Makatjane v Public Service Commission Minister of Health and Others (CIV/APN/274/04 )

Case No: 
CIV/APN/274/04
Media Neutral Citation: 
[2004] LSHC 148
Judgment Date: 
25 November, 2004

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CIV/APN/274/04

IN THE HIGH COURT OF LESOTHO


In the matter between:


MAKATLEHO MAKATJANE APPLICANT

And

PUBLIC SERVICE COMMISSION 1st RESPONDENT

MINISTER OF HEALTH AND

SOCIAL WELFARE 2nd RESPONDENT

ATTORNEY GENERAL 3rd RESPONDENT


JUDGMENT


Delivered by the Honourable Ms Acting Justice N. Majara on 25th November 2004


Applicant approached this court for urgent relief in the following terms:


  1. Declaring the purported transfer of applicant of the 26th March 2004 to be unlawful, unfair and of no force and effect.


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  1. Directing respondent to pay costs of this application in the event of opposition.


  1. Further and/or alternative relief as the court may deem fit.


The facts which brought about this application are common cause. Applicant is employed by 2nd respondent as a nurse. On or about the 23rd March 2004, applicant received a letter from the Human Resource Office informing her of her new transfer from Family Health Programme to Queen Elizabeth II Hospital. The transfer was to be effective from the 1st May 2004. It is this transfer that applicant is challenging before this court.


The letter of the said transfer which was attached and marked annexure J was couched in the following terms:


"I am directed to inform you that you have been transferred from FHD-LSMI to Queen II with effect from 1st May 2004. I wish you all the best at your new duty station,"


The letter was signed by one Mrs Clara Matla whose designation is that of Executive Officer- Human Resource Department.


On the date of hearing both Ms Thabane, Counsel for applicant and Ms Pali, Counsel for respondents informed the


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court that by consent both the answering affidavit filed by M Moji and the replying affidavit thereto should be struck out of the pleadings. The said affidavits were accordingly struck out.


The main grounds of applicant's challenge of the purported transfer were firstly that applicant was entitled to a hearing before she could be transferred. Secondly, that the Principal Secretary did not have powers to transfer applicant and lastly that the transfer was unfair and/or unlawful.


In her papers, applicant averred that on the basis of past practice with regard to how and by whom transfers relating to her were issued in the past, some legitimate expectation had been established on her part. She further averred that since her assumption of duty she has been under the authority of the Chief Nursing Officer who has always been responsible for her transfers within the Ministry. She attached annexures 'B', 'C', 'D', 'E' and 'F' all of which are letters of communications between herself and the Chief Nursing Officer with regard to her different transfers within the Ministry.


At paragraph 8 of her founding affidavit, applicant avers that all her transfers have been the responsibility of the Chief Nursing Officer. She went further to state;

"This has been an established practice within the Ministry. And as such I have a legitimate


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expectation that transfers are to be effected by the Chief Nursing Officer."


Applicant also averred that on or about the 17th August 2001 she received another letter of transfer signed by the Chief Nursing Officer from Queen II Hospital to a Programme Five Family Health Division. The transfer was effective from the 1st September 2001. The letter was attached and marked annexure 'G'.


It is applicant's case that when she initially assumed duty in 1981 she was merely a bedside nurse and her duties were restricted to that of a service provider whereby she was under constant supervision of her superiors. She averred that at the Family Health Division, her duties had been enhanced and elevated whereby she also had to attend special training sessions in order to reach the standard expected of her as a new officer of the division. Applicant further stated that she encountered a lot of administrative problems in her new duty a fact which she brought to the attention of the Director General through a letter marked annexure 'H' but never received a response. In her founding affidavit she alleged that she was instrumental in making a lot of inroads in the programme all of which she tabulated.


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Applicant averred that although she never received a response to annexure 'G', it came to her attention that the Head of her new division wrote a letter, annexure 'H' to the Director of Human Resources in which the former made a request for transfers of some officers within the division, applicant herein included. As per applicant's averments, "the basis of the request was that there was a need for an experienced and dedicated officer in Safe Motherhood thus insinuating that I am not" Subsequent to this letter, applicant received a letter, annexure 'J' from the Executive Officer of Human Resources Department informing her of her transfer from the Family Health Division to Queen Elizabeth II Hospital effective from 1st May 2004.


It was applicant's case that annexure 'J' had been influenced by annexure 'H' and that she was not even given any reasons why she was transferred from the Family Health Division to Queen II hospital despite the fact that the Head of the Family Health Division had complained about her so called inefficiency and lack of dedication in the division.


It was applicant's further averment that annexure 'J' was not signed by the Chief Nursing Officer as per the standard practice under whose duty and supervision she had always been.


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Applicant stated that after receiving this letter of transfer, which brought about this application, her legal representatives wrote to the Human Resources Department challenging the said transfer. On or about the 21st May 2004 applicant's representative received a reply from the legal office of the Ministry advising that the transfer was lawful and that any other action by applicant would be regarded as insubordination. Applicant's lawyer responded to that letter asking that applicant remain in the Family Health Division pending the outcome of the decision of the court but there being no response of the same, applicant duly transferred to Queen II to avoid being charged with ill discipline.


It was applicant's case that all the previous transfers whilst she was still a bedside nurse were within hospitals and she did not suffer any prejudice as a result. She argued that the latest transfer, which she is challenging before this court is prejudicial because of the reasons that firstly, it was a means of punishment resulting from the letter from the Head of the Division to the Human Resources Department wherein her dedication and experience had been questioned.


Secondly, applicant contended that her professionalism had been enhanced since her assumption of duty in the Family Health Division in that she underwent different training


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programmes, her duties had changed from that of a bedside nurse to that of a trainer for service providers whereby inter alia, she could arrange workshops.


Thirdly, it was applicant's contention that her skills as a nursing officer within that division had been enhanced as she was also doing administrative, public relations, community services, public address, managerial and research skills. She argued that she had therefore advanced in her career.


Fourthly, as a nurse at the Family Health division she now enjoyed certain privileges, including working normal hours as opposed to when she was a bedside nurse. Fifthly, the transfer would deny her attending workshops and undertaking international travel, which exposed her to professional improvement. Lastly, that she was never given a hearing before the transfer and yet when previously she had challenged a prejudicial transfer, it had been withdrawn.


Applicant concluded by challenging the powers of the Human Resources Officer to transfer her as per the provisions of the Public Service Act.


I now proceed to deal with the issues raised separately.


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Did the applicant have the right to be heard before she could be transferred?


In order to answer this question it is important first to determine whether applicant was prejudiced by the transfer, which in turn would then entitle her to be heard before she could be so transferred. This test was stated by the Court of Appeal in the case of Morokole v Attorney General and 3 Others C of A No. 25 of 2003 (CIV/APN/32/2002).


In attempting to show prejudice applicant asserted that at the Family Health Division, she was working normal hours as opposed to when she was a bedside nurse. She also asserted that she was attending workshops and exposed to international travel, which gave her more exposure in her professional career. She however conceded that she was still earning the same salary as she had been earning whilst based at Queen II Hospital. In response to these assertions, respondents as per the answering affidavit of Teleko Ramotsoari, the Principal Secretary for the Ministry, stated that part of a nurse's duties is working abnormal hours and that applicant was still working abnormal hours at the Family Health Division which includes overtime and weekends. This factor was not denied by applicant in her replying affidavit save to aver that respondent agrees with her that the hours that she had kept at Queen II are torturous.


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I must say that I rejected this particular ground for the reason that this court takes judicial notice of the fact that nurses do work abnormal hours as part of their professional duties and this reason cannot be used as being particularly prejudicial to applicant. Applicant's assertion that she was working normal hours at the Family Health Division was responded to in the answering affidavit to the fact that even at that division, nurses do work overtime and after hours and this was not challenged in the replying affidavit.


On the contention that applicant enjoyed certain benefits such as international travel and attending and arranging workshops which in her own words were 'good opportunity', I must say that the nature of these benefits is not such that they are rights which the court would have to protect in that they were only incidental to the particular work that applicant was doing whilst based at the Family Health Division. These are not benefits in the sense of grading, salary, leave etc. which are usually attached to a particular position or post within the employment hierarchy such that they should be used to legitimately raise the question of prejudice. I therefore accordingly reject this ground too. See the case of Morokole v Attorney General et al (Supra) p7.


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True enough, the professionalism of applicant may have been enhanced by her being based at the Family Health Division but nowhere in her letter of transfer to that division was an undertaking made that she was being transferred there permanently nor were any conditions set out therein which would give rise to the expectation that she was transferred there on a different level or under different terms of service from the usual ones, a diversion from which would give rise to her suffering prejudice. Nor has applicant placed anything before this court, which supports this contention.


In his answering affidavit at paragraph 9, M. Ramotsoari stated as follows;


"I would also like to bring to this Honourable Court's attention that the Family Health Division is not an established Post in the Civil Service. It is merely an operational or working arrangement and the Applicant was not holding any substantive position"


Applicant's reaction to this was that if this assertion was correct, she would not be identifiable as a Safe Motherhood Programme Officer in annexure 'I' and that as such, a post was created for such an officer.


It is however not clear from this reply whether applicant is asserting that such a position was created especially for her


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because it did not exist before she was transferred to the division or not, which would lend credence to her contention. As it stands in the papers, it does not tell the court anything with regard to the structure at the Family Health Division vis-a-vis the other structures within the whole Ministry in as far as they relate to her and the rotation of other professional nurses which would in turn convince the court that applicant was indeed holding a substantive post different from the other posts she has occupied during her tenure in the various departments to which she has been transferred time and again.


In my opinion therefore, this transfer was of a similar nature like the others which preceded it. It therefore did not establish any expectation on applicant's side to believe that she was now based at the division permanently and/or was holding a substantive position there, from which a subsequent attempt to transfer her would be questionable.

Was the transfer fair and lawful?


Applicant contended that the transfer was a means of punishment resulting from an earlier complaint by the Head of the division as per annexure 'I'. The exact wording of the letter is as follows;


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"Family Health Division wishes to request transfer of some staff members from the Division for purposes of strengthening and improving Divisional performance. Programmes that are affected as the following:-


• EPI Programme - Logistics officer and Surveillance officer


• Safe Motherhood Programme officer


We request that these officers be replaced with those that have at least district experience of five years.


Let me emphasize that the present EPI Manager is on 24 months contract of which twelve months have already been served; and failure to have a successor will have a negative impact on the programme.


Safe Motherhood needs an experienced and dedicated officer; (My underlining) maternal mortality remains a major concern and an urgent intervention will save lives of many women."


The last paragraph is the one upon which applicant is basing her contention that she was transferred as punishment because the Head of the Division had alleged she was both inexperienced and not dedicated. She asserted that it was subsequent to this letter that she received a letter from Human Resources Division purporting to transfer her.

Ms Thabane argued that the only body that is expected to punish civil servants for breach of discipline is the Public Service Commission. The next question would therefore be


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whether the transfer was a means of punishment for breach of discipline.


In response, Ms Pali contended that applicant had not been accused of any breach of discipline and hence could not be punished under such circumstances. I agree with this contention for the reason that aside from annexure V the letter from the Head of the Division which was not even directed to applicant, the latter was never accused of any breach of discipline by anyone which would warrant that she be accorded a hearing. Her assertion that the transfer was punishment is in the court's opinion, her own interpretation of the contents of annexure 'I' which is not supported by any facts. In the circumstances of this case, the audi alteram partem rule would be applicable if applicant had either been accused of a breach of discipline and/or misconduct or where the decision to transfer her would adversely affect and/or prejudice her. This position was also adopted by Corbet J in Administrator Transvaal & Ors v Traub & Ors 1989 (4) SA 731. In casu, the court has already found no existence of such prejudice.


In addition, upon reading the contents of annexure 'I', I was not convinced that applicant was accused of breach of discipline anywhere in the letter. At best, by implication it is


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her dedication that could have been questioned. I however do not think that where one is said to lack dedication that is an accusation of misconduct. Assuming that this is what the letter implied, this assessment of applicant by the Head of the division would have been wrong, especially when one takes into account the letters that applicant wrote to the Ministry regarding the administrative and other problems that she encountered during her tenure at the division and the assessment form that pointed to the opposite. However, even if that was the case, as annexure 'I' stands, it still does not spell out any breach of discipline on applicant's part that would in turn necessitate that a hearing be held. On the basis of these reasons I rejected this point.


Does the Principal Secretary have powers to transfer applicant?


The functions of a Principal Secretary are provided for under Section 96 of the Constitution and Section 12 of the Public Service Act 1995 respectively. The latter repealed the 1970 Public Sendee Order.


Section 96 of the Constitution provides as follows;

Where any Minister has been charged with responsibility for any department of government, he shall exercise general direction and control over that department and, subject to such direction and control, every department of


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government shall be under the supervision of the Principal Secretary whose office shall be an office in the public service: (my underlining)


Section 12 (1) of the Public Service Act in turn provides as follows:


In addition to the functions vested in a Principal Secretary by the Constitution, the Principal Secretary is the overall supervising and chief accounting officer of a department under his supervision, (my underlining)


Ms Thabane contended that although the Principal Secretary is the chief accounting office, as regards transfers, Regulation 38(2) of the Public Service Act specifically provides that the minister may make regulations for the posting, secondment and transfer of the public officers. Her submission was that the Principal Secretary would have to take the powers to transfer from the regulations made by the minister. She argued that respondent has not shown any such regulation and therefore the Principal Secretary does not have such power.


Under Section 39 (1) of the Public Service Act, the Public Service Order of 1970 was repealed. However subsection (2) thereof provides as follows:


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Notwithstanding subsection (1) all subsidiary legislation made under the repealed enactment or kept in force by the repealed enactment (My underlining) shall be deemed to have been made under this Act and shall continue in force, so far as they are consistent with this Act, until revoked by regulations made under this Act.

The Public Service Regulations of 1969 were made prior to the 1970 Order. The Order did not however repeal these regulations and they remained in force as per the provisions of Section 39 as quoted above.


Regulation 224 thereof, which is the regulation on postings,

provides:


"Subject to the provisions of the (principal law for the (sic) being in force relating to the public service,) inside or outside Lesotho as required by the Minister."


As I have already stated, it was not applicant's case that there are no such regulations. Her argument is that respondent has not shown it. This factor notwithstanding, the court is aware of the existence of such a regulation and the fact that respondent has not shown it does not mean that the court cannot of its own accord, make reference to it.


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My understanding of the above regulation is that the Minister has the power to post an officer to any public office. As has already been mentioned, the provisions of the Constitution and the Public Service Act empower the Principal Secretary to be the overall chief accounting officer in any given ministry. This means that even where postings, transfers and other decisions are made, they are made under his authority.


Ms Pali conceded that prior to the coming into being of a Human Resources Office, letters of transfer of applicant used to be signed by the Chief Nursing Officer. She however submitted that this situation was changed by the creation of the Human Resource Office whose legality was not challenged by applicant. Ms Pali argued that the Human Resource Officer was simply communicating the fact of the transfer. However, the powers transfer remained vested in the Principal Secretary.


In the light of the above statutory provisions, I find no reason to disagree with this submission. None of the letters of transfer (including all those previously signed by the Chief Nursing Officer) stated that they were signed on behalf of the Principal Secretary. True enough, as per past practice, all the letters of transfer had previously been signed by the Chief Nursing Officer. In my opinion, this factor alone does not change the


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statutory position to wit, that the Principal Secretary is the chief accounting officer so that all the statutory decisions including transfers and/or postings are made on his behalf regardless of who appended their signature on the letters of transfer. This case is therefore distinguishable from that of Food & General Workers Union & Others v Lanko Co­operative Ltd 1994 15 ILJ 875 in that therein, the court found that respondents had acted contrary to a tacit undertaking that they had made to re-employ applicants on a preferential basis.


In casu, transfers of applicant and others are the norm. I therefore do not find the latest one, the bone of contention herein, out of the ordinary for the simple reason that whoever signed it did so as per the statutory powers of the Principal Secretary. The only difference herein is that as opposed to what used to happen in the past, a new division had since been established and all administrative decisions were now communicated from this new division hence why the signature of the Human Resources Executive Officer had replaced that of the Chief Nursing Officer.


This factor also negates legitimate expectation on the side of applicant. It was Ms Thabane's contention that as per past practice, applicant expected to be transferred by the Chief Nursing Officer. In my opinion, this is stretching the concept


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of past practice too far. This is because applicant has not convinced the court that she was no longer subject to being transferred from Family health Division.


It is my humble opinion that in casu, the mere question of who signs such transfers is not material and does not go to the root of the matter. In my view, what is important and has been established before this court is that applicant is a public officer who is subject to being transferred as per statute. This case can be distinguished from that of A Bullock No and 2 Others and Provincial Government of North West Province & Another Case Number 44/03.


In that case, the Supreme Court of Appeal found that the appellants did have a legitimate expectation to be heard before a decision could be made on whether or not they could be granted a new lease. Appellants had made some improvements on a certain adjoining foreshore to their property. These improvements were vital for the continued operation of a yacht club of which they were trustees. The court found that the decision by 1st respondent not to renew their lease without affording them a hearing was irregular. Appellants and 1st respondent had already engaged in far advanced negotiations for a new lease. They had also been granted a series of leases prior to the decision. All theses were found to count towards


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having created a legitimate expectation on the side of appellants. This was not the position in casu.


I accordingly rejected this submission also.


For the above reasons, I find that applicant has not successfully made out a case for the prayers as set out in the Notice of Motion.


The application is therefore dismissed with costs.


N. MAJARA ACTING

JUDGE


For Applicant : Ms Thabane

For Respondents : Ms Pali


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