Ramoholi v Commissioner of Police and Others (CIV\APN 91 of 98) [1998] LSCA 30 (23 March 1998)

CIV\APN\91\98 IN THE HIGH C O U RT OF L E S O T HO In the Application of: TLOKOTSI R A M O H O LI Applicant vs T HE COMMISSIONER OF POLICE T HE MINISTER OF H O ME AFFAIRS T HE A T T O R N EY G E N E R AL 1st Respondent 2nd Respondent 3rd Respondent JUDGMENT Delivered by the Hon. Mr Justice M L Lehohla on the 23rd day of March. 1998 On 16th March, 1998 this Court reserved judgment after hearing submissions on both sides to this matter. On 24th February, 1998 Mr Mafantiri appearing for the applicant and having served papers on respondents, indicated to the Court that all he required for the moment was that the application be heard as a matter of urgency. The Court agreed that from the look of things this matter called for urgent attention. The Court accordingly ordered that the matter be set d o wn for hearing on 09-03-1998; that notice of hearing be served on respondents by not later than 25-02- 1998; further that the respondents should serve their opposing affidavits by not later than 04-03-98 and finally that the applicant's reply if any should be filed by not later than 06-03-1998. The above orders seem to have all been complied with. Furthermore the record is well indexed and paginated and heads of arguments were filed all of which m a de the Court's task so much the more bearable. For this the Court is m u ch indebted to both counsel for their good sense of responsibility to court as its officers. The applicant avers in his founding affidavit that he is a policeman directly responsible to the first respondent. He indicates that in July 1997 while stationed at Mapoteng the 1st respondent tried to transfer him to Pulane police post whereupon he pleaded with the 1st respondent to reconsider this decision on account of the applicant's poor health referred to in Annexure " A" wherein Dr Masemene on 14-07-1997 certified that " The above mentioned client is under medical management by us here. He is hypertensive and arthritic. Kindly oblige him by transferring him to centre like Maseru where he will have access to medical management easily. He should have one month here for follow-ups. Your cooperation will kindly be appreciated. Sincerely Dr D A. Masemene". The applicant says that despite his plea the 1st respondent turned a deaf ear to him as a result of which he instituted proceedings in terms of CIV\APN\231\97 praying that the purported transfer be declared null and void on the basis of annexure " A" referred to above. He informs Court that CIV\APN\231\97 is still pending before Court. He further states that around 21st August, 1997 he obtained sick leave for the period spanning August 21 st and August 31 st that year. A copy has been attached to his founding papers marked annexure "B". He says he sent a copy thereof to the 1st respondent in terms of the procedure obtaining in their particular organisation. In reaction to annexures A and B the 1 st respondent subjected the applicant to examination by the Medical Board on 21st August, 1997 while the applicant was still on sick leave. The applicant attached to his papers marked annexure " C" a copy of the Medical Board report. He indicates that the contents of annexure " C" are self explanatory. More or that later. See pages 10-12. Needless to say the applicant approached counsel w ho addressed annexure " D" to the 3rd respondent. See page 13 where in brief the substance of the letter by applicant's counsel is to the effect that the 3rd respondent should advise the 1st respondent to endorse and implement the decision of board i.e. to retire client. It was while applicant was awaiting a reply to " D" that he received annexure " E" (page 15) calling upon the applicant to appear before a disciplinary tribunal. Annexure " E" is dated 6th November, 1997. This was followed by annexure "F" (page 14) dated 2nd December, 1997 complaining to the 1st respondent that the applicant's salary cheque for the month of November had been withheld by the subordinates of the 1st respondent. Further correspondence culminated in annexure "J" (page 22) dated 18th December, 1997 addressed to the applicant by Staff Officer T. S. Koro saying " I have been instructed by the Commissioner of Police to herewith inform you that your service with the R L MP has been terminated in terms of Regulation 22(d) of Legal Notice No.72 of 1994. This takes effect from 22nd December, 1997" The applicant maintains that his dismissal is unfair in one or all of the following respects : "6.1 On or about 27th August, 1997 the Medical Board found me to be permanently unfit and recommended that I be retired and yet and yet first respondent purported to dismiss me on the 18th December, 1997 allegedly with effect from 22nd December, 1997 despite the clear wording of annexure " C" contents of which are self-explanatory. 6.2 The purported disciplinary hearing was vitiated by annexure " C" as the period covering the charge sheet started from 21st August, 1997 while 1 was on sick leave as per annexure " A" and on the 27th August, 1997 the Medical Board found me to be permanently unfit and The applicant finally states that he has been staying without his pay from November 1997, due to his wrongful dismissal. He has dependants w ho look up to him for maintenance and support. He has also indicated that he was unable to bring this application in time as he was finding it difficult to make ends meet and collect sufficient funds to cover his counsel's fees. The answering affidavit by Tsokolo Koro a Lt. Col. in the Royal Lesotho Mounted Police (pages 26-28) is to the effect in paragraph 5 that the contents of the applicant's paragraphs 4.1, 4.2 and 4.3 are admitted. The deponent however brings to the Court's attention that he never received annexure " B" which certified the applicant as being on non-effective sick leave from 21st August 1997 to 31st August 1997. Koro avers that the applicant was advised that his sick leave was not received and he never bothered to ensure that he brought it to the organisation's attention. H o w e v er in his replying affidavit at page 31 paragraphs 5 and 6 the applicant is insistent that he personally hand-delivered annexure " B" to the offices of the 1st respondent. To be noted here is the fact that it doesn't seem that the applicant did anything when advised as Koro avers that annexure " B" was never received. That is where the point is and it seems this is the point that the applicant is choosing to avoid responding to direct. In paragraph 7 at page 27 the deponent denies the averments of the applicant appearing in paragraph 6.1 and puts him to the proof thereof. The deponent asserts that the applicant was never recommended for retirement by the Medical Board. The deponent says he is puzzled as to where he gets the idea from that he has been recommended for retirement by the Medical Board. Looking at annexure " C" which consists of two sections, the Court notices that the first section which is filled by a medical officer indicates at paragraph 18(1) that in the opinion of the medical officer w ho examined the applicant on 27th August, 1997 the applicant was found to be permanently unfit as a result of which this Medical officer recommended retirement. But in the next section of annexure " C" which constitutes the part that is the province of the Medical Board proper it is clearly set out that the Board is at large to state h ow far it concurs in the report by the single medical officer above, and to give further particulars it m ay deem necessary to enable the Chief Establishment Officer to come to a decision on the case. Needless to say, in my view by Chief Establishment Officer in the context of the instant case is meant the Commissioner of Police. Thus it would seem that even if the Medical Board had in fact recommended a retirement the final say would still be with the Commissioner of Police. It would not be proper for the applicant to take the bit between his teeth and say the Medical Board has recommended his retirement and therefore he is entitled not to go to work irrespective of what action the Commissioner of Police felt should be taken following the board's recommendation. Koro is correct in my view that the applicant even if he was found to be permanently unfit by the Medical Board whereupon his retirement was recommended by it, he would have still had to await further correspondence from the Commissioner of Police's relevant office advising him of the terms of the retirement. In the instant case the Medical Board whose opinion supersedes that of a medical officer w ho examined the applicant stated that in order for it to make a recommendation either for the applicant to continue with employment or be retired it was necessary for the applicant to attend treatment at Thaba Bosiu Alcohol Rehabilitation Centre. The Medical Board had a special reason for looking at the problem of the applicant differently from the Medical Officer w ho had examined him. The particular reason which to me was well-thought out and well conceived by the Medical Board was the applicant's alcohol dependence. 1 share Koro's bewilderment therefore concerning where the applicant gathers the notion from that the Medical Board has recommended his retirement. In the face of the clear reading of the Medical Board's opinion that "due to alcohol dependence he (Tlokotsi Ramoholi) needs treatment at Thaba-Bosiu Alcohol Rehabilitation Centre, before we can recommend him for employment or retirement" the applicant has jumped the gun if he just sat idle at home under a mistaken belief that the Medical Board had authorised his retirement. Only the Commissioner of Police has such authority. It would be another thing if he abused his authority. But as it is there is no recommendation one way or the other by the body entitled to make such recommendation to the Commissioner of Police. I m ay just add by w ay of disabusing the applicant's mind of the notion that a Medical Officer's opinion can supersede that of the Medical Board. It should thus be clear that a Medical officer w ho examined the applicant is not the body that is superior to the Medical Board and in any case the relevant law talks not in terms of the Medical Officer's opinion but in terms of the opinion and recommendation of the Medical Board being the ultimate opinion that the relevant law perceives as the opinion that is to be transmitted to the Chief Establishment Officer. I accept Miss Matshikiza's submission that it is baffling that the applicant seems reluctant to go for treatment that the Medical Board requested him to attend at Thaba Bosiu Alcohol Rehabilitation Centre prior to their recommendation one way or the other. The law clearly shows that a patient shall be entitled to retirement on medical grounds if he is suffering from an incurable disease, and thus is rendered permanently unfit. Miss Matsikiza submitted that alcoholism is not an incurable disease. I agree. It says enough in my view that the applicant owed it to himself to be in the condition in which he is because in the opinion of the Medical Officer w ho examined him the disability has been aggravated by intemperance. See page 11 paragraph 15(ii). It would appear therefore that if he heeded the Medical Board's advice to attend treatment which would take alcohol out of his system he would have had a good deal of his problems reduced. The applicant seems to be making a merit of the fact that he continued earning his salary for the months when he was not reporting on duty even though he was not on sick leave. He maintains therefore that the 1st respondent must have been prompted by ill-motive to have ordered the withholding of his November pay. But in my view the 1 st respondent was prompted by receipt of the Medical Board report and realisation that instead of heeding it the applicant chose to malinger. I would have thought that because the medical certificate covering the dates 21st to 31st August 1997 clearly shows the applicant was on sick leave then for those days he should not be penalised, but I am however distressed that given a chance to enable his office to process that matter he sought to dodge the issue. Moreover it is a matter fit to raise one's eye-brows that on the day that the applicant alleges he was subjected by the 1 st respondent to examination by the Board it happens to be the day that he obtained Annexure "B". Thus in all probability he sought Annexure " B" immediately after realising what the attitude of the 1 st respondent was, namely to have the applicant examined in terms of the provisions of the law instead of swallowing wholesale the story of the applicant's shielding behind false claims that he has been retired by the Medical Board as an explanation for his failure to report on duty. It is strange that in his founding papers the applicant didn't allude to a fact that he must have known namely that he was told that the sick-leave certificate Annexure " B" was not received by the 1st respondent's office. Yet when this is raised by Koro he doesn't deny it but instead chooses to avoid it by insisting that he delivered it; which is not the issue. In my view the applicant was properly dismissed for absenteeism. See Legal Notice No.72\94 section 22(d). In the result the application is dismissed with costs. JUDGE 23rd March, 1997 For Applicant: Mr Mafantiri For Respondents: Miss Matshikiza