Tekateka nad Others v Attorney General (CIV/APN/456/99)

Case No: 
CIV/APN/456/99
Media Neutral Citation: 
[2001] LSHC 17
Judgment Date: 
28 February, 2001

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CIV/APN/456/99
IN THE HIGH COURT OF LESOTHO

In the matter between:

MICHAEL M. TEKATEKA 1st APPLICANT

MOTLATSI E. MAKAE 2nd APPLICANT

SECHABA MONYANE 3rd APPLICANT

MOREMOHOLO M. MOSHOESHOE 4th APPLICANT

LIMPHO A. MARAKE 5th APPLICANT

MAKAE J. MA.KHORO 6th APPLICANT

'MANTOETSI LEJAHA 7th APPLICANT

THUSO MOKOTJO 8th APPLICANT

MORA MOSOTHOANE 9th APPLICANT

P. RAMAHLELE 10th APPLICANT

RAMABOSOTHO P. MOEKETSI 11th APPLICANT

SETHABATHABA GEORGE 12th APPLICANT

B.M. TJABANE 13th APPLICANT

LIBE MOSHOESHOE 14th APPLICANT

M. 'MABATHOANA 15th APPLICANT

S. MOHAPELOA 16th APPLICANT

LEKAOTA MOSOANG 17th APPLICANT

KHETHISA L. FUMA 18th APPLICANT

RAMAILI LESAOANA 19th APPLICANT

SEKOATI P. SEETANE 20th APPLICANT

LEBENYA MOTSOARI 21st APPLICANT

KANONO KAUSI 22nd APPLICANT

A. SEROBANYANE 23rd APPLICANT

TANKI MAJARA 24th APPLICANT

NTISA B. MAKETEKETE 25th APPLICANT

SELEBALO MAJARA 26th APPLICANT

THAKALI MOTLALANE 27th APPLICANT

PHEHELLO P. MASEELLO 28th APPLICANT

LEFIKA J. LEKHOTLA 29th APPLICANT

CHARLES S. MOTHEBESOANE 30th APPLICANT

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PAKA MAKHABA 31st APPLICANT

MAJORO MAJORO 32nd APPLICANT

M. MATSOELE 33rd APPLICANT

R. NTJELANE 34th APPLICANT

MAHAMO KATISO 35th APPLICANT

R. LETSELA 36th APPLICANT

TANKISO KOLOBE 37th APPLICANT

'MUSO J. MANYALA 38th APPLICANT

PUSELETSO THULO 39th APPLICANT

MONAHENG NTSOELE 40th APPLICANT

LITABA MAPHATHE 41st APPLICANT

MOLOANTOA TSOTAKO 42nd APPLICANT

LELAKA MOLISE 43rd APPLICANT

J. MOKHOBOHELI 44th APPLICANT

THABANG FONYA 45th APPLICANT

M.Z. MAHLOKO 46th APPLICANT

A.M. MOTHEBESOANE 47th APPLICANT

M. FAKO 48th APPLICANT

TSEBO THOABALA 49th APPLICANT

T. LITHAKONG 50th APPLICANT

P. QOBOSE 51st APPLICANT

M. LEFASO 52nd APPLICANT

W. NAILA 53rd APPLICANT

T. RALITSA 54th APPLICANT

N. NKUNE 55th APPLICANT

T. MOKOROBORI 56th APPLICANT

SEKABATHO MAHAO 57th APPLICANT

MORERO SHALE 58th APPLICANT

KOLOBA SEKETE 59th APPLICANT

MPHO MAHLOKO 60th APPLICANT

SEKOALA MONA 61st APPLICANT

T.J. KETA 62nd APPLICANT

E.M. TSENOLI 63rd APPLICANT

M. KHAKHANE 64th APPLICANT

L.E. LEKAKA 65th APPLICANT

C.M. MASEELA 66th APPLICANT

THABO MPHUTHI 67th APPLICANT

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LEEPILE PINDA 68th APPLICANT

R. MABOTE 69th APPLICANT

THABANG PITSO 70th APPLICANT

M.O. MOSHOESHOE 71st APPLICANT

MAIME TJAKAMA 72nd APPLICANT

L. NTAOTE 73rd APPLICANT

L. LESAKO 74th APPLICANT

S. TUKISI 75th APPLICANT

P.S. MOSEME 76th APPLICANT

M. MADOLO 77th APPLICANT

S. MOREMA 78th APPLICANT

L. LETSOARA 79th APPLICANT

K. KOTELE 80th APPLICANT

P.W. MOKONE 81st APPLICANT

PHOKA LUCAS PULE 82nd APPLICANT

M. RAPALO 83rd APPLICANT

M. METSING 84th APPLICANT

TSEPO KHALI 85th APPLICANT

T.P. MOSESI 86th APPLICANT

A.L. MOKONE 87th APPLICANT

L. SHAO 88th APPLICANT

M. SECHAI 89th APPLICANT

N. NKUEBE 90th APPLICANT

L. MAKHELE 91st APPLICANT

L.J. MOLAPO 92nd APPLICANT

T. MOSOTHOANE 93rd APPLICANT

S. MOREKI 94th APPLICANT

T. 'MOTE 95th APPLICANT

T.N. KHOABANE 96th APPLICANT

S. TSOLO 97th APPLICANT

T. NTOI 98th APPLICANT

R. MOTHABENG 99th APPLICANT

H. MOROJELE 100th APPLICANT

S. KHALEMA 101st APPLICANT

S. MATSOARA 102nd APPLICANT

I. MASHOAI 103rd APPLICANT

M. MOLEFE 104th APPLICANT

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M. LEPOTA 105th APPLICANT

K.E. KHALEMA 106th APPLICANT

M.L. LETSIPA 107th APPLICANT

M. SETLOLELA 108th APPLICANT

M. SELLO 109th APPLICANT

M. MOFUBETSOANA 110th APPLICANT

D. POPA 111st APPLICANT

T. MATSETSE 112nd APPLICANT

M. MATSOELE 113rd APPLICANT

M.D. SEMOKO 114th APPLICANT

T.P. MONOGOAHA 115th APPLICANT

P. LEKETA 116th APPLICANT

M. THAKHISI 117th APPLICANT

J. RALIBAKHA 118th APPLICANT

N. MOHAPI 119th APPLICANT

S. NKUEBE 120th APPLICANT

R. LEHOAEA 121st APPLICANT

P.J. LESUIPI 122nd APPLICANT

C.D. MAKOAQO 123rd APPLICANT

T. MATETE 124th APPLICANT

T. TSOLO 125th APPLICANT

M. THEKO 126th APPLICANT

S. MOTHEBE 127th APPLICANT

T.V. HLASA 128th APPLICANT

M. BOSIU 129th APPLICANT

T. PHATSOANE 130th APPLICANT

M. MARI 131st APPLICANT

M. LEPOLESA 132nd APPLICANT

M. LEKAU 133rd APPLICANT

L. MOLAPO 134th APPLICANT

P. MOLATELLE 135th APPLICANT

M. SEPIPI 136th APPLICANT

T. HLASA 137th APPLICANT

M. MOLEFI 138th APPLICANT

N.A. MOSHOESHOE 139th APPLICANT

A. MAPHEELLE 140th APPLICANT

B. MOLETSANE 141st APPLICANT

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L. MOLEFI 142nd APPLICANT

T. 'NEKO 143rd APPLICANT

M. LEHLOENYA 144th APPLICANT

L. NTOKOANE 145th APPLICANT

M. KOTELE 146th APPLICANT

and

ATTORNEY-GENERAL 1st RESPONDENT

P.S. MINISTRY OF WORKS 2nd RESPONDENT

P.V.P.S. 3rd RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. G.N. Mofolo on the 28th day of February, 2001.

From the record of proceedings, with a view to privatizing the Plant and Vehicle Pool Services (P.V.P.S.) the government engaged in 1998 services of Steven Hangley Consultants and Evaluators to achieve specific objectives among which was Task 3 charged with the development and implementation of a plan for staff retrenchment. In this regard terms of reference appear to have been:

(a) to establish a database of accurate information relating to P.V.P.S. employees length of service and other conditions factoring into the calculation of

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retrenchment packages.

(b)assessment of detailed costs of redundancy packages under (a) above and minimum standards provided for under Lesotho's Labour laws in conformity with severance policy expressed in the privatization policy guidelines and to make recommendations concerning staff retrenchment to the International Steering Committee.

According to paragraph 6 of the Founding Affidavit of Michael Tekateka:

(a) after the said engagement of consultants the 2nd Respondent caused annexure "B" to issue. A meeting was held in accordance with the said annexure "B". At that meeting we were informed that 'we are public officers, we may elect whether to take our retrenchment packages and then pass on with the new company that was to take over 3rd respondent, or to elect not to take the packages and then remain with the government, in which case we would be redeployed within some other ministries and branches of the government.'

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(b) 2nd Respondent indicated that it was obvious that those who had reached the retirement age of fifty-five (55) would have to retire and be pensioned. He then read out annexure "C" hereunto attached in particular, the first page thereof.

Now, annexure "B" is a memorandum from the Principal Secretary, Public Works and Transport to manager, P.V.P.S. inviting employees of P.V.P.S. and Plant Pool situation regarding employment of workers and their future. Annexure "C" is titled

Retrenchment Packages for P.V.P.S. Explanation of Calculation

Severance/retrenchment calculation appears to have been based on

  1. every employee being entitled to 6 months salary
    regardless of period

  2. every employee who has worked for more than 12 years
    being entitled to two weeks wages per year in excess of
    12 years service.

  3. In lieu of notice: one month's salary

  4. In lieu of days leave, as per P.V.P.S. personnel files.

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Then there is postscript to the effect that

no provision calculations have been included in these figures and

we are still awaiting confirmation of data from the Personnel Office of Works and redeployment availability from Public Service.

Annexed to annexure "C" is a verification list reflecting retrenchment/severance packages which include payment in lieu of notice and leave days. Some amounts, taken together, are quite substantial and it would seem, irrespective of whether officers were temporary, on probation or on permanent establishment, they have all be paid retrenchment/severance packages. I do not know what principle was invoked to lump permanent and temporary officers together. What's more, if the allegation that some P.V.P.S. officers are still functioning as civil servants and others have been pensioned off is true, it would seem a big question mark looms as to the propriety of having given established public servants retrenchment/severance packages.

Concerning paragraph 6 of Michael Tekateka's Founding Affidavit, in this regard Bataung Leleka has answered as follows in his paragraph 14:

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'It is simply untrue that there was such an open - ended offer for employees to choose what they want. The position was simply that where feasible some limited number of employees of P.V.P.S. could be absorbed elsewhere in the public service depending on availability of suitable positions for such redeployment. That large numbers would have to leave the service as a result of privatizing P.V.P.S. was never in doubt. The very nature of the process of privatisation of public institutions, of necessity, admits of no further intake of the affected employees into other sections/branches of the Government. Universally, there is, inevitably, only one route followed, massive retirements and/or terminal and/or retrenchments. Thus it is highly inconceivable that the Government would have been so naive as to promise unlimited intake of staff that would be affected by the privatisation of the P.V.P.S., and I state here that it was never so, and applicants are challenged to prove their allegation in this regard.'

Also, at paragraph 9 of his to Founding Affidavit Michael Tekateka has deposed:

I aver that some of the Applicants herein were entitled to

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terminal benefits in the nature of:

  1. gratuities

  2. pensions

but were not given such benefits in terms of the Pensions Proclamation of 1964, in particular and inter alia, section 2 (3) thereof, read with section 22 of this proclamation.

In answer to this Bataung Leleka for 2nd and 3rd respondents has deposed at paragraph 15 of his Answering Affidavit:

'I am very embarrassed to have to answer to this paragraph as
it is not clear at all what the allegation is. In the event that the allegation is that those applicants entitled to pension and
gratuity were not at all given such benefits, my simple response
is that there has been delays caused, inter alia, the very conduct of some of the applicants who have flatly refused to fill the necessary forms for processing of payments of these benefits.
Those who cooperated, their benefits are being processed; those
who refused to cooperate, it is difficult to process their benefits.
Annexed hereto are copies of filled forms by a very limited
number of applicants .'

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2nd and 3rd respondents' answer to paragraph 6 of the Founding Affidavit is hardly convincing. I do not understand what the deponent means by 'it is simply untrue that there was such an open-ended offer for employees to choose what they wanted.'

It was as a result of these misunderstandings between applicants and 3rd respondent as represented by 2nd respondent that applicants launched an application with this court seeking an order in the following terms:

  1. The purported termination and/or retrenchments of Applicants
    by 2nd respondent be declared null and void.

  2. The applicants be re-instated as public servant.

3. Costs of suit.
ALTERNATIVELY

  1. Respondents are directed to pay applicants their pension and/or
    gratuity entitlements.

  2. Costs of suit.

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6. Further and/or alternative relief.

As I understand the Pensions Proclamation, 1964 to which reference has been made, the proclamation interprets 'pensionable office' as:-

'(a) in respect of public service under the Government of Basutoland (now Lesotho), an office which, by virtue of provisions for the time being in force in a notice made by the Resident Commissioner (now Prime Minister or Minister as the case may be) and published in the Gazette, is declared to be a pensionable office; and any such notification may from time to time be amended, added to, or revoked by a notification so made and published; but where by virtue of any such amendment or revocation any office ceases to be a pensionable office, then so long as any person holding that office at the time of the amendment or revocation continues therein, the office shall as respects that person, continue to be a pensionable office;'

(b) in relation to other public service, an office which is for the time being a pensionable office under the law or

13 regulation in force in respect of such service;

In respect of retirement of Public Servants, it appears provisions of the Public Service Act, 1995 have to be read together with provisions relating to the Pensions Proclamation, 1964. Thus in terms of the Public Service Act, 1995 sec.29, a public officer is one 'who at the material time holds on permanent terms a public office that is pensionable under provisions of the Pensions Proclamation, 1964. Under sec. or clause 30 (1) of the Act

'a public officer shall retire from the public office, and shall be so retired, on attaining the age of fifty-five years.'

sub-clause (2) is to the effect:

'a public officer who has attained the age of forty-five may in the discretion of the Commission be retired from the public service.'

As shown above, the Pensions Proclamation above has shown in detail what a pensionable officer is and the means to be employed to revoke the office. Now it is common cause that some applicants were on pensionable office. I am not aware that by reason of privatisation some of these offices were revoked and ceased to be pensionable offices. Even if they were (which I doubt) the question remains whether by reason of their revocation

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holders would thereby lose benefits of services already rendered. In so far as this court is concerned, while a public servant can be retired from the service on reaching the age of forty-five (45) years and has to retire on reaching the mandatory age of fifty-five (55 years) barring misconduct, he is entitled to be paid his pension and gratuity on being retired or himself opting to retire. 2nd and 3rd respondents have got a wrong end of the stick. It is not a question of government being open-handed; it is rather a question of government fulfilling its obligations under its own rules. Applicants are not asking for benefits but rather to be paid their due. I am horrified 2nd and 3rd respondents have the temerity to allege 'where feasible some limited number of employees of P.V.P.S. could be absorbed elsewhere in the public

service. . .'. The government cannot pick and choose as to who to absorb

into the public service for this would be blatant discrimination. What's more, this lends credibility to the allegation by applicants' counsel referred to above that government has chosen to retire some applicants while others have been absorbed in the public service.

This court cannot allow double standards and selective morality to be practiced on public servants. While the court acknowledges the good intentions of the government to privatize some of its services, such good intentions are not to be at the expense of established public servants who expect that at the end of term of their service they will, in terms of the law,

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be rewarded for offering illustrious and commendable service to government. It has not been explained to me why P.V.P.S. expects established public servants to rough it up and sacrifice while public servants in other ministries and departments of government are going about their duties and expectations in a normal way. The government has an election: to retire P.V.P.S. established public servants or to retain them and deploy them in other government ministries and departments until these have reached their retiring age or opt to retire on their own.

It has been contended on behalf of applicants that if retired, applicants were not heard; against applicants there is also the contention that they have no locus stande to have brought this application. There is also the complaint that this court has no jurisdiction for this is a labour issue. With regard to the letter contention, this is a court of first jurisdiction and the legislation under which it is established does not categorise matters with regard to which the court may or may not concern itself. It has been said again and again that for this court to be denied jurisdiction any such law or statute must expressly deny this court jurisdiction. So far as the Labour Code, 1992 is concerned, the tenor of the legislation relates to an inquiry and determination of industrial disputes which are not in issue or under focus. As to exclusive civil jurisdiction of the Labour Court under sec.25 sub-section (1), it does not appear that the phraseology 'no ordinary or

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subordinate court' includes the High Court. Accordingly, this court has jurisdiction to entertain this application.

As to whether applicants have locus standi to have brought the application, it stands to reason that by reason of applicants being affected complainants in a decision made against them and to their prejudice, being interested parties in the decision complained of they have locus standi. This notwithstanding, it has been argued on behalf of respondents that applicants have not established their locus standi before this court by failing to file supporting affidavits. Actually, in his Founding Affidavit Michael Tekateka at paragraph 3 has deposed:-

'I have been authorised by all the persons whose names appear
in the heading hereof to depose to this affidavit on their behalf.
Such persons are also applicants in these proceedings. . .'

It has been contended on behalf of the respondents that apart from contents of paragraph 3 above, to have locus standi in the proceedings, applicants should have individually filed supporting affidavits by associating themselves with contents of the 1st applicant's affidavit. It is common cause that this was not done. Counsel for applicants has countered that 1st applicant had a mandate from other applicants to depose

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as he did on their behalf and from the papers it is clear that 1st applicant had a mandate from co-applicants to depose to the affidavit on their behalf. In so far as this court is concerned, there is established practice for co-applicants or co-respondents to affirm and associate themselves with the contents of a party who deposes to an affidavit on their behalf. In some cases, it would appear it is sufficient for a party merely to allege he is authorised to depose on behalf of other litigants on the same issue and it would appear unless there is the fear that the officer claiming to be authorised may not be authorised, his claim to be authorised must stand. The applicant Michael Tekateka is co-worker with the applicants who have been retrenched and his interests are the same as those of the rest of the applicants and there can be no doubt that he was authorised as he has claimed in his Founding Affidavit. Accordingly, applicants have locus standi in these proceedings.

As to whether applicants were heard before they were retrenched, and being public servants, that it is the Public Service Commission that should have heard them, evidence on whether applicants were heard by the Public Service Commission is very scanty.

In his answering affidavit Bataung Leleka (vide paragraph 10) refers to the Public Service Commission having been 'seized of the matter of

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applicants' retirement and/or termination of employment. . .' and refers the court to annexure "F" of the founding affidavit. He further says copies of relevant memoranda, proposals and decisions of the Public Service Commission in the matter speaks for themselves under the collective bundle "L1". At paragraph 11 of his answering affidavit he also refers to decisions of the Public Service Commission marked "L2".

With respect, annexure "F" is merely a list of appointments and terms of appointment and has nothing to do with the Public Service Commission nor is it proof that the Public Service Commission heard applicants before retiring them. Annexure "L1" is a proposal memorandum requesting 'the commission to consider the recommendation by the Head of Department that officers appearing on the attached list be retired from the Civil Service in accordance with Part 4 sec.30 s.s. 8 (i) of the Public Service Act, 1995 due to closure of the P.V.P.S. The letter proceeds 'officers concerned have been paid cash in lieu of notice from the month of July, 1999. Noticeably, this was recommendation to the P.S.C. not that the P.S.C. heard applicants before retiring them. This becomes even clearer that applicants were not heard having regard to the assertion "all officers concerned have been paid in cash in lieu of notice'. A memorandum dated 29 July, 1999 page 137 in bold letters from the Principal Secretary, Works to the Hon. Minister, Works reads in italics:

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The following proposal is being submitted to the Public Service Commission for consideration. Please indicate your concurrence.

'That officers who appear on the attached list be retired from the Civil Service in accordance with the Part 4 section 30, sub­section 8 (i) of the Public Service Act, No. 13 of 1995 due to closure of P.V.P.S. as a result of GOL's policy of privatization with effect from 1st July, 1999.'

On page 143 in bold letters purportedly from the 4332nd meeting dated 22nd September, 1999, item 1925/99 appears the following note:

'Arising out of the 4328th Minutes, item 1874/99, having noted that the officers have already received their terminal benefits the Commission resolved that they be retired from the Public Service in terms of section 30 (8) (1) of the Public Service Act No.l3of 1995 due to the closure of P.V.P.S. with the exception of Mrs. C.L.M. Tsoaeli who has been absorbed by the Ministry of Finance.

The Commission further noted that the undermentioned officer had been paid their retirement packages, therefore, requested that they be paid.

Medames J.R.M. Lekau, W. Metsing, Messrs M.A. Rapalo and M. Mothebesoane.

The same note appears on page 154 in bold letters where the

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be rewarded for offering illustrious and commendable service to government. It has not been explained to me why P.V.P.S. expects established public servants to rough it up and sacrifice while public servants in other ministries and departments of government are going about their duties and expectations in a normal way. The government has an election: to retire P.V.P.S. established public servants or to retain them and deploy them in other government ministries and departments until these have reached their retiring age or opt to retire on their own.

It has been contended on behalf of applicants that if retired, applicants were not heard; against applicants there is also the contention that they have no locus standi to have brought this application. There is also the complaint that this court has no jurisdiction for this is a labour issue. With regard to the letter contention, this is a court of first jurisdiction and the legislation under which it is established does not categorise matters with regard to which the court may or may not concern itself. It has been said again and again that for this court to be denied jurisdiction any such law or statute must expressly deny this court jurisdiction. So far as the Labour Code, 1992 is concerned, the tenor of the legislation relates to an inquiry and determination of industrial disputes which are not in issue or under focus. As to exclusive civil jurisdiction of the Labour Court under sec.25 sub-section (1), it does not appear that the phraseology 'no ordinary or

16 subordinate court' includes the High Court. Accordingly, this court has jurisdiction to entertain this application.

As to whether applicants have locus standi to have brought the application, it stands to reason that by reason of applicants being affected complainants in a decision made against them and to their prejudice, being interested parties in the decision complained of they have locus standi. This notwithstanding, it has been argued on behalf of respondents that applicants have not established their locus standi before this court by failing to file supporting affidavits. Actually, in his Founding Affidavit Michael Tekateka at paragraph 3 has deposed:-

'I have been authorised by all the persons whose names appear
in the heading hereof to depose to this affidavit on their behalf.
Such persons are also applicants in these proceedings. . .'

It has been contended on behalf of the respondents that apart from contents of paragraph 3 above, to have locus standi in the proceedings, applicants should have individually filed supporting affidavits by associating themselves with contents of the 1st applicant's affidavit. It is common cause that this was not done. Counsel for applicants has countered that 1st applicant had a mandate from other applicants to depose

17

as he did on their behalf and from the papers it is clear that 1st applicant had a mandate from co-applicants to depose to the affidavit on their behalf. In so far as this court is concerned, there is established practice for co-applicants or co-respondents to affirm and associate themselves with the contents of a party who deposes to an affidavit on their behalf. In some cases, it would appear it is sufficient for a party merely to allege he is authorised to depose on behalf of other litigants on the same issue and it would appear unless there is the fear that the officer claiming to be authorised may not be authorised, his claim to be authorised must stand. The applicant Michael Tekateka is co-worker with the applicants who have been retrenched and his interests are the same as those of the rest of the applicants and there can be no doubt that he was authorised as he has claimed in his Founding Affidavit. Accordingly, applicants have locus standi in these proceedings.

As to whether applicants were heard before they were retrenched, and being public servants, that it is the Public Service Commission that should have heard them, evidence on whether applicants were heard by the Public Service Commission is very scanty.

In his answering affidavit Bataung Leleka (vide paragraph 10) refers to the Public Service Commission having been 'seized of the matter of

18

applicants' retirement and/or termination of employment -—' and refers the court to annexure "F" of the founding affidavit. He further says copies of relevant memoranda, proposals and decisions of the Public Service Commission in the matter speaks for themselves under the collective bundle "L1". At paragraph 11 of his answering affidavit he also refers to decisions of the Public Service Commission marked "L2".

With respect, annexure "F" is merely a list of appointments and terms of appointment and has nothing to do with the Public Service Commission nor is it proof that the Public Service Commission heard applicants before retiring them. Annexure "L1" is a proposal memorandum requesting 'the commission to consider the recommendation by the Head of Department that officers appearing on the attached list be retired from the Civil Service in accordance with Part 4 sec.30 s.s. 8 (i) of the Public Service Act, 1995 due to closure of the P.V.P.S. The letter proceeds 'officers concerned have been paid cash in lieu of notice from the month of July, 1999. Noticeably, this was recommendation to the P.S.C. not that the P.S.C. heard applicants before retiring them. This becomes even clearer that applicants were not heard having regard to the assertion "all officers concerned have been paid in cash in lieu of notice'. A memorandum dated 29 July, 1999 page 137 in bold letters from the Principal Secretary, Works to the Hon. Minister, Works reads in italics:

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The following proposal is being submitted to the Public Service Commission for consideration. Please indicate your concurrence.

'That officers who appear on the attached list be retired from the Civil Service in accordance with the Part 4 section 30, sub-section 8 (i) of the Public Service Act, No. 13 of 1995 due to closure of P.V.P.S. as a result of GOL's policy of privatization with effect from 1st July, 1999.'

On page 143 in bold letters purportedly from the 4332nd meeting dated 22nd September, 1999, item 1925/99 appears the following note:

'Arising out of the 4328th Minutes, item 1874/99, having noted that the officers have already received their terminal benefits the Commission resolved that they be retired from the Public Service in terms of section 30 (8) (1) of the Public Service Act No.l3of 1995 due to the closure of P.V.P.S. with the exception of Mrs. C.L.M. Tsoaeli who has been absorbed by the Ministry of Finance.

The Commission further noted that the undermentioned officer had been paid their retirement packages, therefore, requested that they be paid.

Medames J.R.M. Lekau, W. Metsing, Messrs M.A. Rapalo and M. Mothebesoane.

The same note appears on page 154 in bold letters where the

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Commission had noted

The Commission further noted that the undermentioned officers have not been paid their terminal benefits, therefore requested that they be paid namely: Messrs A.T. Machabe, Tumelo, Sehlabaka, MP. Thaane, V.K. Thamae, N.P. Khamali, J.M. Keletso, K. Mahamo and K.L. Fuma.

and once more at annexure "L2" follow the following letters to some applicants at p. 155-179 in bold letters:

'You are hereby informed that the Public Service Commission has resolved that your Temporary Appointment be terminated in accordance with section 30(8) (i) of the Public Service Act No. 13 of 1995 due to Privatization of P.V.P.S., etc'

so that from p. 155 - 179 it would seem temporary appointments were terminated.

From p. 18 in bold letters to p. 230 in bold letters seemingly established and permanent civil servants were being retired from the Public Service by the 2nd respondent for letters all read:

W/P/18906

Ministry of Public Works and Transport,

21.

P.O. Box 20,

Maseru. 100.

1st September, 1995.

Mr. L.E. Moshoeshoe,

c/o Public Works and Transport,

Dear Sir,

You are hereby informed that the Public Service Commission has resolved that you be retired from the Public Service in Terms of Section 30 (8) (i) of the Public Service Act No. 13 of 1995 due to closure of P.V.P.S.

I take this opportunity to thank you for the valued service you rendered to the Lesotho Government and wish you success in your future career.

Yours faithfully,

B. Leleka (MR.)

PRINCIPAL SECRETARY FOR PUBLIC

WORKS AND TRANSPORT

cc. PUBLIC SERVICE P.S.C. ACGEN AUDIT PMIS

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Unfortunately, it would appear when the P.S.C. resolved to have applicants retired, they had already been retired by the 3rd respondents for according to the minutes of the P.S.C. dated 22nd September, 1999, it had been 'noted that the officers have already received their terminal benefits' so that the P.S.C. was merely used as a conduit pipe or as it were rubber stamp by the 3rd respondent. I have no particular quarrel with whether the P.V.P.S. was authorised by the P.S.C. to write to applicants informing them of their retirement. The question is whether before retiring the applicants the latter were heard and asked to make representations. When the applicants were engaged by the Public Service Commission, they appeared before the P.S.C. to present their case. It follows that in being retired they should have appeared before the P.S.C. to make representations. I am not satisfied that applicants were heard before they were retired. It was necessary that applicants appear before the P.S.C. before being retired to make representations whether they wished to retire or continue in the service. I appreciate that the P.S.C. would in the circumstances have made its own ruling which would be binding on applicants. The ruling cannot now be binding because applicants were not heard before being retired and it is desirable that they must be heard if they must be retired.

In Staatsdienshja van Suid-Afrika en Andere v. Minister van Waterwere, 1990 (2) S.A. 440 (N.A.) applicants were part-time workers

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employed by the State receiving full pension rights. It was said the principle of audi alter am partem was not applicable to the decision to retrench such workers for such workers did not have more rights than an ordinary worker in private enterprise even if the decision to terminate such services is regarded as an administrative act. The applicants had been discharged from the service of the Department of Water Affairs with one month's notice as a result of a programme of retrenchment. Through their organization applicants had applied to court to have their discharge declared invalid on the ground that the audi alteram partem principle had not been complied with. They contended that the existing contract of service created the reasonable expectation that the contract of service would continue and if their services were terminated it would take place in a fair manner and that the rules of natural justice would apply. Held so long as the contract of service provided for termination of services on a month's notice the contract could be validly terminated and government servants on temporary terms of service did not have same rights as public servants and an employee of the state in such circumstances did not have more rights than an ordinary worker in a private undertaking; even if service was terminated by a public official, the employee did not for that reason have any greater right than those accorded by the relevant statute or common law or his conditions of service.

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The reasoning in the case has been to relegate public servants on temporary conditions of service to statutory and common law employees liable for their services to be terminated so long as one (1) month notice of termination of service is given. Held further that principles of natural justice were not applicable to the termination of applicants' services as there had been no unfairness to them applicants having all received full compensation from the pension fund. Held further that from the Public Service staff code, it was clear the legislature intended to exclude the audi alteram partem rule from the decision to retrench temporary workers who had received pension rights. This judgment equally applies to temporary applicants in the instant application.

A government employee's conditions of service are governed by the statute under which he is employed. Where a government employee functions on permanent basis, his terminal benefits on retirement or retrenchment are governed by the Public Service Act; this goes for servants on probation. It is immaterial under what circumstances a public servant is removed from the service so long as on removal, barring disciplinary proceedings against him, he is entitled to his pension and gratuity if the exigencies of the situation require that he be retrenched. Removing him from permanent service without commensurate benefits enjoyed by other permanent civil servants smacks of gross discrimination which cannot be

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allowed.

As I have said, barring misconduct, a civil servant on permanent terms of employment entertains the reasonable expectation that he will retire from the service on reaching retiring age unless he chooses to retire early. He does not have himself to blame should government consider privatisation of its departments and services for that is a government affair having nothing to do with an ordinary public servant who, in any event, is transferable from one ministry or department to another. If public servants are deemed redundant by reason of privatisation and hence retrenchments, legislation has to be passed to the effect and even if it is passed to declare public servants redundant it does not and cannot be allowed to encroach on public servants' entrenched rights so that, even if they are declared redundant, they cannot be made to forfeit their long toiled for benefits in the form of gratuity and pension.

Restructuring is a government priority and well received in progressive societies for it augurs for lean and efficient government services. In doing so established civil servants cannot be expected to make sacrifices unless they choose to do so.

Civil servants on probation expect that at the end of their probationary

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period they will be accepted into permanent establishment barring misconduct or incompetence on their part. They have done nothing not to earn this expectation and it offends a sense of justice and fair-play to be treated differently from other civil servants in other ministries and departments of government.

I have already said that in so far as temporary public servants are concerned, it is enough if they were given notice of termination of their services for they have no greater rights than employees in private enterprises where only, one month's notice of termination of services is sufficient. This reasoning cannot be extended to public servants on probation or permanent establishment for concerning these, it is not enough that they have been served with one month's notice of termination of their services; apart from this, they expect respectively that they will, when time comes, be accepted into the permanent establishment and on retiring be given their pension and gratuity benefits.

Accordingly, the application is granted in its substantive form and to the extend that:

1. The purported termination and/or retrenchments of applicants on probation and permanent establishment is

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declared to be null and void.

2 Applicants on probation or permanent establishment are to be re-instated.

3. Respondents are to jointly and severally bear costs of this suit.

This court notes that some applicants were paid retrenchment packages. In the event the Public Service Commission retired them, it would seem such applicants would be required to mitigate damages.

G.N. MOFOLO

JUDGE
26th January, 2001.

For the Applicants: Mr. Mosito
For the Respondents: Mr. Mapetla