IN THE HIGH COURT OF LESOTHO
In the matter between:
SAKHELE SAKHELE APPLICANT
NATURAL RESOURCES 1st RESPONDENT
PUBLIC SERVICE COMMISSION 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
REASONS FOR JUDGEMENT
Delivered by the Honourable Mr. Justice W.C.M. Maqutu On the 11th day of August, 2003.
This application has" already been dismissed with the directive that reasonable reasons will be filed later.
In this matter applicant was asking for the following remedy:-
That the letter of the Principal Secretary directing Applicant to go on retirement from the Public Service be declared null and void.
That the Public Service Commission be directed to reinstate Applicant to the Public Service for the remainder of the extended forty eight (48) months.
That the Public Service Commission should pay Applicant salary and accompanying benefits for the remainder of the forty eight(48) months that he would have remained in the Public Service.
Applicant had according to paragraph 6.1 of his affidavit been a public servant in 1970, and was confirmed in 1972. Applicant added "I later resigned". Applicant does not say when he resigned and in what Ministry he was.
Applicant continues and says he " rejoined the Public Service in 1985 at the Department of Mines and Geology as Senior Technical Officer. If Applicant was re-employed as a public servant he should have served a probation and been confirmed as previously - unless the method of employment of the Public Service had changed or public servants who have resigned do not have to serve any probation when they are re-employed. Even so, applicant should have clearly stated that he was pensionable -because that is a threshold requirement for the remedy he seeks.
During the argument it emerged that a person who served without a definite contract of employment - his employment could be on a month to month basis. See "SS8" which shows that officers on the temporary terms can work (and have worked) beyond 55 years of age. This happened on the understanding that their employment can be terminated anytime. The status of applicant 's re-employment in the Public Service was never clarified in the founding papers.
Applicant then proceeded to the period preceding the termination of his employment. He says his immediate superior the Commissioner of Mines wrote a letter dated 18th May, 2000 marked "SSI" asking the Public Service Commission to extend his period of service by forty eight(48) months. The reason being that they were short of staff because they are unable to retain trained staff who keep moving to "greener pastures".
There is a letter dated 31st July, 2000 in which applicant's attorneys say the Principal Secretary Natural Resources has not passed the letter 'SSI" to the Public Service Commission. Why applicant did not pursue the matter any further - we are not told. On the 11th October 2001 applicant attorneys wrote a letter "SS2" to the Secretary Public Service Commission in which they complained of lack of response to a request for extension of applicants period of employment dated 18th May, 2000 contained in the letter "SSI". This letter of 11th October, 2001 was written when the Principal Secretary Natural Resources had by letter "SS5" dated 30th August, 2001 notified applicant that he would be retired with effect from 31st August, 2001. On the face of "SS5" it appears to have been received on the 1st October, 2001.
The principle of legitimate expectation is not intended to undermine administrative laws and statutes. It is a device for ensuring that government's arbitrary powers are exercised reasonably and fairly.
As Corbett CJ observed it is a recent innovation which could be open to abuse. See Administrator Transvaal & others V. Traut 1989 (4) SA 731 at 761 where he said:
" A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at public a authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue interference in their administration'1.
In this case the necessary party who has not been joined is the Minsiter in charge of the Public Service. He is the one who may (if he considers it in the public interest) ask the Public Service Commission to retain an officer beyond retirement age - for a limited period.
It seems to me a serious omission not to join (as a party) the Minister in charge of the Public Service - who has a duty to recommend to the Public Service Commission (if necessary) that the services of applicant be retained beyond the age of 55 years. It is the opinion of the Minister, and the public interest (as the Minister sees it) that are the statutory requirement for an extension of an officer's employment beyond the mandatory retirement age of 55 years. It is not the opinion of the Commissioner of Mines or the Principal Secretary Natural Resources that counts. Their failure to forward the request made by either of them to the Minister cannot be looked into without the Minister as a necessary party being joined. It is not only after Minister has been heard, that this court can hear the Public Service Commission.
Section 30(1) of the Public Service Act 1995 makes the 55 years of ago the compulsory retirement age for all public servants on the permanent pensionable establishment. The Public Service Commission has to retire such officers without fail unless the Minister makes a case in terms of Section 30 (7) for the retention of pensionable officers whose services are needed beyond 55 years for a period not exceeding 5 years. This provision of the law may not easily be ignored or undermined by incompetence of public servants.
On the face of the papers before it seems there was a tendency not to deal with correspondence timeously in many branches of the Public Service. I am being urged to find that applicant had legitimate expectation that he would be granted an extension of service. For applicant to ground his case on legitimate expectations, a lot more is required than the sole fact that correspondence was not answered timeously. The onus is on applicant to establish his case. There is no evidence that the Minister made any promise or that any person made such a promise on behalf of the Minsiter. If he wants to rely on legitimate expectations as Mr. Phoofolo argued, he has to show he was treated arbitrarily and unfairly. In other words, he has to put such facts on record. In this case he has not even established that he was a Public Serva
After 1985 when he rejoined the Public Service he seems to have been on a month to month basis. In that event he could remain in employment beyond even 70 years of age. So long as government did not terminate his employment - which it could do at any time on giving an appropriate notice. Applicant was vague on the issue of conditions of his re-employment.
Applicant merely relies on the fact that the Commissioner of Mines assumed he was on a pensionable establishment when he might not have been. Applicant has avoided the fact that he was retrospectively "admitted to the permanent establishment" after his retirement age limit of 55 years of age as more fully appears in the Principal Secretary Natural Resources' letter of 30th November, 2001 marked applicant "SS6". Applicant only says of "SS6" - "It was not until 30th November, 2001 that I received a letter from first respondent, by which he informed me that second respondent had retired me with effect from 2nd August, 2000." By implication he seems to admit that he was retrospectively put on the pensionable establishment after he had reached retirement age and instantly retired from the Public Service.
We are bond to accept applicant's what "SS6" states and respondent's "BL1" that the Public Service Commission out of grace decided to appoint applicant to the "permanent pensionable establishment" retrospectively, because applicant does not challenge this or explain away this retrospective admission to the permanent and pensionable establishment. If he had been
left out by mistake he should have said so in his Founding Affidavit. I note also that even in his Replying Affidavit applicant still does not deal with this issue.
It seems to me that before the Minister could request the Public Service Commission in terms of Section 30(7) of the Public Service Act. 1995 - to retain applicant beyond the 55 years - compulsory retirement age, applicant ought to have been on the permanent and pensionable list. Applicant seems not (on his papers) to have been on the permanent pensionable establishment list. On the 2nd August, 2000 when applicant should have reached compulsory retirement age he was still on "temporary terms" of employment like Mr. K. Lehloara whose letter is "SS 8" of applicant's annexures. It is significant that Mr. Lehloara was 64 of age when his employment was terminated at will. I have already said there was no time limit where employees on temporary terms were involved. Their employment could be terminated any time.
Applicant on the papers would appear to be unaware of his luck -namely that the Public Service Commission decided to give him a pension before in the same decision terminating his services. Unless there is something which is not on the papers - but for this intervention of Public Service Commission - he was not entitled to this pension under the law as it stands. There is nothing in the papers that could lead to an inference (as Ramodibedi J.A. found the Ministry of Home Affairs & others V. M. Sakoane C of A (CIV) No. 13. of 2001) - or that could give rise to a
presumption that applicant had been duly appointed to the permanent pensionable establishment at the time a letter of the Commissioner of Mines was written requesting that he be given a four years extension. He did not qualify at the time for this extension. Consequently such a request could not validly be made to the minister in charge of the Public Service.
It was for this foregoing reasons that I dismissed this application on the grounds that applicant had not made out a case for the remedy he seeks. Costs were not awarded in favour of the respondents because they generally did not ask for them.
For the Applicant: Mr. Phoofolo
For the Respondents : Mr. Putsoane