Rakharebe v Commissioner of Police and Others (CIV/APN/4/03)

Case No: 
CIV/APN/4/03
Media Neutral Citation: 
[2004] LSHC 57
Judgment Date: 
6 April, 2004

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CIV/APN/4/03

IN THE HIGH COURT OF LESOTHO


In the matter between:


RAPHAEL RAKHAREBE APPLICANT

AND

THE COMMISSIONER OF POLICE 1st RESPONDENT

MINISTER OF HOME AFFAIRS 2nd RESPONDENT

THE ATTORNEY GENERAL 3rd RESPONDENT


JUDGMENT


Delivered by the Honourable Mr. Justice WCM Maqutu on the 6Ih April 2004


1. Applicant brought an application in which he was seeking an order:


  1. Directing the Commissioner of Police to show cause why applicant's half pay (salary) withheld by him during applicant's interdiction from 1st February 2000 to 4th March 2002 should not be paid to applicant.

  2. Directing the Commissioner of Police to show cause why applicant's terminal benefits in the form of gratuity calculated from 5th July 1992 to 4lh March 2002 shall not be paid to applicant.

  3. Directing the Commissioner of Police to pay applicant cash in lieu of one month notice equivalent to one month's salary following the summary termination of applicant's employment.

  4. Directing the respondents to pay costs in the event of opposing this application.

  5. Granting further or alternative relief.


2. Prayer (1) of the application was not opposed. Consequently the court granted this prayer and directed the Commissioner of Police the half pay that applicant claimed as prayed.


3. The rest of the prayers of the application were opposed. SALARY IN LIEU OF NOTICE


4. I found applicant's averments vague as he had not annexed the letter of termination of employment. The matter was postponed to enable that letter to be filed of record.


5. The letter of dismissal that was handed in by applicant is dated 28th February 2002. In it reference is made to the letter of the Commissioner of Police to applicant dated 17th January 2002, to which applicant responded by letter dated 15th February 2002.


In that letter applicant's dismissal from the Police Service takes effect on the 5th March 2002. Applicant has not shown how the notice given is less than a month. On the face of this letter applicant was given more than a month notice.


TERMINAL BENEFITS

6. It is common cause that pensions are governed by the Pensions Proclamation NO. 4 of 1964 (as amended) Section 5 of the Pensions Proclamation provides:


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"5 (1) No officer shall have an absolute right to compensation for past services or to pension, gratuity or other allowances; nor shall anything in this proclamation affect the right of the Crown to dismiss any officer at any time without compensation.

(2) Where it is established to the satisfaction of the Permanent Secretary for Finance that an officer has been guilty of negligence, irregularity or misconduct, the pension, gratuity or other allowance may be reduced or altogether withheld."


7. This was the position when Lesotho got its independence from Britain. According to Bradley & Ewing Constitutional and Administrative Law 12 Edition at page 307 the position in Britain remains theoretically as follows:


"Traditionally Civil Servants have been appointed under royal prerogative, and as such had no contract of employment enforceable by the courts. The traditional rule has, however, been subject to scrutiny by the courts ... However, the courts still seem unwilling to challenge the other traditional rule that Civil Servants are employed at the pleasure of the Crown, which means that they may be dismissed at pleasure with no common law remedy for wrongful dismissal."


8. In Lesotho this area is regulated by the Constitution and laws made under it. Therefore Public Servants are not employed at His Majesty's pleasure as in Britain. There are specific laws that govern- the employment of Public Servants subject to the Constitution.


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9. Section 150 (1) of the Constitution falls under the heading Pension Laws and Protection Pension Rights. It speaks of those rights as granted by existing law or "any future law that is not less favourable to the person." Section 150 (5) includes gratuities among pension benefits.


10. Section 151 of the Constitution falls under the heading power to withhold pensions, etc. In terms of this Section any person or authority who has the discretion to withhold or reduce any pension benefits may not do so unless the Public Service Commission concurs in that refusal or withholding or reduction of such benefits.


11. The Constitution has transferred the final authorization of denial, reduction of gratuities and other benefits under Section 5 (2) of the Pensions Proclamation 1964 from the Principal Secretary for Finance to the Public Service Commission. It is significant to observe that in effect Section 5 of the Pensions Act 1964 (in so far as it authorizes denial of pensions) remains in force and is supported by the Constitution.


12. Section 32 of the Police Act 1998 on this issue provides "unless the Police Authority otherwise directs nothing done under Section 31of the Police Service Act 1998 "shall affect any right a Police officer may have to payment of a pension and gratuity." It seems to me that without a decision of the Police Authority that applicant if he qualified for gratuity could not be denied a pension. Denial of gratuity could take place if the Police authority first sought the concurrence of the Public Service Commission as stated in Section 151 of the Constitution. The issue in this case that has to be determined first is whether applicant qualifies for gratuity.


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DOES APPLICANT AS OF RIGHT QUALIFY FOR GRATUITY?


13. Applicant's case for a gratuity is based on Regulation 5 of the Pension Regulations which provides:


"Every officer, otherwise qualified for a pension, who has not completed the minimum period of service qualifying for a pension, may be granted on retirement a gratuity not exceeding five times the annual amount of pension which, if there had been no qualifying period, might have been granted to an officer under Regulation 4 of these Regulations."


In other words the fact that applicant has not completed ten years - by four months (according to applicant's computation - does not count against him. Applicant argues that he has to have his gratuity as of right. This court has to determine if applicant's submission is correct.


14. The Commissioner of Police through his counsel argues that "applicant has been lawfully dismissed, thereby forfeiting all pension gratuity or any other allowance he ought to have received." The Commissioner's counsel refers me to Regulation 479 of the Public Service Regulations of 1969. Applicant's counsel on the other hand argues that the Public Service Regulations do not apply to the Police. Consequently applicant does not automatically lose his gratuity because of his conviction for theft by the Magistrate and his dismissal from the police force.


15. 1 think applicant's counsel has over-simplified a very complex issue when he says Public Service Act of 1995 and the Public Service Regulations of 1998 do not apply to the police. The reason I say this is that the police are in the Public Service. "Public Service" in terms


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of the Interpretation Section 154 (1) of the Constitution "means subject to the provisions of this Section, the service of the King in respect of the government of Lesotho." Nothing excludes the police.


16. Nevertheless Section 147 of the Constitution provides there shall be a police force responsible for the maintenance of law and order and shall have such functions as may be prescribed by parliament. The Police Service Act 1998 according to its long title is "to make provision for organization, administration and discipline of the police service and for connected purposes". Nothing in that Act specifically excludes the police from rights and privileges of the Public Service.


17. In the Lesotho Mounted Police Regulations 1972 it is provided that leave of absence and maternity leave be governed by the Public Service Regulations. It is not necessary for me to decide whether Part E of the Public Service Regulations of 1969 on Retirement Benefits and Gratuities applies to the police. But I can observe that regulations made under delegated legislation cannot override an Act of Parliament.


18. By the same token, any Act of Parliament cannot override the Constitution. It seems to me that Regulation 479 of the Public Service Regulations of 1969 is not consistent with both the Pensions Act 1964 (as amended) and the Constitution. It follows that an officer who is dismissed from the Public Service does not automatically forfeit all pension benefits and gratuity. The correct position is that (if he qualifies for them) a recommendation that he should forfeit his pension may be made to the Police Authority, which can only take effect in terms of the Constitution if the Public Service concurs.


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19. It is common cause that applicant has not completed the 10 years threshold minimum requirement for a pension. Regulation 15 provides that "only continuous public service shall be taken into account as qualifying service." There is also a provision that while "any break of service caused by temporary suspension of employment in the public service not arising from misconduct... shall be disregarded." In other words the two years suspension of applicant shall not count towards the computation of the 10 years that could have qualified him for gratuity. Consequently applicant's pensionable period in the Police Service that counts is only 8 years - which is two years short of the prescribed 10 years that qualifies a public servant or policeman for gratuity and pension.


20. It would seem to me that Regulation 5 makes the grant of gratuity for people who have completed ten years discretionary. I am conscious of the use of the word "may" everywhere in the Pensions Act and Pensions Regulations. I have already stated that in Britain salaries for public servants, their pensions and gratuity were in law not rights because there was no contract of employment with the Crown. They were an exercise of the Crown prerogative at will. In Lesotho pension privileges in terms of the Constitution are now a right. But in Lesotho public servants are employed like any other employee with the restriction that they may not belong to a trade union or a political party. So the meaning of the word "may" depends on its context in the Proclamation and Regulations read with the Constitution. By the same token "may" read along with the Constitution is merely permissive and empowering within the meaning of Section 14 of the Interpretation Act 1977 when applied to Regulation 5 of the Pensions Regulations.


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21. Leon J in Woolfaard v Natal Administration Board 1985 1 (SA) 324 at page 330 B criticizing an interpretation of pension rights decision said:

"In effect this interpretation means that, from the pension point of views, the Legislature intended that merit would be penalized. Such a conclusion offends both one's notion of justice and one's notions of the ordinary and general principles which apply to pensions in an organization."


22. In my view to make the award of gratuity automatic even for policemen who have been convicted of theft and bringing the police service into disrepute - would be to automatically reward lack of merit and criminal conduct in a manner the Legislature and the Constitution never envisaged. It would also contradict the Pensions Proclamation and the Pensions Regulations. It has therefore to be up to the Commissioner of Police in his discretion to make such a recommendation if he felt applicant deserves a gratuity in terms of Regulation 5 of the Pensions Regulations of 1964.


23. Consequently in Regulation 5 of the Pensions Proclamation, the grant of gratuity is discretionary and is not a right. In reaching this conclusion, I am guided (without deciding this particular issue) by Section 14 (1) of the Pensions Proclamation of 1964 which provides that even where a person had been granted a pension it may cease if he is sentenced to imprisonment as from a date that the Police authority terminates it with the concurrence of the Public Service Commission. Whether a vested right can be taken away by what


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subsequently happens, is not the issue before me. It seems to me therefore that people who have spent less than ten years have an even more diminished right to claim gratuity. In fact Regulation 4 of the Pensions Regulations of 1964 excludes such people.


24. Because applicant was not entitled to gratuity by law, the Commissioner of Police and Police Authority were correct not to refer to the matter in their letter of dismissal - because he had only served 8 years in the police force. Consequently their refusal to pay gratuity is proper and lawful. Had applicant spent more than ten years in the police force, the Commissioner of Police and the Police Authority would have been obliged by Section 151 of the Constitution to seek the concurrence of the Public Service Commission, if they felt his conduct was such that pension and gratuity should be withheld.


LEGITIMATE EXPECTATIONS


25. Legitimate expectation is grounded on the premise that the King and State are the fountain of justice. The prerogative to govern which the government has, is also premised on the expectation that the powers that the State has will be used for the benefit of the subject or the community as a whole. Abuse of power, arbitrariness and unfairness by government and public authorities are regarded as "contrary to the citizen's legitimate expectations". - Wade and Forsyth's Administrative Law 7 Edition at page 418.


26. Baxter in Administrative Law page 613 says there is an erroneous belief that prerogative allows the State "to inflict harm on the individuals without attracting delictual liability." The learned author adds: "As far as the citizens are concerned the prerogative cannot be


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used in such a manner as to infringe their rights." This expectation to be treated fairly and justly by government and public authorities that Baxter speaks of, sums up the principle of "legitimate expectation." It is an elastic concept that is incapable of a precise definition. Lord Bridge in re Westmister CC [1986] AC 688 at 692 said "legitimate expectation" is a relatively novel doctrine that courts have developed.

27. Chapter II of the Constitution on Protection of Jundamental Human Rights and Freedoms Section 4 (2) provides:


"For the avoidance of doubt and without prejudice to any other provision of this Constitution it is hereby declared that the provisions of this Chapter shall; except where the context otherwise requires, apply to things done or omitted to be done... on behalf of government of Lesotho or by any person acting in the performance of any public office or authority."


28. In short the respect of all rights under the Chapter II of this Constitution and the expectation to be treated fairly and justly is all that the principle of "legitimate expectation" is about. These rights are not unlimited - they are subject to what "is necessary in a practical sense in a democratic society" - Section 17 (1) (a) of the Constitution.


29. It seems to me there is a tendency to read an individual's rights to the exclusion of the welfare of the State and its other citizens. "Legitimate expectation" is not exclusive of the welfare of the State and its other subjects. It includes reading or understanding the Constitution as a whole and what is necessary in a practical sense in a democratic society. The onus is on the applicant to show precisely


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what the legitimate expectations were and how they arose in applicant's particular circumstances.


30. I will not deal at length with the principle of legitimate expectations in respect of applicant as I doubt that he could steal and be convicted by the Magistrate Qacha's Nek, in CR 301/99 and expect a gratuity having served only 8 years in the police force instead of the stipulated minimum of 10 years. A gratuity, according to the Shorter Oxford English Dictionary a gratuity is a "tip" an amount determined by the giver. "A bounty given to service personnel on discharge." In the letter of dismissal it is concluded that applicant risked his job unnecessarily by engaging in criminal acts.


31. In conclusion, it is ordered:


  1. That applicant be paid the half pay between Is' February 2002 and 4th March 2002 - as already ordered.

  2. Applicant's application for payment of gratuity and payment of one month's salary in lieu of notice is dismissed.

  3. Respondents are ordered to pay half the costs of this application because applicant has been partially successful.


W.C.M.MAQUTU

JUDGE OF THE HIGH COURT


For Applicant - Mrs. Lethola

For Respondents - Miss. Jaase


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