Solicitor General v Mocasi (C of A (CIV) 11 of 1982) [1982] LSCA 1 (31 December 1982)

C.of A. (CIV) No. 11 of 1982 IN THE LESOTHO COURT OF APPEAL In the Appeal of : SOLICITOR GENERAL Appellant v MICHAEL MOCASI Respondent HELD AT MASERU Coram: SCHUTZ, J. A. VAN WINSEN, J. A. STEYN, A. J. A. J U D G M E NT VAN WINSEN. J. A.: This is an appeal against the judgment of Unterhalter A. J. in the High Court of Lesotho in which he set aside a decision dated 4th February 1982 retiring respondent from the Public Service of Lesotho in the public interest. The learned Acting Judge granted consequential relief which will be detailed later in this judgment. The facts upon which the Court a quo 's order was given can be briefly summarized as follows: It appears from the papers before that Court in proceedings which are distinguished by a singular paucity of information that respondent was employed as a traffic officer in the Department of Transport and Traffic, Ministry of Transport and Telecommunications. It appears that at some time before the 15th of July 1981 respondent had been interdicted from performing his duties in the Department. It/... -2- It can be inferred that the interdiction was consequent upon respondent's alleged breach of the terms of section 44B(1) of the Road Traffic and Transport Order of 1970 as amended by Act 26 of 1978. The section in question stipulates that any person who, for the purposes of obtaining the registration and licensing of a motor vehicle or of any certificate relating to such registration and licensing, makes use of or produces any document which is false in any particular or furnishes any false information is guilty of an offence. It is unnecessary for the purposes of this judgment to go into any detail in regard to these allegations against respondent. Suffice to say that respondent took up the attitude to the head of the department from whom the interdiction had proceeded that no action on his part in connection with a second-hand car which he had admittedly purchased and in respect to. which the documentation was alleged to be false, was,in any way false or in conflict with the requirements of the Act aforementioned. He appealed to the Public Service Commission against the interdiction and while the papers before the Court a quo do not reveal the fate of the appeal it can be inferred from the sequence of "events that it was not successful. On the 19th of November 1981 respondent received a long letter from the head of his department setting out "a number of respects in which it was alleged that the documentation in respect to this car was false. The letter stated that in view of the fact that the car had been registered at his instigation without the documentation being/... -3- being in compliance with the Order above referred to the Ministry of Transport and Communications had made a recommen- dation that he be retired from the Public Service in the public interest. The letter stated that he was afforded the opportunity to reply to the allegations within seven days of receipt of the letter. This he did in his letter of 25 November 1981 by referring to the information re the documentation of the car in question which was contained in his letter (referred to above) addressed to the Public Service Commission lodging an appeal against his interdiction. In his letter of 25 November he further stated that his department had "failed to falsify the authenticity of those documents (i.e. those enumerated in his letter to the Public Service Commission referred to above) and the documents stand true and lawful in terms of section 11(2)(e) of; the Road Traffic and Transport Order 1970 as amended". On the 4th of February 1982 he received a letter from 'V Permanent Secretary Cabinet.(Personnel) which stated as follows:- "I am directed to inform you that, after careful consideration of the report from the Head of your Department in which you have served and the representations submitted by you thereon, approval is given for your retirement under PSC Rule 6-01(1)(e). You are hereby retired from the service in the Public interest with effect from the date of receipt of this letter." On-the 4th of March 1982 a Notice of Motion was served by respondent on appellant in terms of which the former claimed an order against the latter to set aside "his (respondent's)/.. -4- (respondent's) purported retirement from the civil service of the Lesotho Government" and asking for an order re-instating him to his former position. After citing in the,introductory paragraphs of his founding affidavit the facts set out above, respondent claimed that:- Paragraph 6(a): "My purported retirement aforesaid in the public interest, is unlawful and therefore null and void on the ground that such retirement constituted imposition of punishment on me without first proving me guilty of a breach of discipline. Such imposition of punishment is contrary to the provisions of Section 6 of the Public Service Order No. 21 of 1970." Paragraph 7(b): "I further respectfully submit that the unproven facts levelled against me do not and can not form a basis for my retirement 'in the public interest' and that the Honourable Minister in charge of the Public Service could not, in all the circumstances of the case, have been satisfied that it is desirable for me to be retired in the public interest. Accordingly," it is respectfully submitted that the Honourable Minister was wrong in arriving at the decision that he did." In a brief opposing affidavit the present appellant contended himself with a denial of the allegations in paragraph 6 of the founding affidavit that the retirement of respondent was unlawful or that it constituted an impostion of a punishment on respondent. It was submitted that the Minister in retiring respondent from the Public Service acted within his powers and pursuant to the provisions of Rule 6-01 of Part 6 of the Public Service Commission Rules and in" accordance with section 12(9) of Part 3 of the Public Service Order/.. -7- salary of a public servant could be initiated under Rule 6. In the matter of Minister in Charge of Public Service and The Solicitor General v. R. C. Mokhohlane, C. of A. (Civ) No. 5 of 1982 (unreported), the question arose as to whether the Public Service Order No. 21 of 1970 authorised the Minister responsible for the public service to make regulations for the removal from office of a member of the public service other than for a breach of discipline established after an enquiry conducted in accordance with the provisions of Rule 5 of the Public Service Commission Rules 1970. The majority of the Court held that the Order in question did authorise. the making of Rule 6 and that it was within the powers conferred on the Minister to enact Rule 6. I can see no good reason to depart from the conclusions arrived at in those two Judgments. It was pointed out in the latter of the above-quoted judgments that the rule-making power of the Minister responsible for the public service is derived from the terms of section 4(1) of the Order and that the enabling power contains no limitation upon the power of the Minister to make rules for the removal from office of a public servant to the effect that such removal can only follow upon a breach of discipline or, if a removal is in consequence of a breach of discipline, that such breach can only be determined by following a particular procedure.-. It is clear that in the case of the exercise of the right of removal of a public servant from office in the circumstances contemplated in sub-paragraphs (b), (c), (d), (f), (g), (h) of Rule 6-01/.. -5- Order 21 of 1970. The averments in paragraph 7 of the founding affidavit were denied, and after a cryptic reference to the fact that respondent knew full well that hie retirement was given under Part 6 of the Public Service Commission,Rules it was also denied that the Minister was wrong to decide as he did. It appears from the Judgment of the Court a quo that the decision of that Court to set aside the retirement of respondent rests upon the view of the Judge of first instance that it was not competent for the responsible Minister in ' the circumstances of the instant case to have had recourse to the terms of Rule.6-01(1)(e) of the Public Service Commission Rules 1970 in order to effect the retirement of respondent from the Public Service. The learned Judge referred to the terms of Rule 5 of these rules which provide machinery for the determination of the question of whether or not a public servant has committed a breach of discipline. He pointed out that the application of. this Rule affords the latter the protection of a full enquiry into the charge by means of a hearing before an adjudicator at which evidence is adduced in support of the charge brought against him and at which the public servant can adduce rebutting evidence and make submissions in his defence. With this form of proceeding he contrasted the terms of Rule 6-01 of the Public Service Commission Rules under which there is no provision for a hearing. He stated that since the charge by respondent's departmental head was one which, if established, constituted a breach of discipline on his part - he having been charged with/.. -6- with the commission of a criminal offence - it wa8 to be expected that the procedure prescribed in Rule 5 would be resorted to. By initiating the enquiry against respondent under Rule 6 he was deprived of the right afforded him by Rule 5 to meet the charge that had been preferred against him. Accordingly, so the learned Judge reasoned, in acting as it did, respondent's department was misusing the powers under Rule 6 in order to by-pass an investigation under Rule 5. In the result the Minister had not properly applied his mind to the question of whether respondent's retirement was required by the public interest. Accordingly the decision to do so must be set aside. An appeal was noted against this judgment, substan- tially on the grounds that the terms of Rule 6 were appropriate to deal with an enquiry into the allegation by the head of respondent's department, that for the reasons stated by him it was in the public interest that respondent should be retired from his post in the department and that the terms of that Rule 6 had been followed "impeccably in letter and spirit" Accordingly it could not rightly be said that the responsible Minister had not applied his mind to the question of whether respondent's retirement was in the public interest. The provisions of Rules 5 and 6 have on more than one occasion in recent years engaged the attention of this Court. In the case of Joseph M. Koako v. Solicitor General C. of A. (Civ) No. 3 of 1980 (unreported), it was held that the proceedings under Rules 5 and 6 were independent of each other and that proceedings for the proposed reduction in salary/.. -8- Rule 6-01, the holding of an enquiry under Rule 5 could clearly not be regarded as a condition precedent to the removal of a public servant from his office. When, however, it comes to sub-paragraph (e) of Rule 6-01 (viz., the requirements of the public interest) as a possible ground for such removal, then it may well be that, either standing alone or in conjunction with other considerations, the question of the commission by the public servant of a disciplinary offence may constitute an element in a decision as to whether his removal from office is required in the public interest. Nevertheless it does not in my opinion follow ' from this that in such a case an enquiry under Rule 5.is a condition precedent to the exercise of the power of removal of a public servant from his office. It would appear to me that (Unterhalter A. J.x. was driven to the conclusion that such an enquiry was indeed a condition precedent to the exercise of the power of removal on substantially two grounds, i.e. that the public servant could possibly be subjected to arbitrary action on the part of the Minister in the absence of the formal investigation contemplated by Rule 5. Secondly, the learned Judge reasoned that the action taken by the Minister under Rule 6 fell into the second category of cases referred to by Corbett J.- as he then was - in South African Defence and Aid Fund and Ano. v. Minister of Justice, 1967(1) S. A. 31 (C), i.e. that where a statute entrusts to an official the sole and exclusive function of determining whether in his opinion a jurisdictional fact/.. -9- fact exists or not, the power of the courts to interfere with the exercise by such official of his power is limited to those cases where it can be proved that the official has acted mala fide, from ulterior motive or failed to apply his mind to the matter. "Before dealing with my reasons for differing, with respect, from the views expressed in this regard by Unterhalter A. J. it would be as well to examine the terms of Rule 6-01 to see what actions it prescribed for those who resort to its terms. Rule 6-01(2) and (3) sets out the procedure to be followed if action is to be taken under Rule 6-01. They read as follows:- " (2) The head of department shall supply infor- mation in support of his proposal and he shall apply for directions concerning the procedure to be applied. He shall report to the Permanent Secretary of the Public Service Department, for reference to the commission, the result of the application of that procedure. (3) The commission may after the completion" of any proceedings under directions given under paragraph .(2) advise that the Minister s h o u ld - (a) order that no further action be taken in t he m a t t e r; or (b) order that the officer's salary or rank or both his salary and rank be reduced to an extent specified; or (c) order that the officer be removed from office by way of dismissal or compulsory retirement or permission to retire or otherwise." It would seem according to Rule 6-01(2) that a particular (directed) procedure is to be followed in regard to an enquiry into the proposal of the head of the department to/.... -10- to remove from office a public servant in his department under Rule 6. The head of the department must seek the directions of the Permanent Secretary of the Public Service Department as to the procedure to be followed in this regard and the Permanent Secretary is under a correlative duty to decide on the procedure. This could be an informal one or, should the allegation of the head of the department be that the servant be removed under ground 6-01(e) because of a breach of discipline, the Permanent Secretary could decide that the procedure which should be followed be the more formal one prescribed under Rule 5. Rule 6-01(2) leaves a decision as to the procedure to be followed to the discretion of the Secretary. It would appear to me that in the case that a breach of discipline is involved as the or one of the grounds on which the public servant's removal is sought, it is highly desirable for the Secretary to direct that the procedure prescribed under Rule 5.be followed, The adoption of this procedure is more likely to result in the correct determination of whether the alleged breach of discipline has or has not occurred. It would thus be fairer to the public servant and obviate the necessity of a recourse by him to the courts. However, I repeat, the discretion as to the procedure to be followed rests with the Secretary. Once the procedure is determined by the latter, whichever it may be, it must be put into operation since Rule 6-01(2) requires a report to be made to the Secretary, as to "the/.. -11- "the result of the application of that procedure". The Secretary must refer the result to the Public Service Commission, which body is required to consider such result and make its recommendation to the Minister in regard thereto. I turn then to consider the powers of a court to interfere with a decision taken by the Minister to retire a public servant in consequence of the application of the informal procedure that the Secretary may have directed to be followed in terms of Rule 6-01. Innes C. J. in Johannesburg Consolidated Investment Co. v. Johannesburg Town Council, 1903 T. S. lll at p. 115, said: "Whenever a public body has a duty imposed upon it by statute and disregards important provisions of the statute.... this Court may be asked to review the proceedings complained of and set aside or correct them." This dictum was followed and approved in cases such as Hashe. and Others v. Cape Town Municipality and Others, 1927 A. D. 380 at p. 387, and Maske v. The Aberdeen Licensing Court, Gilbert v. The Aberdeen Licensing Court, 1930 A. D. 30 at p. 37. The reason for such a rule is clear, more particularly in those cases where a power is conferred upon a body or official to do an act which could, unless properly exercised, be potentially gravely prejudicial to an individual. The procedural rules within the confines of which that body's or official's power is required to be exercised are designed to avoid such prejudice. Where the prescribed procedure has been observed and, as a result, the presence of one or other of the grounds enumerated in Order 6-01 upon which the head of the department of/.. -12- of the public servant in question proposed that the latter be removed from office has been found to be present, then it is a matter falling within the discretion of the Minister responsible for the public service to decide what ie to be done in the light of this finding in regard to the public servant. He may or may not, as he sees fit, act upon the advice of the Public Service Commission in regard thereto. If, however, it appears as a result of the enquiry following on the procedure directed to be adopted under Rule 6-01(2) that the ground on which the head of the department proposed that the public servant be removed from office is not established, then clearly the Minister has hot the discretionary power nevertheless to remove him from office. It was the contention of Mr. Tampi, who appeared for appellant, that the Minis- ter is vested with the discretion to do so. Such a contention is without legal foundation. The terms of Rule 6-01(1) make it abundantly clear that in order to vest the Minister with a discretion to remove a public servant from office on • one or more of the grounds mentioned in that sub-rule the relevant ground must be shewn objectively to exist. There is nothing in this Rule to suggest that if the Minister is of the opinion that one or other of these grounds are present that he has the power of removal from office. If that had been the intention of the framers of the Rule they would have framed the Rule in that form. This can be well illustrated by reference to two of the more obvious examples. Thus it could hardly be contended with any justification that if upon the proposal of the head of a department that a member of his department/.. -13- department be removed from office on the ground that he had been convicted of a criminal offence (Rule 6-01(a)) or that he had attained the prescribed age of retirement (Rule 6-01(d)) it is found on enquiry that he had not been so convicted or that he had not reached the retirement age, the Minister nevertheless has the power to remove him from office on one of these grounds. This reasoning applies with equal force to any ground advanced by the head of the department which is intended to shew that his removal from office is " , reguired by the public interest. If the ground is factually unfounded then the Minister does not acquire the discretion to remove him under 6-01(e). If it is well founded he enjoys such a discretion. I am unable to agree with the view expressed in the Court of first instance that the terms of section 12(9) of the Public Service Order 1970 has entrusted the Minister with, to quote from the judgment of Corbett, J. ,(as he then was) in the case of South African Defence and Aid Fund (supra) at p. 35, "the sole and exclusive function of determining whether the prerequisite fact...existed." The Minister responsible for the public service saw . fit to prescribe rules governing the circumstances under which a public servant could be removed from office (Rule 6-01) and the wording of that Rule leaves no doubt that the grounds for removal from office must objectively exist before the Minister becomes vested with the discretion to remove a public servant from office. The Minister, by the Rules he himself has formulated,has set out the conditions under which he acquires/..... -14- acquires and may exercise the discretion to remove a public ser- vant from office and he is accordingly himself bound by such Rules. Turning now to the circumstances of the present case, it is not possible upon the allegations contained in . the papers before the. Court a quo or this Court to determine whether the ground relied upon by the head of respondent's department for proposing to remove respondent from office in fact existed. Respondent averred in para. 7 of his founding affidavit that this ground was "unproven". Appellant did not deny this allegation but claimed in para. 7 of the replying affidavit - for some reason not apparent to me - that this averment by respondent was "irrelevant and vexatious" since his case had been dealt with under Rule 6-01(1)(e). Mr. Tampi contended that no matter whether the ground existed or not the Minister was empowered to 'act as he did. For the reasons stated in the judgment this contention fails to coincide with law on the subject. Furthermore it is not apparent from the papers before this Court that there was any compliance by appellant or the Minister or the responsible officials of respondent's department with the procedural provisions prescribed by Rule 6-01(2) for proceedings under Rule 6-01. This clearly warrants an interference by this Court in regard to the Minister's decision to remove respondent from office. While I do not agree with those conclusions of the Court of first instance which I have dealt with above I neverthe- less share the doubt as to whether it is justified at this stage/... -15- stage to grant an order for respondent's re-instatement. It may well be that there has been a substantial adherence by the Minister and the relevant officials to the procedural requirements of Rule 6-01 and that as a result of the application of this procedure it has been established as a fact that the documentation relative to respondent's car is, in the respects set out in the letter to him of the 19th of November 1981, false. In my view the appellant should be afforded an opportunity to establish this. I accordingly make the following order:- (i) The appeal is dismissed. (ii) The matter is referred back to the Court a quo in order to afford appellant an opportunity to file affidavit(s), should he be so advised, in order to shew that:- (a) the procedure prescribed by Rule 6-01 has been followed; (b) the documentation in regard to respondent's car is false in the respects claimed in the letter "to him of 19 November 1981. (iii) Leave is reserved to respondent to file affidavits in reply to appellant's affidavits. (iv) Upon failure of appellant to proceed or act as provided in paragraph"(ii) above within three months from the date hereof the decision to retire respondent is set aside and he is re-instated to the position he occupied/.. -16- occupied in the public service immediately prior to the direction that he be retired. (v) Paragraph 4 of the order of the Court a quo is confirmed and in addition appellant is ordered to pay the costs of this appeal. I agree. I agree. L. DE V. VAN WINSEN JUDGE OF APPEAL W. P. SCHUTZ JUDGE OF APPEAL ACTING JUDGE OF APPEAL