Seriti Tlokotsi V Director General National Service s & Others (CIV/APN/336/2021) [2023] LSHC 200 (25 August 2023)

# Seriti Tlokotsi V Director General National Service s & Others (CIV/APN/336/2021) [2023] LSHC 200 (25 August 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/200/eng@2023-08-25) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/200/eng@2023-08-25) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/200/eng@2023-08-25) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/200/eng@2023-08-25) [ __](mailto:?subject=Take a look at this document from LesLII: Seriti Tlokotsi V Director General National Service …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/200/eng@2023-08-25) [ Download PDF (170.8 KB) ](/akn/ls/judgment/lshc/2023/200/eng@2023-08-25/source) Report a problem __ * Share * [ Download PDF (170.8 KB) ](/akn/ls/judgment/lshc/2023/200/eng@2023-08-25/source) * * * * * Report a problem __ ##### Seriti Tlokotsi V Director General National Service s & Others (CIV/APN/336/2021) [2023] LSHC 200 (25 August 2023) Copy citation * __Document detail * __Related documents * __Citations 1 / 1 Citation Seriti Tlokotsi V Director General National Service s & Others (CIV/APN/336/2021) [2023] LSHC 200 (25 August 2023) Copy Media Neutral Citation [2023] LSHC 200 Copy Hearing date 1 November 2023 Court [High Court](/judgments/LSHC/) Case number CIV/APN/336/2021 Judges [Banyane J](/judgments/all/?judges=Banyane%20J) Judgment date 25 August 2023 Language English Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **HELD AT MASERU CIV/APN/336/2021** In the matter between **SERITI LIKOTSI APPLICANT** AND **DIRECTOR GENERAL NATIONAL 1 ST RESPONDENT ** **SECURITY SERVICES** **PRINCIPAL SECRETARY OF THE MINISTRY 2 ND RESPONDENT ** **OF DEFENCE AND NATIONAL SECURITY** **MINISTRY OF DEFENCE AND NATIONAL 3 RD RESPONDENT** **SECURITY** **MINISTER OF DEFENCE AND NATIONAL 4 TH RESPONDENT** **SECURITY** **ATTONEY GENERAL 5 TH RESPONDENT** _Neutral Citation_ : Seriti Likotsi v Director General NSS & others [[2022] LSHC 200](/akn/ls/judgment/lshc/2022/200) Civ (25th August 2023.) **JUDGMENT** **CORAM : BANYANE J** **HEARD : 01 NOVEMBER 2022** **DELIVERED : 25 AUGUST 2023** **Summary** Administrative Law-Review of a decision to dismiss the applicant pursuant to section 12 of **National Security Services Act 1998** -for failure to report for duty without a valid excuse-applicant having been reinstated retrospectively by an order court-but reporting for duty seven months later-whether decision liable to be set aside-reciprocal duties of employer and employee in reinstatement claims. **ANNOTATIONS** **_Cited cases:_** **_Lesotho_** 1. Roma Taxi Association v Officer Commanding Roma Police Station And Others C of A(CIV) 20/2015 2. Sesoane v Commissioner of LDF CIV/APN/128/2020. 3. Lesotho Public Service Staff Association v Chief Magistrate – Northern Region C of A (CIV) 63 of 2019 [[2020] LSCA 3](/akn/ls/judgment/lsca/2020/3) (29 May 2020) **_South Africa_** 1. Davis v Chairman Committee of Johannesburg Stock**** Exchange 1991 (4) SH 43 at 44 2. Adampol (Pty)Ltd v Administrator, Transvaal 1989(3) SA 800(A) at 804 B-C 3. Firestone South Africa (Pty)Ltd v Genticuro A.G 1977(4) SA 298 at 304D-E. 4. Equity Aviation Services (Pty) Ltd. Commission of Conciliation, Mediation and Arbitration and others (2008)29 ILJ 2507 (CC), 5. National Union of Metalworkers of SA on behalf of Fohlisa and others v Hendor Minisng Supplies (A division of Marschalk Beleggings(Pty)Ltd (2017)38 ILJ 1560(CC) **_Legislation_** 1. National Security Service [Act No.11 of 1998](/akn/ls/act/1998/11) 2. High Court Rules 1980 **BANYANE J** **Introduction** **[1]** This is an application to review a decision of the Director of National Security services (hereinafter referred to as NSS) dated 06 August 2021 in terms of which the applicant was dismissed from employment on grounds of absenteeism. She seeks an order setting aside the impugned decision as well as her reinstatement. **Background** **[2]** The material facts giving rise to this application are straightforward and undisputed. They may be summed up as follows. At all material times, the applicant was an employee of the Government of Lesotho. She worked as an officer in the Procurement office of the NSS until her dismissal or discharge on the 28th of November 2019. She successfully challenged her dismissal under CIV/APN/10/2020. On 23 November 2020 Monaphathi J issued an order setting aside her dismissal/discharge from the NSS. Consequently, the applicant was, in terms of this order reinstated to her position with effect from 28th November 2019 without loss of benefits. Notably she obtained the judgment by default because the NSS filed no answering affidavit. It is also common cause that the applicant did not resume duty immediately but only reported for duty in July 2021 after service of the order which only occurred on 30 June 2021. It is apposite to mention at the outset that the order served to the NSS authorities by the Deputy sheriff was apparently signed by the Judge on 11 June 2021. On the other hand, the applicant presented an order signed by the judge on 09 December 2020 when she reported for duty. The resolution of the dispute before me turns on these dates. **The correspondence between the applicant and DG** **[3]** Subsequent to her reporting, the following exchange of correspondence ensued between the Director General (DG) NSS and the applicant. On the 28 July 2021, the DG penned a show case letter to the applicant couched as follows: NATIONAL SECURITY SERVICE P/BAG A 427 MASERU 100 KINGDOM OF LESOTHO 28th July 2021 Mrs. Seriti Likotsi National Security Service NSS Headquarters U.F.S D/ADMIN Dear Mrs LIKOTSI **RE: DISCHARGE FROM THE SERVICE FOR ABSENTEEISM BEYOND FOURTEEN (14) DAYS** Reference is made to the Court Order in CIV/APN/70/2020. The said Court Order appears to have been granted on the 23rd November 2020 and signed off by the judge and the Assistant Registrar on the 9th December 2020. Such Court Order was served upon the National Security Service on the 30th June 2021. Refer to attached copy of the Court Order together with the return of service in our possession marked as ‘K1’. However, you only reported yourself to work on the 20th July 2021 despite being aware that your discharge from the service has been set aside by the Court of law as far back as the 9th December 2020. You are therefore instructed to make representations within **Seven (7)** working days stating why it shall not be deemed in terms of section 12 (1) of the National Security Service [Act No. 11 of 1998](/akn/ls/act/1998/11) that you have been discharged from the National Security Service. Sincerely, P.J. RALENKOANE **_DIRECTOR GENERAL - NSS_** **[4]** In her response to this letter, the applicant confirms that the order was served on the NSS on 30 June 2021 while the case was decided in November 2020. In this letter she attributes delay of service to the Deputy Sheriffs. She asserts that since the judgment was granted by default, she was apprehensive that she might be rejected by the authorities if she reported before service of the court order by the Deputy Sheriff. **[5]** She explains that after the order was signed by the Judge on 09 December 2020, the copies of the order were dispatched for service by the Deputy Sheriff Mr. Mokhothu on 14 December 2020. The court vacation began the next day (15th December 2020). She thereafter could not follow up the matter until the next session in February 2021 because all Deputy Sheriffs were unavailable during vacation. When she finally got hold of Mr. Mokhothu, she was informed that the original court order as well as its copies disappeared from the court file. Service was, in the circumstances, impossible. A diligent search for the missing court orders was thereafter conducted pursuant to the Registrar’s directive. **[6]** The search for the order lasted for months until June 2021. She explains that the search was interrupted by Covid-19 related National lockdowns that disrupted the normal court operations. When the search ultimately proved futile or came to naught, another set of court orders was prepared and given to the deputy sheriff Mr. Mokhothu to serve. Unfortunately, he was thereafter involved in a car accident and hospitalized while the orders were in his possession. His hospitalization rendered service impossible. All Court processes in his possession were, as a result, forwarded to another Deputy Sheriff Mr. Mohale. The latter was only able to serve the orders on the 30 June 2021. **[7]** Having submitted her written representations, the DG penned a dismissal letter on the 06th of August 2021. It reads as follows: NATIONALSECURITY SERVICE P/BAG A 427 MASERU 100 KINGDOM OF LESOTHO 06th August 2021 Mrs. Seriti LIKOTSI National Security Service NSS Headquarters Reference is made to your letter dated 3rd August 2021. I have read and considered your representations raised therein and duly advised I wish to respond to them as thus; You do not dispute that you became aware of your reinstatement into the service as far back as 9th December 2020. You also do not deny that at the material time you did not have the permission of the Director General to absent yourself from your duties. You simply allege that you elected not to report to work until such time the Court Order was served upon the NSS based on a self-imagined apprehension that you would be returned. I find this contention not to form a valid excuse as you would have been allowed to resume your duties upon satisfactory proof that you have been reinstated. The question of when the Court Order was served on the National Security Service is not in issue. What is in issue is that you, as the Applicant, became aware that the Court has ordered your reinstatement and you made a deliberate decision not to report to work without any permission or a valid excuse. Furthermore, no duty rested upon the NSS to further inform you that the Court has reinstated you to your position as procurement officer. The Court order is very clear on your reinstatement. The NSS had an obligation to comply with the Court order upon you reporting as it has done now. I am reliably informed that the reason why you were told to come back on a later date on the 20th July 2021 was to enable your integration into the current shifts due to the COVID – 19 pandemic. Moreover, whether or not the NSS decided to challenge the reinstatement did not concern the enforcement of the Court Order, being your reinstatement, as there is no order in CIV/APN/70/20. Kindly take notice that you are hereby discharged and dismissed from the service with effect from the **11 th December 2020 (11/12/2020)** in line with **Section 12(1)** of the **National Security Service Act No.11** **of 1998.** Sincerely, P.J. RALENKOANE **_DIRECTOR GENERAL NSS_** **The applicant’s case before Court** **[8]** In a founding affidavit filed in support of the relief sought, the applicant asserts that her dismissal or discharge from the NSS is irregular because service of the order to the NSS superiors was an indispensable precondition for her reporting. In an endeavor to justify her failure to timeously report for duty, she replicates the explanation proffered in her written representations. It is unnecessary to regurgitate the details of the explanation, suffice it to mention that she narrates the occurrences relating to the mysterious disappearance of the order from the Court’s file, diligent search, and the ultimate preparation of the second order. Based on this version, her failure to report for duty was therefore not deliberate, but excusable due to circumstances beyond her control. **[9]** The nub of her complaint is that she did not immediately report for duty because she was apprehensive that the DG might challenge the reinstatement order by rescission. She also had an expectation that management would invite her back to work after the service of the order. When neither happened, she reported for duty on 2nd July 2021 only to be rejected and told to come back on 02 August 2021 whereupon she received the show cause letter. **The respondents’ case** **[10]** In his answering affidavit, the DG defends the propriety of the dismissal. He asserts that the applicant’s absenteeism was neither excusable nor authorized. This assertion is based on the fact that the applicant was reinstated pursuant to an order issued by Monaphathi J on 09 December 2020. Importantly, when the applicant reported for work, she presented this order to the NSS authorities. He asserts for this reason that the applicant’s averments about the alleged mysterious disappearance of the initial order, its search etc. are intended to mislead the Court because all along, the applicant had the initial order in her possession. In the circumstances, the applicant cannot therefore rely on the second order dated 11th June 2021(attached to her founding affidavit) to justify her absenteeism. **[11]** Based on these facts, he concludes that the applicant absented herself for seven months without a valid excuse nor permission contrary to section 12 of the **NSS Act**. According to him, nothing prevented the applicant from reporting to work and presenting the initial order. **Parties Submissions** **[12]** On behalf of the applicant, it was argued based on **Rule 4 (1)** **of the** **High Court Rules** **1980** that service of Court process must be effected by Deputy Sheriffs. The applicant could not therefore be expected to serve the initial order because she has no obligation, duty nor responsibility to serve court orders. For this reason, the delay in the service of the order cannot be attributed to her. Counsel further contends based on the delay that the applicant’s failure to report for duty is justified because the NSS had not been notified through proper service that her discharge from the service had been set aside. **[13]** The final argument advanced on behalf of the applicant is that the scope and wording of section 12 of the **NSS Act** covers employees in active service only. Since the applicant had been off duty since her discharge, she was not in active service. The section is inapplicable before her reinstatement into the service and It was therefore improperly invoked by the DG in the circumstances. In other words, the applicant’s failure to report to work does not fall within the purview of Section 12. He concluded that the discharge is premised under an inapplicable provision of the law and is therefore irregular and unlawful. **[14]** The respondent’s Counsel Advocate Mafisa conversely argued that in terms of the order granted by this Court in November 2020, the applicant was reinstated with effect from 28th November 2019 and notably the applicant had always been in possession of an order signed by the Judge on 09 December 2020. She however, decided to report for duty only in July, seven months after her reinstatement. She contends that even if the applicant’s allegations about mysterious disappearance of the initial Court order are true, they do not justify her absenteeism because the copy in her possession could have been reproduced and thereafter given to the Deputy Sheriff to serve instead of waiting for seven months. **[15]** She cited the case of **Davis v Chairman Committee of Johannesburg Stock Exchange** 1991 (4) SH 43 at 44 to submit firstly that no onus lies on the body whose conduct is subject matter of review to justify to the court that good grounds exist to review the conduct complained of. Secondly, the court’s jurisdiction in review proceedings is limited to gross irregularity and unlawfulness and not considerations of equity. She submitted that the applicant has failed to establish grounds for review, and consequently this court cannot interfere with the impugned decision. **The issues** **[16]** The central issue arising from the parties’ submissions is whether the the applicant’s dismissal is irregular and unlawful. **The Law** **[17]** Grounds for review of administrative decisions are trite. They have been stated and restated in several cases. The Court of Appeal in **Roma Taxi Association v Officer Commanding Roma Police Station and Others** C of A(CIV) 20/2015 cited with approval the decision of the Zambian Supreme Court**in Nyampala Safarts(Z)limited and others v Zambia Wildlife Authority and others** where the Court said: “The judiciary will intervene in the exercise of administrative power or discretion, if such exercise descends into illegality, procedural impropriety, irrationality and disproportionality, which has been fashioned as a new ground.” **[18]** The Court of Appeal further stated at paragraph 34 that unless the four grounds exist, namely, illegality, procedural impropriety, unreasonableness and disproportionality, any curial intervention will be impermissible. see also **Sesoane v Commissioner of LDF** CIV/APN/128/2020. **[19]** An applicant seeking review bears the onus to allege and prove the review grounds and to satisfy the court that good grounds exist to review the conduct complained of. It is not for the court or the decision-maker to speculate what irregularity an applicant relies on for impugning an administrative decision. A respondent is entitled to know the review grounds and irregularity relied upon by an applicant for review so as to meaningfully and intelligibly counter them. see **Lesotho Public Service Staff Association v Chief Magistrate – Northern Region C of A (CIV) 63 of 2019[[2020] LSCA 3](/akn/ls/judgment/lsca/2020/3) (29 May 2020) **at para 28**.** **Discussion** **[20]** It is common cause that the impugned dismissal is based on Section 12 (1) of the **National Security Services Act of 1998** on grounds that the applicant absented herself from work beyond 14 days without permission or valid excuse. It is also common cause that the applicant was initially dismissed from employment on 28 November 2019, and she successfully challenged her dismissal with the result that she was retrospectively reinstated with effect from the date of her dismissal. She however only reported for work in July 2021, a few weeks after service of the reinstatement order. **[21]** Section 12 of the **NSS Act** deals with officers absenting themselves from their duties; a) without permission or b) valid excuse for a period exceeding fourteen days. It reads as follows; “A member or ancillary staff who absents himself from his official duties without the permission of the Director General or a valid excuse for more than fourteen days shall be deemed to have been discharged and dismissed from the service with effect from the date immediately following his last day at work”. **[22]** The golden rule of statutory interpretation was stated in **Adampol(pty)Ltd v Administrator, Transvaal** 1989(3) SA 800(A) at 804 B-C as follows: ‘The plain meaning of the language in a statute is the safest guide to follow in construing a statute. According to the golden or general rule of construction the words of a statute must be given their ordinary , literal, grammatical meaning and if by doing so it is ascertained that the words are clear and unambiguous, then effect should be given to their ordinary meaning unless it is apparent that such literal construction falls within one of those exceptional cases in which it would be permissible for a court of law to depart from such a literal construction, e.g. where it leads to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent”. **[23]** Section 12 postulates dismissal based on two requirements, namely, a) absenteeism from work; b) without authorization or valid excuse. The second requirement deals with justifiable absenteeism. My reading of these provisions is that the employee’s absenteeism is justified where it is authorized by management, failing which, there must be a valid excuse for same. **[24]** The question whether the applicant falls in the category of officers contemplated in section 12 falls to be answered in light of the reinstatement order issued by Monaphathi J on 23rd November 2020. It reads as follows: “1. The decision of the 5th respondent of discharging applicant from the National Security services of the 25th November 2019 be and is hereby reviewed and set aside as irregular and bad in law. 2\. the applicant be and is hereby reinstated to her position as an officer in the procurement office with effect from the 28th November 2019 without loss of benefits”. **[25]** The general principles on interpretation of judgments are trite. In interpreting a judgement or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. **Firestone South Africa(pty)Ltd v Genticuro** A.G 1977(4) SA 298 at 304D-E. **[26]** My understanding of Monaphathi J’s order is that the applicant was retrospectively reinstated from the date of her discharge. What then is the effect of the order? I answer this by briefly highlighting principles of reinstatement.**** **The Law on reinstatement** **[27]** In **Equity Aviation Services (Pty) Ltd. Commission of Conciliation, Mediation and Arbitration and others (2008)29 ILJ 2507 (CC)**, the Constitutional Court in South Africa said the following: “36 The ordinary meaning of the word “reinstate” is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. It is aimed at placing an employee in the position he or she would have been but for the dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated, they resume employment on the same terms and conditions that prevailed at the time of their dismissal. The Court or Arbitrator may thus decide the date from which the reinstatement will run but may not order reinstatement from the date earlier than the date of dismissal. The ordinary meaning of the word ‘reinstate’ means that the reinstalment will not run a date from after the arbitration award. Ordinarily then, if a Commissioner of the CCMA order the reinstatement of an employee, that reinstatement will operate from the date of the award of the CCMA, unless the Commissioner decides to render the reinstatement retrospective”. **[28]** The Court in **National Union of Metalworkers of SA on behalf of Fohlisa and others v Hendor Minisng Supplies (A division of Marschalk Beleggings(Pty)Ltd (2017)38 ILJ 1560(CC)** citing with approval **Equity Aviation**(above), also said reinstatement means resuscitation of the employment agreement with all the attendant reciprocal rights and obligations. It stated that: ’13 Reinstatement may be, but not always retrospective. To state the axiomatic, reinstatement means the resuscitation of the employment agreement with all the attendant reciprocal rights and obligations. Again to state the obvious the element of retrospectivity in the reinstatement does not enfold the rendering of services for the back-dated period of reinstatement. That is an impossibility. Perhaps that makes the very notion of “retrospective reinstatement” a bit of a misnomer, if not a legal fiction. What then is the practical value of retrospective reinstatement? It is the reinstatement of all the employee’s benefits in terms of the contract of employment from the date specified in the order so as to place an employee in the position he or she would have been in but for unfair dismissal. Obviously, if the employer may be able to demonstrate that for one reason or another, an employee would not have been able to render services, the employee concerned would not be entitled to retrospective remuneration.” **28.1** At para 22, the court said: “…Although a reinstatement order places a primary obligation on the employer to reinstate, it creates an obligation in terms of which an employee must first present her or himself for resumption of duties. The employer must accept her or him back in employment. These are reciprocal obligations. The employee’s obligation to present her or himself for work and the corresponding obligation to accept her or him back to work...” **The obligation of the applicant arising from the Court Order** **[29]** The decision quoted above relates to an order in terms of which an employer was ordered to reinstate the employee. In the instant matter, Monaphathi J’s order is retrospective in effect. Did the order place an obligation on the employer to reinstate the applicant from the date of service of the order or the primary obligation was on the applicant to present herself to work immediately upon her reinstatement? It seems to me that Monaphathi J did not order the DG NSS to reinstate the applicant, but the applicant was retrospectively reinstated. It follows in my view that the applicant was obliged to report to work and render her services immediately after the signing of the order by the Judge in December 2020 because her reinstatement was retrospective. Based on the retrospectivity of her reinstatement, she absented herself from duties within the meaning of section 12. It follows in my view that the argument advanced on her behalf that she is not covered in Section 12 of the NSS Act must be rejected. **[30]** Based on the conclusion that absenteeism requirement under section 12 is established, her absence from work would have to be validly excusable or authorized by management. I turn now to consider the second requirement; validity of her excuse for absenteeism. **[31]** Although the applicant attributes her failure to report on alleged loss of the original Court Order that ultimately led to issuance of the second order signed in June 2021, she does not dispute that upon reporting at work in July 2021, she presented the first order signed by the Judge in December 2020. This is indicative of existence of and possession of the order from December 2020. Instead of fulfilling her obligation of returning to work, the applicant elected to make assumptions on how management would react on her arrival to work. Her inaction and failure to return to work is clearly based on self-created apprehension. The applicant could only get to know whether the management intended to challenge the reinstatement order upon presenting herself for work. Her absenteeism was, in the circumstances without a valid excuse in my view. **[32]** Even if her apprehension was justifiable, the applicant faces yet another hurdle, that is, her failure to report for work after service of the order by the Deputy sheriff on 30 June 2023. According to her affidavit, she only reported on 28 July 2021, 20 working days after service of the order. She says she was waiting for management to either challenge the order through rescission or to be invited back by management. As stated earlier, the reinstatement order placed an obligation on the applicant to report. The NSS management had no obligation to invite her back. Again, her failure to avail herself for work is inexcusable. **Conclusion** **[33]** All things considered; I conclude that there is no illegality in the way the Director General exercised his powers. The applicant failed to make out a case for review. The application must therefore fail. **Order** **[34]** In the result, the application is dismissed with no order as to costs. ____________ **P. Banyane** **Judge** For applicant : Advocate Molapo For respondent : Advocate Mafisa #### __Related documents ▲ To the top >