C OF A (CIV) No.18/2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
ATTORNEY GENERAL 1st APPELLANT
PUBLIC SERVICE COMMISSION 2nd APPELLANT
MORAPELI MOTAUNG RESPONDENT
HELD AT MASERU
CORAM: Steyn P
Public Service Act 1995 - Dismissal of a public servant - Public Service Commission Rules 1970 - motion proceedings - necessity for case to be fully and fairly disclosed in founding affidavits.
Plewman J A
This appeal demonstrates that informal steps taken by counsel in the course of proceedings which are designed to adapt such proceedings to changing circumstances can lead to unexpected consequences. First Appellant (First Respondent in the court below) is the Attorney-General in his capacity as the representative of the Lesotho Government. Second Appellant is the Public Service Commission. Respondent in the appeal (Applicant in the court below) is a former Director of Sports - a public officer employed by the government in terms of the Public Service Act. It is necessary to set out certain facts which gave rise to the dispute between trie parties.
Respondent's employment by government commenced in 1976 at a time when Public Service Order of 1970 ("the Order") was in force. The Order was repealed and replaced by the Public Service Act 1995 which came into operation on 9 April 1996 ("the Act"). This then governed respondent's conditions of employment. Respondent was due to retire in the ordinary course when he reached the age of 55 years on 13 March 1999. This fact, though common cause, was not canvassed in the affidavits (to be
presently referred to) but was recorded in the judgment of the court a quo, having been agreed upon by counsel in the course of argument. In June 1997 disciplinary proceedings in terms of the Act were instituted against respondent. Progress with this inquiry was slow. Much of the delay may (as is suggested by appellants) have been due to respondent's conduct and difficulties with the setting of dates for hearings with respondent's representatives - something which it is unnecessary to decide. The upshot was that such proceedings were pending on February 1998 when respondent, by letters to appellants - tendered his early retirement from the civil service. It seems quite clear from the record that he had decided upon a political career. In the letters he claimed leave due to him and indicated that he wished to start his retirement on 1 April 1998.
3. His letters were only answered on 7 May 1998 when his tender (no doubt by reason of s.30(6) of the Act) was refused. Respondent claimed that he only received this communication on 28 May. What is clear is that from 31 March respondent was actively engaged in politics contrary to the provisions of s.l4(k) of the Act and that he, contrary to the provisions of s.14(d), was thereafter continuously absent from official duties. On 22 May the Principal Secretary warned him that further disciplinary action could be taken against him - a threat which respondent ignored. On 18
August respondent was again told by letter that his continued political activities and failure to attend to his duties could not be tolerated. He was formally notified that a proposal to the Commission to remove him from office would be made and he was invited to make such submission as he may wish regarding this proposal. He did not respond.
On 23 October respondent by way of a notice of motion launched an application in which he sought a declaration that his "retirement" be declared lawful and effective as of 31st March, 1998; that s.30(6) of the Act be declared unconstitutional and that appellants be directed to pay him a pension as from 31 March. The basic premise for the relief sought was that respondent had ceased to be a civil servant. In the founding affidavit respondent attacked the refusal of his tender to take early retirement as being improper, irregular and unconstitutional. He averred, inter alia that he was being "victimized" for having resolved to stand as a candidate in the general election for the Lithabaneng Constituency. His case broadly was that he was entitled to retire and that mala fide decisions were being taken against him.
On 29 October 1998 appellants' answering affidavits were filed. Appellants asserted that they were entitled to refuse to allow respondent
to take early retirement on the basis that disciplinary proceedings against him were pending. They also contended that by wrongfully absenting himself from duty he had repudiated his contract which would entitle them to terminate his employment. It was also stated that a recommendation had been made to the Public Service Commission to remove respondent from the public service in the public interest and that the outcome of that recommendation was still being awaited.
Respondent's replying affidavit was filed on 15 January 1999. The main contention advanced therein was that he had not applied for early retirement but had notified the Commission of his intention to do so and that inasmuch as they had not "objected to (his) notification he was entitled to proceed on retirement as he did". This contention clearly is that he had in fact retired and was therefore no longer a civil servant.
In the meantime however the first appellant on 17 November 1998 had written to respondent informing him that the Commission had resolved (on the basis of the recommendation above referred to) that he be removed from office by way of dismissal without disciplinary proceedings with effect from 1 July 1998 in terms of Public Service Commission Rule 6-01 (e) of 1970 read together with S.14 (1)(d) of the
Public Service Act 1995.
In a further paragraph of his replying affidavit (and notwithstanding his earlier assertion that he had in fact retired) respondent contended that his "purported" dismissal in terms of the letter of 17 November was null and void for the fact that he had not been afforded "natural justice" in that here had been no pre-dismissal hearing. The replying affidavit continues as follows:
"My Counsel has been instructed to pursue this argument further at the hearing hereof. I have also instructed my Counsel to move an application for amendment of the Notice of Motion herein including a prayer for a declaration that the purported dismissal without a hearing was null and void and without effect. I aver that if I am dismissed ------- I will lose my entitlement to (a) gratuity and pension."
Clearly two inconsistent propositions are involved. But there is more to be said. At the very least respondent was seeking to introduce an additional cause of action in reply. This he was clearly not entitled to do. See Director of Hospital Services v Mistry 1979(1) SA 626(A) at 636 A-D; Administrator, Transvaal and Others v Theletsane and Others 1991(2) SA 192(A). Appellants filed no further affidavits and, as matters then stood, it was not open to respondent to argue for this new and, in any event, inconsistent form of relief.
No formal Notice of Amendment and no application for leave to amend the notice of motion was filed. Nor is there any indication in the judgment (which was delivered on 27/06/2001) that an application for an amendment of the notice of appeal was moved. In its judgment the court below dealt with the relief claimed in the notice of motion as originally framed and refused the relief sought therein (as there is no cross-appeal it is unnecessary to discuss the learned judge's reasons therefore). But the record reveals that a handwritten addition to the notice of motion has been made which reads -
" (g) why the purported dismissal of applicant from the service shall not be declared null and void".
This is not added as an alternative prayer. It is as is obvious a form of relief wholly inconsistent with respondent's continued assertion that he was no longer a civil servant. I will revert to this prayer presently.
In the judgment of the court below the discussion of respondent's original prayers ends with the following passage:-
"Assuming that his retirement was not effective as from 31 March 1998 - as he claims - the retirement of the applicant could only have begun on the 13 March 1999 when he turned fifty-five. By that date the applicant was, through his own choice and election, no longer in the civil service."
The judgment then, without more, continues:
"What remains next to be determined is whether the summary dismissal of the application of 1 November 1998 was in the circumstances lawful."
Despite the clear inconsistency of these findings the court below made the following orders:
The application is therefore dismissed with costs regarding prayers 2(a) (b) (c) (d).
Prayer 2(g) of the application succeeds with costs.
The basis for the second order is dealt with by the learned judge in a discussion of the provisions of the Public Service Act which he concludes with the finding that "dismissal from office can only come about under S.27 (of the Act) and that the breach of discipline must be proved under part 3 of the Act dealing with disciplinary proceedings which involve a charge (S.19) and an enquiry (S.21) during which the officer shall have a right to be present and to be heard......
For reasons which I gave latter this does not seem correct but what is of more immediate concern is that the respondent's affidavits provide no foundation for this contention (even if regard is had to the replying affidavit) and there was thus nothing to forwarn the appellants that this
was the case they were to meet.
10. Faced with the handwritten addition to the notice of motion this Court enquired from counsel what the origin and significance of the handwritten addition was and how and in what circumstances and by whom it had come to be made. Mr. Mosito, who appeared for respondent in the appeal informed us that he had also appeared in the court below, and stated that the addition had been made by the learned judge but with or by the consent of the parties. Mr. Makhethe, who appeared for the appellants had not appeared in the court below and could do no more than to indicate that what Mr. Mosito had said was in accordance with his understanding as to what had transpired. Mr. Mosito's explanation can, of course, be accepted but that does not in my view dispose of the matter or adequately address the consequences of the course followed in the court below.
11. The first observation to be made is that this Court should be furnished with a record which is complete in itself and which does not require amplification by way of statements from the Bar. But the problem is in fact more serious than that. The High Court is a court of record. It follows that matters in issue in proceedings, be it a trial or an application
on motion, must be clearly and properly formulated in the manner prescribed by the rules. This has been made clear in the judgments of this Court. It is necessary only to refer to the cases of Frasers Lesotho Limited v Hata-Butle (Pty) Ltd 1999-2000 L.L.R - LB (LAC) p65 at p68 and Malerotholi Josephine Sekhonyana & Anor v Standard Bank of Lesotho Ltd 1999-2000 LLR-LB (LAC) p416 at p 420. While these cases deal with trials the position with motions is no different. In motion proceedings the affidavits serve the purposes of both the pleadings and the evidence. What is required is that respondents be clearly and fairly informed of the case they are to meet. But to revert to the question of amendments. Any application for the amendment of any document filed of record must, at least, be based on a notice of amendment which must be filed and from which the terms of the proposed amendment are clear. There must also be, otherwise than perhaps where the amendment is no more than a clerical change, a formal application made and if the amendment is allowed an appropriate order must be made and a notation of such order must be recorded. At the very least this must be entered in the presiding judges Court Book. Furthermore it is incumbent upon the presiding judge at an appropriate stage - as for example when given judgment at the end of the case - to record in his judgment the course which has been followed. In the present case none of this has been done.
I should, I think, made it clear that this is not the pursuit of formality for formalities sake. As will be seen the informality in this case has a serious consequence.
Because of Mr. Makhethe's concession this Court cannot simply rule that the case be dealt with on the basis of the averments in the founding and answering affidavits and I propose to consider this Court's position in so far as the order made in relation to added ground 2(g) is concerned.
Though appellants' counsel has argued otherwise respondent's employment had a purely statutory basis. It was governed by the successive Public Service Acts and any regulations made thereunder. By Legal Notice 12 of 1970 certain rules were promulgated. These govern matters such as the "Principles and Procedures concerning Appointments", "Discipline", and (importantly) "Other Proceedings." S.39 of the Act itself provides that all subsidiary legislation made under the repealed Act of 1970 "shall be deemed to have been made under (the Act) and are to continue in force, so far as they are consistent with the Act, until revoked by regulations made under the Act." The 1970 rules thus continue to be of force. It has not been argued that the rules are "inconsistent" with the Act. The rules include Part 6 Proceedings for
Removal from Office or Reduction in Rank or Salary. S1 and 2 (so far as is relevant) provide as follows:
"(1) A head of department may propose in writing to the Senior Permanent Secretary, for reference to the Commission the removal of an officer from office ...................or one or more of the following grounds -
that the public interest so requires.
The head of department shall supply information in support of his proposal and he shall apply for directions concerning the procedure to be applied. He shall report to the Senior Permanent Secretary, for reference to the Commission the result of the application of that procedure.
The commission may after completion of any (2) advise that the Minister should -
order that the officer be removed from office by way of dismissal or compulsory retirement or permission to retire or otherwise."
The effect of this regulation was not considered by the court below. It seems not to have had its attention directed to S.39 of the Act. For this reason alone it does not seem to me that the court's finding (referred to above) can stand. But 1 see a different difficulty. Not only did respondent raise an entirely new and different case in reply - respondent also failed
to make out that new case in such manner as to enable appellants to understand precisely what that new case was. While the replying affidavit does contain a contention relating to S14 of the Act this is only in the context of the need for disciplinary action in terms of the Act itself. Rule 6 provides for a quite different inquiry and process. Neither are addressed in the respondent's affidavits. This Court has previously stressed "[i]t is in particular wrong to direct the attention of the other party to one issue and then attempt to canvass another (Frasers Lesotho Ltd v Hata-Butle (Pry) Ltd supra 68)
The result in my view is that even if the "consent" to which I have referred obliges this Court to consider para 2(g) of the Order the material facts which would enable us to do so have not been fully, fairly or regularly raised. For this reason this Court cannot allow the learned judge's order to stand.
All that it is appropriate to say is that there was, in the Court below, a clear procedural flaw which the "consent" could not of itself cure and respondent should not have been permitted to argue the point. There was no cross appeal against paragraph 1 of the Court's Order and this cannot be altered. But the order I make is that paragraph 2 is set aside. The
respondent must pay the costs of the appeal.
Delivered at Maseru this 11th day of April, 2002
JUDGE OF APPEAL
JUDGE OF APPEAL
Counsel for the appellant: Adv. K. Mosito
Counsel for the respondent: Adv. T. Makhethe