Makhoali v Public Service Commission and Others (CIV/APN/378/2002 )

Case No: 
CIV/APN/378/2002
Media Neutral Citation: 
[2004] LSHC 69
Judgment Date: 
12 May, 2004

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CIV/APN/378/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:

'MANEO MAKHOALI Applicant

and

PUBLIC SERVICE COMMISSION 1st Respondent

THE MINISTRY OF COMMUNICATIONS 2nd Respondent

THE ATTORNEY GENERAL 3rd Respondent


For the Applicant : Mr Thulo

For the Respondent : Miss Pali


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 12th day of May. 2004

Prior to her dismissal, which was preceded by a conviction and sentence before the magistrate of Berea, on the 25th April 2002 Applicant had been an employee of Lesotho Government attached to the Postal Department of the Ministry of Communications.


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She was then stationed at Maqhaka Post Office, in the Berea district.


Applicant noted an appeal against the said sentence. She had been convicted on her own plea she was sentenced to four years imprisonment. Half of that was suspended.

It was also common cause that the Applicant was charged under section 14(l)(i) of the Public Service Act 1995 (the Act) which provides that:


"A public officer shall not commit a criminal offence involving dishonesty or which brings the public service into disrepute."


The conviction and sentence of imprisonment before the magistrate of Berea caused the Ministry of Communication (the Ministry) to file disciplinary proceedings before the Adjudicator (the Tribunal) who required under section 14(l)(h) of the Act on a charge of breach of discipline.


A charge having been read before the Adjudicator, the Applicant decided not to plead because she was of a view that she had already noted an appeal only on sentence but not on conviction, against the decision of the Magistrate's Court. She was found guilty by the Tribunal. She was thereupon dismissed from the public service.


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The pervading question will always be how far standards set by Courts for their own minimum requirements for attainment of or compliance with the principles of natural justice including fairness can be expected in the workings of tribunals. Learned authors H.W.R. Wade and C F Forsyth say in the 7th Edition of Administrative Law on page 905:


'Tribunal exist in order to provide simpler, speedier, cheaper, and more accessible justice than do the ordinary courts."


And the learned authors furthermore pronounce on matters of procedure as follows on page 931 of the work:


"It is fundamental that the procedure before a tribunal, like that in a court of law, should be adversary and not inquisitorial. The tribunal should have both sides of the case presented to it and should judge between them, without itself having to conduct an inquiry of its own motion, enter into the controversy, and call evidence for or against either party. It if allows itself to become involved in the investigation and argument, parties will quickly lose confidence in its impartiality, however fair-minded it may be. This principle is observed throughout the tribunal system, even in the adjudging of small claims before social security local tribunals and supplementary benefit appeal tribunals by a departmental officer. Naturally this does not mean that the tribunal should not tactfully assist an applicant to develop his case, particularly when he has no representative to speak for him, just as a judge will do with an unrepresented litigant." (My emphasis)


I noted that the Applicant was represented before the Tribunal by Counsel who could ably make objections and call for evidence for the Applicant Again on the question of tribunals' procedures L Baxter in Administrative Law, 1st Edition


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says at page 249:


"The central principle governing the procedure of administrative tribunals are inflexibility and fairness. Both are emphasized at common law and they are usually catered for (partially at least) by the governing legislation. Without flexibility much advantage of employ of tribunal interest of courts is lost. Without fair procedures then decision will no confidence and they will probably be unjust." (My emphasis)


This will be important in my judgment.


Applicant brought a review application (presumably in terms of High Court Rule (H.C.R) 50(2)) on a "Notice of Motion" before this Court in which she sought the following orders:


  1. That the proceedings which led to dismissal of applicant herein be reviewed and set aside as being irregular.


  1. That applicant be re-instated to her post as a Postmaster Grade D.


  1. That applicant be paid all such monies and/or benefits which may have been due to her but for the dismissal.


  1. That respondents pay costs hereof only in the event of opposition.


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  1. That applicant be granted such further and/or alternative relief as this Honourable Court may deem meet.


The application was opposed by the Respondents who filed the answering affidavit of one Puleng Pali. A point-in-limine was also raised in this affidavit. The point was not argued as such by agreement of the parties. The answeing affidavit accordingly attracted a replying affidavit by the Applicant.


It had transpired before the tribunal that despite Applicant's objection the charge was sought to be amended by Mr Seamatha who represented the Ministry and who prosecuted the charge. The amended charge had freshly introduced, by addition, the following particulars:


"that the charged officer was convicted of the crime of theft (general deficiency) and sentenced to imprisonment on 26th November 2001 by Berea Magistrate Court."


After hearing submissions the objection was overruled. The Adjudicator, correctly in my view, felt that there would be no prejudice to the Applicant in the charge as amended.


Mr. Seamatha later on the day the charge was amended handled in as


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evidence a record of conviction and sentence in a criminal trial number CR 190/2000 from the magistrates' Court allegedly relying on section 18(4) of the Act. The record was inspected by Applicant's Counsel and then exhibited and marked "A". This brought a close of the Ministry's case in the charge against the Applicant.


Then the Adjudicator made her finding that the officer was guilty as charged Mr Thulo without challenging any other aspect of the procedure then proceeded to submit in mitigation. Having considered the issued raised in mitigation the Adjudicator, who concluded that the offence committed by the Applicant deserved to be treated "with the seriousness it deserves," made an award, which subject to confirmation of the Public Service Commission in terms of section 27(1) of the Act, of dismissal from office. Indeed this conformation, from the Public Service Commission, did come forth on the 15th May 2002.


I observed that it had been unchallenged that on the 18th April 2002 before the Tribunal that the Applicant had been served with the charge as far back as the 30th January 2002 and :


"In addition the amendment was made before Court on 18th April 2002 Mr. Seamatha was merely ordered to type and provide it to Mr. Thulo so that the matter was postponed from the 18th April 2002 to 25th April 2002."


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This constituted in my view seven days within which Counsel would prepare and consult. Furthermore Mr. Thulo could easily have sought a postponement if he thought there had been too a little time for him to do the necessary. He did not.


I would make the following adverse comment against the Applicant. Without disclosing that she had previously been convicted and sentenced and without showing any grounds for her complaint in the preceding ten paragraphs of her founding affidavit, Applicant stated as follows in paragraph 11:


"11.1 I am not satisfied with the conduct of the proceedings in the aforesaid disciplinary proceedings in the magistrate Court and such record was not handed in by the proper and/or authority and, as such, inadmissible evidence.


11.2 I was not afforded a hearing on my defence in those proceedings contrary to the audi alteram partem rule.


And Applicant concluded:


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In the circumstances the decision by the (learned) Adjudicator was erroneously arrived at and on such basis alone be reviewed and set aside."


Miss Pali for Respondents in turn submitted that Applicant had failed to set out circumstances and the factual basis on which Applicant's claim was


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grounded contrary to the said H C R 50(2). I observed however that such an attempt has been made by the Applicant. The real question would be whether those grounds, facts or circumstances upon which Applicant relied were good enough or sufficient for setting aside or correcting proceedings on the basis of prejudice and gross irregularity but not mere dissatisfaction on her part.


Secondly Respondents' Counsel urged that on the basis of the said conviction by the Court there had been proof enough in terms of section 18(4) of the Act which provides that:


"If the breach of discipline that is alleged against the public officer is also a criminal offence of which that officer has been convicted, certified copy of the record of trial and conviction by the Court of law is sufficient proof of the commission of the breach of discipline unless the conviction has been set aside by a superior court."


To this extent as I concluded as it was correctly argued by Miss Pali that the admitted Court record of the magistrate of Berea constituted sufficient proof without any further evidence. I was reminded that no objection was raised before the Adjudicator by Mr. Thulo in this regard. Such an objection would have read like this judging from what he later submitted:


The requirement for admission of record was not intended to do away with the rule of evidence, specifically that the record of Court proceedings should be tendered in evidence by Clerk of Court."


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I would have agreed if it was before a Court of law not a tribunal such as the Adjudicator or if there was this requirement specifically spelled out following on the said section 18(4). See comments by learned authors H R Wade and Another and L Baxter (supra) I doubted whether something more was required in the circumstances to make the record of proceedings sufficient or conclusive in terms of section 18(4) of the Act. I thought nothing more was required. It is this only conclusion, in the circumstances, which is consistent with the inflexibility and fairness which the Court's policy requires. See L Baxter (supra)


In addition there had been no protest before the Adjudicator regarding admission of the record. It was furthermore not shown before this Court that there had been prejudice in admitting the record, which was not disputed in any way, as a correct history of the conviction and sentence of the Applicant. It was correctly submitted, in my opinion, therefore that proof of the charge was based not on allegations but on the proof (by production) of record of the said criminal trial against Applicant as this is clearly provided for under the law.


Barring for the tendency to enlarge issues during argument, with due respect to Applicant's Counsel I thought the two germaine questions raised in paragraph 11.1 and 11.2 of Applicant's founding affidavit (see page 7 (supra) were sufficiently answered in this judgment.


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I concluded that this application was ill=conceived and was entirely without merit.


The application is dismissed with costs to Respondents.


T Monapathi

Judge

12th May, 2004