Ex-soldier wins test case


gen tlali kamoliBy Nat Molomo

MASERU — A former soldier has been awarded M50 000 in damages against the Lesotho Defence Force (LDF) Commander and the Minister of Defence, Prime Minister Thomas Thabane.

In addition, the Registrar of the High Court has been ordered to send a copy of the judgment to LDF commander Lieutenant General Tlali Kamoli and Thabane, in confidential letters disclosing to them the full names and particulars of the applicant to facilitate its execution.

This is a landmark judgment as it concerns the rights of people living with HIV/Aids.

The applicant claimed that he was discharged from the army because when he became blind, it was suggested that this was due to the fact that he was HIV positive.

“In considering the stated violations of the constitutional rights of the applicant by the commander and the minister, the court found it befitting for him to be awarded constitutional damages,” the court states in its judgment.

“He is resultantly given M50 000 for the purpose.”

The court has again said the interest will be on the ordinary scale per annum and not at 18.5 percent rate, which had been applied for “without any justification for a departure from the current rate of interest”.

The judgment adds that the interest will operate from the day of delivery of judgment, which is October 10, 2013.

It being a constitutional case, the court said there was no order as to costs.

The award was made by Justices Semapo Peete and ’Maseforo Mahase, read and handed down by Acting Justice Molefi Makara.

Counsel Tumisang Mosotho appeared for the applicant and Advocate Lebakeng for respondents.

The award of damages by the High Court sitting as a constitutional court, is compensation to the applicant who sued respondents for violating his rights.

The applicant, who will not be named to protect his identity, claimed in court papers that although he was discharged from the army on medical grounds, he stated that the LDF commander and the minister of defence, violated his rights under section 18 and 19 of the Constitution of Lesotho 1993.

He stated that the decision of the respondents subjected him to “unfair discriminatory treatment in relation to others in a similar situation”.

He argued that decision was unconstitutional.

The court observed in its judgment that, acting on the strength of medical opinions, it had resolved that there is vital scientific medical deficiency in the report which constituted “the basis of the decisions of the commander and the minister”.

“Nevertheless, it also finds that they had reached their respective decisions in good faith,” the court noted in its judgment.

However, the judge said, the problem which remains attributable to them, is their failures to have observed the natural law principle of the right to be heard to the applicant “before exercising section 24 quasi judicial powers adversely to the applicant”.

“As has already been explained, the principle becomes an administrative quasi judicial decision to be accorded recognition in all deserving cases whenever a quasi judicial decision is to be considered against a person,” the judges said.

This, the court said, had resulted in the uncertainty regarding the correctness, the fairness, or otherwise concerning the decision reached by each of the two authorities.

“The first and second respondents had individually primarily undermined the applicant’s procedural right to have had the rule of the right to be heard (audi alteram partem) extended to him,” the court said.

“They should have done so prior to their decisions which were instrumental to the sudden termination of his employment in the army.”

The court stressed that this subsequently translated into a violation of his constitutionally based rights.

These are the rights to equal treatment and protection under the law and freedom from discrimination.

“The transgressions against these rights have resultantly impacted negatively on the right of the applicant to human dignity and incidentally to a humane treatment,” the court noted

The court noted again in its judgment that it has found it important to caution that sub-Saharan Africa bears 70 percent of the HIV infection in the world and it is self-explanatory that wise constructive strategies should be followed “within all the work related environments including the military”.

“There should be consistency in the adherence to the scientific based methods of recruitment and treatment of infected people without attaching to them baseless prejudices which emanates from ignorance,” the court warned.

It cautioned also, that those people should be humanely treated, be provided with medical interventions and accordingly rehabilitated into the normal life.

The judgment states that this is a practical challenge and the logical consequence would be that the region stands to lose a significant percentage of its “intellectual and manpower force which would be effective recipe for socio-economic disaster”.

The court however, declined to direct the army commander and the minister to reinstate the applicant with the appropriate salary adjustments from the time he was retired.

The court refused because of expected logistical and financial problems to be encountered in reinstating the applicant who was discharged from the force in 2008.

And this would be complicated more by the fact that the commander is a new incumbent and therefore some changes in the command structures and strategic plans are likely to have taken place since that time.



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