Masentle Mpobole & Ano. V The Principal Secretary- Ministry of Public Service, Labour and Employment & 2 Others. (CIV/APN/0193/2023) [2023] LSHC 256 (29 August 2023)

IN THE HIGH COURT OF LESOTHO CIV/APN/0193/2023 HELD AT MASERU In the matter between:- MASENTLE MPOBOLE MASETSEBI MACHELI V 1ST APPLICANT 2ND APPLICANT THE PRINCIPAL SECRETARY - MINISTRY OF PUBLIC SERVICE LABOUR AND EMPLOYMNET 1ST RESPONDENT THE PRINCIPAL SECRETARY – MINISTRY OF FINANCE AND DEVELOPMENT PLANNING 2ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT CORAM DATE OF HEARD : ; M. P. RALEBESE, J 14TH AUGUST 2023 DATE OF JUDGMENT : 29TH AUGUST 2023 SUMMARY Claim for declaratory orders and mandatory interdicts against the Government of Lesotho arising from a Circular that normalised and upgraded certain positions - Prescription in terms of section 6 of the Government Proceedings and Contracts Act No. 4 of 1965 raised by the Court mero motu – Prescription in section 6 not capable of being interrupted – The applicants claims first accrued on their dates of appointment as Deputy Budget Controllers – Their claims had prescribed. ANNOTATION CITED CASES: LESOTHO Putsoa v Attorney General (CIV/T 363 of 86) [1986] LSCA 154 (27 November 1986)) SOUTH AFRICA Zietman vs Zietman 1944 NPD at 389 STATUTES Government Proceedings and Contracts Act No.4 of 1965 Motor Vehicle Insurance Act No. 26 of 1989 Prescription Act No. 6 of 1861 JUDGMENT Ralebese, J Introduction [1] The applicants are both the Government of Lesotho employees in the Ministry of Finance and Development Planning and they occupy the positions of Deputy Budget Controllers. The 1st applicant was appointed to that position on 11th February 2014 while the 2nd applicant was appointed on 11th December 2019. They jointly instituted this unopposed application in terms of which they sought the following prayers:- (a) A declarator that their exclusion from the process of normalisation and upgrading of their positions done pursuant to Circular Notice No.7 of 2013 issued by the 1st respondent is discriminatory and unlawful. (b) A declarator that the applicants are entitled to their positions being included, normalised and upgraded in accordance with the revised salary gradings in the annex to the First Respondent’s Circular Notice No.7 of 2013. (c) An order directing the respondents to pay the applicants’ salaries, benefits and or allowances in accordance with the revised salary gradings with effect from their dates of appointment being 11th February 2014 and 11th December 2019 respectively. (d) An order directing the respondents to put into operation budgetary machinery for implantation of prayers (a) and (b) above. (e) An order that the respondents should pay the costs in the event of unsuccessfully opposing the application. [2] The circular on which the applicants premised their case was annexed to the founding affidavit of the 1st applicant as MM1. This is the circular of the Principal Secretary in the Ministry of the Public Service dated 13th March 2013 entitled ‘Normalisation of Grading for positions from Manager to Government Secretary Levels’. The nub of the applicants’ case is that in terms of MM1 the position of the Budget Controller was upgraded from salary Grade K to Grade L but the positions of the Deputy Budget Controllers which they are occupying, were not upgraded from Grade J to Grade K. It is their submission that in all other Government Ministries, Departments and Agencies, the heads thereof were upgraded from Grade K to Grade L pursuant to MM1. They submit that in as much as MM1 was meant to affect positions whereby the incumbents were at head of department level or deputised the head of department, their positions as Deputy Budged Controllers ought to have been affected by MM1 and ought to have been upgraded to Grade K as they deputize the Budget Controller whom they argue is the head of the department. [3] The applicants indicated that they took up the matter with all the relevant people in authority whom they did not mention and at the times they did not mention, all in vain. They say the Budget Controller, through the letter dated 23rd September 2022 (annexure MM2 to the 1st applicant’s founding affidavit) also intervened and raised the issue with the Principal Secretary in the Ministry of Finance and Development Planning She again wrote a letter of reminder on 25th October 2022 when she did not get a response. The indicate that it was only on 27th January 2023 that the Budget Controller received a response from the Principal Secretary - Public Service which advised her to channel her request through the Principal Secretary Ministry of Finance and Development Planning, something that they had already done. It was following that response that the applicants decided to institute this application which was filed on 12th July 2023. [4] On the hearing of this matter, the court mero motu raised the issue of prescription in terms of section 6 of the Government Proceedings and Contracts Act1 with Advocate Shale who represented the applicants. The issue was whether the applicants’ case had not prescribed and whether it ought not to have been filed within a period of two years from the date on which the cause of action accrued. Advocate Shale submitted that the matter had not prescribed in as much as the prescription period was interrupted by the communication between the applicants and the respondents about the subject matter, which communication was only concluded on 27th January 2023. He thus contended that the cause of action arose on 27th January 2023 when the applicants were given an unfavourable response by the respondents. He 1 Government Proceedings and Contracts Act No.4 of 1965 however conceded that should the court find that the period of prescription was not interrupted by the said communication, then the matter would have become prescribed in terms of section 6 of the Government Proceedings and Contracts Act (the Act). [5] It is my view that the issue of prescription should be dealt with in limine as it has the potential of being dispositive of this matter without the need to go into its merits. Section 6 of the Act provides that Subject to the provisions of Sections 6,7,8,9,10,11, 12 and 13 of the Prescription Act2, no action or other proceedings shall be capable of being brought against the Government of Lesotho by virtue of the provisions of section 2 of the Act after the expiration of the period of two years from the time when the cause of action first accrued. The referenced section 2 is to the following effect:- “Any claim against the Government, which would if that claim had arisen against a subject, be the ground of an action or other proceedings in any competent Court, shall be cognisable by any such Court, whether the claim arises out of any contract lawfully entered into on behalf of the Crown or out of any wrong committed by any servant of the Crown acting in his capacity and within the scope of his authority as such servant: Provided that nothing in this Section contained shall be construed as affecting the provisions of any law which limits the liability of the Crown… in respect of any act or omission of its servants, or which prescribes specified periods within which a claim shall be made in respect of any such liability….” [6] The starting point to consider if the applicants’ case has prescribed is to determine whether their case qualifies as the ‘action or other proceedings’ as 2 Prescription Act No. 6 of 1861 anticipated in section 6 of the Act. In terms of this provision, an action or proceedings to which the prescriptive period of two years applies are those that have been brought against the Government of Lesotho in terms of Section 2 of the Act. This latter provision is to the effect that a claim that is cognisable in any court against the Government of Lesotho is the one that arises out of any contract lawfully entered on behalf of the Government of Lesotho or out of any wrong committed by any public officer while acting within the scope of authority as a public officer. [7] The critical question is whether the declarators and mandatory interdicts sought by the applicants are ‘claims’ that are ‘cognisable’ within the context of section 2. The word ‘claim’ has been defined as “…a set of operative facts creating a right enforceable in court. The term claim is generally synonymous with the phrase cause of action…”3 It has also been defined as “The formal assertion of a cause of action by one person … against another....”4. What is deducible from these definitions is that a word ‘claim’ covers a wide spectrum of enforceable causes of action. It follows therefore that a word ‘claim’ as used in section 2 of the Act incorporates even the application for declaratory orders and mandatory interdicts as sought by the applicants. This however is not the end of the inquiry. The next step is to determine whether the applicants’ claims fit within the context of ‘cognisable’ claims against the Government of Lesotho in terms of section 2 of the Act. 3 https://www.law.cornell.edu/wex/claim 4 https://www.lexisnexis.co.uk/legal/glossary/claim [8] In terms of this provision, a cognisable claim is the one that arises out of any contract lawfully entered into on behalf of the Government of Lesotho or out of any wrong committed by any public officer acting in the capacity and within the scope and authority as a public officer. The gist of the applicants’ complaint and therefore the subject matter of their claim as construed from the declarators and mandatory interdicts that they have sought is that their positions as Deputy Budget Controllers, have been placed at a wrong salary grade. The salary grades are indisputably matters contained in the contracts of employment. By implication therefore, the applicants’ claims which challenge the salary grading of their positions arose out of their contracts of employment as Deputy Budget Controllers, and they therefore qualify as cognisable claims in terms of section 2 of the Act. This is more so considering that in terms of section 9 of the Act, contracts of employment are expressly stated as the category of contracts to which the Act applies. [9] It follows from the foregoing analysis that the applicants’ claims ought to have been instituted within two years from the times when their respective causes of action first accrued. It is my considered view that the causes of action in the instant case, being the alleged wrongful placement of the applicants at salary Grade J as opposed to Grade K, arose on the respective dates when they were appointed as Deputy Budget Controllers. Prior to their appointments, the applicants could not have had the substantial interest and the locus standi to complain about the salary grade at which the positions of the Deputy Budget Controller had been placed pursuant to the MM1. The two-year prescriptive periods therefore started running from 11th February 2014 to 11th February 2016 in respect of the 1st applicant and from 11th December 2019 to 11th December 2019 in respect of the 2nd applicant, the former dates being the dates on which they were respectively appointed. This conclusion is premised on the understanding that the applicants reasonably become aware of the grading anomaly pertaining to the positions of Deputy Budget Controllers and they thus began having substantial interest therein only upon or immediately following their appointments to such positions and not any time prior to that (Zietman vs Zietman5). [10] Advocate Shale submitted on behalf of the applicants that the prescription periods in their cases were interrupted by the communication which the applicants initiated with the respondents that was meant to resolve the issue amicably. The question is whether the prescriptive period under section 6 of the Government Proceedings and Contracts Act is capable of being interrupted by an internal communication where such communication has been proven. It has long been settled in this jurisdiction that if the intention of the Legislature was to make the prescriptive period in section 6 capable of being interrupted by any communication between the parties involved, it could have, in its wisdom, expressly included a provision to that effect in the Act as it has done in other Acts such as the Motor Vehicle Insurance Act6. Section 10(1) read with section 12(2) of the Motor Vehicle Insurance Act provides that a claim for compensation from the insurer shall become prescribed upon expiry of two years from the date upon which the claim arose, provided that prescription shall be suspended during the period of sixty days from the date on which the claim was delivered to the insurer (Putsoa v Attorney General7). The 5 Zietman vs Zietman 1944 NPD at 389 6 Motor Vehicle Insurance Act No. 26 of 1989 7 Putsoa v Attorney General (CIV/T 363 of 86) [1986] LSCA 154 (27 November 1986) prescriptive period under section 6 of the Act is therefore mandatory and it is not meant to be interrupted by any form of communication between the claimant and the Government of Lesotho. [11] Even if the prescription period under section 6 of the Act was capable of being interrupted by a communication regarding the complaint with the respondents, the applicants’ case was still bound to fail as it does not come out clearly from their founding papers when the alleged communication with the respondents commenced. All that the applicants say in paragraph 9.1 of the founding affidavit of the 1st applicant (as endorsed by the 2nd applicant) is that they ‘took up the matter with all relevant people in authority but all in vain’ and they do not mention any timelines. Without proof of the timelines when the alleged interruption occurred, the court would still not be able to find for the applicants. The letter of the Budget controller dated 23rd September 2022 could not also assist the applicants’ case as it came long after the two-year prescriptive periods had lapsed in respect of both the applicants, and it could have reasonably interrupted an expired prescriptive period. Disposal [12] The applicants’ claims are cognisable claims against the Government of Lesotho as they arose out of their respective employment contracts as anticipated in section 2 of the Act. In terms of section 6 of the Act, the applicants ought to have brought the claims within the period of two years from their respective dates of appointment as Deputy Budget Controllers, as those dates represent the times when their respective causes of action first accrued. On 12th July 2023 when this application was instituted, the applicants’ claims had prescribed as they were brought long after the expiry of the two-year periods since their respective causes of action first accrued. The 1st applicant’s cause of action arose on 11th February 2014 and prescribed on 11th February 2016 and the 2nd applicant’s cause of action arose on 11th December 2019 and prescribed on 11th December 2021. [13] The application is therefore dismissed with costs. _____________________ Ralebese J. Judge For the applicant: Advocate Shale For the respondents: No appearance 11