Police Constable Duma V Commissioner of Police & 2 Others (C of A (CIV) No.25/2025) [2025] LSCA 56 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) No. 25/2025 CIV/APN/321/2022 In the matter between POLICE CONSTABLE DUMA APPELLANT and COMMISSIONER OF POLICE 1ST RESPONDENT HUMAN RESOURCE OFFICE 2ND RESPONDENT ATTORNEY GENERAL 3RD RESPONDENT CORAM: MUSONDA AJA VAN DER WESTHUIZEN AJA MATHABA AJA HEARD: DELIVERED: 07 NOVEMBER 2025 10 OCTOBER 2025 FLYNOTE Administrative Law — Employment in disciplined forces — Lesotho Mounted Police Service — Dismissal under section 31(1)(i) of the Police Service Act 1998 — Whether written representations satisfy the requirement of a fair hearing — Commissioner’s discretion to invoke section 31 rather than the full disciplinary process under Part V — Oral hearing not mandatory where written representations suffice — Judicial review of administrative discretion — Scope of appellate interference with discretionary decisions. Held: Section 31(1)(i) of the Police Service Act lawfully empowers the Commissioner of Police to dismiss an officer who subverts good order or brings the Service into disrepute after allowing the officer to make written representations. A fair hearing does not invariably entail an oral hearing; its form depends on the circumstances of each case. Given the video evidence, contemporaneous reports and the appellant’s identification, the Commissioner acted reasonably in invoking section 31 rather than convening a full oral inquiry under Part V. The High Court correctly held that written representations satisfied the requirements of procedural fairness. Appeal dismissed with costs. JUDGMENT MATHABA AJA Introduction [1] The appeal arises from the dismissal of the appellant by the first respondent, the Commissioner of Police, and raises the question whether the High Court (Khabo J) was correct to dismiss the appellant’s review application on the basis that written representations the appellant was asked to make before his dismissal sufficed for a fair hearing. Factual background [2] The appellant was a police officer at the Lesotho Mounted Police Service, (LMPS), stationed at Butha- Buthe Police Station at the time of his dismissal. From 11 to 15 July 2022 the appellant and some of his colleagues were assigned to carry out road traffic checkpoints between Ha Rampai and Community area on the Main North 1 Road. [3] Approximately at 09h30 on 13 July 2022, Mr Burks Kriel arrived at a police checkpoint at Community area. A police officer demanded bribe of M200.00 from him, failing which he was to be kept at the checkpoint until 12h00 when he would be taken to court. Desperate to get to Fourisburg in time to buy food for children that were accompanying him, especially his four months old grandchild, Mr Kriel succumbed to the pressure and paid the bribe of M150.00 despite his initial resistance. [4] Unbeknown to the police officer, Mr Kriel’s children who had stopped their vehicle immediately behind their father’s, shot a video and took pictures of the incident. The video circulated on social media platforms and received the attention of the Lesotho Tourism Development Corporation which issued a public statement on 15 July 2022 condemning the incident considering its adverse consequences on the tourism industry. [5] The Officer in Charge of Butha-Buthe Police Station, Superintendent Mohloboli, also became aware of the video on 15 July 2022 and immediately brought it to the attention of the District Commissioner of Police, (DISPOL). Superintendent Mohloboli filed a report on 22 July 2022 explaining that having identified the appellant on the video as the culprit, he proceeded to Community whereupon he asked the officers he found at the checkpoint to bring back the money they took from the tourist. After showing the officers the video, they asked the appellant to bring back the money. The appellant explained that the incident took place on 13 July 2022 at the same place and not on 15 July 2022. However, the officers did not provide the money. The Superintended provided feedback to DISPOL. [6] On 22 July 2022 the Commissioner of Police asked the appellant to make representations why he may not invoke the provisions of section 31(1)(i) of the Lesotho Mounted Police Service Act No.7 of 1998, (the Act), it being alleged that the appellant subverted good order, discipline and lawful authority of LMPS. The appellant made representations the nub of which was to deny that he admitted to the Superintendent that he took bribe and questioned the reliability of the video and the pictures. Additionally, the appellant requested oral hearing which would afford him an opportunity to dispute his identification and cross- examine officers who identified him on the video. [7] Following the exchange of letters between the Commissioner, through Human Resources Officer of LMPS, and the appellant, on 30 September 2022 the Commissioner, still through the officer of Human Resources wrote a letter dismissing the appellant in terms of section 31(1)(i) of the Act. [8] Dissatisfied with his dismissal, on 10 October 2022 the appellant filed an urgent application at the High Court in terms of which he sought an order staying his dismissal and maintaining status quo ante pending the determination of his application; reviewing, correcting and setting aside the decision of the respondents to dismiss him from LMPS; and for his reinstatement to his post. [9] On 13 October 2022 Mahase J granted the appellant a Rule Nisi which entailed an order amongst others staying the dismissal of the appellant. The police had a challenge complying with an order for stay since the appellant had already been dismissed. This resulted into contempt proceedings which are of no moment in the determination of this appeal. The review application was eventually heard by Khabo J on 17 April 2024 who on 14 March 2025 delivered judgement dismissing the application. [10] The appellant impugned the process that culminated into his dismissal contending that it was irregular since the respondents denied him oral hearing under Part V of the Police Service Act of 1998 as he was just asked to make written representations under section 31(1)(i) of the Act. As foreshadowed in paragraph 1 of this judgment, the learned Judge held that the section 31(1)(i) procedure afforded the applicant a fair hearing and dismissed the application. [11] Undeterred and discontented with the High Court judgment, on 23 April 2025 the appellant noted an appeal in this Court on the following seven grounds which are quoted in extenso below: “[1] The Court a quo erred in mischaracterizing the broader schematization of sections 31(2) and 32 of Police Service Act No.7 of 1998 in relation to the functions of the Commissioner of Police of acting in good faith and taking all reasonable steps to avoid a conflict of interest. [2] The Court a quo erred in not pronouncing itself on the failure of the Commissioner of Police to offer Appellant a chance to be orally heard before termination of his service for purposes legal consequences of the of substantive legitimate expectation. fulfilling [3] The Court a quo erred in agreeing with the crown that it is proper to terminate the appointment of Appellant in the Police Service without recourse to an enabling statutory provision of section 32(1)(a) of the Police Service Act No.7 of 1998 read with regulation (3)1(c) of the Lesotho Mounted Police Service (Administration) Regulations of 2003. (4) The Court a quo erred and misdirected itself in making a finding of fact that section 31(1)(i) of the Police Service Act, 1998 does not envisage a hearing in the sense of an oral hearing and an opportunity to cross-examine witnesses, particularly whether there are preferable alternatives to resolve the concerns about the place where the incident is alleged to have taken place. (5) The Court a quo erred in downplaying the fact that the accusation that Appellant faced required him and owner of the video to make oral representations and be cross-examined to acquit himself of the accusations particularly in the context where it can reasonably be confirmed that the issue of location where bribery was allegedly paid had to be explained for the benefit of decision-making. (6) view In supposedly made representations of the colleagues of Appellant, the of the judge a quo erred in portraying a degree of unwillingness that Ha Rampai and community are two district (sic) places quite apart from each other though in the district of Botha- Bothe. (7) The court a quo erred in shrinking its statutory duty of making a decision on the location at which the bribery was paid and taken which was a critical issue for identifying the category of the discretion it exercised to dismiss the application.” [12] During argument Mr Lephuthing for the appellants abandoned the second and the seventh grounds. Though he persisted with the remaining grounds of appeal, in my respectful view, most of them are odd and not predicated on the Court a quo’s factual or legal findings. Therefore, commenting on these grounds of appeal must take a priority. A good starting point is a consideration of rule 4 (4) of the Court of Appeal Rules of 20061 given my view about the grounds of appeal. The rule is couched as follows: “4. Notice of appeal (4) The notice of appeal shall— (a) state whether the whole or part of the judgment or order is appealed against. If a part only of the judgement or order is being appealed against, the notice of appeal shall state which part; and (b) set forth concisely and clearly the grounds of objection to the judgment or order and such grounds shall set forth in separate numbered 1 Court of Appeal Rules, 2006, Legal Notice No. 182 of 2006. paragraphs the findings of fact and conclusions of law to which the appellant objects and shall also state the particular respects in which the variation of the judgment or order is sought.” [13] I could not help but observe that the notice of appeal does not indicate if the whole or part of the judgment is appealed against. This offends sub-rule 4(a) above. More significantly, sub- rule (4)(b) can be split in three parts. First, it requires the grounds of appeal to be concise and clear. Second, the same grounds of appeal must clarify findings of fact or law appealed against. Third, the notice of appeal must state the particulars in respect of which the variation of judgment or order is sought. [14] Most of the grounds in this appeal are not intelligible and spectacularly fail the test of precision and concision. The real issue for determination is not readily identifiable from the grounds of appeal and one has to sift through them in a search of a valid ground. Some of them exhibit a considerable confusion of thought. I now turn to deal with the grounds of appeal in seriatim excluding those that had been abandoned. [15] The first ground of appeal is meritless and not connected to the case the appellant had placed before the Court a quo. Neither is it clear how the Court a quo “mischaracterized the broader schematization of sections 31(2) and 32” of the Act in relation to the functions of the Commissioner of Police to acting in good faith and taking all reasonable steps to avoid conflict of interest. [16] Section 31(2) demands that the Police Authority be consulted before the Commissioner exercises his powers under section 31(1) where the police officer concerned is to be dismissed under section 31(1)(i) or is a senior officer. There is cogent documentary evidence filed of record that the Police Authority being the Minister in terms of the Act, was consulted before the appellant was dismissed. What compounds the criticism of this ground of appeal is reference to section 32 of the Act which is of no moment to the dispute. It reads as follows: “Saving of pension rights 32. Unless the Police Authority otherwise directs, nothing in section 31 shall affect any right a police officer may have to payment of a pension or gratuity.” [17] The manifest purpose of section 32 is to ensure that officers that are dismissed under section 31 do not forfeit or lose their terminal benefits. Reliance on this section on appeal by the appellant is out of place given that it is disconnected to the appellant’s complaint of procedural impropriety relating to his dismissal. [18] Likewise, the third ground is far removed from the appellant’s case. It does not arise from a finding of fact or of law the Court a quo made. The Court a quo did not agree with the Crown in the manner suggested in this ground regarding section 32(1)(a) of the Act and 3(1)(c) of the Lesotho Mounted Police Service (Administration) Regulations of 2003. It could not have done so for two obvious reasons. First, the appellant’s case was not predicated on these provisions. Second, the Act does not contain section 32(1)(a) while regulation 3(1)(c) makes provision for one of the requirements for appointment in the Police Service. It reads as follows: “Appointment 3. (1) A candidate for appointment to the Police Service shall- (a) … (c) produce satisfactory references as to character and if he or she has served in the public service or a disciplined service, proof of his or her good conduct while serving;…” [19] Again, the fourth ground suffers the same fate. First, it is a misnomer to say that the Court a quo made a “finding of fact” that section 31(1)(i) of the Act does not envisage oral hearing. If such a determination was made, such would have been a legal determination or a finding of law and not of fact. Second, nowhere in its judgment does the Court a quo make a legal determination that section 31(1)(i) excludes oral hearing as suggested in this ground. [20] The Court a quo concluded that the appellant was afforded an opportunity to present his case in writing and did not discern any unreasonableness on the side of the Commissioner. It did not necessarily make a legal determination that section 31(1)(i) excludes oral hearing. [21] Besides, the suggestion in this ground that “there were alternatives to resolve the concern about the place where the incident is alleged to have taken place” is devoid of logic and incredibly amazing. There was no contestation regarding the place where the incident took place. The appellant was decidedly told by the Human Resources Officer in his letter of 10 August 2022 that the incident happened at Community area and the appellant never put this in issue subsequently. [22] My views regarding the fourth ground apply with equal force to the fifth and the sixth grounds to the extent that it is suggested therein that the location where the incident happened was in dispute and therefore the learned Judge erred in “downplaying” the need for oral evidence to resolve the issue. Worse still, the sixth ground is so vaguely formulated as to be of little or no assistance in determining the appellant’s dissatisfaction about the judgment of the Court a quo. [23] When all is said and done, on a very liberal reading of the grounds, especially the fourth to the sixth, and considering Mr Lephuthing’s submissions, it would seem, as if it were the appellant’s contention that the Court a quo erred in not finding that he should have been afforded oral hearing instead of being given an opportunity to make written representations. The issue for determination [24] Therefore, the issue for determination in this appeal is whether the Court a quo erred in arriving at a conclusion that written representations the appellant was asked to make before his dismissal met the requirements of a fair hearing. Discussions [25] In considering the issue before this Court, it is imperative to appreciate the contention advanced by the appellant in challenging the High Court decision. His Counsel submitted that given the appellants’ defence and his desire to tender evidence and cross-examine the officers who identified him on the video, written representations he was asked to make under section 31 did not afford him a fair hearing. He contended that he should have been afforded a full-scale oral hearing under Part V of the Act. [26] Conversely, the respondents countered that written representations are provided for under section 31 and were sufficient to meet the requirements of a fair hearing. Further that the decision to decide which provision to invoke resides with the Commissioner and not the appellant. [27] In considering this appeal, what must however, not be lost sight of is that the appellant approached the Court a quo for a review, which is a discretionary remedy. In Tjospomie Boerdery (Pty) Ltd v. Drakensberg Botteliers (Pty) Ltd2 Stegman J had this to say on the approach to be followed when the exercise of 2 Tjospomie Boerdery (Pty) Ltd v. Drakensberg Botteliers (Pty) Ltd 1989(4) SA 31(T) at 36C – H. discretionary power by the court of first instance is taken on appeal: “There are at least two categories to one or other of which the discretionary powers exercised by the courts of first instance may be assigned. The first of such categories relates to matters having the character of being so essentially (sic) for determination by a court of first instance that it would ordinarily be inappropriate for a Court of Appeal to substitute its own discretionary power for the exercise thereof decided on by the court of first instance. The first matters identified as falling within this category were those discretionary powers that related to a judge’s control of the conduct of the business in his own court. Later the first category was broadened to include certain other discretionary powers. The second category relates to matters having the character of being equally appropriately determinable by the court of first instance and the court of appeal. When a particular discretionary power has been found to be of the character which places it in the first category, the court of appeal has no jurisdiction to substitute its own exercise of discretionary power for that decided upon at first instance unless it has been made to appear that the exercise of the power at first instance was not judicial. That can be done by showing that the court of first instance exercised the power capriciously or upon a wrong principle or with bias or without substantial reasons. When a particular discretionary power has been found to be of the character which places it in the second category, the court of appeal has jurisdiction to substitute its own exercise of discretion for that decided upon at first instance without first having to find that the court of first instance did not act judicially. Sufficient reasons for the court of appeal to do so must be shown, but the reason need not reflect on the judiciality of the decision at first instance. The court of appeal may interfere on the simple basis that it considers its own exercise of discretionary power circumstances.” to be wiser or more appropriate in the [28] As Chinhengo AJA pointed out in Commissioner of Police and Another v. Moliehi Dlamini & 11 Others3, it is not enough that the appellate court considers that it would have arrived at a different decision if it had been in the position of the court of first instance. The appellate court my exercise its own discretion in substitution provided it has the material to do so if the court of first instance has committed some error in exercising its discretion. The error may arise from the court of first instance acting upon a wrong principle or allowing extraneous or irrelevant matters to guide or affect it or mistakes the facts or does not take into account relevant considerations. [29] Coming to this appeal, in my view, the exercise of discretionary power by the Court a quo falls in the second category referred to in Tjospomie (supra) because the issue is equally determinable by this Court. The issue that gave rise to the litigation was that the appellant was not afforded oral hearing but was asked only to make written representations. [30] Section 31 of the Act is couched in the following terms: “Power of the Commissioner to remove officers 31.(1) Notwithstanding the provisions of Part V, the Commissioner may, at any time, after giving the police officer concerned an opportunity to make representations: 3 Commissioner of Police and Another v. Moliehi Dlamini & 11 Others (C of A (CIV) 32/2022) [2022] LSCA 48 (11 November 2022). (i) dismiss an officer who subverts good order, discipline or lawful authority and tends to bring the Police Service into disrepute.” [31] Part V of the Act makes provision for full-scale oral hearing for specified acts of misconduct before an independent panel. That said, it is patently clear that for the prescribed incidents entitling the Commissioner to invoke section 31 of the Act, he is not under the obligation to afford police officers oral hearing provided for in Part V. These are two distinct provisions and processes. [32] It is not the appellant’s contention that soliciting bribe by police officers does not subvert good order, discipline or lawful authority and tends to bring the Police Service into disrepute. His complaint is solely about legality of the procedure followed which did not afford him oral hearing. There is no doubt that the procedure followed by the Commissioner is provided for in section 31 of the Act. [33] There is a catena of judgments of this Court and judgments of other jurisdictions to the effect that a fair hearing does not necessarily depend on a dogmatic approach of oral hearing. This view was expressed by Lord Taylor in R v. Army Board of Defence Council ex P. Anderson4 in the following terms: “2. The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute 4 R v. Army Board of Defence Council ex P. Anderson [1991] 3 AII ER 375 (QB) AT 387b-g. are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing: see Local Government Board v Arlidge [1915] AC 120 at 132-133, [1914- 15] All ER Rep 1 at 7, Selvarajan v Race Relations Board [1976] 1 All ER 12 at 19, [1975] I WLR 1686 at 1694 and R v Immigration Appeal Tribunal, ex p Jones [1985] 2 All ER 65 at 68, [1988] I WLR 477 at 481. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence. This does not mean that, wherever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined.” [34] The above view was aptly echoed by this Court in Matebesi v. Director of Immigrations and Others5 in the following terms: (7) The right to audi is however infinitely flexible. It may be expressly or impliedly ousted by statute, or greatly reduced in its operation (Blom, supra at 662H-I and Baxter Administrative Law (1984) 569-570). (Thus in appropriate instances fairness may require 5 Matebesi v. Director of Immigrations and Others LAC (1995 – 1999) 616 at 625 to 626. only the submission and consideration of written representations; the right to be heard is not necessarily to be equated with an entitlement to judicial-type proceedings, with their full attributes)…” [35] It bears emphasis that the nature and the form of the hearing may vary from one case to another. There is no standard or rigid hearing. Thus, the form that a hearing must take is determined by specific facts or circumstances of each case. Lord Mustill in Regina v. Secretary of State for the Home Department, Ex parte Doody6 sets out the basic principles which have led to a significant extension of the principles of natural justice in this way: “(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in is every situation. What dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is fairness demands 6 Regina v. Secretary of State for the Home Department, Ex parte Doody [1994]1 AC 531 at 560. taken, with a view to producing its modification, or both.” [36] Reverting to the question whether the Court a quo exercised its discretion properly in the circumstances of the matter before it, I think it did. The issue that gave rise to this litigation was the Commissioner’s decision to invoke section 31 and not Part V of the Act in dismissing the appellant. [37] Applying the legal principles enunciated in the above- mentioned judgments to the facts of this case, it is apparent that the Court a quo properly applied its mind on whether written representations in the context of the appellant’s case sufficiently met the requirements of a fair hearing. There is no basis for this Court to interfere with the decision of the Court a quo in this regard. [38] It bears repeating that there was no question that the incident took place or that the conduct complained of did not meet jurisdictional facts under section 31(1)(i). Even the appellant saw the video and a police officer soliciting and accepting bribe. As I have stated elsewhere in this judgment, the grounds of appeal erroneously suggest that the location where the incident took place was in issue. At any event, the location where the incident happened is not central to the determination of the dispute. The fact that the incident happened at a particular place would not make it less of a serious misconduct. [39] A closer examination of the facts reveals that the sole issue before the Commissioner related to the identification of the appellant. This is the issue on which the appellant wanted to lead evidence and cross-examine the officers who implicated him. The incident happened at Community area where the appellant and his colleagues were mounting a checkpoint. The answer to the contention that the appellant was not afforded an opportunity to lead evidence or cross-examine officers that implicated him lies in P. Anderson (supra). [40] At the time he took the decision to dismiss the appellant, the Commissioner had in his possession the report from the Superintendent which had been availed to the appellant. There is one noticeable fact emerging from the report. It is that on 15 July 2022 when the Superintendent confronted the appellant and his colleagues with a video and asked them to return the money, the appellants’ colleagues turned to him and asked him to return the money after which the appellant explained that the incident took place on 13 July 2022 and not on 15 July 2022. [41] Though the appellant denied that he admitted receiving bribe to the Superintendent, he admits that the latter went to them at Community area and showed them the video. He says that his colleagues and him told the Superintendent that they did not know the person who took the bribe. He did not in his representations directly deny that when his colleagues saw the video, they turned to him and asked him to return the money and that he told them that the incident took place on 13 July 2022 and not on 15 July 2022. [42] In my respectful view, the Court a quo properly answered the question whether the Commissioner’s decision to dismiss the appellant should be reviewed and set aside. The decision could not be set aside simply on the basis that the Commissioner invoked section 31 procedure instead of affording the appellant oral hearing in terms of Part V of the Act. The procedure is legally permissible. [43] Given the video, the pictures as well as written reports that were before him, the Commissioner clearly preferred the version of the officers that identified the appellant, and it cannot be said that he acted irrationally in invoking section 31. The Commissioner had the authority to decide which procedure to follow. He was admittedly confronted with a situation that required a swift action in order to restore public trust in the Police Service. The choice the Commissioner took falls within the range of reasonable alternatives and cannot lightly be interfered with. Disposition [44] It is beyond disputation that a police officer demanded and received bribe at Community area on 13 July 2022 at a police checkpoint. The appellant and his colleagues were at the checkpoint at the time of the incident. The incident was captured in a video as well as photographs. [45] The appellant was identified as the culprit and given an opportunity to make representations why the Commissioner may not invoke section 31(1)(i) and dismiss him. Given facts that were in possession of the Commissioner, this Court cannot fault him for having exercised his discretion to invoke section 31 instead of Part V of the Act. The Commissioner was not obliged to afford the appellant oral hearing and the Court a quo properly found that written representations in the circumstances of the appellant’s case met the requirements of a fair procedure. [46] The appeal should therefore fail. In relation to costs, I do not see why they should not follow the event. Order [47] In the circumstances it is ordered that- 1. The appeal is dismissed with costs. __________________________ A. R MATHABA ACTING JUSTICE OF APPEAL ____________________________ P. MUSONDA ACTING JUSTICE OF APPEAL I agree I agree _____________________________ J. VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR APPELLANT: ADV C. LEPHUTHING FOR RESPONDENTS: ADV PTBN THAKALEKOALA