Kefeletsoe Mojela V Ministry of Local Government and Chieftainship & 3 Others (CIV/APN/0186/2022) [2024] LSHC 79 (17 May 2024)

# Kefeletsoe Mojela V Ministry of Local Government and Chieftainship & 3 Others (CIV/APN/0186/2022) [2024] LSHC 79 (17 May 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/79/eng@2024-05-17) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/79/eng@2024-05-17) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/79/eng@2024-05-17) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/79/eng@2024-05-17) [ __](mailto:?subject=Take a look at this document from LesLII: Kefeletsoe Mojela V Ministry of Local Government …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/79/eng@2024-05-17) [ Download PDF (362.2 KB) ](/akn/ls/judgment/lshc/2024/79/eng@2024-05-17/source) Report a problem __ * Share * [ Download PDF (362.2 KB) ](/akn/ls/judgment/lshc/2024/79/eng@2024-05-17/source) * * * * * Report a problem __ ##### Kefeletsoe Mojela V Ministry of Local Government and Chieftainship & 3 Others (CIV/APN/0186/2022) [2024] LSHC 79 (17 May 2024) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Kefeletsoe Mojela V Ministry of Local Government and Chieftainship & 3 Others (CIV/APN/0186/2022) [2024] LSHC 79 (17 May 2024) Copy Media Neutral Citation [2024] LSHC 79 Copy Hearing date 18 April 2024 Court [High Court](/judgments/LSHC/) Case number CIV/APN/0186/2022 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 17 May 2024 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held at Maseru** **CIV/APN/0186/2022** In the matter between **KEFELETSOE MOJELA APPLICANT** AND **MINISTRY OF LOCAL GOVERNMENT AND** **CHIEFTAINSHIP 1 STRESPONDENT** **PRINCIPAL SECRETARY – MINISTRY OF** **LOCAL GOVERNMENT 2 ND RESPONDENT** **LOCAL GOVERNMENT SERVICE COMMISSION 3 RD RESPONDENT** **THE ATTORNEY GENERAL 4 TH RESPONDENT** _Neutral Citation_ : Kefeletsoe Mojela v Ministry of Local Government and Chieftainship and 3 Others [2024] LSHC 79 CIV (17th May 2024). **CORAM :** T.J. MOKOKO J **HEARD :** 18TH APRIL 2024 **DELIVERED :** 17TH MAY 2024**** **** **__SUMMARY__** _The applicant appointed to the Local Government Service Commission contrary to the provisions of Section 13 (3) of the Local Government Service Act, 2008. The appointment as well as the contract resulting from it were unlawful and invalid._ **__ANNOTATIONS__** __Cited Cases__ 1. _Cloete Murray and Another NNO v FirstRand Bank Ltd/ t/a Westbank 2015 (3) SA 438 (SCA)_ 2. _FirstRand Bank Ltd v. Land and Agricultural Development Bank of South Africa 2015 (1) S.A 38 (SCA)_ 3. _Noe and Others v Department of Premier, Free State Provincial Division and Others, Free State High Court Case No. 3607/09_ 4. _Principal Secretary Ministry of Communications and Others v ‘Mabohlokoa Letsie Rabotsoa C of A (CIV) No. 38/2021_ 5. _Principal Secretary, Ministry of Local Government and Chieftainship and Others v ‘Mathahane Seleso C of A (CIV) 11/2022_ 6. _Rethabile Mosisili v Principal Secretary Ministry of Works and Others C of A (CIV) No. 64/2017_ 7. _Thato Mohasoa and Others v Mabooe Moeko and Others C OF A (CIV) NO. 58 of 2018_ __Statutes__ 1. _Interpretation Act_ 2. _Local Government Service Act 2008_ 3. _Local Government Service Regulations 2011_ **JUDGEMENT** **Introduction** [1] Applicant instituted these proceedings seeking the following prayers; 1. That the respondents, and in particular, the 2nd respondent be ordered to dispatch the record which prompted and culminated in the termination of Applicant’s employment contract as a Commissioner within the Local Government Service Commission and such record to include but not limited to the exact dates of each and every appointment letter of the members of the commission as well as correspondence (if any) between the applicant and the respondents which resulted in the termination of contract aforesaid. 2. The purported termination of applicant’s employment contract as a commissioner in the Local Government Service Commission be reviewed, corrected, and set aside as illegal and/or unlawful. 3. That it be declared that the 2nd respondent (The Principal Secretary) acted _ultra vires_ his powers and usurped the powers of the Minister in purporting to terminate the applicant’s appointment as a commissioner in the Local Government Service Commission. 4. That the respondent be ordered to reinstate the applicant to her position as a commissioner in the Local Government Service Commission, without loss of all benefits and emoluments which have accrued and are outstanding since her appointment on the 1st June 2016, to date of payment namely; salary at the rate of M37,646.00 per month, cell phone for a value of M6,000.00 and cell phone allowance estimated at M70,000.00 per annum in respect of the first tour and a prorated amount in respect of the second tour, a government housing allowance at the rate of M2,500.00 per month, electricity and water allowance at the rate of M2,000.00 per month, expenses allowance at the rate of M750.00 per month and entertainment allowance at the rate of 10 % in terms of the contract. 5. That the respondents be directed to pay costs hereof on a scale as between attorney and client. 6. Granting the applicant further and/or alternative relief. [2] The respondents opposed this matter and filed their opposing affidavit. Applicant filed her replying affidavit. Applicant’s case is that on or around the 1st July 2021, she was reappointed as a commissioner on the Local Government Service Commission, for a further period of five years on the same terms and conditions. Applicant attached the letter of appointment and the contract of employment. Applicant stated that on or around the 9th December 2021, the Principal Secretary served her with the letter to terminate her employment. [3] At paragraph 6.4 of the founding affidavit, applicant contended that powers conferred on the Minister to appoint and remove commissioners of Local Government Service is non-delegable, as such the Principal Secretary usurped the functions of the Minister. [4] Further at paragraph 6.7 of the founding affidavit, applicant contended that the Minister’s failure of publish applicant’s name in a Government Gazette cannot be the basis for termination of applicant’s contract, more so when the Principal Secretary has no power to terminate the appointment of the applicant, because the appointing authority is the Minister. [5] On the other hand the 2nd respondent denied that the applicant was reappointed for the second term. The deponent pleaded that in terms of the appointment letter, the applicant was appointed by the Principal Secretary, and that the Principal Secretary has no power to appoint the members of the Local Government Service Commission, because such power rests with the Minister in terms of _section 13 (3) of the Local Government Service Act 2008_. The deponent therefore pleaded that the contract of employment entered was null and _void ab initio_ , as it was born out of an unlawful appointment. The deponent pleaded further that the powers conferred to the Minister in terms of the law are non-delegable, therefore the Principal Secretary had no power to reappoint the applicant. The deponent contended that the Principal Secretary usurped the powers of the Minister, when she reappointed the applicant, thus making the appointment irregular and unlawful. [6] The deponent further contended that failure to publish applicant’s name on the Gazette is a clear indication that applicant was not appointed as a member of the Local Government Service Commission as the law dictates. This is so because _section 13 (3) of the Local Government Service Act 2008_ , mandates in peremptory manner that the appointment by the Minister shall be made by notice in the Gazette. [7] The issue for determination by this Court is whether the appointment of the applicant was lawful and valid, in the absence of notice published in the Gazette. **The Law** [8] _Section 13 (3) of the Local Government Service Act 2008_ provides that: “ _The Commission shall consist of a Chairperson and four other members all of whom shall be appointed by the Minister by notice published in the Gazette”._ [9] This matter turns on the issue of the proper interpretation of _section 13 (3) of the Act_. In the case of **_Thato Mohasoa and Others v Mabooe Moeko and Others_**** _**[1]**_**, the Court of Appeal was confronted with the interpretation of the provisions of _section 6 (3)_ _of the Tourism Act of 2002_ , in _pari materia_ with _section 13(3) of the Local Government Service Act 2008_. _Section 6(3) of the Act_ , similarly, provides that: “ _Members shall be appointed by Minister by notice published in the Gazette”._**Mosito P**. stated that he was in respectful agreement with the South African Supreme Court of Appeal in **_Cloete Murray and Another NNO v Firstrand Bank Ltd/ t/a Westbank_**** _**[2]**_**. [30] … the inevitable point of departure in interpreting a statute is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. It should, however, be borne in mind that, if the words of the relevant provision are unable to bear the meaning contended for, then that meaning is impermissible. See **_FirstRand Bank Ltd v. Land and Agricultural Development Bank of South Africa_**** _**[3]**_****.** [10] Mosito P. at page 17 para 29 in **_Thato Mohasoa case_** (_supra_) had this to say: [29] _Section 6(3) of the Act_ provides that. “ _Members shall be appointed by the Minister, by notice published in the Gazette.”_ It is important to note that the section is couched in mandatory terms because the word “shall” has been used. This is more so because in terms of _section 14 of the Interpretation Act_ provides that: “ _An enactment passed or made after the commencement of this Act, “shall” be construed as imperative and “may “as permissive and empowering”_ (_See section 14 of the Interpretation[Act No. 19 of 1977](/akn/ls/act/1977/19)_). [11] At page 17 in **_Thato Mohasoa case_** (_supra_) **Mosito P.** stated that the word “appoint” in Concise Oxford English Dictionary is defined to mean to “ _assign a job or role to”._ [12] In the case of **_Principal Secretary, Ministry of Local Government And Chieftainship And Others v ‘Mathahane Seleso_**** _**[4]**_**, the Principal Secretary of the Ministry of Local Government, Chieftainship and Parliamentary Affairs, in a letter informed the respondent that she had been directed by the Minister to “offer” the respondent a Special Assignment to the Local Government Service Commission in terms of _sections 29 (1) (3) of theLocal Government Service Regulations 2011_ with effect from the 12th July 2021. On the 12th July 2021 the respondent received a document titled “A CONTRACT OF EMPLOYMENT FOR ASSIGNMENT IN THE (sic) LOCAL GOVERNMENT SERVICE COMMISSION”. The respondent signed the contract. From September 2021 the respondent’s salary and all contractual benefits had been withheld. She then approached the High Court for payment of her salary and benefits. In his answering affidavit the accounting officer of the Ministry submitted that the commissioners were appointed pursuant to _section 13 (3) of the Local Government Service Act 2008_. The provision states that _“the commission shall consist of a chairperson and four other members, all of whom shall be appointed by the Minister by notice published in the Gazette”._ The deponent submitted that this did not happen, as is evident from the absence of any notice in the Gazette. There was no vacancy. If the respondent were appointed, there would have been six instead of five commissioners, stipulated in _section 13 (3)_. [13] The Court of Appeal in the **_Seleso case_** _(supra)_ held at page 7, paragraph 18, that the respondent was clearly not appointed in terms of _section 13 (3) of the Act_. Even if it could be argued that the Minister’s authority to appoint commissioners had been delegated to the Principal Secretary, there was no notice in the Gazette and all five positions on the commission were occupied. The Court of Appeal held further that the respondent did not in her founding affidavit claim to have been appointed in pursuance of _section 13 (3) of the Act_. [14] In the case of **_Principal Secretary Ministry of Communications and Others v ‘Mabohlokoa Letsie Rabotsoa_**** _**[5]**_****,** Court of Appeal refereed to the case of **_Rethabile Mosisili v Principal Secretary Ministry of Works and Others_**** _**[6]**_**, in which the Court of Appeal quoted with approval the following passage from**_Noe and Others v Department of Premier, Free State Provincial Division and Others_ _**[7]**_:** “ _I am in respectful agreement with the judgment of Hlophe J ( as he then was ) in University of Western Cape And Others loc cit to the effect that non-compliance with the provisions of the PSA and the Public Service Staff Code ( which applied then) is fatal and not possible for employees to contract out of them…Also found by Hlophe J, no one could have a legitimate expectation to do something contrary to the law or to prevent a functionary from discharging his or her duties. The requirement that the prescripts of the PSA be strictly dealt with in Khanyile where it was found that non-compliance with the PSA and its regulations relating to a purported appointment of a person, rendered such appointment of no force and effect**[8]**”._ [15] Adv. Makhera counsel for applicant argued that the Principal Secretary was carrying out the directives of the Minister in appointing the applicant, therefore the appointment was effectively made by the Minister. He argued further that the appointment function had not been delegated to the Principal Secretary. The effect of this was that the applicant was appointed by the Minister. Adv. Makhera relied on the letter addressed to the applicant by the Principal Secretary. The letter marked annexure ‘MJ2” reads as follows: Ms. Kefeletsoe Mojela Mafeteng Dear Madam **APPOINTMENT AS A MEMBER OF THE LOCAL GOVERNMENT SERVICE COMMISSION.** I am directed by the Honourable Minister of Local Government and Chieftainship to appoint you as a member of the Local Government Service Commission in terms of section 13 (3) of the Local Government Service Act 2008 with effect from the 1st July 2021. Your terms and conditions of appointment will be communicated in due course. Yours Faithfully Nonkululeko Zaly Principal Secretary. [16] Be that as it may, when coming to the question of the provisions of _section 13 (3) of the Act_ , Adv. Makhera ultimately conceded that without the notice published in the Gazette the appointment of the applicant was not lawful and valid. However, he argued that despite that the Minister was fully aware of the provisions of _section 13 (3) of the Act_ , the Ministry of Local Government continued to pay applicant’s salaries, therefore the respondents should be slapped with costs. [17] On the other hand, Adv. Ntoko counsel for respondents argued that the powers of the Minister to appoint Commissioners is not delegable, therefore the Principal Secretary had no power to say that she had been directed by the Minister to appoint applicant. He argued further that the applicant had been appointed by the Minister previously and there was a notice of appointment published in the Gazette. Therefore, applicant knew the second time around that her appointment was not lawful and valid, in the absence of notice in the Gazette. He argued further that it would have been a different matter altogether, if the Principal Secretary had indicated that she had been directed to inform the applicant that she had been appointed. However, that information would have to be evidenced by the notice published in the Gazette. He referred the court to the case of **_Thato Mohasoa_** _(supra)_ and **_Mathahane Seleso_** _(supra)_ where in both cases, there were no notices published in the Gazette. [18] In addressing the question as to whether the applicant was appointed lawfully, I must turn to consideration of the provisions of _section 13 (3) of the Act_. It is a matter of common cause that there was no notice published in the Gazette as required by the provisions of _section 13(3) of the Act_. In both cases of **_Thato Mohasoa_** _(supra)_ and **‘ _Mathahane Seleso_** _(supra)_ , there were no notices published in the Gazette in terms of the relevant Acts applicable in each instance. It is important to note that the provisions of _section 13 (3)_ are couched in mandatory terms because the word “shall” has been used. This is more so because _section 14 of the Interpretation Act_ provides that “Shall “is imperative, while “may” is permissive and empowering. [19] In the **_Mathahane Seleso_** _(supra)_ case, the Court of Appeal held that the respondent was clearly not appointed in terms of _section 13 (3) of the Act_ , because there was no notice in the Gazette, and that all the five positions on the commission were occupied. The Court of Appeal in the **_Seleso_** case _(supra)_ held further that even if it could be argued that the Minister’s authority to appoint commissioner had been delegated, there was no notice in the Gazette. [20] On the basis of the authorities referred to above in this judgment, I find that the appointment of applicant and the contract resulting from it, were unlawful and invalid, because there was no notice published in the Gazette, as prescribed by the provisions of _section 13 (3) of the Act_. It is needless to deal with the issue as to whether the Minister delegated his powers to the Principal Secretary, because that issue is poked by the fact that there was no notice published in the Gazette. [21] Having said this, both counsel agree that in terms of the appointment of applicant to the Local Government Service Commission, in Legal Notice 105 of 2016, applicant was entitled to a cell phone for a value of M6,000.00 and cell phone allowance at M70,000.00 per annum. The respondents’ counsel conceded that the cell phone for the value of M6,000.00 and cell phone allowance were not paid to the applicant in her first term of tenure as the commissioner on the Local Government Service Commission, therefore applicant is entitled to payment in the amount of M76,000.00. (Seventy-Six Thousand Maloti). **ORDER** The court makes the following order. 1. That prayers 2, 3 and 4 of the Notice of Motion are dismissed. 2. The Second respondent (Principal Secretary- Ministry of Local Government and Chieftainship) is ordered to pay Applicant an amount of M76,000.00 for cell phone value and the cell phone allowance. 3. Each party to bear its own costs because applicant has partially succeeded. ___________________ **T.J. MOKOKO** **JUDGE** **FOR THE APPLICANT :** ADV. N.E. MAKHERA**** **FOR THE RESPONDENT :** ADV. M.J. NTOKO __ * * * [1] C OF A (CIV) NO. 58 of 2018 [2] _2015 (3) SA 438 (SCA)_ at para 30 [3] 2015 (1) S.A 38 (SCA) Para 27 [4] C of A (CIV) 11/2022 [5] _C of A (CIV) No. 38/2021_ [6] _C of A (CIV) No. 64/2017_ [7] _Free State High Court Case No. 3607/09_ [8] At page 27, para [47]. #### __Related documents ▲ To the top >