High Court overturns Kamoli’s decision

As dismissed 2017 army recruit wins legal bout

 

RELEBOHILE TSOAMOTSE

MASERU – The High Court of Lesotho has cancelled and set aside former army boss, Lieutenant General (Lt Gen) Tlali Kamoli’s decision to discharge army recruit Retšelisitsoe Taioe from military training in 2017.

Taioe was enlisted as an army recruit and later dismissed following an incident during training where he experienced “a problem of mental illness or unusual behaviour” after which he was ordered to go home pending a discharge. The army recruit was on February 8, 2017, ejected from training, with the Lesotho Defence Force (LDF) command accusing him of failing to fully disclose facts pertaining to his health status when he was conscripted into the army.

The defence force argued it established that Taioe already had mental depression and was on continued medical consultation with the Mohlomi Psychiatric Hospital in Maseru and, as a result, resolved to discharge him. “On 26 August, 2016, you were medically examined. During the examination you did not disclose one of the material facts pertaining to your health condition. After your enlistment, your hidden health condition (mental/ depression) was triggered during recruitment training.

At the moment, you are regularly undergoing medical consultation at Mohlomi Hospital; actually it has been discovered that you have been a patient in (sic) referred hospital since 2014,” reads part of Taioe’s letter of discharge from the army. The letter further detailed that “on the basis of the stated facts, you are discharged from the defence force upon receipt of this letter.” After spending some time at home Taioe in 2018 sought legal recourse, approaching the High Court of Lesotho to “review, correct and set aside his dismissal.”

He also asked the court to order his reinstatement and that his salary be paid in full from the date of the purported discharge.

He argued that the then Commander LDF, Kamoli did not afford him a hearing before discharging him, that he was not given an opportunity to prepare his defense as on the day of his discharge the Commander summoned him to the LDF Legal Office having already decided to discharge him from the army.

LDF, on the other hand, argued that Taioe failed to disclose issues regarding his mental condition despite a clear obligation imposed in the invitation for recruitment that candidates for recruitment must be “physically and mentally fit.”

The defence force also said by calling Taioe to the legal office, it was affording him a hearing to react to the allegations against him and to show cause why he could not be ejected from training due to the mental illness which he had failed to disclose. Presiding judge, Justice Sakoane Sakoane on May 28 cancelled Taioe’s discharge and said he (Taioe) should continue to get his salary and other entitlements.

However, Justice Sakoane said the recruit should not be allowed to back into the army to undergo military training or perform any other military duties pending determination of his health status by the Ministry of Health. According to the judge, the Commander LDF is required by Section 24 of the Lesotho Defence Force Act of 1996 to seek direction from the health ministry’s Principal Secretary (PS) when there is an opinion that an officer is incapable of performing his duties because of illness. The PS shall then appoint a medical board to inquire into the officer’s physical or mental condition.

He adds the inquiry must report the findings to the Minister of Defence who may recommend the discharge of a soldier on medical grounds.

By not informing the health ministry of his opinion that Taioe was incapable of performing his duties due to his mental status, Judge Sakoane said, “the Commander LDF misconceived his powers and usurped the powers of the minister to discharge the applicant when he acted as he did by writing the so-called letter of discharge. On this ground alone, the Commander’s decision falls to be reviewed and set aside.”

The court said there was no evidence placed before it to the effect that the Kamoli’s opinion was submitted to the Ministry of Health’s PS as required by Section 24 of the LDF Act. The court also directed that in the event that the LDF or incumbent Commander holds an opinion about Taioe’s mental status, the matter must be reported to health PS for action.

“The 1st respondent (Commander Lesotho Defence Force) is directed to forward his report on the circumstances of the applicant’s physical and mental incapacities to the Principal Secretary of the Ministry of Health for action in terms of Section 24 of the Lesotho Defence Force Act No.6 of 1996.”

Taioe, on the other hand, has been directed not to interact with other members of the LDF and to be kept away from other soldiers, army duties and ammunition.

His reinstatement has, therefore, been granted on condition that he is not allowed to be physically present in the army barracks or to deliver military services.

“He must be treated as if he is a soldier on sick leave until the outcome of the proceedings of the medical inquiry by a medical board,” Justice Sakoane said.

Taioe has also been faulted for failing to disclose his mental status when applying for enlistment into the LDF as the court said he (Taioe) had a duty to disclose his status as an out-patient of a psychiatric hospital.

 

“It is clear from the invitation for the LDF recruitment form that the recruits into the defence force should be mentally and physically fit.

“That being the case, the applicant had a duty to make mention of his status as an outpatient of Mohlomi Hospital, which is a mental hospital; as an honest man, the applicant should not have waited for a resurgence of his mental condition before informing the commander about it during the training process. The Commander acted responsibly by taking action albeit without following Section 24 processes.”

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