Kefeletsoe Mojela V Ministry of Local Government and Chieftainship & 3 Others (CIV/APN/0186/2022) [2024] LSHC 79 (17 May 2024)

IN THE HIGH COURT OF LESOTHO Held at Maseru In the matter between CIV/APN/0186/2022 KEFELETSOE MOJELA APPLICANT AND MINISTRY OF LOCAL GOVERNMENT AND CHIEFTAINSHIP 1STRESPONDENT PRINCIPAL SECRETARY – MINISTRY OF LOCAL GOVERNMENT 2ND RESPONDENT LOCAL GOVERNMENT SERVICE COMMISSION 3RD RESPONDENT THE ATTORNEY GENERAL 4TH RESPONDENT Neutral Citation: Kefeletsoe Mojela v Ministry of Local Government and Chieftainship and 3 Others [2024] LSHC 79 CIV (17th May 2024). CORAM HEARD : T. J. MOKOKO J : 18TH APRIL 2024 DELIVERED : 17TH MAY 2024 SUMMARY The applicant appointed to the Local Government Service Commission contrary to the provisions of Section 13 (3) of the Local Government Service Act, 2008. The appointment as well as the contract resulting from it were unlawful and invalid. Cited Cases ANNOTATIONS 1. Cloete Murray and Another NNO v FirstRand Bank Ltd/ t/a Westbank 2015 (3) SA 438 (SCA) 2. FirstRand Bank Ltd v. Land and Agricultural Development Bank of South Africa 2015 (1) S. A 38 (SCA) 3. Noe and Others v Department of Premier, Free State Provincial Division and Others, Free State High Court Case No. 3607/09 4. Principal Secretary Ministry of Communications and Others v ‘Mabohlokoa Letsie Rabotsoa C of A (CIV) No. 38/2021 5. Principal Secretary, Ministry of Local Government and Chieftainship and Others v ‘Mathahane Seleso C of A (CIV) 11/2022 6. Rethabile Mosisili v Principal Secretary Ministry of Works and Others C of A (CIV) No. 64/2017 7. Thato Mohasoa and Others v Mabooe Moeko and Others C OF A (CIV) NO. 58 of 2018 Statutes 1. Interpretation Act 2. Local Government Service Act 2008 3. Local Government Service Regulations 2011 JUDGEMENT Introduction [1] Applicant instituted these proceedings seeking the following prayers; 1. That the respondents, and in particular, the 2nd respondent be ordered to dispatch the record which prompted and culminated in the termination of Applicant’s employment contract as a Commissioner within the Local Government Service Commission and such record to include but not limited to the exact dates of each and every appointment letter of the members of the commission as well as correspondence (if any) between the applicant and the respondents which resulted in the termination of contract aforesaid. 2. The purported termination of applicant’s employment contract as a commissioner in the Local Government Service Commission be reviewed, corrected, and set aside as illegal and/or unlawful. 3. That it be declared that the 2nd respondent (The Principal Secretary) acted ultra vires his powers and usurped the powers of the Minister in purporting to terminate the applicant’s appointment as a commissioner in the Local Government Service Commission. 4. That the respondent be ordered to reinstate the applicant to her position as a commissioner in the Local Government Service Commission, without loss of all benefits and emoluments which have accrued and are outstanding since her appointment on the 1st June 2016, to date of payment namely; salary at the rate of M37,646.00 per month, cell phone for a value of M6,000.00 and cell phone allowance estimated at M70,000.00 per annum in respect of the first tour and a prorated amount in respect of the second tour, a government housing allowance at the rate of M2,500.00 per month, electricity and water allowance at the rate of M2,000.00 per month, expenses allowance at the rate of M750.00 per month and entertainment allowance at the rate of 10 % in terms of the contract. 5. That the respondents be directed to pay costs hereof on a scale as between attorney and client. 6. Granting the applicant further and/or alternative relief. [2] The respondents opposed this matter and filed their opposing affidavit. Applicant filed her replying affidavit. Applicant’s case is that on or around the 1st July 2021, she was reappointed as a commissioner on the Local Government Service Commission, for a further period of five years on the same terms and conditions. Applicant attached the letter of appointment and the contract of employment. Applicant stated that on or around the 9th December 2021, the Principal Secretary served her with the letter to terminate her employment. [3] At paragraph 6.4 of the founding affidavit, applicant contended that powers conferred on the Minister to appoint and remove commissioners of Local Government Service is non-delegable, as such the Principal Secretary usurped the functions of the Minister. [4] Further at paragraph 6.7 of the founding affidavit, applicant contended that the Minister’s failure of publish applicant’s name in a Government Gazette cannot be the basis for termination of applicant’s contract, more so when the Principal Secretary has no power to terminate the appointment of the applicant, because the appointing authority is the Minister. [5] On the other hand the 2nd respondent denied that the applicant was reappointed for the second term. The deponent pleaded that in terms of the appointment letter, the applicant was appointed by the Principal Secretary, and that the Principal Secretary has no power to appoint the members of the Local Government Service Commission, because such power rests with the Minister in terms of section 13 (3) of the Local Government Service Act 2008. The deponent therefore pleaded that the contract of employment entered was null and void ab initio, as it was born out of an unlawful appointment. The deponent pleaded further that the powers conferred to the Minister in terms of the law are non-delegable, therefore the Principal Secretary had no power to reappoint the applicant. The deponent contended that the Principal Secretary usurped the powers of the Minister, when she reappointed the applicant, thus making the appointment irregular and unlawful. [6] The deponent further contended that failure to publish applicant’s name on the Gazette is a clear indication that applicant was not appointed as a member of the Local Government Service Commission as the law dictates. This is so because section 13 (3) of the Local Government Service Act 2008, mandates in peremptory manner that the appointment by the Minister shall be made by notice in the Gazette. [7] The issue for determination by this Court is whether the appointment of the applicant was lawful and valid, in the absence of notice published in the Gazette. The Law [8] Section 13 (3) of the Local Government Service Act 2008 provides that: “The Commission shall consist of a Chairperson and four other members all of whom shall be appointed by the Minister by notice published in the Gazette”. [9] This matter turns on the issue of the proper interpretation of section 13 (3) of the Act. In the case of Thato Mohasoa and Others v Mabooe Moeko and Others1, the Court of Appeal was confronted with the interpretation of the provisions of section 6 (3) of the Tourism Act of 2002, in pari materia with section 13(3) of the Local Government Service Act 2008. Section 6(3) of the Act, similarly, provides that: “Members shall be appointed by Minister by notice published in the Gazette”. Mosito P. stated that he was in respectful agreement with the South African Supreme Court of Appeal in Cloete Murray and Another NNO v Firstrand Bank Ltd/ t/a Westbank2. [30] … the inevitable point of departure in interpreting a statute is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. It should, however, be borne in mind that, if the words of the relevant provision are unable to bear the meaning contended for, then that meaning is impermissible. See FirstRand Bank Ltd v. Land and Agricultural Development Bank of South Africa3. [10] Mosito P. at page 17 para 29 in Thato Mohasoa case (supra) had this to say: [29] Section 6(3) of the Act provides that. “Members shall be appointed by the Minister, by notice published in the Gazette.” It is important to note that the section is couched in mandatory terms because the word 1 C OF A (CIV) NO. 58 of 2018 2 2015 (3) SA 438 (SCA) at para 30 3 2015 (1) S. A 38 (SCA) Para 27 “shall” has been used. This is more so because in terms of section 14 of the Interpretation Act provides that: “An enactment passed or made after the commencement of this Act, “shall” be construed as imperative and “may “as permissive and empowering” (See section 14 of the Interpretation Act No. 19 of 1977). [11] At page 17 in Thato Mohasoa case (supra) Mosito P. stated that the word “appoint” in Concise Oxford English Dictionary is defined to mean to “assign a job or role to”. [12] In the case of Principal Secretary, Ministry of Local Government And Chieftainship And Others v ‘Mathahane Seleso4, the Principal Secretary of the Ministry of Local Government, Chieftainship and Parliamentary Affairs, in a letter informed the respondent that she had been directed by the Minister to “offer” the respondent a Special Assignment to the Local Government Service Commission in terms of sections 29 (1) (3) of the Local Government Service Regulations 2011 with effect from the 12th July 2021. On the 12th July 2021 the respondent received a document titled “A CONTRACT OF EMPLOYMENT FOR ASSIGNMENT IN THE (sic) LOCAL GOVERNMENT SERVICE COMMISSION”. The respondent signed the contract. From September 2021 the respondent’s salary and all contractual benefits had been withheld. She then approached the High Court for payment of her salary and benefits. In his answering affidavit the accounting officer of the Ministry submitted that the commissioners were appointed pursuant to section 13 (3) of the Local Government Service Act 2008. The provision states that “the commission shall consist of a chairperson and four other members, all of whom shall be appointed by the Minister by notice published in the Gazette”. The deponent submitted that this did not happen, as 4 C of A (CIV) 11/2022 is evident from the absence of any notice in the Gazette. There was no vacancy. If the respondent were appointed, there would have been six instead of five commissioners, stipulated in section 13 (3). [13] The Court of Appeal in the Seleso case (supra) held at page 7, paragraph 18, that the respondent was clearly not appointed in terms of section 13 (3) of the Act. Even if it could be argued that the Minister’s authority to appoint commissioners had been delegated to the Principal Secretary, there was no notice in the Gazette and all five positions on the commission were occupied. The Court of Appeal held further that the respondent did not in her founding affidavit claim to have been appointed in pursuance of section 13 (3) of the Act. [14] In the case of Principal Secretary Ministry of Communications and Others v ‘Mabohlokoa Letsie Rabotsoa5, Court of Appeal refereed to the case of Rethabile Mosisili v Principal Secretary Ministry of Works and Others6, in which the Court of Appeal quoted with approval the following passage from Noe and Others v Department of Premier, Free State Provincial Division and Others7: “I am in respectful agreement with the judgment of Hlophe J ( as he then was ) in University of Western Cape And Others loc cit to the effect that non-compliance with the provisions of the PSA and the Public Service Staff Code ( which applied then) is fatal and not possible for employees to contract out of them…Also found by Hlophe J, no one could have a legitimate expectation to do something contrary to the law or to prevent a functionary from discharging his or her duties. The requirement that the prescripts of the PSA be strictly dealt with in Khanyile where it was found that 5 C of A (CIV) No. 38/2021 6 C of A (CIV) No. 64/2017 7 Free State High Court Case No. 3607/09 non-compliance with the PSA and its regulations relating to a purported appointment of a person, rendered such appointment of no force and effect8”. [15] Adv. Makhera counsel for applicant argued that the Principal Secretary was carrying out the directives of the Minister in appointing the applicant, therefore the appointment was effectively made by the Minister. He argued further that the appointment function had not been delegated to the Principal Secretary. The effect of this was that the applicant was appointed by the Minister. Adv. Makhera relied on the letter addressed to the applicant by the Principal Secretary. The letter marked annexure ‘MJ2” reads as follows: Ms. Kefeletsoe Mojela Mafeteng Dear Madam APPOINTMENT AS A MEMBER OF THE LOCAL GOVERNMENT SERVICE COMMISSION. I am directed by the Honourable Minister of Local Government and Chieftainship to appoint you as a member of the Local Government Service Commission in terms of section 13 (3) of the Local Government Service Act 2008 with effect from the 1st July 2021. Your terms and conditions of appointment will be communicated in due course. Yours Faithfully Nonkululeko Zaly Principal Secretary. 8 At page 27, para [47]. [16] Be that as it may, when coming to the question of the provisions of section 13 (3) of the Act, Adv. Makhera ultimately conceded that without the notice published in the Gazette the appointment of the applicant was not lawful and valid. However, he argued that despite that the Minister was fully aware of the provisions of section 13 (3) of the Act, the Ministry of Local Government continued to pay applicant’s salaries, therefore the respondents should be slapped with costs. [17] On the other hand, Adv. Ntoko counsel for respondents argued that the powers of the Minister to appoint Commissioners is not delegable, therefore the Principal Secretary had no power to say that she had been directed by the Minister to appoint applicant. He argued further that the applicant had been appointed by the Minister previously and there was a notice of appointment published in the Gazette. Therefore, applicant knew the second time around that her appointment was not lawful and valid, in the absence of notice in the Gazette. He argued further that it would have been a different matter altogether, if the Principal Secretary had indicated that she had been directed to inform the applicant that she had been appointed. However, that information would have to be evidenced by the notice published in the Gazette. He referred the court to the case of Thato Mohasoa (supra) and Mathahane Seleso (supra) where in both cases, there were no notices published in the Gazette. [18] In addressing the question as to whether the applicant was appointed lawfully, I must turn to consideration of the provisions of section 13 (3) of the Act. It is a matter of common cause that there was no notice published in the Gazette as required by the provisions of section 13(3) of the Act. In both cases of Thato Mohasoa (supra) and ‘Mathahane Seleso (supra), there were no notices published in the Gazette in terms of the relevant Acts applicable in each instance. It is important to note that the provisions of section 13 (3) are couched in mandatory terms because the word “shall” has been used. This is more so because section 14 of the Interpretation Act provides that “Shall “is imperative, while “may” is permissive and empowering. [19] In the Mathahane Seleso (supra) case, the Court of Appeal held that the respondent was clearly not appointed in terms of section 13 (3) of the Act, because there was no notice in the Gazette, and that all the five positions on the commission were occupied. The Court of Appeal in the Seleso case (supra) held further that even if it could be argued that the Minister’s authority to appoint commissioner had been delegated, there was no notice in the Gazette. [20] On the basis of the authorities referred to above in this judgment, I find that the appointment of applicant and the contract resulting from it, were unlawful and invalid, because there was no notice published in the Gazette, as prescribed by the provisions of section 13 (3) of the Act. It is needless to deal with the issue as to whether the Minister delegated his powers to the Principal Secretary, because that issue is poked by the fact that there was no notice published in the Gazette. [21] Having said this, both counsel agree that in terms of the appointment of applicant to the Local Government Service Commission, in Legal Notice 105 of 2016, applicant was entitled to a cell phone for a value of M6,000.00 and cell phone allowance at M70,000.00 per annum. The respondents’ counsel conceded that the cell phone for the value of M6,000.00 and cell phone allowance were not paid to the applicant in her first term of tenure as the commissioner on the Local Government Service Commission, therefore applicant is entitled to payment in the amount of M76,000.00. (Seventy-Six Thousand Maloti). ORDER The court makes the following order. 1. That prayers 2, 3 and 4 of the Notice of Motion are dismissed. 2. The Second respondent (Principal Secretary- Ministry of Local Government and Chieftainship) is ordered to pay Applicant an amount of M76,000.00 for cell phone value and the cell phone allowance. 3. Each party to bear its own costs because applicant has partially succeeded. ___________________ T. J. MOKOKO JUDGE FOR THE APPLICANT FOR THE RESPONDENT : : ADV. N. E. MAKHERA ADV. M. J. NTOKO 12