Makamane v Ministry of Communication, Science and Technology (Constitutional Case No. 1/2010) [2011] LSHC 57 (30 May 2011);

 

CONSTITUTIONAL CASE NO.1/2010

 

 

IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:

 

 

MOHAU MAKAMANE                                                           Applicant

 

And

MINISTRY OF COMMUNICATION

SCIENCE AND TECHNOLOGY                                             1st Respondent

P/S MINISTRY OF COMMUNICATION                                2nd Respondent

FINANCIAL CONTROLLER – COMMUNICATION             3rd Respondent

MINISTER OF PUBLIC SERVICE                                          4th Respondent

ACCOUNTANT GENERAL                                                    5th Respondent

ATTORNEY GENERAL                                                 6th Respondent

 

CORAM:     Hon. Madam Justice K.J. Guni

                      Hon. Mr Justice G.N. Mofolo

                      Hon. Madam Justice A.M. Hlajoane

 

DATE OF HEARING:              21st March, 2011.

DATE OF JUDGMENT:           30th May, 2011.

 

Summary

Whether the High Court has power to strike down as being unconstitutional the provisions of section 6 of Government Proceedings and Contract Act 1965.

 

Whether the Codes of Good Practice 2005 could be said to have been properly promulgated through the Ministry of Public Service circular No.13 of 2005 on 15th August 2005 or through Legal Notice No.194 of 2008.  The Court dealing with only the Constitutionality of the Codes of Good Practice 2005 and declining to strike down section 6 of Government Proceedings and Contract Act 1965.

 

Held:   That the Codes of Good Practice 2005 was not properly promulgated by means of the Public Service Circular No.13 of 2005.  The proper publication was effected through the legal Notice No.194 of 2008.

 

JUDGMENT

 

HLAJOANE J

 

This is an application in which the applicant has approached this Court for relief as shown in his Notice of Motion which was later amended by a Founding Affidavit which was termed Supplementary Affidavit.  The prayers as set out in the amended Notice of Motion are as follows:

1.     That section 6 of the Government Proceedings and Contract Act 1965 be struck down as being unconstitutional.

2.     That the Codes of Good Practice 2005 be declared unlawful, invalid and of no force and/or effect.

3.     That application be condoned for the late institution of these proceedings.

4.     That the purported dismissal of applicant herein be declared unlawful, invalid and of no force or effect.

5.     That applicant be reinstated into his position as International Mail Officer.

6.     That the 2nd, 3rd and 5th respondents herein pay and/or cause to be paid applicant’s arrear salaries for the date of the purported dismissal to end of July 2006 within thirty (30) days hereof.

7.     The 2nd, 3rd and 5th respondents pay and/or cause to be paid interest in the amount referred to in 6 above at the rate of 18.5% per annum a temporae mora within thirty (30) days hereof.

8.     That respondents pay costs hereof.

9.     Further and/or alternative relief.

Applicant has shown in his papers that he had to amend his papers as he felt after the institution of the proceedings his initial consultations and / or instructions were not fully and accurately understood.

 

Initially the prayers sought were 8 in number but as amended they came to 9 with the inclusion of prayer for reinstatement.

 

The sequel of events that brought about the present proceedings are that applicant on the 11th December, 2000 was employed by the Lesotho Government as International Mail Officer by the first respondent herein at its Postal Department and based here in Maseru.  Thereafter and during the beginning of January, 2006 and following some disciplinary proceedings he obtained a letter from second respondent herein dismissing him from employment.  The letter has been attached as “MM1” and the dismissal letter read as follows:

Dismissal from Office

“Please be informed that the panel, which sat for a disciplianry hearing has found you guilty as charged and after thorough investigation on your case, I have also found you guilty as charged and as a result resolved that you be removed from the Public service by way of dismissal in terms of section 8 (6) of the Disciplinary Codes of the Public Service Act 2005.  You are therefore requested to vacate the office with immediate effect from the date of receipt of this letter.”

 

The letter is signed by Principal Secretary Communications

Attached to the letter of dismmisal is “MM2” styled “Disciplianry Case hearing”.  The Director of information has signed the document as the officer who on Friday 21st October, 2005 has presided over the the disciplinary enquiry hearing of the applicant.  There were two charges against the applicant both of the date of 30th August, 2005.

The first count being about applicant in his official duties causing a junior officer to have driven a governement vehicle X9501 beyond the authorized official working hours.

 

The second count being about applicant in having used the government vehicle X 9501 at or near Semonkong for his private and personal use.

 

Applicant has based his argument on Rule 13 (4) of the Constitutional Litigation Rules 2000.

It has been applicant’s case that following his dismissal, he remained unemployed until August 2006 when he obtained an alternative employment.  Applicant has thus submitted that his dismissal was irregular and therefore of no effect.  Applicant’s counsel did not say much in argument but relied on Constitutional Litigation Rules 2000 which say:

“The parties shall assume that a presiding Judge has read the written arguments and that there is no need to repeat what is stated in the written argument.”

He relied on his heads to where he has conceded that section 6 of the Government Proceedings and Contract Act of 1965 since written in mandatory terms does not allow the Courts to interfere with entertaining of condonation of cause of action once action has prescribed on the following grounds:

 

a)    He was charged under the Code of Conduct which was not properly promulgated as it was never passed by Parliament as required by the law.

b)    Assuming without admitting that it was properly promulgated, the said Code constitutes only guideline breach of which cannot lead to disciplinary proceedings.

c)    Again assuming without admitting that it was properly promulgated and that disciplinary proceedings could result from its breach, the maximum penalty he could obtain (with proper exercise of discretion, which was not the case here) under the provision under which he was charged could only be a verbal warning.

d)    Again assuming without admitting that was properly promulgated, the clause under which he was charged does not constitute an offence so long as it was not read with clause 5 of the Code.

e)    Finally, assuming without admitting that it was promulgated, second respondent acted without the required recommendation by the head of Department.

Applicant has challenged the constitutionality of section 6 of the Government Proceedings Act 1965 for the simple reason that it has been couched in mandatory terms, thus depriving the Courts in exercising their discretion in condoning where cause of action has prescribed.  The section reads as follows:

“Subject to the provisions of section six, seven, eight, nine, ten, eleven, twelve and thirteen of the Prescription Act no action or other proceedings shall (my emphasis) be brought against His Majesty in His Government of Lesotho by virtue of the provision of section two of this Act after the expiration of the period of two years from the time when the cause of action or other proceedings first accrued.”

Counsel further argued that the Court of Appeal has on several cases pleaded with the Law Ofice to consider all laws dealing with prescription for the simple reason that they offend against the Constitution.  He mentioned but some such cases where the Law Office had been asked to act.

?       ‘Mats’ehla Khalapa v Compol 1999-2000 LLR and LB 350 at 355 – 356 which talked about the extension of time which according to counsel is the same as condonation.

?       LNIC v Nkuebe 2000 – 2004 LAC 877.

He also referred to:

          ?       Minister of Labour v Ts’euoa 2008 (3) ALL S.A 602, which is our Lesotho Court of Appeal case, where it was said:

“Eight years ago, this Court drew attention to the evidenct unconstitutionality of prescription legislation in Lesotho (and further referred the matter for urgent attention of the Attorney General) we are not aware that any steps have been taken to remedy that problem.”

Molai J (as he then was) in Tankiso Thoso vs Attorney – General 1997 - 9 LLR and LB 16 at 18 said;

“I have understood the word “shall” in section 6 of the Government Proceedings and Contract Act to indicate my view that the provisions thereof are mandatory”.

In motivating his point further on the unconstitutionality of section 6 of the Government Proceedings and Contract Act, counsel for the applicant argued that the section offends against the provisions of sections 18 and 19 of the Constitution 1993, and also section 119 of the Constitution.  Section 18 (1) of the Constitution

“Every person shall be entitled to equality before the law and equal protection of the law.”

Section 119 deals with the establishment of the High Court with its unlimited jurisdiction to deal with both civil and criminal matters.  In dealing with section 19 of the Constitution applicant’s counsel said whilst he admits that in view of the date of the events the matter has prescribed in terms of section 6 of Government Proceedings and Contract Act 1965, that section 6 is inconsistent with section 19 of the Constitution to the extent that it does not make similiar provision in cases instituted by the government against citizens.

 

That the provisions of section 6 applying only to the proceedings by the ordinary citizens and excluding the proceedings by the government and its departments, affords the government a different and unfair advantage over the ordinary citizen thereby rendering the citizen beneath the law as compared to the government and its departments.

 

Further that section 6 of the Government Proceedings and Contract Act is inconsistent with sections 19 and 119 of the Constitution as it denies applicant equal protection of law and fair determination of his civil rights through the legal process as contemplated by section 19 of the Constitution and attempts to oust the unlimited jurisdiction of this Court to hear and determine matters between the government and citizens after the prescription period.

 

Applicant further showed that in view of its construction and the views expressed by the Lesotho Court of Appeal in relation to its constitutionality, the common law power of the High Court to extent prescriptive periods seems to have been excluded by section 6 aforesaid.  That a limitation provision as in section 6 thereof does not terminate a person’s rights per se but their enforcebility through the normal legal process, that is why applicant says it thus violates both sections 19 and 119 of the Constitution.  The Court thus finds that its powers as a result have been excluded beyond the prescription period.

 

Applicant has further asked this Court to declare as unlawful, invalid and of no force or/and effect, the Codes of Good Practice 2005, thus rendering his dismissal under the Code unlawful, invalid and of no force and/or effect.  His argument being that dismissal was irregular as he was charged under the 2005 Code which had yet not been properly promulgated as it was never passed by Parliament.  He argued that Code only constituted some guidelines which could never lead to any disciplinary proceedings.

 

Applicant also asked for the striking down of section 30 of the Public Service Act 2005.   The section says;

          “The Labour code Order shall not apply to Public Officers.”

 

Before going deeper in arguing his point counsel conceded that there has been no specific prayer on this point in the Notice of Motion but rather that he touched on it in his supplementary affidavit paragraphs 9, 10 and 13 thereof.  That since the supplementary affidavit was filed before the respondents filed their answering papers they could not claim any prejudice suffered as a result of filing that additional affidavit as they would have had time to respond to it.

 

Applicant supported his argument by referring to the case of Mposo v Mofammere and 4 Others C of A (CIV) No.9 of 2009.  This was the case where the mother of an illegitimate son was asking the Court to declare her as the sole beneficiary of her illegitimate son’s estate who died intestate.  The deceased and first respondent had lived as man and wife after the first respondent had left her husband whom she was legally married to.  In their relationship with the deceased, the first respondent gave birth to an illegitimate son Mosebo and this was common cause.  It was also common cause that the deceased was Mosebo’s father.

 

The Court a quo decided that the estate of the deceased comprising both moveable and immovable property belonged to the deceased’s unmarried mother, but again ordered that the child Mosebo was entitled to maintenance out of the estate of his late father.  The appellant noted an appeal on the ground that the Court was wrong to have granted maintenance order not sought.  The appellant had referred the Court on appeal to the case of Lesotho National Olympic Committee and others v Morolong 2000-2004 LAC 449 at 456 where it said that;

“It is trite law that a litigant cannot be granted relief which he or she has not sought.”

The Court held however that there are cases as the one they were seized with where the Court may grant relief which has not specifically been claimed.  The Court referred to a passage in respondent’s opposing affidavit where he had said that;

“Where a deceased leaves a son, that son is a beneficiary and heir to his estate and/or is entitled to be maintained out of that estate.”

The Court showed that whilst it was indeed the case that first respondent did not specifically ask for maintenance order, but it was clear from the above quoted passage that it was all along the first respondent’s case that Mosebo was in any event entitled to be maintained out of the deceased’s estate.  Appellant had also in her replying papers acknowledged that Mosebo’s claim for maintenance was part of the relief sought by the first respondent.  Appellant had also submitted in her heads that there were two facts in dispute, first whether appellant or Mosebo was the heir to deceased’s estate and second, whether Mosebo was entitled to maintenance.  Appellant was taken to have dealt with the second point as if it were an alternative prayer so that she could not claim to have been prejudiced by such fact having not been set out in her counter-application.

 

In casu, applicant has conceded that there has been no specific prayer in the Notice of Motion for striking down of section 30 of the Public Service Act 2005 but that he has filed supplementary affidavit which touched on section 30 before the answering papers were filed and respondent could therefore not claim to have suffered any prejudice.  The section excludes application of Labour Code Order 1992 to Public Servants.

 

It would be important to show at this juncture that applicant also filed a second supplementary affidavit in which he was revealing the fact that there was yet a Labour Code (Amendment) Act No.1 of 2010 which he was only able to know and access its contents on the 24th March 2010 after he had filed the first two sets of founding affidavits.  He could only state in that Affidavit that section 2 (a) and (b) (iv) of Act No.1 of 2010 was still subject to the same challenges as has been levelled against section 30 of the Public Service Act 2005.  That the section above under Act of 2010 was still inconsistent with both section 4 (0) read with sections 18 and 19 and 26 of the Lesotho Constitution 1993.

 

To confirm what the applicant has alluded to, that respondents could not claim to have suffered any prejudice, second respondent in his answering affidavit at paragraph 19 and 20 has referred to and responded to what applicant said about section 30 of the Public Service Act 2005.  Respondent emphasized the point that Public Service Act 2005 only apply to Public Sevants whilst Labour Code Order 1992 apply to workers in the Private Sector only.  By adding the prayer for reinstatement applicant had shown that had there been no difference in treatment between Private and Public Servants an order for reinstatement was what he was asking for.

 

Applicant in his heads of argument has clarified his point even further by telling us about the advantages of remedies under section 73 of the Labour Code.  He showed that under section 73 of the Labour Code there would be an order for reistatement and damages only where it would be impracticable to order specific performance.  But because he was in the public sector that remedy would not be available to him two pronged as it were if one was in the private sector.

 

I must mention that though much was said on this issue of reinstatement that has just been an academic exercise as applicant has told the Court in his papers that he has obtained an alternative employment.

 

I would then have to deal with the striking down of section 6 of the Government Proceedings and Contract Act 1965.  Counsel for the applicant has referred the Court to decisions by the Court of Appeal where the Court has pleaded with the Law Office through the office of the Attorney-General to consider all laws dealing with prescription for the simple reason that they offend against the spirit of the Constitution.

 

The Constitutional Court in South Africa in the case of Engelbrech v Road Accident Fund and Another 2007 (6) S.A. 96, had ruled that the 14 days prescribed under the Road Accident Fund Act 56 of 1996 was too short to amount to real and fair opportunity to access Court.  It was held that Regulation 2 (1) (c) of that Act was inconsistent with section 34 of the Constitution and accordingly invalid.

         

Regulation 2 (1) (c) provides;

(1)  In the case of any claim for compensation referred to in section 17 (1) (b) of the Act, the Fund shall not be liable to compensate any third party unless-

 

(c) The third party submitted, if reasonably possible, within 14 days after being in a position to do so an affidavit to the police in which particulars of the occurence concerned were fully set out.

Section 34 of the Constitution provides;

‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a Court or, where appropriate, another independent and impartial tribunal or forum.’

         

It will be realized from the reading of the above case and the relevant South African Legislation that the Court has been allowed to exercise its discretion in dealing with cases under the Road Fund.  The relevant section says;

            “14 days after being in a position to do so.”

In our case there is no room for extension of time beyond two years.  One might argue that 14 days could not be compared to two years, but each case has its own peculiar circumstances.

 

Following on the footsteps of that highest Court of the land, the Court of Appeal I am making the same plea to the office of the Attorney-General to attend to all the prescription Laws of Lesotho.  It is not for this Court to strike down the Provisions of Section 6 but for the law makers to amend the law.  The section allows no room for things like professional negligence as has been the case with the applicant who believed in his lawyer that he was acting for him only to realize later that counsel had not been doing anything.

 

I would in the interest of justice proceed to deal with the 2005 Codes of Good Practice.  Applicant has asked this Court to declare as unlawful and invalid his dismissal under the Codes of Good Practice 2005.  He is saying his dismissal was irregular and therefore of no legal force and effect because;

a)     He was charged under the code of conduct that was not properly promulgated as it was never passed by Parliament.

b)     That the code only constitutes guideline breach which cannot lead to disciplinary proceedings.

Applicant argued that section 15 (5) of the Public Service Code since couched in mandatory terms, as the word shall has been used, directs the Minister to make available to the Public and Public Officers, the Codes passed by the Parliament under this section.

 

He further arged that section 27 (1) of the Interpretation Act 1977 as amended by section 5 of the Interpretation (Amendment) Act 4 of the 1993 stipulates in mandatory terms that subsidiary legislation shall be published in the gazette and, unless it provides otherwise, take effect on the date of such publication or a date so stipulated in it.  But that the Code of Good Practice does not however stipulate any commencement date on which they were to become applicable.

 

Again that section 27 (c) of the Interpretation Act stipulates in mandatory terms that subordinate legislation shall not be restrospective in its application against ordinary citizens, in particular where it will impose liability on persons in respect of an act or ommission that took place before the date of its publication, and relied on Sutter v Scheepers 1932-33 AD 165 at 173-174 and Thoso v Attorney General 1997-98 LLR-LB 16 at 18.

 

Further that since the Codes of Good Practice were only published in a gazette on the 11th December, 2008, they were not effective and applicable to the applicant or anyone else before then.  That since it is the mandatory prerequisite that the codes be published in the gazette before they could become applicable, applicant could therefore not be charged thereunder so that the purported proceedings and the charge were in effect unlawful, void and unenforceable, Commander of Lesotho Defence Force and Others v Mokuena and Others 2000-2004 LAC 539.  As such he is asking the Court to declare applicant’s purported dismissal as unlawful, void and unenforceable.

 

It was the applicant’s feeling that the respondent’s acts were a clear contravention of the mandatory provisions of the law that should militate against their effort to try and dismiss the applicant as they did.  He found solace in the words of Nkabinde AJ in SADTU and Others v Head of the Northern Province Department of Education (2001) BLLR (LC) 829 at 837 regarding the non-observance of the law by the government which words were later quoted with approval by Mr Acting Justice Chaskalson to the effect that;

“In a government of laws, existence of government will be impaired if it fails to observe the law scrupulously ... Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example .... if the government becomes a law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy.”

 

Looking at Legal Notice No.194 of 2008 one realizes that there is a note on top showing that the Minister prepared and issued the Codes of Practice 2005, which was later passed by the National Assembly and by the Senate in 2005.  That such were circulated in terms of section 15 (5) of the Codes, under the Ministry of Public Service Circular No.13 of 2005 on 15th August 2005.  That is the Code under which applicant was dismissed.  As rightly argued by the applicant no date has ever been given as to when the Codes was to become law.  There has never been any publication in the gazette to give the commencement date.

 

Section 78 (6) of the Constitutionreads;

“No law made by Parliament shall come into operation until it has been published in the gazette (my emphasis) but Parliament may postpone the coming into operation of any such law and may make laws with retrospective effect.”

It is clear from the reading of the explanatory note in Legal Notice 194 of 2008 that the 2005 Codes of Practice was never published in any gazette and the explanatory note was made in an effort of trying to rectify that ommission.  It is therefore clear that the provisions of the Constitution have been clearly violated by not publishing the Codes in the gazette.  The Codes of Good Practice 2005 which was only published in the gazette on the 11th December, 2008, was therefore not effective and applicable to anyone before then.

 

I would all the same make no pronouncement on whether or not applicant’s dismissal was lawful.  I have only dealt with the Constitutionality of the Code of Good Practice 2005.

 

Respondents’ counsel had argued that asking the Court to declare the Codes as unlawful had nothing to do with the Constitution but I have already referred in my judgment to the provisons of section 78 (6) of the Constitution to show that the law made by Parliament shall only come into operation after its publication in the gazette, unless and until there has been such a publication it will never become law.

 

Since the Codes of Good Practice 2005 was never published in any gazette it never became law.  It was not enough that it was only passed by Parliament and Senate as shown in explanatory note in Legal Notice 194 of 2008.  There has never also been any date of its coming into effect.  As such the Codes of Good Practice 2005 offended against the provisions of section 78 (6) of the Constitution and therefore never became law.

 

As a result I find that;

1.     This Court has no power to strike down, section (6) of the Government Proceedings and Contract Act 1965.

2.     The Codes of Good Practice 2005 could not operate on anyone before being published in the gazette in terms of the provision of the Constitution.

3.     On the basis of the decision above the Court could not condone the late filing of proceedings or entertain making a declaratory on applicant’s dismissal.

4.     Since no order was made on dismissal both prayers 5, 6, 7 and eight must fall away.

And there will be no order to costs as this is a Constitutional case which is of public interest.

 

 

 

                                                                                           _______________

                                                                                           A.M. HLAJOANE

                                                                                           JUDGE

 

 

 

I concur                                                                              _______________

                                                                                           K.J. GUNI

                                                                                           JUDGE

 

 

 

I concur                                                                              ______________

                                                                                           G.N. MOFOLO

                                                                                           JUDGE

 

 

For Applicant:                   Mr Thulo

 

For Respondents:     Mr Motsieloa