Tlhabi v Commissioner of Police and Others (CIV/APN/3I9/03 )

Media Neutral Citation: 
[2003] LSHC 123
Judgment Date: 
20 October, 2003

Downloads

CIV/APN/3I9/03

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


BOFIHLA TLHABI Applicant

And

COMMISSIONER OF POLICE 1st Respondent

PRESIDING OFFICER (Senior Inspector Moorosi) 2nd Respondent

ATTORNEY-GENERAL 3rd Respondent


JUDGMENT


Delivered on the 20th October, 2003 by the Hon. Mrs Justice A.M. Hlajoane


The Applicant is a member of Lesotho Mounted Police Service (LMPS). He has moved this Court to direct that the disciplinary proceedings against him be stopped pending the outcome of this Application. The prayers sought are framed as follows:


  1. Directing that the Disciplinary proceedings before the 2nd Respondent and

  2. against the Applicant be stopped pending the outcome of this application.


2


  1. Declaring the said disciplinary proceedings before the 2nd Respondent and against the Applicant null and void and of no legal effect.


  1. Declaring 2nd Respondent disciplinary Court without jurisdiction in the absence of the necessary regulations providing for penalties.


  1. Directing the respondents to pay the costs of this application only in the event of opposing same


  1. Granting Applicant such Further and/or alternative relief this Honourable Court shall deem fit and just.


Applicant in his founding Affidavit has shown that he was served with a charge sheet on the 7th May 2004 and the matter was heard before the 2nd Respondent as the Presiding Officer. In these proceedings certain points of law were raised and most of them are common cause.


It is not disputed that the Applicant is a member of the Lesotho Mounted Police Service. It is common cause that the law that governs the Police Service is the Police Service Act No.7 of 1998 which repealed Police Order No.26 of 1971. No regulations have been made under the Police Service Act 1998.


Let me just show the charges were framed;

"Before a Senior Police Officer appeared No.7890 Tpr Tlhabi, a member of LMPS stationed at Airfield Police Post, hereinafter called the accused charged with the offence of contravening Regulation 24, item 25 and 26 of Legal Notice 24 of 1972 of the schedule of offences as framed under Section 43 of Police Act No.7 of 1998 and punishable under


3


Section 47 of the said Police Act.


Count I:

In that upon or about the 28/09/2002 at about 2045 hrs and at or near Airfield Police Post, the said accused did wrongfully and intentionally fail to attend to any lawful and reasonable request made to him by any member of Public.


To wit: He failed to attend to report made to him by Tokoloho Thetsane and Nkalimeng Ntabejane that the car which was reported at the same station, the same day had been found, and that he should inform other stations.


Count II:

In that upon or about the 28/09/2002 at about 2045 hrs and at or near Airfield Police Post, the said accused did wrongfully and intentionally being drunk or rendering himself unfit for duty through drink.


To wit: He moved out of the office staggering and when tested the result was 63."


It is therefore the Applicant's case that though the Lesotho Mounted Police Regulations 1972 define offences against discipline, he could not be charged and tried before the 2nd Respondent because the 1972 Regulations do not prescribe punishment that can be imposed upon conviction.


4


Regulation 24 of Lesotho Mounted Police Regulations 1972 reads thus;


24. Offences against discipline

"Any member of the force who commits any of the offences set out in the following schedule, or who contravenes these regulations, shall be deemed to have committed an offence against discipline, and such offence shall be enquired into, tried and determined, and the offender shall in every case suffer such punishment, according to the degree and nature of the offence, as may be imposed in accordance with the provisions of the order, or these regulations.


Item 25 Failing to attend to any lawful and reasonable request made to him by any member of the Public.


Item 26 being drunk or rendering himself unfit for duty through drink


As rightly submitted by the Respondents, true enough, the 1972 Regulations only define offences against discipline - (Section 24 above). But Section 47 of the Police Service Act 1998 clearly prescribed punishments that can be imposed upon conviction.


Section 47:

"Subject to any provision in regulations made under Section 84 (2) (c), a Senior Officer conducting a hearing under Section 45 shall, on conviction, recommend one or more of the following punishments:


5


  1. reprimand


  1. severe reprimand


  1. fine not exceeding 21 days pay;


  1. extra duties in addition to normal duties; or


  1. dismissal.


It has already been shown that there are no regulations which have been made under Police Service Act of 1998, but on looking at the Provisions of Section 85 (2) (c) of Act 1998 it becomes clear that there is a saving clause.


Section 85deals with repeals, saving transitional and consequential provisions. Section 85 (1) 'The Police Order 1971 is hereby repealed.


  1. (a) ----------------------------------------------------------------------------


  1. -----------------------------------------------------------------------------------


  1. all regulations made under the enactment repealed by subsection (1) shall, so far as they are consistent with this Act, be deemed to have been made and shall continue in force, as if made under this Act."


This therefore means that in the absence of any regulations under Act 7 of 1998, the Regulations that are still in force which define offences against discipline within the Police Service, are the Lesotho Mounted Police Regulations 1972 made under the repealed Police Order 1971 but saved under Section 85 (2) (c) of Police Service Act


6


No.7of 1998.


Under the circumstances therefore, it becomes evident that 2nd Respondent's Court had jurisdiction and that the Applicant was properly charged and tried before the 2nd Respondent for a disciplinary offence as offences have clearly been defined and punishments presribed under the law.

An application tot consolidation of CIV/APN/341/2003 Souru Mothuntsane v Commissioner of Police & 2Others, was made and granted by this Court. The issues for determining in both cases are virtually the same, so that the decision in this case will also be a decision in that case.


The Application is accordingly dismissed with costs.


A. M. HLALOANE

JUDGE


For Applicants: Mr Posa

For Respondents: Mr Putsoane