IN THE HIGH COURT OF LESOTHO
ln the matter between:
HLOMOI IANG MOROKOLE APPLICANT
ATTORNEY GENERAL 1st RESPONDENT
PUBLIC SERVICE COMMISSION 2nd RESPONDENT
GOVERNMENT SECRETARY 3rd RESPONDENT
M.G. MA LUKE 4th RESPONDENT
Delivered by the Hon. Mr. Justice G. N. Mofolo On the 21st day of October. 2003
The Applicant has approached this court on an urgent basis claiming an order as follows:
Dispensing with the Rules of Court pertaining to periods and modes of scrvice of process owing to the urgency thereof.
Directing respondents to file their opposing papers (if any) on or before Thursday the 18th day of July, 2002 at 4:00 p.m. The matter to be heard
on the 19th day of July, 2002 at 9:30 a.m.
That a Rule Nisi be and is hereby issued returnable on a date and time to be determined by this Honourable Court calling upon respondents to show cause (if any) why;
The purported transfer of applicant shall not be stayed pending the outcome of this application.
The said purported transfer of applicant shall not be declared unlawful and of no force and effect.
Directing respondents to pay costs of this application only in the event of opposition.
Granting applicant any further/or alternative relief as this Honourable Court may deem meet.
That prayers 1, 2 and 3(a) operate with immediate effect as interim relief.
When the matter came to court, an interim order appears to have been granted on 16 July, 2002 made returnable on 18 July, 2002 and the matter to be heard on 19 July, 2002. The matter appears nonetheless to have been heard on 13 August, 2003 and judgement reserved to 24 September, 03.
On the outset, this court wishes to express itself on the growing and uncontrollable habit of applicants and their counsel bringing applications to court on an urgent basis when, in effect, there is no urgency. In this case the applicant has come to court to resist a transfer from one ministry to another. With respect, I see nothing urgent in this since despite the transfer applicant will
receive the same salary as he received while serving the ministry from which he has been transferred. If he was occupying a government quarter in Maseru, it is unimaginable that he may be required to change quarter and in any event applicant has not complained of this. There is nothing, not even remotely, which makes this application urgent. An application is urgent if an applicant stands to suffer prejudice or loss if the application is not disposed off on an urgent basis. Thus if A intends to sell B's vehicle and B has discharged his indebtedness to A, the application is certainly one of extreme urgency as is the case where C keeps on pointing a gun at D threatening to shoot him. There are several examples but certainly the instant application does not fell into the class of urgent applications.
I was inclined on this basis alone to discharge the rule save that there are salient points in the application I am desirous of dealing with. From papers before me, it would appear the applicant was appointed Deputy Clerk to the National Assembly in 1995 (vide annexure HM1) on contract terms on Grade 17.
As to duties the applicant is expected to perform, the schedule of agreement item 2(1) is to the effect, amongst other things, that:
the duties of the person engaged shall include the usual duties of the office in which he is engaged and any other suitable duties which the Government may call upon him to perform (my emphasis).
I am not clear as to the background story but in any event applicant appears to have been re-instated in his position sometime in August, 1996 (vide annexure "HM3"). By annexure "HM4" the applicant was appointed to act in the substantively vacant office of Clerk to the Senate Grade K for three (3) months from a date not earlier than the 4th November, 1999. The appointment was accompanied by letter from the Government Secretary dated 31 January, 2000 (annexure "HM5") and then the crunch came on 28 June, 2002 when by letter of 28 June, 2002 the applicant was transferred by the Government Secretary from the Senate to the Ministry of Public Works in the Buildings and Maintenance Department to the position of Principal Technical Officer, Grade F 'for salary purposes and retain your present salary grade.' It was also said 'your terms and conditions of service will otherwise remain the same except those attached to the functions of the position of Deputy Clerk." Applicant attacks the transfer for the reason that as in his new position he stands to lose terms and conditions of service attached to Deputy Clerk a position it is intended he relinquish, the transfer is a demotion in disguise. It is true as Deputy Clerk applicant was high on the list of Senate officials coming fourth after the President of Senate in scale J and most likely enjoying the same rights and privileges as the President himself. I have no doubt some of the annexures have been attached to applicant's Founding Affidavit to demonstrate the extend to which the applicant, as a result of the transfer, stands to lose some of the fringe benefits. The benefits appear to be cellular telephone bill, car loan, official passport, air travel 10% entertainment allowance outside the country; the
applicant has also said because of the transfer he will lose invitations to official state functions. I can only caution that the privileges applicant complains of losing arc only subsidiary and marginal not going to the root of the terms and conditions of his employment contract. I have further perused terms and conditions of the applicant's schedule of agreement and have not found loss of privileges envisaged by annexures l0 and 11 as part and parcel of the terms and conditions of applicant's employment the privileges being understood, in any event, as going with the post. For the sake of clarity I may repeat that in his letter of transfer the Government Secretary has said applicant's terms and conditions of service will otherwise remain the same except those attached to the funet ion of the position of Deputy Clerk. In my view it has to be because in his position applicant cannot function like a Deputy Clerk.
Mr. Mosito in his Heads of Argument has complained that the punishment was breach of discipline in disguise and if the applicant had been guilty of misconduct he should have been charged of breach of discipline and not be punished through the back door.
Mr. Mosito has also said before the transfer applicant should have been heard as it does not appear that applicant was not informed of the reason for transfer and given an opportunity to respond thereto. I have understood Mr. Mosito as saying in transferring applicant no reason was stated for the transfer and that it was only in 2nd Respondent's Answering affidavit that such reasons
were stated and that, if indeed there were such reasons, these should have been stated in the letter of transfer and that since reasons for transfer were not stated in the letter of transfer but in subsequent Answering Affidavit(s) these reasons were to be treated as an afterthought. Mr. Mosito has also said applicant's transfer was unlawful, arbitrary, unfair and prejudicial to applicant's rights, interests and privileges compelling the court to set aside the transfer.
I wish to respond to Mr. Mosito's queries and submissions though not necessarily in the order in which they come.
It is the practice of our courts that where a public servant's rights, interests and privileges are in issue and the case against him is serious enough to prejudice or make him suffer loss in his rights, interests and privileges, rules of natural justice be observed and a hearing mechanism be made available to the person before prejudicial consequences are brought to bear upon him. In the result I agree that if there were serious allegations against the applicant he should have been apprised of these and given an opportunity to deny them. I agree with Mr. Mosito that if allegations of non-feasance or misfeasance or as it were acts of omission or commission are serious enough the culprit should face the music in the form of a disciplinary hearing. The question though is. in the eyes of the public body responsible for applicant's transfer, is this the light in which applicant was viewed? Alternatively even if allegations against the applicant were serious, is it not in the discretion of the public body to ignore or
side-step them? Can a public body's discretion be interfered with? In my view, if there were allegations against the applicant and these were true, he has got off lightly and one is disinclined to precipitate the otherwise potentially precarious position of the applicant.
I have read the Prime Minister's affidavit and have no doubt in my mind (hat the decision taken by him to transfer the applicant after the commission's recommendations was a decision in public interest 'to improve the efficiency of the Senate.' I have no doubt in my mind too that the decision was taken also in the best interests of the applicant for, as was suggested, had disciplinary proceedings been instituted against the applicant, whether he succeeded or not this would be a permanent record to follow him in his career. It is also clear to me the Prime Minister has no wish or will to work with the applicant and I do not think it would be wise or fair to foist the applicant on the Prime Minister.
Mr. Sekatle for the 2nd Respondent in his affidavit has said in the Senate applicant was no more than an administrator and the post of Principal Technical officer is an administration post with not technical knowledge ring. I understand this as meaning applicant was not engaged for his technical know-how either in the Senate or the Ministry of Public Works and Transportation. Indeed I have looked at applicant's field of study consisting of Business Administration, Political Science, Public Finance and Parliamentary Administration and have formed the opinion that these are general subjects
hardly consistent with making the applicant a specialist in any field.
In any event as I indicated above, when the government appointed applicant, it was not understood that applicant would perform specialised duties but any other suitable duties which the government may call upon him to perform. It stands to reason that it is not the applicant who would dictate on government the type of duties to perform but government as to suitable duties to be performed. I read 'any other suitable duties which the Government may call upon him to perform' as the ability of government to transfer the applicant to any other department or ministry of government.
Counsel for the applicant has quoted, amongst other cases the case of Koatsa vs. National University of Lesotho, LLR 1985-1989 p. 335 (AC) a case having to do with expulsion without hearing. The doctrine of legitimate expectation was invoked for the reason that the applicant being on permanent employment was expected to remain in employment until retiring age. In the instant case.applicant is on contract terms, he has not been expelled and enjoys salary-wise the same terms and conditions which he enjoyed at the Senate and there is nothing in the sense of serious consequences following on applicant's transfer so that, clearly, the present case is distinguishable from Koatsa's case above. This is not to say that transfers breed no prejudice for there is as much prejudice in transfers as there is in expulsions save that whether, in each case there is prejudice, depends on the circumstances of each particular case.
At paragraph 5 of his Founding Affidavit the applicant says he is being demoted for the post he holds is Grade "J" as against Grade "F". He says he is ignorant in the field of construction, Building and Technical Maintenance. He says the purported transfer is intended to pave the way for his dismissal on account of incompetence as his training was in Business Administration, Political Science, Public Finance and Parliamentary Administration. He says the transfer is unfair, unjust and irrelevant. I disagree this is demotion for terms and conditions are the same particularly the salary paid nor do I agree that the transfer amounts to demotion. Applicant has not been transferred to the Ministry of Public Works as a technical engineer or officer but as an administrator as Mr. Sekatle has shown in his affidavit. Applicant does not have to have any knowledge pertaining to the field of construction, building or technical maintenance for he has not been transferred to the Ministry of Public Works and Transport in this capacity but purely and simply as an administrator and should he be found incompetent, it will be in the field of administration and I find nothing unfair, unjust and irrelevant in the transfer. The courts have nothing to do with the way public administration is run and must never attempt to fetter powers and interests of public authority. What courts are concerned with is that in carrying out their duties, public authorities are to do so fairly and within the confines of due process of law.
At paragraph 6 of his Founding Affidavit the applicant has said as a result of the transfer he stands to lose a lot of fringe benefits these being a cellular
telephone, leave entitlement, gratuity and official car, car loan entitlement, office passport, business class travel, 10% entertainment allowance over and above subsistence allowance when travelling outside the country. He also complains of loss of status of being entitled to invitation to state official functions.
I have looked at annexure "HM8" comprising pages 24 and 25 and find that on p.25 as "Clerk" and 'Deputy Clerk' applicant was high on the list falling into Grade K and J respectively while on p.24 of the record of proceedings as Principal Technical Officer applicant is low on the list except that he retains his present salary 1stus same terms and conditions of service. I have no doubt that in rank applicant has gone down but this is mitigated by the fact that terms and conditions of employment remain the same. As for prospects of promotion which applicant complains of (paragraph 5 of his Founding Affidavit), promotion is dependant on merit and there are accelerated promotions depending on individual performance. In the promotion market, applicant's advancement will depend on his administrative acumen other than technical knowledge. In my view, the fact that applicant has a clean and untarnished record will stand him in good stead. Indeed I do not agree that promotions in the public service are dependent on technical know-how for administrative skills also count.
The essence of Mr. Mosito's argument is that the decision to transfer applicant was supported by nothing at all and it would seem to me if so the
decision is a complete non sequitur of the evidence available or put in another way, the premises do not follow the inferences drawn from them. Indeed looking at letter of transfer above, it does not follow from it that applicant was guilty of any misdemeanour. Mr. Mosito has submitted, if so he should have been formally charged to give him an opportunity to defend himself. But then again a possibility exists that the allegations were not so serious or being serious as 1 have said above were overlooked. Be this as it may, had the applicant been made to face a disciplinary hearing, consequences could have been graver but as I said the public authority could have decided in its discretion given the good quality of service rendered by the applicant, it was better to protect him than to expose him to public censure or sanction.
According to Baxter (Administrative Law) p.496, decisions will also be set aside when considerations that are deemed relevant have not been taken into account or where irrelevant considerations have been used to support a decision. Prof. Baxter has also said at p.497 'reasonable people do not advance a decision which would lead to harsh, arbitrary, unjust or uncertain consequences.'
I have looked at the decision affecting the applicant and have found it neither harsh, arbitrary, unjust or leading to uncertain consequences. Save for the fact that applicant will not be engaged in his former functions in the Senate and will not attend parties as a very important person, applicant is untouched by the transfer. I do not think the fact that applicant will lose a few privileges is a
factor nor does this prejudice the applicant in any material respect. I have already dealt with promotions to the extend that those who exert themselves and are gifted, their route is well paved. Besides, as I see things, a strong possibility exists that it was decided not to act against applicant to avoid tarnishing his good record nor do I see or appreciate any ulterior motive for the transfer of applicant save to promote efficiency and maintain good inter-departmental and ministerial relations.
Except the commission of inquiry staged to look into the Senate's state of finances, there were no institutional or multi-staged decisions affecting the applicant for even the results of the commission were not communicated to applicant. In the result applicant was in no way prejudiced. Besides, there is authority for the proposition that where a preliminary decision could be harmful, there is no reason why natural justice principles in their appropriate form should not apply; having said this, I do not think the converse also applies namely; that where a preliminary enquiry or decision is harmless and unprejudicial to individual rights and privileges, equally principles of natural justice should apply. In my view there should be room for flexibility.
Applicant previously served the Ministry of Law and Constitutional Affairs and it was from this ministry that he was transferred to the Senate. One would expect, according to the applicant, that personnel serving the Ministry of Law and Constitutional Affairs particularly the higher echelons of the ministry
would he required to have had training in law and constitutional pretensions or to have had training in law and Constitutions and yet the applicant, with no such pretensions served the Ministry of Law and Constitutional Affairs without any qualms. I do not think applicants double standards can be allowed.
A civil servant unless employed in a specialist field as is the case with specialists or professionals such as medical doctors, some lawyers, designers, architects, sculptors, scientists, sociologists and psychologists et cetera, et cetera is liable for deployment in any department or ministry of government. Applicant was not employed by the government as a specialist in any discipline nor did the applicant possess such qualities and as I have shown above he was, in the result, liable to transfer to any department or ministry of government.
Since in transferring the applicant the latter suffered no prejudice or inconvenience as a result of the transfer, I have had no hesitation in dismissing this application.
Accordingly, the rule is discharged save that there will be no order as to costs.
For the Applicant: Mr. Mosito
For the Respondents: Mr. Putsoane