph (a) of sub-rule (1) of rule 163, make no entry in the officer's record of service;
if the charge is dealt with by means of an award under paragraph (b) of sub-rule 163, record it in the officer's record of service;
if the charge is dealt with by means of a recommendation under paragraph (c) of sub-rule (!) of rule 163, make no entry in the officer's record of service, until such recommendation has been confirmed, with or without
So viewed, the appellants accept, the case is clear. The sanction imposed on the respondent at the hearing was an award relating to one of the admonitions prescribed by Prison Rule 163 (1) (b), not a recommendation of dismissal under 163 (1) (c) (i). As this sanction was an award and not a recommendation, Rule 165 (1) (b) indicates that the Director is thereafter powerless to interfere with it: he may only record it. But that, the appellants argue, overlooks the statutory scheme laid down by the principal Act, the Prisons Proclamation 30 of 1957, as amended by the Prisons (Amendment) Order 30 of 1970. This gives the Director a power to review as he did here, because it gives him "ultimate authority in matters of appointment, discipline and removal of prison officers". The Prison Rules are "in clear conflict" (the argument continues) with the principal statute because they purport to subject the director's "ultimate authority" to that of another, his subordinate. Clarifying the argument, the appellants' counsel contended that the Rules should be construed in such a way as to avoid a conflict with the principal statute. Failing this, they should be held to be ultra vires.
In my view the argument fails because it misconceives the statutory scheme of the principal statute. It confuses in particular what it means for the Director to be what the appellants term the "ultimate" authority in disciplinary matters in the prisons service. A proper analysis of the principal statute reveals the following.
Section 2 (1) of the Prisons Proclamation, 30 of 1957, provided that "[a]ll powers and jurisdiction in relation to prisons and prisoners" vested in the Resident Commissioner. Section 2 (2) created the office of Director of Prisons for the purpose
of assisting the Resident Commissioner in the performance of his functions. Section 2 (3) provided that the Director was to exercise his functions in accordance with any general or special directions of the Resident Commissioner. Section 4 gave the Director the general supervision of prisons.
In 1964 the principal statute was amended by the substitution of "Chief Secretary" for "Resident Commissioner" (in terms of the Adaptation of Existing Laws Order, 2 of 1964), and in 1970 "Minister" was in turn substituted for "Chief Secretary" (in terms of section 3 of the Prisons (Amendment) Order, 30 of 1970).
The latter enactment also substituted the following for section 2 of Proclamation 30 of 1957:
2. The power to appoint a person to hold or act in the office of Director of Prisons, Superintendent or (including the power to confirm appointments and to appoint by way of promotion), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office, shall be exercised by the Minister after consultation with the Public Service Commission in accordance with the provisions of the Public Service Order 1970."
Section 4 of Proclamation 30 of 1957 was also replaced. The new provision made the Director's general supervisory powers expressly subject to "the general
directions of the Minister".
The Prison Rules owe their origin to section 31 (1) of Proclamation 20 of 1957. This empowered the Resident Commissioner (prior to his substitution in 1964 by the Chief Secretary and the latter's substitution in turn in 1970 by the Minister) to make rules for the regulation and management of prisons. Section 31 (2) (c) and (3) authorised the making of rules regulating the conduct of prison officers and their discipline.
It is in this setting that the appellants' contention that Rule 163 (1) (b) read with section 165 (1) (c) should be interpreted in such a way as to avoid conflict with the principal statute (by allowing the Director to review an award made under Rule 163(1) (b)), or otherwise should be held to be ultra vires. must be considered.
What these Rules do is to create a grading of disciplinary offences, and to provide for a final determination (but subject to a right of appeal by the disciplined officer) in relation to specified lesser offences by the officer in charge, while prescribing that a final determination as regards more serious matters must be made by the Director. I see no conflict between that scheme and the provisions of the principal statute as it has been amended from time to time. The general empowerment of the Director in terms of section 3 does not preclude the delegation of certain aspects of the Director's overall authority in matters of discipline to an officer in charge in the way this has been done by the Rules. The Director will still decide the matter if there is an appeal. Where there is no appeal, the delegation to the officer in charge is complete. Had the intention been that the Director should have a right of review whether or not
an appeal is noted, the Rule should have been amended to say just that. As Peete J noted, a delegation of this kind is implicitly authorised by the principal statute, for compelling reasons. It could not, as counsel for the appellants conceded in argument, have been the legislative intention in framing section 3 that every minor disciplinary infraction - smoking a cigarette for instance when not permitted to do so - was required by the lawgiver to be determined by the Director himself. A delegation of the Director's powers to the officer in charge of a disciplinary board, to the extent and in the respects raised by the Rules in issue here, seems to me to be authorised by section 3 of the principal statute by necessary implication (cf. Attorney-General OFS v Cyril Anderson Investments (Pty) Ltd 1965 (4) SA 628 (A) at 639).
The appeal is accordingly dismissed with costs.
JUDGE OF APPEAL
L. VAN DEN HEEVER
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered this 13th day of October 2000.