Mahloka v Director of Prisons and Another (CIV/APN 420 of 96) [2000] LSCA 26 (10 February 2000)

C I V / A P N / 4 2 0 / 96 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- M A T O KO M A H L O KA A P P L I C A NT vs D I R E C T OR OF PRISONS A T T O R N EY G E N E R AL 1ST 2ND R E S P O N D E NT R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le Mr Justice S . N. P e e te on the 10th F e b r u a r y, 2 0 00 In this application, the applicant s e e ks to h a ve the d e c i s i on of t he first r e s p o n d e nt p u r p o r t i ng to d i s m i ss h im d e c l a r ed null a nd v o id a nd that he be reinstated to his f o r m er position of prison w a r d er in the p r i s on service. T he history of the m a t t er c an be s u m m ed up briefly t h u s: On t he 9th July 1 9 96 t he applicant, a p r i s on w a r d e r, a p p e a r ed b e f o re a disciplinary b o a rd at L e r i be on t he allegation that he h ad c o n t r a v e n ed t he ( L e s o t h o) P r i s on R u l es ( 1 9 5 7) R u le 1 56 ( 7) in that he h ad by carelessness or neglect contributed to the e s c a pe of o ne prisoner o ne M o s o t ho M e ya at Leribe Hospital. It w as c o m m on cause that on the 9th July 1 9 99 a disciplinary hearing w as instituted presided by Assistant Senior Superintendent Hlalele. T he applicant pleaded not guilty; evidence w as led in support of the charge; the applicant also g a ve evidence in his o wn defence. T he applicant w as found guilty as charged and a w a rd imposed w as "severe reprimand" w h i ch w as a competent p u n i s h m e nt in terms of Prison R u le 163 (1) (b) (iii). T he record of the proceedings reveals that the applicant stated that he did no wish to appeal. On the 12th July 1 9 9 6, the Divisional Superintendent (North) m a de written c o m m e n ts on the record expressing his dissatisfaction with the a w a rd and r e c o m m e n d ed that the applicant be dismissed f r om the prison service. This adverse r e c o m m e n d a t i on probably influenced the Director of Prisons w h en the record of the proceedings w as forwarded to h im in terms of R u le 165 w h i ch reads in part: " T he a w a rd or r e c o m m e n d a t i on and any other, shall be reported to the Director, w ho shall take the following action (a) (b) if the charge is dealt with by m e a ns of an a w a rd under paragraph (b) of subrule (1) of rule 163, record it in the officer's record of service." It is my v i ew that o n ce the officer in charge m a de a decision to m a ke an a w a rd under R u le 1 6 3 ( 1) (b), the Director of Prisons had no p o w e r, despite the apparent leniency of the award, to review the s a me and substitute, as he did, the a w a rd of dismissal per his letter dated 12th A u g u st 1996. It reads: " 1 2 th A u g u s t, 1 9 96 Officer N o . 8 93 M R . M a h l o k a, P. O. B ox 8 9, Leribe 3 00 u.f.s. O /C Leribe Prison D I S M I S S AL F R OM T HE S E R V I CE T he proceedings of a disciplinary case against y ou w h e re y ou w e re charged a nd convicted of contravening the provisions of paragraph 7 of R u le 1 56 of the L e s o t ho Prison Service on 5th July. 1 9 96 h a ve b e en before this office for review. At the close of the case the adjudicating officer f o u nd y ou guilty a nd g a ve y ou an a w a rd of a severe reprimand a nd y ou did not m a ke an appeal. On review the conviction w as confirmed a nd the a w a rd varied to a dismissal. Y ou w e re given chance to s h ow cause if any, w hy y ou could not be dismissed f r om the service a nd y ou failed. Y ou are therefore informed that y ou h a ve b e en dismissed f r om the service with effect f r om 12th A u g u s t, 1996. Y ou will h a nd over to Officer C o m m a n d i ng Leribe Prison all items of uniform a nd any other g o v e r n m e nt property that w as entrusted to y ou during y o ur term of service. A . T . K H A L I E LI D I R E C T OR OF P R I S O NS cc: Div. N o r th A c g en Audit M PS Toka H is function u n d er Prison R u le 1 65 (1) (b) is limited m e r e ly to record s u ch a w a rd in the officer's record of service. T h e re is no p r o c e d u re for automatic r e v i ew u n d er the Prison Rules. It is quite clear that the applicant, p e r h a ps b a s k i ng in the a w a r d 's b e n e v o l e n c e, did not appeal to the Director u n d er R u le 1 6 6. It is u n d er this R u le that it is provided that the Director h a v i ng considered the record of the p r o c e e d i n gs m ay confirm, v a ry or reverse a ny a w a rd m a de u n d er R u le 1 6 3. A fair reading of R u le 1 63 c o n v e ys an impression that an officer-in charge presiding o v er disciplinary proceedings u n d er 1 63 has p o w er either to m a ke an a w a rd u n d er (a) or (b) or he c an m a ke a r e c o m m e n d a t i on u n d er (c) if he is of the opinion that a m o re severe a w a rd is merited u n d er the circumstances of the case at h a n d. T he Director c an then deal w i th the matter u n d er R u le 1 6 9. In the case of K h o n g o a ne a nd others vs D i r e c t or of P r i s o ns a nd o t h e rs - 1 9 91 - 96 L LR (vol. 1) p . 2 7 0, a case a l m o st similar to the present, the applicants w e re gaolers w ho h ad b e en c h a r g ed u n d er R u le 1 56 of the Prison R u l es for h a v i ng negligently contributed to the escape of a r e m a nd prisoner. T he presiding officer h ad f o u nd t h em guilty a nd r e c o m m e n d ed that they be dismissed. R a m o l i b e li A. J., as he then w a s, stated as follows:- "I am satisfied therefore that by purporting to dismiss the applicants f r om their respective offices the 2nd respondent acted ultra vires his p o w e rs a nd consequently s u ch dismissal is unlawful, null a nd v o id a nd of no legal force a nd effect." T he learned j u d ge f o u nd that section 3 of the Prisons ( A m e n d m e n t ). O r d er N o. 30 of 1 9 70 vested the p o w er to dismiss on the Director of Prisons a nd not on the D e p u ty Director of Prisons. A c c o r d i ng to the procedure set by the Prison R u l e s, the Director c an h o w e v er only dismiss a prison officer w ho h as b e en f o u nd guilty by a presiding officer w ho then formally r e c o m m e n ds u n d er R u le 163(l)(c)(i) that he be so dismissed. In the present case it appears that the Director of Prisons, p r o b a b ly appalled by the leniency of the a w a r d, then w r o te a letter dated 23rd July 1 9 96 directing the applicant to give reasons if a ny before the 29th July 1 9 9 6, w hy he should not dismissed f r om the prison service. On the 26th July 1 9 9 6, the applicant replied stating the circumstances w h i ch led to the escape of the prisoner a nd also pleading for leniency. T h is letter w as not f o r w a r d ed to the Director of Prisons but instead the applicant w as ordered to write another letter stating full reasons w hy he w as n ot to be dismissed. He w r o te it on the 2 9* July 1 9 96 - the u l t i m a t um date. On the 12th A u g u st 1 9 96 the then Director of Prisons A . T. Khalieli w r o te dismissal letter in w h i ch he states:- " On r e v i ew conviction w as c o n f i r m ed a nd the a w a rd varied to a dismissal." (underlining m i n e) T he pertinent question is w h e t h er the Director has p o w er to r e v i ew the a w a rd m a de u n d er R u le 1 63 (l)(b). Mr M a p e t la in his strong submission argues that whilst the validity of the R u l es is not being d o u b t e d, these R u l es m u st be read subject to the Prisons ( A m e n d m e n t) O r d er N o . 30 of 1 9 70 w h i ch a m e n d ed the Prisons Proclamation (the Principal l a w) and a n ew Section 3 is substituted to read:- " 3. T he p o w er to appoint a person to hold or act in an office of the rank of Senior C h i ef Officer or b e l ow (including the p o w er to confirm appointments a nd to appoint by w ay of promotion), the p o w er to exercise disciplinary control over persons holding or acting in such offices and the p o w er to r e m o ve such persons from office shall be exercised by the Director of Prisons without consultation with the Public Service C o m m i s s i o n ." In fact the n ew Section 3 is also in h a r m o ny with Section 1 49 (2) of the 1 9 93 Constitution of Lesotho w h i ch reads:- " T he superintendence of the Prison Service shall be vested in the Director of Prisons, a nd subject to a ny direction of the D e f e n ce C o m m i s s i o n, the Director of Prisons shall be responsible for the administration a nd discipline of the Prison Service." He submits that the Prison Rules being subsidiary or delegated legislation should be read subject the principal l aw as a m e n d e d. He submits that the n ew Section 3 vests in the Director ultimate p o w er of disciplinary control a nd this includes p o w er to review awards. He argues that all disciplinary a w a r ds m a de under R u le 163 are subject to confirmation by the Director as "repository" of disciplinary control; the officers in charge he submits h a ve no p o w er to m a ke a ny final a w a r ds and such awards should be taken as m e re recommendations; he argues that unless s o me of the disciplinary p o w e rs are delegated the final decision vests in the Director. Mr Teele counters by submitting that the Prisons Rules are still extant a nd valid a nd do not conflict with the spirit of Section 3 w h i ch vests disciplinary control in the Director of Prisons. He submits that the Director c an only competently review a w a r ds only if the matter is before h im on appeal. He submits that in the circumstances of this case, the Director has acted ultra vires. T he important question of l aw is whether the disciplinary control vested in the Director of Prisons also vests p o w er in h im to review a w a r ds m a de under R u le 1 63 (1) (b). T he m a x im generalia specialibus n on d e r o g a nt m e a ns that w h e re a general or principal A ct of Parliament is intended to cover a w h o le subject to w h i ch it relates there is a presumption that the later general enactment w as not intended to repeal an earlier special enactment unless there is a clear indication that the repeal w as so intended ( K h u m a lo v Director G e n e r al of C o o p e r a t i on a nd D e v e l o p m e nt 1991(1) SA 1 5 8; Devendish-Interpretation of Statutes ( 1 9 9 2) p a ge 2 8 1. T he m a in purpose of the Prison Rules is to deal with specific disciplinary matters like types of offences, charges, proceedings a nd procedure at trial a nd on appeal, p o w e rs of the officers in charge a nd also p o w e rs of the Director of Prisons. I do not read these Rules to be in conflict with or irreconcilable with the principal l aw as a m e n d e d. U n d er the Prison Standing Orders (Part 3) every the officer in charge is responsible to the Director for the conduct a nd treatment of the Prison Officers a nd Prisoners under his control a nd for the d ue observance by prison officers a nd prisoners of the provisions of the Prisons Proclamation a nd Rules as a m e n d ed from time to time. T he R u l es w e re p r o m u l g a t ed by Resident C o m m i s s i o n er on the 20th S e p t e m b er 1 9 57 in terms of section 31 of the Prisons P r o c l a m a t i on 1 9 5 7. T he R u l es are therefore a subsidiary f o rm of legislation. I am of the v i ew that the Director of Prisons c an exercise disciplinary control as e n v i s a g ed u n d er section 3 t h r o u gh his officers in charge w ho are selected to preside over disciplinary proceedings. I see nothing in the clear l a n g u a ge of R u le 163 w h i ch imperils the p o w er of the Director of Prisons; the p r e s u m p t i on that a later general e n a c t m e nt w as not intended to repeal a special conflicting regulation or rule c an only apply if s u ch conflict is d e m o n s t r a b le a nd evident. I discern no such. In the circumstances I do not think that Mr M a p e t l a 's submissions should be sustained. In my v i ew the Director did not h a ve p o w er to r e v i ew an a w a rd m a de u n d er R u le 1 63 (1) (b) n or w as this p o w er implied u n d er the n ew section 3 of the principal law. It w as unfortunate that the officer in c h a r ge c h o se to m a ke an a w a rd of "severe r e p r i m a n d" a nd the applicant in his w i s d om elected not to appeal w h i ch latter step could h a ve h ad the effect of o p e n i ng his case to be reviewable. T he Director c an only exercise p o w e rs as vested in h im by the l aw a nd the R u l es - he h as no inherent p o w e rs to r e v i ew or vary the a w a r ds m a de by officers in charge u n d er R u le 1 63 (1) (b). Section 161 of the Prisons R u l es reads as follows- " E v e ry officer in charge shall h a ve the p o w er to determine a ny case of an offence against discipline by an officer, a nd after h a v i ng heard the evidence, he shall so determine it* ( my underlining) I understand the w o rd " d e t e r m i n e" to m e an that the officer in c h a r ge h as p o w er to dismiss the charge or find the officer guilty a nd in the case of the latter finding m a ke an a w a rd u n d er R u le 1 63 (a) or (b) or m a ke a r e c o m m e n d a t i on u n d er (c) thereof. A fair interpretation of the n ew Section 3 should be t a k en to m e an that the disciplinary control o v er prison officers of the r a nk of senior officer or b e l ow w as b e i ng vested in the Director of Prisons without consultation w i th the Public Service C o m m i s s i o n; it w as not intended to abolish the disciplinary structures a nd procedures hithertofore established u n d er the Prison R u l es of 1 9 5 7. T he n ew Section 3 m u st be g i v en a purposeful interpretation. Is it possible for the Director of Prisons to adjudicate a nd d e t e r m i ne all cases of discipline regardless of h ow trivial? Do the S t a n d i ng O r d e rs not state that all officers in c h a r ge will be responsible to the Director for the c o n d u ct a nd treatment of prison officers a nd for the d ue o b s e r v a n ce by prison officers of the provisions of the Prison P r o c l a m a t i on a nd R u l es as a m e n d ed f r om t i me to t i m e? T he disciplinary control vested in the Director c an be exercised by h im or t h r o u gh his officers subordinate to h i m; to infer divestment of adjudication p o w e rs u n d er R u le 1 61 w o u ld indeed create c h a os resulting in all n u m e r o us disciplinary cases bulking on the Director's d e sk a nd w o u ld dislocate the w h o le disciplinary m a c h i n e r y! ( M o k a p e la vs M i n i s t er of H o me Affairs - 1 9 95 -96 L LR ( L B) 2 2 4; - D e v e n d i sh Interpretation of Statutes, p a ge 35 - 3 8. T he Part E - C o de of Discipline for Officers w h i ch creates offences a nd m a n n er of adjudication is still extant a nd c a n n ot be taken to be inconsistent w i th the n ew Section 3 w h o se m a in p u r p o se w as principally to divest the Public Service C o m m i s s i on of the p o w er to (a) appoint, (b) discipline or (c) r e m o ve p e r s o ns holding the r a nk of Senior C h i ef Officer or b e l o w. It w as n ot intended to disturb the disciplinary structures a nd p r o c e d u r es within the Prison Service. I do not find it necessary to m a ke a ny decision w h e t h er the applicant w as not afforded a fair hearing by the Director b e c a u se the w h o le p r o c e ss after verdict a nd sentence w as altogether irregular. T he principle of a u di a l t e r am p a r t e m d o es not apply w h e re the proceedings are p e r se irregular. T he s u b s e q u e nt inquiry m o u n t ed by the Director of Prisons requiring the applicant to furnish reasons w hy he s h o u ld n ot be d i s m i s s ed also a m o u n t ed to subjecting the appellant to d o u b le j e o p a r dy a nd a ny hearing s u b s e q u e nt w o u ld suffer the s a me fate of illegality. It therefore stands to g o od reason that the dismissal f r om prison service purportedly m a de by the then Director of Prisons on the 12th A u g u st 1 9 96 c a n n ot stand a nd is h e r e by set aside as b e i ng ultra vires. T he application s u c c e e ds a nd it is ordered that: (a) T he decision of the First R e s p o n d e nt purporting to dismiss the applicant is h e r e by declared null a nd v o id a nd the applicant is to be reinstated forthwith; (b) C o s ts of this application are be paid by respondents. F or Applicant : Mr Teele For Respondents : Mr M a p e t la S . N . P E E TE J U D GE