Hearing obligatory before police are transferred – Lesotho’s Court of Appeal

27 June 2019 · Carmel Rickard

Is there a legal principle granting a hearing before a decision is made to transfer police officers in Lesotho? It was a topic of some heated discussion in that country when two officers – one of whom had been transferred eight times in a 17-year career – were given their transfer papers without a prior consultation or hearing. The Court of Appeal has now held that though the Police Act says nothing on the subject, there was a legitimate expectation that there would be a hearing – unless the police authorities could prove that “special circumstances” existed. And, said the court, it would “strictly interpret” the existence of special circumstances.

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Two police officers in Lesotho, transferred without what they considered due consultation, have won an unexpected victory at the Court of Appeal, Maseru.

One senior inspector was transferred from Butha-Buthe to Mohale’s Hoek. The other told the court that during her 17-year career with the Lesotho Mounted Police Service she was transferred on eight occasions. The disputed transfer was her third within a year. She said that on all the earlier occasions she had been given a hearing before the transfer took effect.

The two made written representation to the commissioner about their transfer, and he replied that “due to the exigency of duty”, their transfers still stood.

They approached the High Court for a review but when that application was rejected they turned to the Court of Appeal which has now given its decision.

In their affidavits, the police authorities said that under the Police Service Act members of the Lesotho Mounted Police Service “shall be deployed in and throughout Lesotho.” Further, they argued, the “Act does not place an obligation on the Commissioner of police to (hold a) pre-deployment hearing.”

According to the two police officers, any administrative decision, such as transferring a police officer, should be made only after the affected individual has been given a hearing. It was “procedurally improper” that representations should be considered only after the decision to transfer had already been made.

The police authorities countered this argument by saying that “in exceptional circumstances” the courts had “validated post-decision representations”, and conceded that given the common cause fact that they were not given a hearing before their transfer, the case “stands or falls” on whether they could show there were “exceptional circumstances” that would justify a post-facto hearing.

Judge Philip Musonda, writing for a unanimous court, said that the Police Act put a strong emphasis on “consultation” and though it did not oblige a pre-deployment hearing, such an obligation “flows from common law and practice”.

The judge said that the Commissioner seemed not to have been aware of this obligation even though there was a legitimate expectation by the two officers that they would be given this opportunity.

In the view of the appeal court there were no exceptional circumstances that would have justified denying the right to be heard, and the post-decision hearing “after (the Commissioner’s) mind is coloured, cannot amount to a hearing."

It might have amounted to exceptional circumstances if the Commissioner had to deploy officers to “go and suppress an instantaneous breakdown of law and order or he had to react instantaneously in any part of the Kingdom dithering on the brink of disorder.” There might well be circumstances such as this that the court would validate as exceptional, and the judges were “mindful not to make (any) decision that will ill-serve effective policing of this country.”

But in this case, no such circumstances had been established, and the decision of the High Court, holding that no hearing was necessary, was struck out. Instead, the court ordered that the Commissioner’s decision to transfer the two officers “should be corrected and set aside”, with costs in their favour.

Carmel Rickard

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