Eight officers of Lesotho’s correctional services were suddenly appointed to higher positions during March 2015. The mass promotion was however successfully challenged by the Lesotho Correctional Services Staff Association which claimed the whole exercise was conducted unprocedurally. Now the Court of Appeal has agreed that the acting head of correctional services acted beyond his powers in making the appointments. This is bad news for the officers concerned because it means that they must refund all the extra money they were paid on the basis of the unlawful promotions.
Read the judgment
When the acting head of Lesotho’s correctional services promoted eight officers to more senior positions all with one stroke of the pen, no one knew how these promotions had happened or even what procedure had been used in making them.
The promotions, with effect from 30 April 2015, immediately raised the hackles of the Lesotho Correctional Services Staff Association in particular. In its view the whole exercise was highly irregular: the positions had not been advertised and departmental guidelines on promotions had been ignored.
The association challenged the promotions in the high court, and Judge 'Maseshophe Hlajoane – who has since died – upheld the challenge, with costs, finding that the promotions were null and void. She further interdicted the officers from performing any of the duties of the offices to which they were wrongly promoted, and – this turned out to be a crucial element – she ordered that any money paid to the eight officers as a result of their invalid promotions had to be deducted by the accountant general.
In a bizarre twist, the acting head of correctional services, the promoted officers and various other government officials cited in the original application, all appealed. But when the appeal was heard, they argued that the whole matter was moot since the high court’s order was no longer relevant to most of the promoted officers and their situation had “irreversibly altered”: some had been further promoted and one had retired.
It was a very strange argument to make, said the appeal court. If the issue had become moot, why not simply withdraw the appeal? For another thing, there were still three officers whose situation had not altered in the interim. And in respect of all eight, there were further orders of the high court that needed to be carried out if that had not been done already. The appeal court said that as well as declaring the appointments null and void, Judge Hlajoane had also ordered that the eight were “not to assume the duties of the offices to which they had been irregularly promoted.” Further, “no salary adjustment could be made pursuant to the purported promotions and if any such adjustment had been done the (eight officers) had to pay back any money received in consequence of the aborted promotions.” In what sense were these issues moot, the court asked.
Faced with unanswerable logic of these questions, counsel for the eight and the other government officials cited, backed down and abandoned the mootness contention.
Ultimately Judge Hlajoane had based her decision on the unlawfulness of the promotions on a very simple fact. The law said, in so many words, that the power to confirm senior prisons’ department appointments and to appoint by way of promotion as well as to remove from office, had to be exercised “by the Minister, after consultation with the Public Service Commission”.
In making the promotions, the acting commissioner acted beyond his powers, and so the promotions were all null and void. And that was the end of the matter. As the appeal judges put it, “This appeal is bound to fail whether or not the (judge) may have erred on any other findings of fact or conclusions of law. (She) was clearly entitled to dispose of the application on that basis alone.”
The correctional services and government officials had also challenged the standing of the staff association to bring the initial action, and those grounds too were thrown out by the appeal court.
Although the appeal was dismissed with costs, a number of issues are left in the air. How will the accountant general work out what the affected officers must repay? Some of the original eight have been appointed to even higher officer since the first promotions that were declared null and void. Even if those subsequent appointments were made by the Minister, with the correct procedures observed, you have to wonder if the candidates became eligible only because of their unlawfully-held previous positions, and if so, whether their present positions are also on shaky ground? Given the tenacity of the staff association, these are surely questions they will keep on asking.