Moeketsi Lekau & 8 Others V MInistry of Public Service (CIV/APN/458/2021) [2024] LSHC 222 (13 November 2024)

# Moeketsi Lekau & 8 Others V MInistry of Public Service (CIV/APN/458/2021) [2024] LSHC 222 (13 November 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/222/eng@2024-11-13) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/222/eng@2024-11-13) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/222/eng@2024-11-13) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/222/eng@2024-11-13) [ __](mailto:?subject=Take a look at this document from LesLII: Moeketsi Lekau & 8 Others V MInistry …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/222/eng@2024-11-13) [ Download PDF (409.6 KB) ](/akn/ls/judgment/lshc/2024/222/eng@2024-11-13/source) Report a problem __ * Share * [ Download PDF (409.6 KB) ](/akn/ls/judgment/lshc/2024/222/eng@2024-11-13/source) * * * * * Report a problem __ ##### Moeketsi Lekau & 8 Others V MInistry of Public Service (CIV/APN/458/2021) [2024] LSHC 222 (13 November 2024) Copy citation * __Document detail * __Related documents * __Citations 4 / - Citation Moeketsi Lekau & 8 Others V MInistry of Public Service (CIV/APN/458/2021) [2024] LSHC 222 (13 November 2024) Copy Media Neutral Citation [2024] LSHC 222 Copy Hearing date 5 September 2024 Court [High Court](/judgments/LSHC/) Case number CIV/APN/458/2021 Judges [Ralebese J](/judgments/all/?judges=Ralebese%20J) Judgment date 13 November 2024 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **_CIV/APN/458/2021_** **HELD AT MASERU** In the matter between:- **MOEKETSI LEKAU 1 ST APPLICANT** **MANTHAKO BULANE 2 ND APPLICANT** **JACK QHEKEKA 3 RD APPLICANT** **MABAFOKENG MOTAKE 4 TH APPLICANT** **TS’ELISO THAMAE 5 TH APPLICANT** **PUSELETSO MOTAKONG********6 TH APPLICANT** **TSIETSI POLANE********7 TH APPLICANT** **RELEBOHILE NTSAOANE********8 TH APPLICANT** **MANTHATISI SEEMA********9 TH APPLICANT** and **MINISTRY OF PUBLIC SERVICE********1 ST RESPONDENT** **PUBLIC SERVICE COMMISSION********2 ND RESPONDENT** **ATTORNEY GENERAL********3 RD RESPONDENT** _Neutral citation_ :- Moeketsi Lekau & 8 others vs Ministry of Public Service & 2 others [2021] LSHC Civ 222 (13 November, 2024) **JUDGMENT** **___________________________________________________________** **CORAM : JUSTICE M.P. RALEBESE** **DATE OF HEARING** **:** **05 SEPTEMBER 2024** **JUDGMENT : 13 NOVEMBER 2024** **_SUMMARY_** **_Declarator - Review – Mandatory interdicts - Applicants relying on a Government notice for regularisation and harmonisation of payment grades for directors and managers - The regularisation within the Human Resources cadre resulted in Grade H remaining unoccupied by an established position - Applicants alleging that Grade H was abolished by the respondents and only re-instated in Ministry of Public Service - Applicants seeking that the respondents’ decision abolishing Grade H be declared unlawful - Applicants also seeking that the decision be reviewed - Applicants alleging legitimate expectation that Grade H would not be abolished - Applicant further alleging legitimate expectation that they would automatically be elevated to Grade H - Respondents held a strategic planning workshop which rectified the anomaly by creating a new position on the Human Resources functional structure which was placed at Grade H - Held Grade H was never abolished - All prayers sought by applicants centered on the assumption that Grade H had been abolished - All prayers dismissed._** **** **_ANNOTATIONS_** **_LESOTHO CASES_** Former Employees of The Agricultural Development Bank v The Government of the Kingdom of Lesotho (C of A (CIV) 35 of 2020) [[2021] LSCA 18](/akn/ls/judgment/lsca/2021/18) (14 May 2021) Lesotho Human Rights Alert Group v. Minister of Justice LAC (1990-94) 652 Mosito and others v Letsika and others (C of A (CIV) 9/2018) [2018] Ls CA1 (26 October 2018) The Government of the Kingdom of Lesotho v Matela (CIV/APN 85; C of A (CIV)) [[2020] LSCA 48](/akn/ls/judgment/lsca/2020/48) (30 October 2020) The Principal Secretary-Ministry of Tourism, Environment and Culture and Others v Selloane Makha and Others (C of A (CIV) 35 of 2012) [[2013] LSCA 5](/akn/ls/judgment/lsca/2013/5) (19 April 2013) **_SOUTH AFRICAN CASES_** Adbro Investment Co. Ltd v Minister of the Interior and Others 1961 (3) SA 283 (T) Milani and Another v SA Medical and Dental Council and Another 1990(1) SA 899 **_STATUTES_** High Court [Act No.5 of 1978](/akn/ls/act/1978/5) Public Service [Act No.1 of 2005](/akn/ls/act/2005/1) Public Service Regulations Legal Notice No.78 of 2008 **Introduction and Background** 1. The applicants were the Human Resources Officers and Human Resources Assistants in various Government ministries when they instituted this application in December 2021. It is likely that due to the passage of time, some of them might have been elevated or even left the public service. They have sued the Ministry of Public Service, the Public Service Commission and the Attorney General seeking the following prayers. “ _(1)__Directing_ ___ordering_ ___and declaring that the_ ___Respondents’_ ___decision express or implied in terms whereof grade H in the_ ___government establishment list in all government Ministries_ ___but for the Ministry of Public Service in the Human_ ___Resources cadre has been removed is irrational, irregular,____discriminatory, unreasonable and as such unlawful, null and_ ___void and of no legal force and effect._ 2. _Directing ordering and declaring that the_ ___Respondents’ decision_ ___in terms of which_ ___they reinstated and_ ___retained grade H in the establishment list in the Human_ ___Resources cadre in the Ministry of Public Service to the_ ___exclusion of all government Ministries_ ___in_ ___discriminatory,____irrational, irregular and totally unlawful._ 3. _Directing and ordering that the Respondents’ decision_ ___by which grade H in the Government establishment list in_ ___the Human Resource cadre in all government Ministries of_ ___Public Service has been removed be reviewed, corrected and_ ___set aside._ 4. _Directing and ordering the Respondents to reinstate_ ___include grade H in all government Ministries in relation to_ ___the_ _H_ _uman Resources cadre._ 5. _Directing and ordering that all officers who were in_ ___grade G (including the Applicants then in the grade) as at_ ___the date of government circular No.7 of the 13th_ ___March_ ___2013, in line with the said circular and consistent with what_ ___was done in relation to officers then in grade H and I, be_ ___automatically moved to grade H and that they be_ ___remunerated according and retrospectively in line with the_ ___import of the said circular and as was done in relation of_ ___officers then in grade H and I._ 6. _Directing that all officers including those of the_ ___Applicants who were in grades E and F be similarly moved_ ___to grades F and G_ _respectively_ _and be accordingly_ ___remunerated_ ___retrospectively as well._ 7. _Directing the Respondents to dispatch within fourteen_ ___days of their receipt of this notice to the Registrar of the_ _above-mentioned_ _Court, the record of proceedings_ ___culminating in the elevation of officers then in grades H and_ ___I in the Human Resources cadre pursuant to circular No.7 of_ ___the 13th March 2013 and/or any instrument and to notify the_ ___Applicants’ attorneys that they have done so._ 8. _Directing the respondents to pay the costs of this_ ___application including the costs consequent upon employment_ ___of two counsel._ 9. _Granting Applicants such further and and/or alternative relief.”_ The application is opposed. 2. The background to this case is that on 13th March 2013, the Principal Secretary in the Ministry of Public Service issued a general notice to all the Government Ministries (**N****otice No.7 of 2013**) whose objective was to equate the grading of Directors and Managers across all cadres in the civil service. The notice was to the following effect: **“ _Re: NORMALISATION OF_**** __****_GRADING FOR_**** __****_POSITIONS FROM MANAGER TO GOVERNMENT_**** __****_SECRETARY LEVELS_** _____It is notified for general information and appropriate action_ ___that there is anomaly on the Civil Servants grading structure_ ___from Grade H and J whereby some director positions are at_ ___Grade I and_ ___J, while managers are at grades H and I. In_ ___order to rectify this, a revised this, a revised salary grading_ ___(attached) for the effected positions has been developed. The_ ___effective date for implementation of this normalization is 1 st ____April 2013._ _____The affected positions are those at Director and Manager_ ___levels which are currently at Grade I and H respectively.____The charge will only be effected whereby an incumbent is at_ ___head of department level or_ _deputise_ _head of department.____Ministries are advised to note that some positions have been_ ___omitted due to the need to change their nomenclature. In_ ___such cases ministries are to prepare accordingly for_ ___consideration by the Ministry of the Public Service._ _____Other positions affected by the normalisation are the_ ___following:_ _Houseman (Interns) : From Grade H to I_ _Senior Houseman : From Grade I to J_ _Registrar, Deputy Principal Secretary, Chief Executive_ ___Officers, Chief Education Officers : From Grade J to K_ _Principal Secretary, Director General, Specialist_ ___(Practicing_ ___Doctor in the public sector) : From Grade K to_ ___L_ _Government Secretary, Political Advisor, Director General_ ___of Health Services and Consultants (Practicing Doctors in_ ___the public sector): From Grade L to M._ _Chief Accounting Officer, are advised to note this change_ ___and take appropriate action._ 13. __Lemphane-Letsie__ ____**_Principal Secretary_** **__****__****_Ministry Of The Public Service_** _”_ 3. Prior to the issuance of **Notice No.7 of 2013** , the position of Director Human Resources throughout the Government Ministries was placed at Grade I while the Human Resources Manager was at Grade H. Following the issuance of the Notice, the Directors Human Resources were moved from Grade I to J while the Human Resources Managers were elevated from Grade H to Grade I. The effect of that regularisation on the establishment list of the Human Resources cadre was that there remained no established position corresponding to Grade H as the Human Resources Officer position remained at Grade G. 4. On 30th June 2021 about 107 officers occupying different positions within the Human Resources cadre across the Government Ministries addressed a letter to the Principal Secretary in the Ministry of Public Service to the following effect:- ********_“_** _Request_**** _for Normalization of Human Resources Positions_**** __****_(E,_****_F_**** _AND G) IN HUMAN Resources Cadre_** _____A request is hereby made to your respective office to_ ___normali_ _s_ _e the aforesaid positions for the Human Resources_ ___(HR) cadre._ _____It came to the attention of concerned HR officers that in_ ___2013, that holders of grade H were upgraded to grade I,____and J was established due to the fact of normalization. It is_ ___at this junction that only those two positions were_ ___normalized in HR cadre which left abnormality to the other_ ___preceding positions._ _____Therefore, it is our plea to your respective office that we_ ___request grades E, F and G be normalized as well, with effect_ ___from April 2013. It is our sincere proposal that such_ ___positions be dealt with as follows:_ _____\- Grade G to H_ _____\- Grade F to G_ _____\- Grade E to F_ _____Thanking you in advance for your prompt consideration.”_ 5. The Principal Secretary responded to the forgoing letter on 31st July 2021 and indicated that his Ministry was unaware of any abnormality of Grades in the Human Resources cadre. He noted that the Ministry was however aware of the unfilled positions of Senior Human Resources Officers Grade H, the situation which he said had maintained for some years. He went on to indicate that the Ministry was in the process of filling the Grade H positions subject to the availability of funds. It must be this response that triggered the institution of the instant application. **The Applicants’ Case****** 6. The applicants’ case in a nutshell in that following the normalisation and equation of the salary grades of the managers and directors in terms of which they were harmoniously placed at Grades I and J respectively, an anomaly ensued in terms of which Grade H was abolished in the Human Resources cadre throughout the Government Ministries. This anomaly is prejudicial to officers within the Human Resources cadre who are below Grade H as it means that they can no longer be elevated to that grade, so contends the applicants. 7. It is the applicants’ case further that the Ministry of Public Service decided to reinstate Grade H within its Human Resources department to the exclusion of all other Ministries. The applicants contend therefore that the respondents acted wrongfully when they removed or abolished Grade H in the Human Resources cadre; and they further acted wrongfully when they reinstated Grade H in the Ministry of Public Service only. They contend that they had the legitimate expectation that the respondents would not abolish Grade H when they implemented **Notice No.7 of 2013** and regularised the directors and managers positions. The applicants further submit that they had the legitimate expectation that upon implementing **Notice No.7 of 2013** , the respondents would automatically place them at Grade H without the need for them to apply for such positions as it happened with the managers and directors. 8. Furthermore, the applicants submit that they were not given a hearing when the respondents decided to deviate from the normalisation policy in terms of **Notice No.7 of 2013**. It is the applicants' case further that the respondents discriminated against them firstly by failing to automatically elevate them to Grade H, and secondly, by creating and reinstating Grade H in the Ministry of Public Service to the exclusion of other Ministries. 9. Premised on the foregoing grounds, the applicants are seeking declaratory orders, review and mandatory interdicts as outlined in paragraph 1 above. **The Respondents’ Case** 10. The crux of the respondents’ opposition is that Grade H has never been abolished in the Human Resources cadre. They dispute that there has ever been an anomaly within the Human Resources cadre brought about by the implementation of **Notice No. 7 of 2013**. It is their submission that the Ministries are at liberty to follow the due processes to fill the Grade H positions in their Human Resources departments if their budgets so permit. **The Issues** 11. The central issue on which the _lis_ between the parties pivots is whether the implementation of **Notice No.7 of 2013** resulted in the abolition of Grade H within the Human Resources cadre. If Grade H was abolished, the next issue is whether the respondents reinstated it in the Ministry of Public Service to the exclusion of the other Ministries. The other issue is whether Notice No.7 of 2013 was meant to apply to the positions held by the applicants. The determination of these issues will have a bearing on the tenability or otherwise of the prayers sought by the applicants as particularised in paragraph 1 of this judgment. **Analysis** 12. As earlier indicated, the effect of **Notice No.7 of 2013****** on the functional structure and establishment of the Human Resources cadre throughout the Government Ministries was that as the Directors were moved to Grade J and the Managers to Grade I, there remained no established position corresponding to Grade H as the Human Resources Officer position remained at Grade G. The question is whether that could be interpreted as the decision by the respondents to abolish Grade H on the functional structure and the establishment list of the Human Resources cadre. The answer to the foregoing question should be in the negative as hereinafter shown. 13. While it is apparent that the regularisation of the Directors and Managers within the Human Resources cadre created the anomaly that there remained no established position corresponding to Grade H, that has since been rectified. The respondents indicated in their answering affidavit that the Ministry of Public Service on 18th \- 21st July 2016 held a strategic planning workshop which was attended by all the heads of the Human Resources Departments throughout the Government Ministries. The workshop resulted in the review and adoption of the Human Resources Cadre functional structure and establishment list which included the position of the Senior Human Resources Officer placed at Grade H. Looking at the copies of the Lesotho Civil Service establishment lists for financial years 2006/2007 dated April 2008 and 2016/2017 dated April 2016 as annexed to the founding papers (**Annexures ML6 and ML7**), it appears that this position was not on the establishment list of the Human Resources cadre prior to the 2016 strategic planning workshop. 14. The applicants deny that the position of Senior Human Resources Officer Grade H was established. Alternatively, they submit that if the position was established, the due legal processes were not followed. When the applicants and their other colleagues within the Human Resources cadre wrote **Annexure ML3** to the Principal Secretary Ministry of Public Service on 30th June 2021, they did not contend that Grade H had been abolished and that it had been reinstated in the Ministry of Public Service exclusively. What is deducible from their letter is that they were aware that Grade H and the corresponding position of Senior Human Resources Officer existed within the establishment and structure of the Human Resources cadre. In that letter, they sought, among others, that the officers at Grade G be elevated to Grade H. They could not have made such a request if Grade H and the corresponding position did not exist. In paragraph 17 of their founding affidavit, the applicants allege that it was unfair for the Ministry of Public Service to have sought to create new positions and have them advertised as the applicants were in that way, being treated in a discriminatory and unjustified manner. That averment clearly indicates that the applicants were aware of that newly established position placed at Grade H. 15. The Principal Secretary in his response dated 31st July 2021 (**Annexure ML5** to the founding affidavit) indicated that the Ministry of Public Service was not aware any anomaly if grades within the Human Resources cadre, but the prevailing situation that they were quite aware of was that the position of Senior Human Resources Officer Grade H had not been filled for some years within the Ministries. The respondents reiterated in the Circular Savingram (**Annexure ML2 to the Answering affidavit**)**** which was issued on 2nd February 2022 after the institution of the instant application that the Ministries should be aware of the existence of the Grade H positions in the Human Resources cadre since 2016. The distribution list of such positions throughout the Ministries was attached to the Circular Savingram. 16. The process adopted by the respondents to create the position of the Senior Human Resources Officer which was graded at Grade H cannot be faulted as illegal and contrary to Section 10(2)(c) of the **Public Service Act**[1] read with Regulation 44 of the **Public Service Regulations**[2] as suggested by the applicants. I suppose that it was inadvertent for counsel for the applicants to have referred to Regulation 45. Section 10(2)(c) of the Public Service Act reads as follows: “ _Without limiting the generality of subsection (1), the Minister may make provision for all or any of the following matters -___ 1. _…_ 2. _…_ 3. _policy on salary administration, remuneration and benefits, job evaluation and job grading…_ ” Regulation 44 on the other hand is to the following effect: “ _44._**__**_(1)____The Ministry responsible for the public service may_** _,_**_____after_ ___consultation with such persons who or bodies which_ ___indicate interest and are representative of a substantial group of_ ___public officers, determine methods and systems for job evaluation_ ___and grading in the public service to determine the value and_ ___appropriate remuneration for all jobs in the public service.__”_ The respondents indicated that the strategic planning workshop where the position of the Senior Human Resources Officer was created had been organised by the Ministry of Public Service and it was attended by all the Heads of the Human Resources departments in the civil service. That group qualified as persons with substantial interest to create and grade that position and they were sufficiently representative of the Human Resources cadre wherein the position was tenable. The position was therefore created in conformity with Regulation 44 of the **Public Service Regulations**. 17. The applicants have failed to prove on the balance of probabilities that Grade H has been abolished in the functional structure of the Human Resources cadre. The respondents are therefore correct in their contention that Grade H exists in the functional structure of Human Resources cadre. While the elevation of the Human Resources Directors and Managers Human Resources pursuant to **Notice No.7 of 2013** created a vacuum of a position corresponding to Grade H in the functional structure of the Human Resources Structure, that anomaly was rectified in July 2016 when the position of the Senior Human Resources Officer was created and placed at Grade H. 18. The respondents indicated in their answering affidavit that the standard practice is that any Ministry that is desirous of filling the position of Senior Human Resources Officer Grade H should follow the due processes and make a request to the Ministry of Public Service. The respondents indicated that the position exists in the Ministry of Public Service because they followed the due processes and created it even though it had still not been filled when the answering affidavit was deposed. 19. The applicants' contention that the respondents abolished Grade H in the Human Resources cadre is untenable as it is not backed by any evidence or facts establishing it. The same holds for their submission that the Ministry of Public Service re-created Grade H in its Human Resources department to the exclusion of the other Government Ministries and sectors. The respondents have reiterated that the Ministries and sectors are at liberty to follow the due processes if they are desirous of filling the positions of Senior Human Resources at Grade H and they have sufficient budgets to do so. 20. I will now look into the specific prayers sought by the applicants to determine whether they are tenable. 21. In prayer 1, the applicants are seeking a declaratory order that the respondents' decision in terms of which grade H was removed from the establishment list in all the Human Resources departments of the Government Ministries but for the Ministry of Public Service was irrational, irregular discriminatory, unreasonable, unlawful and thus null and void and of no legal force and effect. This court is empowered in terms of section 2 of the **High Court Act**[3] to grant a declaratory order in its discretion. 22. The applicant for a declaratory order should establish a legal, direct and substantial interest in an existing, future or contingent right or obligation that will be determined by the declarator. The interest anticipated herein is one that ordinarily establishes the applicants' _locus standi_ in the subject matter of the application in the sense that it is capable of being prejudicially affected unless the declaratory order is granted (**Milani and Another v SA Medical and Dental Council and Another**[4]). The applicant should further establish the existence of some legal right or entitlement which the court is called upon to inquire into, to resolve or to determine. In other words, there must be a legal basis upon which the declaratory order is being sought. A declaratory order will not ordinarily be appropriate where the event that is the subject matter never occurred or is non-existent, or where the factual basis for seeking the order is erroneous. In such circumstances, the declaratory order will be academic as it will have no practical effect. As held in **Adbro Investment Co. Ltd v Minister of the Interior and Others**[5]: “..._a proper case for a purely declaratory order is not made out if the result is merely a decision on a matter which is really of academic interest to the applicant. …some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought._ ” 23. Once the court is satisfied with the jurisdictional facts establishing the applicant's interest and the existence of a future or contingent right, it will then determine whether the case is the proper one for the exercise of its discretion (**Mosito and others vs Letsika and others**[6]). 24. The applicants being officers in the Human Resources cadre in different Government Ministries whose positions were at the grades below Grade H, undoubtedly had a direct and substantial interest in the existence of Grade H to which they all aspired to be elevated. The difficulty in this case is that the declarator which the applicants are seeking has a wrong factual basis. The premise on which the applicants are seeking the declaratory order is that the respondents wrongfully abolished Grade H in all the Human Resources departments throughout the Government Ministries except the Ministry of Public Service. This premise is misguided as I have already found. The applicants have therefore failed to establish the existence of a future or contingent right underpinning the declaratory order that they are seeking. The implication is that a declaratory order that they are seeking will not have any practical effect and will thus be academic (**Mosito and Others v Letsika and Others******[7]******)**. This court cannot grant such an order as it will fail the test of effectiveness of court orders. Prayer 1 should on this basis fail. 25. In prayer 2, the applicants have sought the declaratory order that the decision of the respondents to have reinstated and retained Grade H in the human resources establishment list of the Ministry of Public Service to the exclusion of other Government Ministries was discriminatory, irrational, irregular and unlawful. The declaratory order sought herein is likewise premised on a misguided assumption that Grade H was ever removed or abolished and that Grade H and its corresponding position of Senior Human Resources Officer exists only in the Ministry of Public Service. I have already found that the position of Senior Human Resources Officer is part of the functional structure of the Human Resources cadre throughout the Government Ministries and the Ministries are free to fill such a position by following the due processes. The declaratory order sought by the applicants in prayer 2 will likewise not have any practical effect and it should by that same token fail. 26. In prayer 3, the applicants seek the review of the respondents' decision by which they removed Grade H from the functional structures and the establishment lists of the Human Resources cadre throughout the Government Ministries but the Ministry of Public Service. Having found already that there was never a decision to abolish Grade H in the Human Resources cadre, this prayer should also fail. Just to emphasise the non-existence of the impugned decision and without necessarily being repetitive, the elevation of the positions of Director Human Resources and Human Resources Manager from Grade I to J and from Grade H to I respectively automatically resulted in Grade H being unoccupied by any position on the human resources establishment or organisational structure. This triggered the review of the human resources organisational structure in 2016 and the creation of the Senior Human Resources Officer position which was placed at Grade H. This means that Grade H exists within the establishment list of the Human Resources cadre against the position of Senior Human Resources Officer. As the respondents have indicated, any Ministry that is desirous of filling that position is at liberty to do so by following the due processes. 27. Even if there was the decision of the respondents to have removed Grade H from the establishment list of the Human Resources cadre in all the Government Ministries but the Ministry of Public Service, the applicants’ prayer for review premised on their alleged legitimate expectation was still bound to fail as hereinafter demonstrated. 28. In the first place, the applicants submit that they had the legitimate expectation that the respondents would not abolish Grade H. Having found already that there was never a decision by the respondents to abolish Grade H, this leg of their submission would be untenable from the outset. 29. Secondly, the applicants submit that they had the legitimate expectation that the respondents would automatically elevate them to Grade H without the need for them to apply for such elevation. They contend that their alleged legitimate expectation arose from how the respondents implemented **Notice No.7 of 2013** whereby the Human Resources Directors and Managers Human Resources were regraded and elevated to Grade J and I respectively without applying for such elevation. Related to this ground is the applicants’ submission that the 1st respondent did not give them a hearing when it made 't _he decision to deviate from the normalisation policy_ ’ as set out in **Notice No.7 of 2013** yet the applicants stood to be adversely affected by that decision. 30. The law is that an applicant who is relying on legitimate expectation as a ground for review of an administrative action or decision bears the burden to establish the reasonableness and legitimacy of the expectation (**Former Employees of The Agricultural Development Bank v The Government of the Kingdom of Lesotho**[8]). Where the alleged legitimate expectation arises from a document, the terms of the document should be properly interpreted in context ([**The Principal Secretary-Ministry of Tourism, Environment and Culture and Others v Selloane Makha and Others**[9]](https://lesotholii.org/akn/ls/judgment/lsca/2013/5/eng@2013-04-19)). It is apposite at this juncture to look at **Notice No.7 of 2013** and analyse if it reasonably gave the applicants the alleged legitimate expectation that they would be regraded to Grade H. 31. The heading of **Notice No.7 of 2013** reads “ _Normalisation of grading for positions from Manager to Government Secretary levels_ ". The applicants do not fall within the category of employees envisaged to be affected by this Notice. The terms of the Notice were clear, it was meant to rectify the anomaly in the grading structure from Grade H to J and that the positions that were going to be affected were those at Director and Manager levels. It stipulates further that the changes were only to be effected where the incumbent was the head of a department or deputised the head of a department. Clearly the Notice was not meant to have the general and uncurbed coverage as the applicants want to suggest. More specifically, the Notice was not intended to affect the public officers at the level of the applicants. The Notice did not in its express or even implicit terms give rise to the alleged expectation that the applicants would automatically be elevated to Grade H without applying for such elevation. It is mind-boggling why the applicants believe that the Notice affected them. Their alleged expectation was, to say the least, illegitimate as it was not backed by any jurisdictional facts whatsoever. As held in **The Government of the Kingdom of Lesotho v Matela**[10] there could be no legitimate expectation that a public body would act otherwise than in accordance with the lawful scope of its authority. Any attempt by the Ministries to implement the Notice to cover other employees than those specified therein would amount to an illegality. If the notice was not meant to affect the applicants, it follows therefore that they could not have reasonably and legitimately expected to be given any hearing during its implementation. It follows therefore that prayer 3 is bound to fail. 32. In prayer 4, the applicants are seeking a mandatory interdict that the respondents be directed to reinstate Grade H in all Government Ministries in relation to the Human Resources cadre. Having found that the position of Senior Human Resources Officer - Grade H does exist in the human resources functional structures in all the Government Ministries, this prayer should fail. 33. Prayers 5 and 6 are not tenable firstly because they raise the issue of public interest litigation which is not part of our law[11]. Secondly, these prayers have as their premise the misguided impression that Notice No.7 of 2013 was meant to have the general and uncurbed application and that it could be applied to positions other than those stipulated therein. Without saying more, these prayers should fail. **Disposition** 34. All the prayers sought by applicants centered on the mistaken assumption that the respondents abolished Grade H in the Human Resources cadre throughout the Government Ministries and reinstated it in the Ministry of Public Service exclusively. The respondents held a strategic planning meeting in 2016 where they reviewed the Human Resources cadre operational structure and established the position of Senior Human Resources Officer which was placed at Grade H. When the instant application was instituted, Grade H existed and still exists within the Human Resources cadre throughout the Government Ministries and not just in the Ministry of Public Service as alleged by the applicants. 35. The applicants also wrongfully assumed that **Notice No.7 of 2013** had a general and uncurbed application and that it applied to their alleged situation. The Notice unequivocally stated the positions to which it was meant to apply and they did not include the positions held by the applicants. 36. The application is dismissed with costs. _______________________ Ralebese J. Judge For the applicants: Advocate Phafane KC with Advocate Rasekoai M. For Defence: Advocate Moshoeshoe L.P.**** * * * [1] Public Service [Act No.1 of 2005](/akn/ls/act/2005/1) [2] Public Service Regulations Legal Notice No.78 of 2008 [3] High Court [Act No.5 of 1978](/akn/ls/act/1978/5) [4] Milani and Another v SA Medical and Dental Council and Another 1990(1) SA 899 at 902 [5] Adbro Investment Co. Ltd v Minister of the Interior and Others 1961 (3) SA 283 (T) at 285C-D [6] Mosito and others vs Letsika and others (C of A (CIV) 9/2018) [2018] Ls CA1 (26 October 2018) [7] Supra [8] Former Employees of The Agricultural Development Bank v The Government of the Kingdom of Lesotho (C of A (CIV) 35 of 2020) [[2021] LSCA 18](/akn/ls/judgment/lsca/2021/18) (14 May 2021) [9] The Principal Secretary-Ministry of Tourism, Environment and Culture and Others v Selloane Makha and Others (C of A (CIV) 35 of 2012) [[2013] LSCA 5](/akn/ls/judgment/lsca/2013/5) (19 April 2013) [10] The Government of the Kingdom of Lesotho v Matela (CIV/APN 85; C of A (CIV)) [[2020] LSCA 48](/akn/ls/judgment/lsca/2020/48) (30 October 2020) [11] Lesotho Human Rights Alert Group v Minister of Justice LAC (1990-94) 652 #### __Related documents ▲ To the top >