Mokalanyane v Presiding Officer (RLMP) and Others (CIV/APN/73/93)

Case No: 
CIV/APN/73/93
Media Neutral Citation: 
[2004] LSHC 136
Judgment Date: 
3 November, 2004

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CIV/APN/73/93

IN THE HIGH COURT OF LESOTHO


In the matter between:-

TSEPANG MOKALANYANE APPLICANT

and

PRESIDING OFFICER (RLMP) 1st RESPONDENT

DICLIPLINARY BOARD - MASERU 2td RESPONDENT

COMMISSIONER OF POLICE 3rd RESPODNENT

ATTORNEY GENERAL 4th RESPONDENT


JUDGMENT


CORAM : THE HON. MR JUSTICE S.N. PEETE

DATE : 3rd NOVEMBER, 2004


Headnote


Police Order 1971 - Dismissal of a trooper from the Police Force after a disciplinary inquiry - Propriety of dismissal under section 29 of the Police Order - The trooper afforded opportunity to make representations after being recommended for dismissal.


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Where a junior policeman fails or refuses to obey a lawful order to go on patrol and is subsequently disciplinary charged and after due hearing is found guilty and is recommended for dismissal from the Police Force, he is entitled to make representations to the Commissioner of Police before the Commissioner can exercise power to dismiss him under section 29 of the Police Order. No prejudice is suffered if a telex from the Commissioner of Police dismissing him is communicated to the trooper by a senior officer.


This application was first lodged as an urgent application in February 1993 by Mr Mohau and the following interim order was granted by the then Chief Justice Kheola on the 19th February 1993:-


"It is ordered that-


1. A rule nisi returnable on the 8th March 1993 calling upon the Respondents to show cause (if any) why;


  1. The disciplinary proceedings held and determined by 1st respondent and against applicant herein shall not be reviewed and set aside;


  1. Applicant's disciplinary proceedings (if any) shall not commence de novo before a different Presiding Officer;


  1. The Ist respondent shall not be directed to dispatch the record the said proceedings to the Registrar of the Honourable Court within 14 days hereof and inform Applicant's Attorneys in writing that he has in fact done so;


  1. The forms of service provided for by the Rules shall not be dispensed with;


  1. Respondents shall not be ordered to pay costs hereof;


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  1. Applicant shall not be granted such further and or alternative relief.


2. That Prayers (c) and (d) operate with immediate effect as an interim court order. "


  1. The record of proceedings of the Disciplinary Board which precipitated these application were duly dispatched to the Registrar of this court along with the opposing affidavit of James Mokolatsie, the Police Officer who had presided over the same on the 31st August 1992. Before the Disciplinary Board, it was alleged by the charge sheet that:


"Upon or about the Ist to 2nd August 1992 at or near Maseru Central Police Station in the district of Maseru the said defaulter (present applicant) did wrongfully intentionally and negligently being guilty of any act, conduct or neglect to the good order and discipline failed to report for duty which was assigned to him to wit: he failed to go to Koro-Koro where he was assigned to effect arrest on certain people on the 1st and 2nd August 1992".


  1. Ex-facie the record, the applicant pleaded not guilty but was found guilty as charged after evidence in support of the charge had been led; he was sentenced to pay a fine of M20.00 and "recommended for dismissal".


  1. What thereafter happened is a bone of contention because even though the applicant's personal police file could not be traced after all these ten years the applicant was certainly written a letter dated 14th October 1992 in which applicant was instructed by Commander (Maseru)


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Major Penane to give reasons within 7 days why he was not to be dismissed from the force as recommended by the presiding officer; the applicant responded explaining that his failure to go to Koro-koro was justified and reasonable and he further expatiated this stance in his founding affidavit indicating that he had declined to go to Koro-Koro on the 1st August 1992 because he had be given insufficient ammunitions for the purpose arresting the suspected dangerous criminals at Koro-Koro. It is therefore not in dispute that in defiance to lawful instructions, the applicant did not to Koro-Koro when he and another policeman Matlotlo had received orders to return to Koro-Koro on the 1st August 1992. Trooper Matlotlo gave evidence at the disciplinary proceedings and was not cross examined by applicant. Lance Sergeant Kholopane also testified and was asked a few questions by applicant. Lance Sergeant Tsekeli was cross-examined at length by the applicant. Major Lesiamo was not cross examined at all.


  1. Applicant elected not to cross examine these witnesses; he was not refused any opportunity to do so. There was no good reason why the presiding officer could refuse some witness to be cross examined yet permit it for others.


  1. The applicant gave evidence on his own behalf explaining why he had refused to go to Koro-Koro; he explaining that he had been issued with a weapon which did not "satisfy him" and that the ammunition was not enough; and that "I was so scared and afraid to go there" and that instead he decided to go on duty at the National Stadium.


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  1. All one can say is that the disciplinary proceedings proceeded fairly and that the applicant was not prejudiced in anyway and this is conceded by Mr Molapo for Applicant. Mr Molapo however strenuously argued that Major Penane had no authority to write the letter dated 14th October 1992 calling upon the applicant to show cause why he was not to be dismissed. He contended that only the Commissioner of Police was the repository of such power. This argument overlooks a telex message from Compol P.O. to Div. Pol. Central which reads;


"Infor: ACP's, DISPOL MS URBAN, PAYROL AND Q/MASTER.


CPHQ/R/12-10-11-92 NO.5679

TRP MOKALANYANE IS DISMISSED FROM THE POLICE SERVICE IN TERMS OF SECITON 29 HE IS THEREFORE STRUCK OFF FROM POLICE ROLL CHECK UNIFORM AND REPORT SHORTAGE TO Q/MASTER STOP


  1. Section 29 of the Police Order of 1971 reads:


"29. The Commissioner may, in the case of any member of the Force of or below the rank of subordinate officer, at any time, without consultation with the Public Service Commission but after having given that member an opportunity to make representations;


    1. terminate the appointment of such member on probation, if the Commissioner considers that he is unlikely to become an efficient member of the Force;


    1. retire such member on reduction of establishment;


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    1. retire such member if a board of Government medical officers appointed by the Chief Medical Officer finds that he is mentally or physically unfit for service and that such unfitness is likely to be permanent;


    1. dismiss such member if he is recommended for dismissal from the Force under section 22;


    1. dismiss such member on conviction of an offence other than an offence under this Order or regulations made thereunder;


    1. retire in the public interest any such member who display an habitual inattention to orders, or general incompetence, or fails to obey orders, or fails to co-operate with other members of the Force, or manifests a quarrelsome disposition or want of courage, ability or zeal, although he may not be guilty of a specific offence. " (My emphasis,)


I am of the view that the lawfulness of this telex has to be presumed (omnia praesumuntur rite esse). The Commissioner of Police must have received the recommendations and had decided to dismiss the applicant. Major Penane only read the message to the applicant. See Mqedlana v Minister of Interior and Others 1982-84 LLR 102; Devendish - Interpretation of Statutes 1996 - page 215; Union Government v Schierhout - 1925 A.D. 215. The telex was an official document emanating from the office of the Commissioner in the course of duty. I therefore hold that applicant did make presentations before Commissioner of Police ultimately decided to dismiss him from the force. The representations made by applicant clearly indicate that he developed "cold feet" (I wont say he cowardised) and refused to obey lawful orders. De novo proceedings are not justified nor would they serve any purpose after these ten years. See Attorney General v Lerotholi -1991-96 LLR 13 at 14.


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The rule is therefore discharged. I make no order as to costs.


SN PEETE

JUDGE


For Applicant : Mr Molapo

For Respondents : Mr Putsoane