Thabang Mothepu V The Prime Minister & 4 Others (CIV/APN/34/2020) [2024] LSHC 152 (15 May 2024)

# Thabang Mothepu V The Prime Minister & 4 Others (CIV/APN/34/2020) [2024] LSHC 152 (15 May 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/152/eng@2024-05-15) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/152/eng@2024-05-15) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/152/eng@2024-05-15) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/152/eng@2024-05-15) [ __](mailto:?subject=Take a look at this document from LesLII: Thabang Mothepu V The Prime Minister & …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/152/eng@2024-05-15) [ Download PDF (376.8 KB) ](/akn/ls/judgment/lshc/2024/152/eng@2024-05-15/source) Report a problem __ * Share * [ Download PDF (376.8 KB) ](/akn/ls/judgment/lshc/2024/152/eng@2024-05-15/source) * * * * * Report a problem __ ##### Thabang Mothepu V The Prime Minister & 4 Others (CIV/APN/34/2020) [2024] LSHC 152 (15 May 2024) Copy citation * __Document detail * __Related documents * __Citations 6 / - Citation Thabang Mothepu V The Prime Minister & 4 Others (CIV/APN/34/2020) [2024] LSHC 152 (15 May 2024) Copy Media Neutral Citation [2024] LSHC 152 Copy Hearing date 20 August 2024 Court [High Court](/judgments/LSHC/) Case number CIV/APN/34/2020 Judges [Ralebese J](/judgments/all/?judges=Ralebese%20J) Judgment date 15 May 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) * [Appeals and reviews](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure-appeals-and-reviews) * [Judicial Review](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure-appeals-and-reviews-judicial-review) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **__** **_CIV/_****_APN_**** _/_****_3_**** _4_**** _1_**** _/20_**** _20_** **In the matter between:** **** **THABANG MOTHEPU********APPLICANT** **** **v** **** **THE PRIME MINISTER************1 ST ****RESPONDENT** **THE MINISTER OF JUSTICE AND LAW 2 ND RESPONDENT** **THE PRINCIPAL SECRETARY - MINISTRY** **OF JUSTICE AND LAW 3 RD RESPONDENT** **THE PUBLIC SERVICE COMMISSION 4 TH RESPONDENT** **THE ATTORNEY GENERAL****5 TH RESPONDENT** _Neutral citation_ :- Thabang Mothepu vs Prime Minister & 4 others [2020] LSHC Civ 152 (20 August 2024) **________________________________________________________________** **JUDGMENT** ________________________________________________________________ **CORAM : JUSTICE M.P. RALEBESE** **DATE OF HEARING :****15****MAY 2024** **JUDGMENT :****20 AUGUST****2024** **_SUMMARY_** **_Review_**** _\- The applicant was the Commissioner of Lesotho Correctional Services - He was removed from office by the Prime Minister on the advice of the Minister of Justice and Law - Applicant removed in the interest of efficiency - Applicant challenging the decision on grounds of unfairness, unreasonableness and irrationality - Multi-stage decision involving Minister as the advisor and Prime Minister as the ultimate decision maker - Applicant given a hearing by the Minister but not the Prime Minister - Prime Minister ought to have given the applicant a hearing - Grounds imputed on the applicant and relied upon for his removal not linked to the alleged efficiency - Decision unreasonable and irrational._** **** **_ANNOTATIONS_** **_CASES_** **_LESOTHO_** Attorney General v His Majesty the King and Others C OF A (CIV) 13/2015 (CONS/CASE 2 of 2015) [[2015] LSCA 100](/akn/ls/judgment/lsca/2015/100) (12 June 2015) Brigadier Mareka & Others v Commander Lesotho Defence Force (C of A (CIV) 52 of 2016) [[2016] LSCA 9](/akn/ls/judgment/lsca/2016/9) (29 April 2016 Lesotho Highlands and Development Authority v Ntjebe and Others; In: Re, Lesotho Highlands and Development Authority v Leemisa (C of A (CIV) 7 of 2012) [[2012] LSCA 51](/akn/ls/judgment/lsca/2012/51) (19 October 2012) Mapoteng High School v Teaching Service Commission (C of A (CIV) 7 of 20) [[2020] LSCA 21](/akn/ls/judgment/lsca/2020/21) (30 October 2020) Matebesi v Director of Immigration and Others LAC (1995 -1999) 616 President of the Court of Appeal v The Prime Minister and Others (C of A (CIV) 62 of 2013) [[2014] LSCA 1](/akn/ls/judgment/lsca/2014/1) (4 April 2014) **_SOUTH AFRICA_** Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another [2010] 2 All SA 519 Chairman Board on Tariffs and Trade v Brenco Inc 2001(4) SA 511 National Director of Public Prosecutions v Mohamed NO & others 2003 (4) SA 1 (CC), Earthlife Africa (Cape Town) v Director -General: Department of Environmental Affairs and Tourism 2005 (3) SA 156 Raphuthing v Chairman of the Disciplinary Hearing and Others (C of A (CIV) 45 of 2014) [[2015] LSCA 2](/akn/ls/judgment/lsca/2015/2) (7 August 2015) at para 13 South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) **_OTHER JURISDICTIONS_** R v Minister of Agriculture and fisheries, Ex parte Graham; R v Agricultural Land Tribunal (South Western Province), Ex parte Benney; [1955] 2 All ER 129 **_STATUTES_** Constitution of Lesotho 1993 Lesotho Correctional Services [Act No. 3 of 2016](/akn/ls/act/2016/3) **_Books_** Hoexter Cora, Administrative Law in South Africa, 2nd Edition, Juta **Introduction and Background** 1. The applicant is the erstwhile Commissioner of Lesotho Correctional Services (the Commissioner). He instituted this application in terms of which he is seeking the review and setting aside of the 1st respondent’s (Prime Minister) decision to remove him from the position of the Commissioner. He is also seeking an order directing the 1st respondent to reinstate him to his former position without any loss of benefits. 2. The background of this case is that on 08th June 2018, the then Prime Minister acting in terms of section 149(3) of the **Lesotho Constitution (As Amended)**[1] read with section 19(1) of the **Lesotho Correctional Services Act**[2] appointed the applicant as the Commissioner of the Lesotho Correctional Services (LSC). On 30th June 2020, the Minister of Justice and Law (the Minister) who is the 2nd respondent herein addressed a letter to the applicant informing him that he intended to advise the Prime Minister to remove him from the position of Commissioner in the interest of efficiency in terms of section 19(4) of the **Lesotho Correctional Services Act**. Section 19(4) provides as follows:- “ _The Prime Minister may, acting on the advice of the Minister, remove the Commissioner from office in the interests of efficiency or effectiveness after the Commissioner has been given an opportunity to make representations._ ” 3. The Minister cited the following as the grounds on which he intended to advise the Prime Minister to remove the applicant:- “ _1\. You appeared before the Ombudsman with respect of an inquiry into LCS promotions in 2018/2019._ 1. _Your conduct and deportment before that important constitutional organ of state was deplorable, contemptuous, and fell far below the standard expected of an officer occupying the high position of Commissioner._ 2. _Consistent with the contempt you apparently displayed towards the Ombudsman, in your capacity as the Head of the institution, you ignored a plethora of recommendations the Ombudsman made to the extent that they affected the LCS._ 3. _In May 2019 the Court of Appeal upheld the ruling of the High Court to the effect that promotions of certain senior officers in the LCS, including yours (sic) were unlawful. As the Commissioner, you simply ignored that judgment of the highest court in the land by failing to reverse or recommend the reversal of the promotion. In so doing you:_ 1. _Showed contempt for the courts of the law and that conduct is unbefitting of an officer of the standing of the Commissioner of Correctional Services._ 2. _Allowed or connived in the unlawful self-enrichment of officers under your watch on public funds, including yourself._ ” 4. Based on those allegations, the Minister requested the applicant to make written representations within seven working days of receipt of the letter as to why he could not proceed to advise the Prime Minister to remove the applicant from office. The applicant made representations in the letter dated 08th July 2020. His response in a nutshell was that:- 1. The circumstances stipulated in the Minister’s letter, while not being conceded, touched on discipline or inter-departmental interrelations and did not in any manner implicate the efficiency of the LSC. 2. The charges leveled against him lacked particularity and that left him unable to respond to them issuably. 3. The reversal of the promotions of the officers in terms of the court order was by operation of the judicial pronouncement. It did not lie with him as the Commissioner nor did it require him to do anything to reverse the promotions. 4. He could not have been able to reverse his promotion and those of others because the Court of Appeal had indicated that the situation of some of the officers had irreversibly altered. He, being the Commissioner did not have the statutory authority or power to reverse the promotions. 5. The Minister’s advice to the Prime Minister to remove him would amount to acting beyond the powers granted under section 19 of the Lesotho Correctional Services Act, misunderstanding the powers conferred on the Minister by that provision, or acting irrationally, and/or illegally. 5. On 20th July 2020, the Minister wrote to the applicant informing him that his representations were not convincing and that he would proceed to advise the Prime Minister to remove him from office in the interests of efficiency. 6. On 24th July 2020, the Prime Minister wrote to the applicant as follows:- “ _You were written a_ _letter_ _by_ _the_ _Honourable_ _Minister_ _of Justice and Law (the Minister)__invit_ _ing you_ _to make representations_ _as to_ _why he_ _may_ _not advise_ _me_ _to remove_ _you_ _from office.__There was thereafter, correspondence between you and the Minister on the matter._ _I have_ _carefully considered the interaction between_ _you_ _and the_ _Honourable_ _Minister, and_ _based on_ _th_ _at, I_ _exercise the power vested in_ _me_ _under section 149(3) of the Lesotho Correctional Service_ _Act 2016, and_ _, acting on the advice of the Minister_ _of Justice and Law_ _,__I_ _remove_ _you_ _from office as the Commissioner_ _of Correctional Service_ _with_ ___immediate effect.__”_ 7. The applicant is seeking a review of the Prime Minister's decision to remove him from office on the following grounds: 1. The Prime Minister did not give the applicant a hearing before deciding to remove him from office. 2. The decision of the Prime Minister was unreasonable and irrational. 3. There was an inordinate delay between the occurrence of the events on which the removal was premised and the issuance of the show cause letter. The application is opposed by the respondents. **The issues** 8. The issues for determination in this matter are predicated on the three grounds of review advanced by the applicant. These issues are: whether the Prime Minister ought to have given the applicant a hearing before he made the decision to remove him from office; whether the Prime Minister acted irrationally and unreasonably when he removed the applicant from office; and whether there was an alleged ordinate delay. **The right to a h****earing** 9. In order to interrogate the issue as to whether the applicant was entitled to a hearing by the Prime Minister, it is apposite to first quote section 19(4) of the **Lesotho Correctional Services Act** under which the Prime Minister acted in removing the applicant from office. It reads\- “ _The Prime Minister may, acting on the advice of the Minister, remove the Commissioner from office in the interest of efficiency or effectiveness after the Commissioner has been given an opportunity to make representations_.” In terms of this provision, the decision to remove the Commissioner involves a two-stage process, the advice by the Minister and the final removal decision by the Prime Minister. There are no issues regarding the hearing that the Minister afforded to the applicant. The issue centers on the Prime Minister’s failure to invite the applicant to make representations before removing him from office. The applicant contends that he had the right to make representations to the Prime Minister as the final decision-maker before he could be removed. He contends that the Prime Minister should not have relied on the representations that he made to the Minister. 10. The respondents on the other hand submit that the hearing that was given to the applicant by the Minister was sufficient as the Prime Minister relied on the binding effect of the advice of the Minister, who had given the applicant a due hearing. 11. The _audi alteram partem_ principle, which is part of the procedural fairness rubric, is one of the cornerstones of the rule of law and it is imperative whenever a statute empowers a public official to make a decision that is prejudicial to a person’s liberty, property or existing rights. The _audi_ principle can only be dispensed with where the statute in issue expressly or by implication provides that it is not imperative (**Matebesi v Director of Immigration and Others**[3]). In recent days, fairness, of which the _audi_ principle is part, is viewed as flexible, supple and relative to the context and circumstances of a particular case. The critical consideration is that a functionary who is clothed with the power to make a prejudicial decision has a general duty to act fairly towards the person affected by the decision as dictated by the circumstance of the case at hand (**President of the Court of Appeal v The Prime Minister and Others**[4] ). 12. The question then is whether the Prime Minister acted fairly towards the applicant when he dismissed him based on the representations that the applicant had made to the Minister. Put another way, did the requirements of fairness dictate that the applicant should have been given a hearing at both stages of the removal process? 13. In terms of section 19(4) of the **Lesotho Corrections Services Act** , the Prime Minister cannot initiate the removal of the Commissioner except upon the advice of the Minister. The advice of the Minister is therefore the necessary jurisdictional fact for the Prime Minister to exercise the powers to remove the Commissioner. The question is whether the advice is binding on the Prime Minister. The word used in section 19(4) is ‘ _may_ ’, and it has oft been held that when it is used in a provision, it presupposes that the subject action is permissive not peremptory ([**Lesotho Highlands and Development Authority v Ntjebe and Others; In Re, Lesotho Highlands and Development Authority v Leemisa**[5]). ](https://lesotholii.org/akn/ls/judgment/lsca/2012/51/eng@2012-10-19) 14. The implication therefore is that the Prime Minister was not obliged to act on the advice of the Minister, but could exercise the discretion whether to act or not act on the advice to remove the Commissioner. The fact that section 19(4) gives the Prime Minister the discretion to heed or reject the Minister’s advice presupposes that the Prime Minister should have given the applicant an opportunity to make the representations that would inform the exercise of the discretion whether or not to remove the applicant. 15. In multi-staged decisions like the one now in issue, the requirements of fairness may, depending on the circumstance of the case, dictate that different stages of the process be viewed holistically and as related and intertwined processes because to view them separately would be to put form above substance[6]. In such circumstances, fairness may dictate that a hearing given to a person affected by such a multi-staged decision at any of the stages will suffice as a fair process. Furthermore, it may be fair in a multi-stage decision for the final decision maker to rely on the hearing rendered by the advisory functionary, provided that the final decision maker has been fully apprised of the representations made by the person affected by the final decision[7]. This is more so where, like in the instant case, the advice is intended to be the primary source of information and the content of the jurisdictional facts to inform the exercise of discretion to make the final prejudicial decision. Because the requirements of the audi principle are ‘contextual and relative’[8], the seriousness of the consequences of the decision and the nature and extent of the hearing given at any of these multi-stages would determine whether the dictates of fairness have been met from the perspective of the person prejudicially affected by the decision. 16. In considering whether the applicant was treated fairly in the circumstances of the instant case, the rationale for affording a person a hearing should be borne in mind. This was succinctly captured by Milne, JA in South African Roads Board v Johannesburg City Council[9] in the following terms: “ _For the**audi** principle applies where the authority exercising the power is obliged to consider the particular circumstances of the individual affected. Its application has a two-fold effect. It satisfies the individual's desire to be heard before he is adversely affected; and it provides an opportunity for the repository of the power to acquire information which may be pertinent to the just and proper exercise of the power_.” 17. The respondent’s argument in the instant case is that the hearing given by the Minister was sufficient as the Prime Minister was bound to accept the advice of the Minister and they relied for this proposition on the decision of **Attorney General v His Majesty the King and Others**[10] where it was said – “ _Thus far the constitutional scheme is clear. The King will be_ ___advised,____either by the cabinet, or by a minister acting under its_ ___general_ ___authority. He is then obliged to follow that advice.”_ This submission cannot be accepted because the case referred to specifically related to the advice given to the King within the context of the Royal prerogatives and ministerial advice is dictated in Lesotho’s constitutional dispensation. A submission similar to the one raised by the respondents arose in **School Board of Mapoteng High School v Teaching** **Service Commission**[11] and the Court of Appeal dismissing it indicated that a ‘ _recommendation_ ’, ‘ _suggestion_ ’ or ‘ _advice_ ” __ is not binding to a person to whom it is made. This means that the body to which a recommendation, suggestion or advice is given, is at liberty to accept, reject, ask for further information or even make suggestions. The advisor merely plays an advisory role and the person advised, who makes a final decision, cannot be a rubber stamp or conveyor belt and should exercise its discretion in reaching a final decision. 18. The respondents further contended that it was enough for the Prime Minister to have relied on the advice of the Minister in as much as the Prime Minister indicated in his letter of removal that he considered the communication exchange between the Minister and the applicant. The respondent’s counsel contended that even if the Prime Minister had sought representations from the applicant, he would not have said anything different from what he had said to the Minister. The applicant should have told the court what he would have said to the Prime Minister had he been called upon to make representations, so contended the respondents’ counsel. The respondents were basically trying to rely on the ‘no difference argument’ which is to the effect that a hearing would have made no difference to the result. That argument was held to be a legal anathema in **Matebesi v Director of Immigration and Others**[12] and it is thus rejected. 19. The decision of the Prime Minister in the instant case had dire consequences for the applicant as it involved the termination of his employment contract. Given the seriousness of that decision and the specific circumstances of this case as hereinafter demonstrated, the dictates of fairness demanded that the applicant ought to have been given a hearing at each of the the multi-stage processes. In the first place, there is no record of the Minister’s communication through which he advised the Prime Minister to remove the applicant. It is not known, therefore, what jurisdictional facts the Minister presented to the Prime Minister for his consideration of the applicant's removal. In the same vein, the Prime Minister's letter removing the applicant is silent on the specific jurisdictional facts that motivated the exercise of his discretion to remove the applicant from office. It is unclear what specific considerations and jurisdictional facts the Prime Minister pondered and weighed and which ultimately influenced his decision to remove the applicant from office. I find the following remarks by Lord Denning in **R v Minister of Agriculture and Fisheries, Ex parte Graham; R v Agricultural Land Tribunal (South Western Province), Ex parte Benney**[13] relevant to the circumstances of this case: “ _The ordinary principle of fair dealing require_ _s_ _that a farmer should be able to put his case in his own words before the very man who is to take action against him, rather than that he should have to put it before an intermediary, who in passing it on may miss out something in his favour or give undue emphasis to things that are against him. This is so manifestly just and reasonable that the minister would, I think, in all cases have been bound to hear the representations himself unless the Act authorised him to appoint someone else._ ” 20. Considering that the applicant had only made written representation to the Minister wherein he had challenged the imputations made against him, fairness dictated that the Prime Minister ought to have invited the applicant’s representations on the specific facts and considerations that he intended to rely on in the exercise of the powers to remove the applicant from office. The hearing would provide the Prime Minister with the opportunity to hear the applicant’s submissions while also enabling him as the decision-maker to consider all the relevant facts and circumstances before making the decision. 21. It is my considered view that this is a typical case where the Prime Minister should not have relied on the representations that the applicant made to the Minister but should have personally given the applicant a hearing on all the specific imputations that he believed justified the exercise of his discretion to remove the applicant. The hearing would enable the Prime Minister to determine the veracity of the imputations and whether they were malignant to the interests of efficiency as anticipated in section 19(4) of the **Correctional Service Act**. The Prime Minister’s reliance on a non-existent provision of the **Correctional Services Act** in the letter of removal could suggest that he had not given due consideration to whether the jurisdictional facts that the Minister imputed on the applicant were indeed inimical to the interests of efficiency and therefore justified the exercise of the power to remove the applicant in terms of section 19(4). The hearing by the Prime Minister would enable the applicant: 1. a reasonable opportunity to make representations that would allow him to influence the exercise of the Prime Minister's discretion[14]; 2. to be told of the substance of the complaints against him, the factual circumstances on which they were founded, and the considerations or grounds that motivated the intention to make the anticipated decision[15]; and 3. an opportunity to know why the decision was taken in terms of the legal and factual basis thereof[16] (the right to be told why). 22. This is a proper case where the Prime Minister should have personally afforded the applicant a hearing to acquire information on all the material issues that could have been pertinent to the just, proper and fair exercise of his power. By failing to hear the applicant on the specific considerations that motivated his intention to remove him, and failing to inform him of the factors that ultimately influenced his decision, the Prime Minister acted unfairly towards the applicant. This is more so considering that section 19(4) of the **Lesotho Correctional Services Act** does not specifically oust the prior hearing of the Commissioner by the Prime Minister. As held in N**ational Director of Public Prosecutions v Mohamed NO &********others**[17]: “ _It is well established that, as a matter of statutory construction, the audi rule should be enforced unless it is clear that the legislature has expressly or by necessary implication enacted that it should not apply or that there are exceptional circumstances which would justify a court not giving effect to it_ ” The Prime Minister’s decision to remove the applicant from the position of the Commissioner is therefore found to have been procedurally unfair. **Unreasonableness and irrationality** 23. The applicant further impugned the Prime Minister’s decision for its alleged unreasonableness and irrationality. The applicant pleaded the two grounds as if they were synonymous and that was a misdirection because the two grounds are conceptually different even though they may overlap[18]. 24. Since unreasonableness as a ground of review requires the court to look into the merits of the decision, with the risk of judicial overreach or blurring the difference between appeal and review, the court should only interfere with a decision if it so grossly unreasonable that some _mala fides_ , an ulterior motive, illegality or irregularity can be inferred[19]. In other words, the decision must be Wednesbury[20] unreasonable, meaning that it must be so outrageous or completely devoid of merit that no reasonable authority could ever come to it[21]. 25. Irrationality on the other hand is concerned with the means of arriving at the decision as well as the decision itself and whether there is a rational nexus with the ultimate objective sought to be achieved. The test for irrationality was enunciated in **School Board of Mapoteng High School v Teaching Service Commission**[22] in the following terms:- “ _The relevant question for rationality is whether the means (including the process of making a decision) are linked to the purpose or ends. Rationality necessarily includes some evaluation of the process. The denouement is that, the process leading to a decision must be rationally related to the achievement of the purpose for which the power is conferred. The means for achieving the purpose for which the power was conferred must include everything that is done to achieve the purpose. The decision employed to achieve the purpose as well as everything done in the process of taking that decision, constitutes means_ ___towards the attainment of the purpose for which the power was conferred_.” Irrationality is concerned not only with the decision but even the processes or the means adopted by the decision maker to reach the decision. The test within the context of the instant case is whether the process or the means adopted by the Prime Minister rationally related to the objective that was sought to be achieved and for which the power has been statutorily conferred. 26. Irrationality arises when the administrator fails to consider relevant materials or factors in the decision-making process especially if those materials or factors ought to have been central to the decision. The key question in rationality review is whether the means justify the end. Irrationality arises if there is no nexus between the desired objective and the decision itself or the means adopted by the administrator to reach the decision. Both the process by which the decision is made and the decision itself must be rationally linked to the desired objective[23]. As stated in **Democratic Alliance**[24]:- “ _The means for achieving the purpose for which the power was conferred must include everything that is done to achieve the purpose. Not only the decision employed to achieve the purpose, but also everything done in the process of taking that decision, constitute means towards the attainment of the purpose for which the power was conferred_.” Rationality dictates that the decision and the means of arriving at the decision must be rationally related to the purpose for which the power was given as this will justify the lawfulness of the actions and the decision taken by the functionary[25]. 27. The applicant’s case is that the Prime Minister's decision was unreasonable and irrational because there was no reasonable nexus between the acts that were imputed on him and how they impinged on the alleged interests of efficiency of the Lesotho Correctional Services. Considering that the applicant pleaded unreasonableness and irrationality together in terms of the founding facts, the two grounds will be considered together for this judgment. 28. The Prime Minister removed the applicant from office in the interests of efficiency as advised by the Minister. The first grounds that informed the decision was the alleged deportment of the applicant when he appeared before the Ombudsman which was said to have been deplorable, contemptuous, and fell short of the standard expected of the Commissioner. The details of the specific conduct of the applicant that was deplorable and contemptuous were not indicated in the letters of the Minister and the Prime Minister The other ground was the applicant’s disregard of the plethora of the recommendations of the Ombudsman which affected the LCS. In the same vein, the specific recommendations of the Ombudsman which the applicant ignored were not mentioned in the letters of the Minister and the Prime Minister. 29. The applicant contended that his alleged deportment before the Ombudsman and the alleged disregard of the Ombudsman’s recommendations had no bearing whatsoever on the interests of efficiency of the Lesotho Correctional Services but could at the least, implicate his discipline. Efficiency is defined as:- “ _The relationship between the outputs from a service and the resources_ ___used to produce them; in the public sector, it involves making best use_ ___of the resources available for the provision of public services_.”[26] Apparently, efficiency in an organisational setting is concerned with efficacious utilisation of resources. The unspecified deportment of the applicant before the Ombudsman and his disregard of the recommendations of the Ombudsman could not reasonably or rationally impact even tangentially on the objects of the efficiency of the LCS. Those grounds had no logical bearing whatsoever on efficacious utilisation of LCS resources. The Prime Minister’s decision was on that ground irrational and devoid of merit that no reasonable authority could ever come to it. 30. The other ground on which the Prime Minister, as advised by the Minister, premised his decision to remove the applicant was the applicant’s alleged failure to comply with the order of the Court of Appeal in **Acting Commissioner of Lesotho Correctional Services and others v Lesotho Correctional Services Staff AssociationC of A (CIV) 46 of 2018**. The specific accusation was that the applicant had failed to reverse or recommend the reversal of the promotions which the court had declared unlawful. The applicant had further been accused of having connived in his unlawful self-enrichment and that of the officers whose promotions had been declared unlawful. The Court of Appeal in that case confirmed the decision of the High Court which had declared the promotions of certain officers of the LSC, including the applicant, to be wrongful. The confirmed judgment of the High Court was that the officers affected by the wrongful promotions were interdicted from performing the duties of the offices to which they had wrongfully been promoted; and the Accountant General had been ordered to deduct payments that had been made to such officers pursuant to the wrongful promotions. 31. There was no specific order that the court had made against the applicant in **C of A (CIV) 46 of 2018** , and as such, he could not be accused of contempt of court. Apart from that, it turned out that following the decision of the Court of Appeal, the Public Service Commission at its 8999th meeting of 18th October 2019 resolved to retrospectively promote the officers whose promotions had been declared wrongful. The Public Service Commission had in that regard acted pursuant to powers conferred by section 2 of the **Prisons Proclamation**[27]. This was because the Court of Appeal had ruled that the promotions in question ought to have been done in terms of section 2 of the **Prisons Proclamation**. That provision empowered the Minister responsible for prisons to promote Prison officers in accordance with the provisions of the **Public Service Order 1970** after consultation with the Public Service Commission. 32. The resolution of the Public Service Commission effectively rendered the decision of the Court of Appeal academic and unenforceable. When the Prime Minister removed the applicant from office on 24th July 2020 for failure to reverse or recommend reversal of the promotions, among others, the accusation and the resultant decision were both unreasonable and irrational because the Public Service Commission had already regularised the wrongful promotions. 33. Having found that the Prime Minister acted unfairly against the applicant by denying him a hearing, and further that the Prime Minister’s decision was unreasonable and irrational, it is not necessary to deal with the ground that there had been an inordinate delay of approximately one year between the occurrence of the events that were imputed on the applicant and the writing of the show cause letter. In any case, that submission would not be tenable because the applicant had not challenged the decision of the Minister. **Reinstatement** 34. The applicant prayed for an order for his reinstatement to the position of Commissioner. Having found that his removal was unfair, unreasonable and irrational, the logical consequence should be an order for his reinstatement. The parties in this case did not address the reinstatement issue in their submissions more so considering that the applicant was removed from office in July 2020. As a result, there is no information to assist the court in determining whether an order for reinstatement will be appropriate, just and fair in the circumstances of this case. It is however a matter of common knowledge for which I take judicial notice that the position of the Commissioner has since been filled with the incumbent holder of the position. The implication is that the order reinstating the applicant as the Commissioner might not be reasonably practicable as the position has since been filled. 35. Though the applicant instituted the instant proceedings in February 2020 this matter unfortunately protracted for unexplained reasons. The matter was re-allocated to me on 16th September 2022. It came before me for the first time on 02nd February 2023 but had not been formally set down. It was set for hearing on 16th April 2024 but was postponed on the application of the applicant to 15th May 2024 on which date it was argued. The delay in finalising this matter implies that the order for reinstatement is no longer reasonably feasible. 36. The applicant had not sought alternative remedies to the reinstatement and the court is thus hamstrung to grant any remedy which he did not seek. The court is however alive to the fact that the applicant is rightfully entitled to a remedy that would be a fair solace for his wrongful removal and would put him in the position he would have been but for the removal. The court therefore refrains from granting the reinstatement for practical reasons, and it leaves the issue open so that the applicant can pursue any other fair remedy as he shall deem appropriate. **Disposition** 37. The Prime Minister’s decision to remove the applicant from the position of the Commissioner is reviewed and set aside for being procedurally unfair, unreasonable and irrational. 38. The court refrains from making an order for reinstatement of the applicant as the remedy is not reasonably practicable because the position has since been filled. The applicant is free to pursue any consequential remedy resulting from his unlawful removal as he may deem appropriate. 39. The respondents should bear the costs of this application __________________________________ **M.P. RALEBESE** **JUDGE** **For the Applicant: Advocate Setlojoane with Advocate Phafane KC** **For Respondents: Advocate Ndebele with Advocate Kelepa** * * * [1] Lesotho Constitution 1993 [2] Lesotho Correctional Services [Act No. 3 of 2016](/akn/ls/act/2016/3) [3] Matebesi v Director of Immigration and Others LAC (1995 -1999) 616 at 623 [4] _President of the Court of Appeal v The Prime Minister and Others (C of A (CIV) 62 of 2013)[[2014] LSCA 1](/akn/ls/judgment/lsca/2014/1) (4 April 2014)_ [5] [Lesotho Highlands and Development Authority v Ntjebe and Others; InRe, Lesotho Highlands and Development Authority v Leemisa (C of A (CIV) 7 of 2012) [2012] LSCA 51 (19 October 2012)](https://lesotholii.org/akn/ls/judgment/lsca/2012/51/eng@2012-10-19) at para 24. [6] _Cora Hoexter, Administrative Law in South Africa_ _, 2nd Edition, Juta at Page 442_ [7] Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another [2010] 2 All SA 519 (SCA) at para 28-29 [8] Chairman Board on Tariffs and Trade v Brenco Inc 2001(4) SA 511 at para 19 [9] South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) at 13B-C [10] Attorney General v His Majesty the King and Others C OF A (CIV) 13/2015 (CONS/CASE 2 of 2015) [[2015] LSCA 100](/akn/ls/judgment/lsca/2015/100) (12 June 2015) at para 16 [11] School Board of Mapoteng High School v Teaching Service Commission (C of A (CIV) 7 of 20) [[2020] LSCA 21](/akn/ls/judgment/lsca/2020/21) (30 October 2020) [12] Supra [13] R v Minister of Agriculture and Fisheries, Ex parte Graham; R v Agricultural Land Tribunal (South Western Province), Ex parte Benney; [1955] 2 All ER 129 at 134 F-G [14] Earthlife Africa (Cape Town) v Director -General: Department of Environmental Affairs and Tourism 2005 (3) SA 156 at para 72. [15] Cora Hoexter, Administrative Law in South Africa (Supra) at page 373 [16] Cora Hoexter, Administrative Law in South Africa (Supra) at page 376 [17] National Director of Public Prosecutions v Mohamed NO & others [2003 (4) SA 1 (CC)](https://lawlibrary.org.za/akn/za/judgment/zacc/2003/4) at para 37 [18] Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC) at para 30 [19] Raphuthing v Chairman of the Disciplinary Hearing and Others (C of A (CIV) 45 of 2014) [[2015] LSCA 2](/akn/ls/judgment/lsca/2015/2) (7 August 2015) at para 13. See also Union Government (Minister of Mines and Industry v Union Steel Corporation (South Africa) Ltd 1928 AD 220 at 337 [20] Derived from the leading case of Associated Provisional Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 [21] Brigadier Mareka & Others v Commander Lesotho Defence Force (C of A (CIV) 52 of 2016) [[2016] LSCA 9](/akn/ls/judgment/lsca/2016/9) (29 April 2016 [22] Mapoteng High School v Teaching Service Commission (C of A (CIV) 7 of 20) [[2020] LSCA 21](/akn/ls/judgment/lsca/2020/21) (30 October 2020) at para 23 [23] (National Energy Regulator of South Africa and Another v PG Group (Pty) Limited and Others (CCT131/18) [[2019] ZACC 28](/akn/za/judgment/zacc/2019/28); 2019 (10) BCLR 1185 (CC); 2020 (1) SA 450 (CC) (15 July 2019) [24] Supra [25] Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 at para 184. [26]https://www.lexisnexis.co.uk/legal/glossary/efficiency [27] Prisons Proclamation No.30 of 1957 as amended #### __Related documents ▲ To the top >