Tlhabi v Commissioner of Police Presiding Officer and Others (C OF A (CIV) NO.24 OF 2003 CIV/APN/319/2003)

Case No: 
CIV/APN/319/2003
Media Neutral Citation: 
[2004] LSHC 54
Judgment Date: 
1 April, 2004

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C OF A (CIV) NO.24 OF 2003

CIV/APN/319/2003

IN THE COURT OF APPEAL OF LESOTHO


HELD AT MASERU


In the matter between:-

BOFIHLA TLHABI APPELLANT

and

COMMISSIONER OF POLICE 1st RESPONDENT

PRESIDING OFFICER

(Senior Inspector MOOROSI) 2nd RESPONDENT

ATTIRNEY GENERAL 3rd RESPONDENT


CORAM: Plewman J.A.

Melunsky J.A.

Kumleben A.J.A.


Summary


Lesotho Mounted Police Service Act No.7 of 1998 - disciplinary proceedings - regulations published in terms of Police Order 1971 -effect of section 85 (2) (c) of 1998 act - 1971 regulations deemed to be regulations under 1998 Act.


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JUDGMENT


Plewman J.A.


This appeal concerns the procedures which govern disciplinary charges which are or may be preferred against members of the Lesotho Mounted Police Service. Appellant is a member of the Service, In September 2002 while on duty at the Airfield Police Station he was involved in an incident which led to the institution in May 2003 of disciplinary proceedings against him. Appellant was served with an indictment charging him with misconduct and a hearing of a disciplinary tribunal was arranged at which appellant pleaded to the charge. After the evidence of the Police Officer who had investigated the complaint against appellant had been led appellants legal adviser (who it seems only arrived at this stage) made certain legal submissions to the tribunal. More of these later. What transpired was that after certain delays these submissions were rejected. There followed further delays and a postponement but it was at this stage that appellant moved the High Court on notice of motion for an order in (so far as is material to this appeal) the following terms namely:-


"1. Directing that the disciplinary proceedings before Second Respondent and against the (Appellant) be stopped pending the outcome of this application;


2. Declaring the said disciplinary proceedings before the second respondent and against the (Appellant) null and void and of no legal effect;


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3. Declaring second respondent's disciplinary Court without jurisdiction in the absence of the necessary regulations providing for penalties."


The "legal issues" raised before the disciplinary tribunal (and indeed the substance of the argument before the court a quo and on appeal) related to the third prayer. Appellant's contention was (and is) that appropriate regulations imposing penalties for breaches of discipline have not been promulgated under the current Police Act No.7 of 1998 and, as it is put in the founding affidavit, no disciplinary court can "logically hear cases for which there are no penalties". The High Court (A.M. Hlajoane J) dealt with this submission and for reasons which are later discussed held against appellant and dismissed the application.


There is however a preliminary observation to be made: The appellant's application was launched at a time when the disciplinary proceedings had not as yet been terminated as no verdict had yet been returned. In the light of appellant having pleaded, he had joined issue on the charges against him and the application to the High Court was thus premature. It could therefore (and should) have been dismissed by the court a quo simply on that ground. It seems to me however that this Court should, in all the circumstances, nonetheless consider the grounds upon which the court a quo dismissed the application.


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It is common cause that the Act (that is the Police Service Act No.7 of 1998) which repealed Police Order No.26 of 1971 (the legislation which was up to that time in force) governs Police Service in Lesotho. Part V Sections 43 to 49 of the Act apply when a police officer is charged with an offence against discipline. Section 47 reads as follows:-


"47. Subject to any provisions in regulations made under section 84 (2) (e) a senior officer conducting a hearing under section 45, shall, on conviction, recommend one, or more of the following punishments:-


  1. Reprimand;

  2. severe reprimand;

  3. fine not exceeding of 21 days pay

  4. extra duties in addition to normal duties; or

  5. dismissal.


on receipt of the recommendation of the senior officer the Commissioner may accept, vary or reject the recommendation and shall inform the police officer concerned of his decision and of any punishment he imposed".


Section 84 (2) (c) provides that the Police Authority may, inter alia, make regulations in respect of the definitions of offences discipline and the penalties therefor. It is also common cause that no regulations made under this section have been promulgated under the 1998 Act. Had the matter


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ended there there might have been substance in appellants complaint. But it has been shown that appropriate regulations were promulgated in terms of the 1971 legislation and the repeal of that legislation is subject to a saving provision in the (present) Act namely section 85. Section 85 provides (so far as is relevant) as follows:-


"85. (1) The Police Order 1971 is hereby repealed.

(2) Notwithstanding subsection (1) -


(a) .............


(b) ...............


(c) all regulations made under the enactment repealed by subsection (1) shall, so far as they are consistent with this Act, be deemed to have been made and shall continue in force, as if made under this Act." (Own emphasis.)


It is not therefore correct to say that there are no regulations under the 1998 Act. The regulations made under the 1971 Order are deemed to be regulations made under the 1998 Act and they continue to serve as regulations under the 1998 Act.


Regulation 24 (of the regulations promulgated under the 1971 Police Order) defines Offences Against discipline and includes as Item 26 "Being drunk or rendering himself unfit for duty through drink". Section 47 of the 1998 Act


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as has been seen provides the penalties which can be imposed. The result is that Regulation 24 remains in force and the charges against appellant are within the tribunal's jurisdiction. It follows that the Court a quo's dismissal of the Application was justified. In the result in appeal must be dismissed with costs and it is so ordered.


C.PLEWMAN

JUDGE OF APPEAL


I agree


L.MELUNSKY

JUDGE OF APPEAL


I agree


M. KUMLEBEN

ACTING JUDGE OF APPEAL


T. Fosa for Appellant

T.S, Putsoane for Respondent


Dated at Maseru this.......Day of April 2004.