Minister of Local Government and Chieftainship & Ano. V Mataeli Makhele-Sekhantso (C of A (CIV) No 23/2024) [2024] LSCA 21 (1 November 2024)

LESOTHO

IN THE COURT OF APPEAL OF LESOTHO

 

HELD AT MASERU                          C OF A (CIV) NO. 23/2024

                                                                CIV/APN/0278/2022

In the matter between:

 

MINISTER OF LOCAL GOVERNMENT

AND CHIEFTAINSHIP                                        1^ST APPELLANT

ATTORNEY GENERAL                                       2^ND APPELLANT                                                                  

 

AND

 

MATAELI MAKHELE–SEKHANTSO                   RESPONDENT

 

CORAM:           MOSITO P

                         SAKOANE CJ

                         DAMASEB, AJA

 

HEARD:            10 OCTOBER 2024

DELIVERED:    1 NOVEMBER 2024

 

 

 

 

SUMMARY

Majority Decision:

 

Administrative law – Interpretation of Appointment Powers - Land Administration Authority Act – Interpretation of Appointment Powers - Interpretation of the Land Administration Authority Act: The appeal considered the interpretation of sections 18 and 20 of the Land Administration Authority Act 2010, specifically regarding the appointment and renewal powers of the Board of the Land Administration Authority (LAA) versus the Minister’s approval role. The Court of Appeal held that, under section 18(2), the Board’s appointment or renewal of a Director General (DG) is subject to the approval of the Minister of Land Affairs, rendering any appointment without such approval invalid.

 

Ministerial Approval as Dominant Authority – The Court determined that the phrase “subject to” indicated the Minister’s authority as dominant, thus limiting the Board's power to appoint. The Minister’s approval is a condition precedent for a valid appointment or renewal, making the Board’s recommendation insufficient on its own to establish a binding appointment.

 

Collateral Challenge by the Minister –The Minister’s challenge to the legality of the Board’s decision to renew the respondent’s contract, without ministerial approval, was upheld. The Court found that the Board had overstepped its authority by unilaterally attempting to renew the contract, and that any legitimate expectation by the respondent for renewal was contingent upon ministerial approval.

Legitimate Expectation and Procedural Fairness - The majority rejected the respondent’s claim of legitimate expectation to renewal based on her performance and the Board’s recommendation, stating that ministerial approval was a statutory requirement, thus nullifying any legitimate expectation absent this approval.

 

Disposition – The majority allowed the appeal, setting aside the High Court’s decision in favour of the respondent. It ruled that the Minister’s refusal to approve the Board’s renewal of the DG’s contract was lawful and binding. The respondent’s contract renewal was invalid, and she was not entitled to continue as DG without ministerial approval.

 

Minority (Dissenting) Decision:

 

Administrative law – Interpretation of Appointment Powers - Land Administration Authority Act – Interpretation of Appointment Powers - Principles of Good Governance and Administrative Fairness: The minority opinion, delivered by Mosito P, disagreed with the majority’s strict interpretation of sections 18 and 20 of the Act. Mosito P argued that the Minister’s discretion under section 18(2) should be exercised within the principles of good governance, transparency, and fairness rather than as an absolute veto over the Board’s appointment power.

 

Legitimate Expectation and Procedural Rights: Mosito P contended that the respondent had a legitimate expectation of renewal based on her satisfactory performance and the Board’s recommendation. The Minister’s refusal to approve the renewal without substantive reasons or an opportunity for the respondent to be heard was found to be procedurally unfair and inconsistent with principles of administrative justice.

 

Role of the Minister as a Collaborative Authority: According to the minority view, the Minister’s role under the Act was intended to ensure alignment with governmental policies rather than to unilaterally override the Board’s decisions. The Board, as the primary body overseeing the LAA’s performance, was better positioned to assess the DG’s performance. Thus, ministerial approval should have been exercised with due regard to the Board’s recommendation.

 

Judicial Review of Executive Decisions: Mosito P argued that the court can intervene where executive decisions lack rationality and fairness. He supported the High Court’s decision to set aside the Minister’s refusal and upheld the Board’s recommendation for renewal as consistent with the principles of justice and fairness.

 

Disposition: The minority would have dismissed the appeal and upheld the High Court’s decision, allowing the respondent’s renewal as DG based on the Board’s recommendation. Mosito P’s dissent emphasised a balanced interpretation of statutory authority and administrative fairness, ensuring that executive discretion is exercised in line with reasonable, just, and transparent standards.

 

 

JUDGMENT

P.T. Damaseb AJA:

 

1. The present appeal is concerned with the relative powers of appointment of the board of directors created under the Land Administration Authority Act 9 of 2010 (the LAA Act) and the Minister of Land Affairs (the Minister) as defined in s 2 of the LAA Act.

 

2. Section 18 of the LAA Act reads:

 

“18. (1) There shall be a Director General of the Authority who shall be the Chief Executive and shall be appointed by the Board on such terms and conditions as the Board may determine.

(2) The appointment and terms and conditions of service of the Director General shall be subject to approval by the Minister.

…

(5) The Director General shall be subject to the general supervision and control of the Board.

(6) The Board shall conduct an annual performance appraisal with regard to the performance of the Director General and a report shall, within 30 days from the end of the financial year of the Authority, be submitted to the Minister”.

 

3. Section 20 of the LAA Act states:

 

“20. (1) The Director General shall, subject to subsection (2), hold office for a period of 3 years.

(2) The Minister may, on the advice of the Board, terminate the appointment of the Director General for the following reasons:

(a) Misconduct or misbehaviour in terms of the code of conduct of the authority; or

(b) inability, incapacity or incompetence to perform the duties of his office.”

 

4. The respondent (hereafter the applicant) was employed by the Land Administration Authority (LAA) as Director-General (DG) on a three-year fixed-term contract, starting on 1 September 2019 and ending on 30 September 2022. The written contract of employment between the LAA and the applicant contained an option for renewal for an additional three years based on satisfactory performance. As her contract approached its expiry, the applicant sought renewal from the LAA Board (the Board), which subsequently approved her request, and recommended to the Minister an extension of her tenure until 2025. However, the Minister did not approve the Board’s recommendation, effectively refusing to renew the applicant’s contract.

 

5. The Minister’s refusal prompted the applicant to approach the High Court on an urgent basis seeking the following relief:

 

“Interim Relief: Part A

 

Pending the final determination of the Applicant’s substantive relief in part B…the …Court shall grant to the Applicant the following;

 

1.1…. [dispensing with ordinary rules etc.]

 

1.2. Authorising the Applicant to continue to perform her functions and duties as the Director General of the Land Administration Authority on the basis of the Resolution of the Board of the Authority renewing the Applicant’s appointment as Director General to 2025.

 

1.3. Directing the [Minister] to dispatch the record within 14 days …forming the basis for the impugned decision, and such reasons as he may wish to furnish together with all, to the Registrar…

 

1.4. Prayers …1.2; 1.3 and 1.4 to operate with immediate effect as interim relief.’

 

2. Substantive Relief: Part B

 

2.1. Reviewing, setting aside and correcting the decision of the [Minister] declining to approve the renewal of the Applicant’s appointment as Director general of the …Authority as unreasonable, irrational, unfair, illegal and unlawful, and therefore null and void ab initio.

 

2.2. Interdicting the [Board and the Minister] from, respectively, appointing and approving the appointment of any other person in the position of the Director General of the …Authority.”

 

6. The urgent application served before Makhetha J on 31 August 2022 who made the following order:

 

“1. Interim Relief: part A

Pending the final determination of the Applicant’s substantive relief in Part B:

[Suspended the ordinary rules etc.]

1.2. [Directing the Minister to dispatch the record]

1.3. Prayers 1.1 and 1.2. …to operate with immediate effect as interim relief.”

 

7. Makhetha J’s order then goes on to repeat Part B of the relief sought. It is not clear why the judge did that.
8. What is clear though is that Makhetha J did not grant the interim prayer sought under prayer 1.2 that the applicant be allowed to continue as DG in the interim while Part B remained to be considered by the court.

 

9. Part B of the relief sought then served before Makara J.

 

Factual matrix

10. I now summarise the critical averments in the pleadings. The applicant alleges that the Board is her appointing authority and employer. She maintains that there is no employment relationship between her and the Minister and that she and the employer are ad idem concerning   the renewal of her appointment until 2025.

 

11. The applicant also states that when she was employed in 2019, her terms and conditions were ‘prescribed’ in the employment contract she concluded with the Board. The employment contract states that she was appointed ‘on performance management’ basis to be assessed at least once a year. She states that she met all the performance targets set for her by the Board and that under her leadership the LAA ‘performed extremely well, exceeding expectation and annual targets’. She was therefore commended by the Chairperson of the Board for ‘remarkable performance’ – an accolade that was also recognised internationally.

 

12. When in May 2022 she asked the Board to renew her appointment on the ‘same terms and conditions’, the Board met on 17 June 2022 to consider her performance management appraisals; and being satisfied with her performance the Board ‘resolved to approve renewal of the [contract] of employment for a period of three years with same benefits’.

 

13. The Board then wrote to the Minister on 12 July 2022 seeking his approval. The Minister replied on 22 July 2022 and conveyed his decision as follows:

 

“I had the opportunity to review the appraisal of [the DG] conducted by the Board in the last two years. I have noted with pleasure the scores that the Board agreed [the DG] deserved for her performance. As a result, I have earnestly considered your request, in the light of her performance, and in respect of the performance of the Authority at large, regard being had to its functions. I is my considered opinion that in as far as the functions of the Authority are concerned [the DG] has not made any commendable strides. It is against this background that I decline to approve the appointment and renewal of her contract.”

 

14. The applicant’s criticism of the Minister’s refusal to approve the Board’s resolution is that it is ‘reviewable, unlawful and null and void ab initio’ because (a) it is unreasonable in the sense that given her proven exceptional performance no other reasonable person applying their minds to the objective facts could have come to that decision; (b) it is irrational and arbitrary given her good performance and that the disapproval ‘does not serve any purpose of AA Act’ which is ‘to weed out [an] incumbent who fails to discharge the obligations’ of the DG as contained in AA Act; (c) it is irrational because the Minister ‘failed to consult me on the decision he was about to make’; (c) the decision violates the legality principle; (d) the decision is unfair because in light of her proven good performance the Minister ‘was bound in law to consult me and call for representations from me’; (e) the Minister took into account irrelevant matters and ignored relevant matters; (f) the Minister misconstrued his powers under s 18(2) and ought to have consulted and engaged the Board and should have pointed out the specific statutory functions of the Authority that had not been achieved.

 

15. According to the applicant, ‘the statutory authority of appointment vests in the Board; and the terms and conditions of my appointment are stipulated by the Board.’ She maintains further that the ‘appointment is a separate juridical act to the approval’ and that ‘the approval does not constitute the requirement for appointment but for the overall responsibility and the supervision of the LAA by the Minister’.

 

16. According to the applicant, the renewal was ‘perfected in law; the approval responsibility is clearly illegal’ and that she was ‘legally entitled to continue to perform the functions attended to the office based on the valid appointment by the Board’.

 

17. In his answering affidavit, the Minister states that the applicant’s tenure ended on 31 August 2022 when her contract expired and that her contract was not renewed in terms of the law as the law required that it be approved by the Minister which he had not done. The Minister maintains that ministerial approval is ‘a prerequisite to’ the DG’s appointment and that he had ‘denied’ such appointment. The Minister states further that the ‘Board of Directors alone does not serve as representative of her employer without my office’.

 

18. As regards the applicant’s allegations concerning her good performance, the Minister asserts that the good performance relied upon ‘is least related to the functions’ of the institution as enunciated in s 5 of AA Act and that ‘her performance when measured against those is an utter failure’. He went on to give details of why he took that view, in particular that he ‘evaluated the performance of the Applicant as against the mandate of the LAA’.

 

19. Critically, the Minister puts up a collateral challenge to the Board’s appointment relied on by the applicant. According to him, the Board did not have the authority to approve the renewal of the applicant’s contract but only the power to recommend to him. By approving the renewal, he says, ‘the Board usurped the powers of the Minister, as such its actions and the resultant resolution is unlawful’.

 

20. The Minister continued:

 

‘…the issue was not just for the Board to communicate its decision of renewal appointment because it has no such powers in the first place’ and that the Board acted unlawfully by renewing the Applicant’s contract because it usurped the powers that only [vest] with the Minister’. 

 

The High Court

 

21. The matter was finally heard by Makara J on 14 March and 30 October 2023. An unsigned judgment dated 19 February 2024 was finally handed down which is included in the record now before this Court. I will deal with this aspect later on.

 

22. Makara J properly defined the issue before him thus at para [16] of his judgment:

 

“. . . who between the Board and the Minister is the final authority for the appointment of the DG?’ He captured the essence of the applicant’s case before him to be: ‘…the approval by the Minister is not condio sine qua non for the existence of the employment relationship between the DG and the LAA’.

 

23. At para [29] the learned judge answered the question thus:

 

‘Tellingly, from the wording employed in [sub-section] (2), the Court recognizes that the role of the Minister complements hat of the Board in the appointment protocols of the DG. It should, nevertheless, at the end, be elucidated that the decision of the Board is sine qua non to that of the Minister whose power would be secondarily exercisable’. Incongruously, the learned judge the adds at para [30]: ‘…it transpires that interpretationally, the decision of the Board is not final since its stands subject to that of the Minister who is empowered to uphold it or set it aside’. He seems to then take the view that the Minister’s power to differ with the Board was limited by (a) the ‘meritocracy of the applicant and (b) the legitimate expectation created in favour of the applicant by the Board’s decision to renew her contract which then entitled her to be granted audi by the Minister before declining to approve the Board’s decision to renew her contract’ – which he did not do.

 

24. Makara J made the following order in the executive part of the judgment:

‘1. The decision of the [Minister] declining to approve the renewal of the Applicant’s appointment as DG of the LAA is hereby reviewed, set aside and corrected as unreasonable, irrational, unfair, illegal and unlawful, and therefore null and void ab initio.

2. The [Board and the Minister] are interdicted from respectively appointing, and approving the appointment of any other person in the position of the DG of the LAA.

3. Costs …are awarded to Applicant.’

 

25. Filed as part of the record is a ‘Court Order’ dated 19 February 2024 and signed by Makara J which, in addition to the orders reflected in the executive part of the unsigned judgment I referred to above, includes the following order:

 

‘1. The applicant to continue to perform her functions and duties as the Director General of the Land Administration Authority on the basis of the Resolution of the Board of the Authority renewing the Applicant’s appointment as Director General to 2025.’

 

The appeal

26. The minister relies on the following grounds of appeal:

 

      “1.   The Honourable Court erred and misdirected itself in concluding that section 18 (1) and (2) Land Administration Authority Act 2010 demands meritocracy as a basis for the appointment of the Director General and Chief Executive Officer of the Land Administration Authority and that the Judge erred to hold that respondent ought to have been appointed.

 

       2.     The Court erred and misdirected itself in concluding that the respondent ought to have been appointed because the Board of the Land Administration authority had recommended for the renewal of the contract which had previously come to an end through the effluxion of time.

 

       3.     The Court erred and misdirected itself in substituting the decision of the Minister effectively approving the appointment when no such prayer was prayed and sought.

 

       4.     The Court erred and misdirected itself in granting a prayer previously refused by the Court, the judge could not competently issue an order for reappointment (prayer 1, 2 in the Notice of Motion) sought as a temporary mandatory interdict in the interim when the same order was refused.  Therefore, the court was functus officio in respect of that order.

 

       5.     The Court erred and misdirected itself in granting prayer 1, 2 in the Notice of Motion as that prayer was untenable in law based on the separation of powers principle.

 

       6.     The court erred and misdirected itself in holding that respondent was denied the benefits of a legitimate expectation or was denied the right to be heard.  The finding is against the weight or evidence because the respondent had made representations to the Board and the Minister had in turn, given a serious consideration of the request for renewal based on the recommendations from the Board.

 

       7.     The Court erred and misdirected itself in holding that the Minister’s decision declining the request for renewal was unreasonable and irrational when the court has failed to evaluate the full explanation detailing the justification proffered by the Minister in the answering affidavit concerning that issue.

 

       8.     The Court erred and misdirected itself in holding further that the Minister’s decision is vitiated by illegality when the charge was found to have been devoid of any merit at page 29 of the judgment.

 

       9.     The Court erred and misdirected itself in finding that the decision of the Minister was unlawful in the circumstances of the case.”

 

Discussion

 

27. When Makhetha J exercised her discretion not to grant an interim interdict which would have allowed the applicant to continue in her position, the High Court had become functus officio in respect of that prayer which was sought in Part A of the notice of motion. Thus, the only relief which Makhetha J granted in Part A related to dispensation and dispatch of the record within 14 days.

 

28. Therefore, the only live issue between the parties after Makhetha J’s order was the relief that was sought under Part B of the notice of motion which did not include any prayer that the applicant be allowed to continue as DG. What Part B sought was the review and setting aside of the Minister’s decision declining approval of the Board’s reappointment of the applicant as DG.

 

29. As matters stood when the matter was ripe for hearing by him, Makara J was expected, in my view, to inquire into the review grounds against the backdrop of the pleadings and the interpretation of sections 18 and 20 of the LAA Act. 

 

30. The issues that arose on the pleadings for his consideration were the following:

 

1. Was the Board entitled under LAA Act to approve renewal of the contract on the same terms and conditions after the expiry of the 3-year period?

 

2. The related question is whether the promises made by the Board to the DG in respect of the renewal were binding on the Minister or indeed on the Board.

 

3. Whether the promises made under the contract of employment created a legitimate expectation in favour of the DG and the legal consequences, if it did.

 

4. Was the Minister obliged to grant audi to the DG before disapproving the Board’s purported appointment of the DG?

 

5. Assuming the Minister’s conduct was unlawful, what relief was open to the High Court to grant? Put differently, if the applicant had made out the case for review, which of her prayers under Part B ought the High Court to have granted?

 

31. As I already pointed out in my summary of the pleadings, the Minister had raised a collateral challenge to the renewal process adopted by the Board on which the applicant pegs her right to renewal on the strength of the Board’s resolution of 17 June 2022; and the alleged legitimate expectation which she said obligated the Minister to grant her audi.

 

What is a collateral challenge?

32. A collateral or indirect challenge asserts the invalidity and illegality of an administrative action as a defense before the administrative act is annulled. It is considered collateral or indirect because it is brought up in proceedings that are not focused on determining the validity of the administrative action itself:[1]In this case the Board’s renewal decision. A collateral challenge may be brought (a) pre-emptively by way of a review and (b) as a defensive challenge to court proceedings aimed at enforcing compliance with the law.[2]

 

33. If the renewal contract between the Board and the applicant was not approved by the Minister, the promises made to the applicant by the Board produced no legal consequences. It is to that issue I now turn.

 

The collateral challenge is dispositive of the appeal

34. In my view, the Ministers’ collateral challenge is dispositive of this appeal. It squarely raises the correctness of the applicant’s proposition that the Board’s decision to renew her appointment, without more, perfected her re-appointment. As I have shown that proposition found favour with Makara J.

 

35. If the correct position is that the renewal process adopted by the Board, which started with the promises made to the applicant in the employment contract, and resulting in the 17 June 2022 resolution, was contrary to law, there could not have been a valid appointment of the applicant. In that case, it becomes unnecessary to decide all the other issues that I set out above.

 

36. The starting point is s 20 of the LAA Act. It makes clear that the DG’s term expires by operation of law after 3 years. It is not competent for the Board to vary that period by agreement with a DG. I will presently deal with Mosito P’s reliance on the Interpretation Act 19 of 1977 in so far as the expiry of the term is concerned.

 

37. Next, section 18(2) makes clear that the Board’s power to appoint a DG and to determine his or her terms and conditions is ‘subject to approval by the Minister’. Now what is the legal effect of that?

 

38. In my view, contrary to the applicant’s propositions otherwise, under the scheme created by section 18(1) read with sub-section (2), there can be no valid appointment of a DG unless and until the Minister has approved both the appointment of a DG and the terms and conditions of such an appointment. That is so because the Board’s power under sub-section (1) is ‘subject to’ the Minister’s approval. In other words, the Board’s power is subservient to the Minister’s power to approve - not the other way around.

 

39. The following statement of the law was approved by this Court in Sekoati and others v President of the Court Martial and others[3]:

 

“the purpose of the phrase 'subject to' in such a context is to establish what is dominant and what is subordinate of subservient; that to which a provision is 'subject', is dominant - in case of conflict it prevails over that which is subject to it. Certainly in the field of legislation, the phrase has this clear and accepted connotation. When the legislator wishes to convey that that which is now being enacted is not to prevail in circumstances where it conflicts, or is inconsistent or incompatible, with a specified other enactment, it very frequently, if not almost invariably, qualifies such enactment by the method of declaring it to be 'subject to the other specified one.”[4]

 

40. And as was said in Hickman v The Attorney -General[5]:

 

“Generally speaking, the words "subject to" (in a statute) have the effect of introducing a qualification, limitation or condition precedent, thereby curtailing a person's exercise of otherwise unlimited or unrestricted rights. They do not, in this sense, mean an alternative or optional right without affecting an unfettered original right.”

 

41. From the pleadings the following facts and circumstances are common cause. The Board and the applicant agreed to the terms and conditions of the applicant’s employment contract. On the applicant’s own version, the Minister was not party to the employment contract. That contract promised the applicant renewal upon satisfactory performance. The promise memorialised in the contract was not approved by the Minister. The contract also promised the applicant renewal on the same terms and conditions. That too was not approved by the Minister. On what basis then could the applicant rely for the proposition that her appointment was validly ‘renewed’?

 

42. The requirement of approval carries important legal consequences. For example, in terms of the Land Act 1997, section 36(5) states:

 

“Any transaction conducted by a lease without the consent of the Minister . . . shall be of no effect.”

 

43. Interpreting that provision, it was held in Mothobi v Sebotsa[6]:

 

“It is correct to hold . . . that a contract for the disposal of a lease without the consent of the Minister is of no force or effect.”

 

44. That approach resonates with the interpretation of s 18 of the LAA Act.

 

45. The ordinary grammatical meaning of the verb approve, according to the Concise Oxford English Dictionary, is:

 

“approve: officially accept as satisfactory; believe that someone or something is good or acceptable”.

 

46. As I demonstrated, nowhere in her founding papers did the applicant show that the renewal promises and the terms and conditions stipulated in the employment contract were approved by the Minister. The Board could not assume powers it did not have. Without the Minister’s express approval of the terms memorialised in the employment contract, those did not acquire the force of law.

 

47. It follows that the applicant could not enforce the agreement and Makara J could not hold that the Minister acted outside his powers.

 

48. I wish to deal briefly with the effect of the Interpretation Act 19 of 1977. Section 2(1) thereof states:

 

‘Save where the contrary intention appears either form this Act or from the context of any other Act, the provisions of this Act shall apply to this Act and to any other Act in force, whether such Act came or comes into operation before or after the commencement of this Act, and any instrument made or issued under or by virtue of any such Act.’

 

49. On the other hand s 43 states:

 

“34. Power to appoint includes power to suspend, dismiss, reappoint etc.

 

(1) Where an Act confers a power or imposes a duty upon a person to make an appointment or to constitute or establish a board, tribunal, commission, committee, council or similar body the person having such power or duty shall also have the power—

 

(a) to remove, suspend, dismiss or revoke the appointment of, and to re-appoint or reinstate, any person appointed in exercise of such power or duty;

 

. . .

(2) Where the power or duty conferred under sub-section (1) is only exercisable upon the recommendation, or subject to the approval or consent of some other person, then such recommendation, approval or consent is also required for the exercise of the additional power referred to in paragraphs (a), (b) and (c) of subsection (1).”

 

50. In other words, where the language of another Act (in this case the LAA Act) shows a contrary intention, the Interpretation Act does not apply.

 

51. The learned President prays in aid for his ratio s 34 of the Interpretation Act. As I have demonstrated, the interpretation Act cannot be used to give greater powers to the Board it does not have under the LAA Act - whilst denuding the Minister the power reserved to him under the LAA Act. In my view where, as here, the intention of the legislature can be established from the language used in the LAA Act it is not permissible to invoke the Interpretation Act to defeat that intention.

 

52. As Tindal CJ had occasion to say in Warburton v Loveland (1832) 2 DCL 480 H.C. at p. 489:

 

‘Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature’.

 

53. This dictum was cited with approval by Cullinan CJ in M.Mbabea and Another v Magistrate for Butha-Buthe and Another[7].

 

54. The LAA Act is clear in two respects: First, the Minister’s approval power is not subservient to the Board’s power. In fact, it overrides that of the Board. Without the Minister’s approval, there can be no valid act of appointment of a DG. Second, the term of a DG expires by operation of law by virtue of s 20 of LAA Act.

 

55. The Interpretation Act does not really add much to the inquiry one way or another. It only reiterates the position in the LAA Act in its emphasis that the reappointment power is not free from any limitation in the parent legislation: in this case the approval of the Minister. The net result is that the Board’s power to appoint in s 18 includes the power to reappoint but subject to ministerial approval. The dominant power then is that of the Minister.

 

56. The misdirection lies in the court a quo’s conclusion that ministerial approval is subservient to the Board’s power to appoint. Makara J’s thesis that satisfactory performance by the incumbent DG is the determinative criterion either for the power to reappoint or to approve cannot be correct. What if, for example, Treasury advised the Minister that due to fiscal constraints the budget for the LAA is going to be reduced and that the Government intends to appoint the next DG on a reduced salary –yet the Board had in an employment contract promised the DG that he or she would be reappointed on the same terms and conditions!

 

57. The notion of reappointment connotes retention of benefits and privileges previously held. Can a DG really claim a right to reappointment on the same conditions?

 

58. Therefore, to suggest, as the High Court did, that the Minister had no choice once the Board had recommended reappointment, is a misdirection.

 

59. The conclusion I come to is that the Minister’s appeal grounds 2 and 9 have merit.

 

60. I also wish to deal with some of the matters that arise from the Minister’s appeal grounds 3 and 4 – if only to give guidance for the future.

 

Discrepancy Between signed order and the unsigned judgment

 

61. It remains an ‘enigma’, to borrow from Teele KC on behalf of the Minister, how the judge a quo signed off an order that includes para 1 which is not in the executive part of the unsigned judgment. What is clear though, when one compares the two, is that after giving his written reasons, the learned judge must have changed his mind and the orders he ought to have made. That is not permissible.

 

62. In the matter of Estate Garlick v Commissioner for Inland Revenue 1934 AD 499, the following was said by De Villiers JA about the practice of the Roman Dutch courts:

 

“[Under] the Roman-Dutch law an order of Court, once it has been pronounced by the word of mouth of the Judge, cannot as a rule be thereafter altered or amended by that Judge. There can be no doubt that the rule was as stated.

Thus Damhouder (Practyck in Civiele Zaken, Ch. 219 and 220) lays down that all final judgments must be pronounced by word of mouth of the Judge, or of one Judge on behalf of the majority of the Court, and that such judgment must be pronounced publicly, in the day-time, and in the presence of the parties or at any rate after due notice to the parties, and that the Judge, once having so uttered a definitive judgment, is thereupon functus officio, so that he cannot thereafter alter, supplement, amend, or correct the judgment”.

 

63. It was therefore irregular for Makara J to sign off the ‘Court Order’ which includes para 1 which is not part of the executive part of his unsigned judgment.

 

64. Besides, para 1 of the signed order was not available to the applicant because it was not sought under Part B of the notice of motion and, as far as interim relief goes, the High Court had become functus officio after Makhetha J declined to grant it.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Disposition

 

65. For all of the above reasons, the appeal should succeed.  I see no reason why costs should not follow the event, both a quo and on appeal.

 

 

Order

 

66. Accordingly, it is ordered as follows:

 

1. The appeal succeeds and the judgment and order of the High Court are set aside and are replaced with the following:

 

“The application is dismissed, with costs”

 

2. The appellant is awarded costs of the appeal.

 

_________________________________

P.T. DAMASEB

ACTING JUSTICE OF APPEAL

 

 

I agree:

_______________________

S.P. SAKOANE

CHIEF JUSTICE

 

 

K. E Mosito P (Dissenting)

 

67. In my respectful disagreement with the majority view of my learned Brother Damaseb AJA (with whom my Brother, Sakoane CJ, concurs), I am compelled to depart from the reasoning underpinning their decision. The fundamental principles governing the interpretation of the Land Administration Authority Act 2010, specifically sections 18 and 20, have been, in my view, inadequately considered concerning the broader administrative law doctrines of good governance, legitimate expectation, and reasonableness.

 

68. In judicial review, the role of the courts is not merely to interpret statutes in a vacuum but to do so in a way that promotes fairness, accountability, and transparency within public administration. I approach this dissenting judgment with these tenets in mind, believing that the Minister's discretion under the relevant sections of the Act, while critical, should not be exercised arbitrarily or without due regard to established administrative law principles. Moreover, as endorsed by the Board, the legitimate expectation that arose from the respondent’s performance requires proper judicial scrutiny. With these considerations, I humbly submit my dissenting view and proceed to consider the appeal. 

 

69. On 31 August 2022, the respondent applied to the High Court for interim and substantive reliefs.  As far as the interim reliefs were concerned, she sought four prayers.  The first prayer was for dispensation with the ordinary rules of court pertaining to forms, modes and periods of service on account of the urgency of the matter. The second prayer was for the appellant's authorisation to continue performing her duties as the Director General of the Land Administration Authority based on the Resolution of the Board renewing the appellant’s appointment as Director General to 2025.  The penultimate prayer was for an order directing the 1^st Appellant to dispatch within 14 days of the filing of the Notice of Motion in Court such record of proceedings forming the basis for the impugned decision of the Minister and such reasons as he may wish to furnish.   The last prayer was for the said prayers to operate with immediate effect, pending the final determination of the application.

 

70. As far as related to substantive reliefs, the first prayer was one reviewing, setting aside and correcting the decision of the 1^st appellant declining to approve the renewal of the respondent’s appointment as Director General of the Land Administration Authority as unreasonable, irrational, unfair, illegal and unlawful, and therefore null and void ab initio.  The second substantive relief was for an interdict against the second and first appellants from appointing and approving the appointment of any other person in the position of the Director General of the Land Administration Authority.  There were also prayers for further and/or alternative relief and costs.

 

71. The matter was placed before Makhetha J for interim orders.  After hearing counsel for the parties, Makhetha J granted the first and second prayers.  The appellants filed a Notice of Intention to Oppose and Answering Affidavits.  Subsequently, the respondent filed her Replying Affidavit. The matter was finally heard by Makara J on 19 February 2024.   After hearing the matter, the learned judge gave the following orders:

 

“1. The applicant to continue to perform her functions and duties as the Director General of the Land administration Authority on the basis of the Resolution of the Board of the Authority renewing the Applicant’s appointment as Director General to 2025.

 

2. The decision of the 1^st Respondent to decline to approve the renewal of the Applicant’s appointment as Director General of the Land Administration Authority is set aside as unreasonable, irrational, unfair, illegal, unlawful and therefore null and void ab initio.

 

3. The 1^st and 2^nd Respondent are interdicted from, respectively, appointing and approving the appointment of any other person in the position of the Director General of the Land Administration Authority.

 

4. Costs of this application against the 1^st and 2^nd respondents in the event of opposition hereof.

 

                      By Order Of Court.”

72. The learned judge produced reasons for judgment dated the same day. Dissatisfied with the court's judgment a quo, the appellants noted an appeal to this Court on nine grounds of appeal.  They complained that:

 

      “1.   The Honourable Court erred and misdirected itself in concluding that section 18 (1) and (2) Land Administration Authority Act 2010 demands meritocracy as a basis for the appointment of the Director General and Chief Executive Officer of the Land Administration Authority and that the Judge erred to hold that respondent ought to have been appointed.

 

       2.     The Court erred and misdirected in concluding that the respondent ought to have been appointed because the Board of the Land Administration authority had recommended for the renewal of the contract which had previously come to an end through the effluxion of time.

 

       3.     The Court erred and misdirected itself in substituting the decision of the Minister effectively approving the appointment when no such prayer was prayed and sought.

 

       4.     The Court erred and misdirected itself in granting a prayer previously refused by the Court, the judge could not competently issue an order for reappointment (prayer 1,2 in the Notice of Motion) sought as a temporary mandating interdict in the interim when the same order was refused.  Therefore, the court was funtus officio in respect of that order.

      

       5.     The Court erred and misdirected itself in granting prayer 1, 2 in the Notice of Motion as that prayer was untenable in law based on the separation of powers principle.

 

       6.     The court erred and misdirected itself in holding that respondent was denied the benefits of a legitimate expectations or was denied the right to be heard.  The finding is against the weight or evidence because the respondent had made representations to the Board and the Minister had in turn, given a serious consideration of the request for renewal based on the recommendations from the Board.

 

       7.     The Court erred and misdirected itself in holding that the Minister’s decision declining the request for renewal was unreasonable and irrational when the court has failed to evaluate the full explanation detailing the justification proffered by the Minister in the answering affidavit concerning that issue.

 

       8.     The Court erred and misdirected itself in holding further that the Minister’s decision is vitiated by illegality when the charge was found to have been devoid of any merit at page 29 of the judgment.

 

       9.     The Court erred and misdirected itself in finding that the decision of the Minister was unlawful in the circumstances of the case.”

 

The Facts

73. The respondent had been employed by the Land Administration Authority (LAA) on a three-year fixed-term contract, commencing on 1 September 2019 and expiring on 30 September 2022.  The contract provided for an option of renewal for a further three years upon satisfactory performance. In May 2022, as her employment contract neared its conclusion, the respondent submitted to the Board a request for renewal, seeking to extend her tenure until 2025. Subsequently, on 17 July 2022, the Board resolved to approve the renewal of her contract as Director-General for a second term. However, the Minister did not endorse the Board's recommendation, effectively declining to approve the contract renewal. This divergence in actions between the Board and the Minister appears to form the core of the present legal matter.

 

The issue for determination

74. This appeal centres on whether the Board and/or the Minister has the power to renew the contract of the Director General of the Land Administration Authority (hereinafter "the Authority"), and if so, under what circumstances. This issue requires meticulous examination of sections 18 and 20 of the Land Administration Act 2010 (hereinafter "the Act").

 

The Law

75. The Act is at the centre of the resolution of this appeal.  The Act provides for the establishment of the Land Administration Authority.  Section 18(1) of the Act provides that the Board shall appoint the Director General on such terms and conditions as the Board may determine. The section's wording implies that the appointment is mandatory, placing a significant responsibility on the Board to select and install a suitable candidate to lead the organisation's operations. The Board's discretionary power extends to various appointment aspects, including compensation, tenure, performance criteria, and specific duties.

 

76. While the provision grants considerable latitude to the Board, it is important to note that other sections of the Act, general legal principles, or external regulations may impose limitations on this discretion. The power to appoint the Director General comes with the responsibility to do so in a manner that best serves the Authority and its stakeholders' interests.

 

77. Section 18 (2) provides that the appointment and terms and conditions of service of the Director General shall be subject to approval by the Minister.  In Section 2, the Minister means the Minister responsible for land matters.   Section 20(1) stipulates: "[t]he Director General shall, subject to subsection (2), hold office for three years."

 

78. Notably, the Act is silent on the specific procedure for renewing the Director General's term. However, section 34(1)(a) of the Interpretation Act 1977 provides that where an Act confers power upon a person to make an appointment, the person having such power shall also have the power to re-appoint such person in the exercise of such power.  Section 34(2) goes on to provide that (2) where the power conferred under sub-section (1) is only exercisable upon the recommendation or subject to the approval or consent of some other person, then such recommendation, approval or consent is also required for the exercise of the additional power referred to in paragraphs (a), (b) and (c) of subsection (1).

 

79. Thus, courts are guided by the principles of statutory interpretation as elucidated in the Interpretation Act 1977. Section 15 of the Interpretation Act provides that every enactment shall be deemed remedial and given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. Therefore, where a statute is silent on a particular aspect, the court must interpret the provision in a manner that gives effect to the purpose of the legislation while avoiding any interpretation that would lead to absurdity or undermine the effective functioning of the statutory body.

 

80. Applying these principles, the power to renew the Director General's contract exists despite not being explicitly mentioned in the Act. To hold otherwise would lead to the absurd result of requiring a full new appointment process at the end of each three-year term, potentially disrupting the Authority's operations. The renewal process must mirror the initial appointment process as closely as possible. This interpretation aligns with the statutory scheme and maintains the checks and balances envisaged by the legislature.

 

81. Consequently, the primary power to renew the Director General's contract rests with the Board, in line with its appointment power under section 18(1) of the LAA Act. Any renewal decision by the Board is subject to ministerial approval, as per section 18(2) of the Act. This interpretation ensures consistency in the governance structure and maintains executive oversight throughout the Director General's tenure.

 

82. The circumstances under which renewal may be considered are not explicitly outlined in the Act. However, drawing from principles enshrined in the Interpretation Act 1977 and our decision in Mohapi v Lesotho Communications Authority (C of A (CIV) 14/2018) [2018] LSCA 9, we hold that renewal should be based on: a), performance during the preceding term; b), the ongoing needs of the Authority; c) Compliance with any relevant performance agreements or key performance indicators; d) and e), the public interest.

 

83. It is crucial to emphasise that neither the Board nor the Minister has an unfettered discretion in this process. The Board's decision to renew or not to renew must be based on objective criteria and taken in good faith. Similarly, the Minister's approval or disapproval must be exercised judiciously and not arbitrarily. The renewal process should be initiated well before the expiry of the current term, allowing sufficient time for proper evaluation and, if necessary, a new appointment process.

 

Consideration of the appeal

84. I now set out to consider the grounds of appeal before us. The appellants argue that the court misdirected itself by concluding that section 18 (1) and (2) of the Act demands meritocracy in appointing the Director General. The court’s reasoning here was based on the statutory responsibility imposed on the Board to appoint a Director General in a manner that aligns with the best interests of the LAA. While granting the Board considerable discretion, the section itself is tempered by the need for ministerial approval under section 18 (2). This two-tiered structure implies that while the Board has the power to nominate or renew, the Minister must ensure that such nominations align with broader governmental and public policy concerns.
85. In my opinion, the court below rightly held that the Board's recommendation for renewing the respondent's contract was to be based on merit, as stipulated by principles of good governance. This interpretation is consistent with the need for effective administration in public bodies. The Act’s silence on renewal criteria must be filled by well-established administrative law principles, which require decisions to be reasonable, rational, and merit-based. Thus, there was no error in law in the court’s conclusion.

 

86. The second ground challenges the court's ruling that the respondent should have been reappointed based on the Board's recommendation. The appellants claim the contract had expired due to the effluxion of time. However, the court below correctly pointed out that the renewal process provided by the Act must mirror the initial appointment. As such, the expiration of a contract does not preclude renewal if the Board, having assessed performance, deems a renewal appropriate, subject to ministerial approval. This is supported by section 34 of the Interpretation Act 1977, which gives implied powers of reappointment where powers of appointment exist.

 

87. As noted by the High Court, the Minister’s failure to approve the Board's recommendation without substantive reasons was unreasonable and irrational. Hence, this ground of appeal lacks merit.

 

88. In ground three, the appellants allege that the court erred by substituting the Minister's decision with its own, effectively reappointing the respondent. However, it must be remembered that the court was tasked with reviewing the legality of the Minister's actions. Where a decision is irrational or ultra vires, the court has the power to set it aside and substitute an appropriate remedy, especially where the delay in decision-making could result in prejudice or the unlawful exclusion of a deserving candidate. The court’s order, therefore, was within its judicial remit and properly reflects the principle of fairness.

 

89. The appellants argue that the court was functus officio when it issued an order for reappointment after having previously refused the same order. The functus officio doctrine applies to prevent courts from reopening a matter once a final decision has been made. However, in this case, the court did not reconsider the same issue; rather, it issued an order in the substantive hearing, which differed from the interim relief initially sought. The court had not exhausted its jurisdiction over the main matter when granted its final order. Therefore, this ground also fails.

 

90. The appellants contend that granting prayer 1.2 in the Notice of Motion infringes the separation of powers principle. While the separation of powers doctrine must be respected, the court is also empowered to ensure that executive decisions comply with the law. In this instance, the Minister’s decision was found to be legally flawed, and the court’s intervention was not an overreach but a necessary correction of an unlawful administrative action.
91. The final grounds of appeal challenge the court's findings that the Minister’s decision was unreasonable, irrational, and unlawful. These grounds rest on the assumption that the Minister had provided sufficient justification for declining to approve the respondent’s renewal. However, as the court noted, the Minister’s reasons were neither substantiated nor consistent with the performance review provided by the Board. The principle of legitimate expectation, coupled with the requirement for a fair hearing, demanded that the respondent be given proper reasons for the denial of her renewal. The Minister failed to provide such reasons or adequately justify the decision before the court rendered the decision irrational and unlawful.

 

Response to the majority’s view

92. I have had the benefit of reading the majority’s opinion of my learned Brother, Damaseb AJA (with whom my Brother, S.P. Sakoane CJ, concurs), and it is to this dissenting view that I now most humbly turn. The core of the dispute before us is the interpretation of sections 18 and 20 of the Land Administration Authority Act 2010 (LAA Act). As I understand it, the approach in the majority’s judgment advocates for a rigid construction of section 18(2), emphasising that the Board's power to appoint or renew the DG's contract is entirely subordinate to the Minister’s discretion. This interpretation, however, disregards several critical factors, including the principles of good governance, legitimate expectation, and reasonableness that must guide executive decision-making.

 

93. The majority’s interpretation of section 18(2) treats the Minister’s power to approve the appointment or renewal of the DG as an absolute veto. This suggests the Board’s decision lacks any substantial effect without ministerial approval. Such a rigid stance not only undermines the purpose of the statutory framework but also fails to recognise the collaborative role envisaged between the Board and the Minister, which is crucial for effective land administration.

 

94. Section 18(1) confers the primary responsibility for appointing the DG to the Board. The requirement for ministerial approval under section 18(2) should not be seen as an unqualified right to reject the Board’s decision at will. The statute does not grant the Minister unrestricted discretion. Instead, ministerial approval should be exercised rationally, transparently, and objectively, especially when the Board has recommended the renewal based on satisfactory performance. Any other interpretation of the Minister’s role could turn section 18(2) into a tool for arbitrary decision-making, which is contrary to the principles of reasonableness and administrative justice.

 

95. The approach proposed in the majority’s view disregards the context and purpose of the LAA Act. The Act establishes the Board as the body best suited to assess the DG’s performance, given its direct oversight of the Authority's operations. The Minister’s role, while necessary, is intended to ensure that appointments align with broader governmental policies and priorities, not to supplant the Board’s expertise. The insistence on treating the Minister’s power as dominant over that of the Board runs counter to the scheme of checks and balances that the Act seeks to achieve.

 

96. The majority’s judgment dismisses the notion of legitimate expectation, which, in the present context, is a critical aspect of the renewal process. Following a positive performance evaluation, the Board’s resolution to renew the respondent’s contract created a legitimate expectation that her contract would be renewed, subject to ministerial approval. This expectation was not based on mere hope or speculation but on the respondent’s proven track record of performance and the Board’s formal recommendation for renewal.

 

97. The principle of legitimate expectation, firmly rooted in administrative law, requires that where such an expectation is created, the affected party must be allowed to be heard before an adverse decision is made. The majority’s view overlooks this essential requirement of procedural fairness. By declining to approve the Board’s recommendation without providing substantive reasons or consulting the respondent, the Minister violated the respondent’s right to a fair process. The Minister’s failure to accord the respondent an opportunity to make representations before making his decision is a fundamental flaw that renders the decision procedurally improper.

 

98. Furthermore, the majority’s view's reliance on a strict interpretation of the Minister’s powers disregards the requirement that executive decisions must be rational and justifiable. As the courts have consistently held, in cases such as Council of Civil Service Unions v Minister for the Civil Service,[8] executive decisions must be lawful, reasonable, and procedurally fair. The Minister’s decision to reject the Board’s recommendation without providing a rational explanation or engaging with the respondent falls short of these standards.

 

99. The majority’s approach also raises concerns about the appropriate role of the courts in reviewing executive decisions. It is said that the court overstepped its bounds by substituting its judgment for the Minister's. However, judicial review exists precisely to ensure that executive decisions comply with the law, are rational, and respect the principles of fairness and justice. Where a decision is irrational or unlawful, it is within the court’s remit to set it aside and provide appropriate relief.

 

100. The argument that the court is functus officio after denying interim relief does not withstand scrutiny. Interim and final relief are distinct; the court’s refusal to grant interim relief does not preclude it from issuing final orders based on the merits of the case. To suggest otherwise would unjustifiably constrain the court’s ability to provide full and effective remedies in matters of judicial review.

 

101. In conclusion, the majority’s interpretation of the statutory provisions fails to give due regard to the broader principles of administrative law that govern the exercise of ministerial discretion. The statute must be interpreted to balance the roles of the Board and the Minister, ensuring that the Minister’s power is exercised rationally, fairly, and lawfully. The principles of legitimate expectation and procedural fairness are paramount in this context, and the failure to adhere to these principles renders the Minister’s decision legally defective. Accordingly, the reasoning in the majority’s judgment cannot be sustained. The judgment of the court a quo, based on a sound interpretation of the law and facts, should in my opinion, stand.

 

Disposal

102. In light of the discussions presented, the appeal lacks merit on all grounds. The High Court’s judgment was based on a sound interpretation of the law, the facts, and the principles of good governance. Accordingly, the appeal should be dismissed, and the decision of the High Court should be upheld.

 

Costs

103. Given the findings made in considering the appeal, it is appropriate to address the issue of costs. The general rule is that costs follow the event, meaning the successful party is entitled to their costs unless there are compelling reasons to depart from this principle.

 

104. In this case, the appellants have failed to establish any grounds for appeal, and their appeal has been dismissed. No exceptional circumstances are warranting a departure from the usual rule. As such, the respondent is entitled to recover her costs.

Order

 

105. In the result, I would give the following order:

 

1. The appeal is dismissed.

 

2. The court's judgment a quo is upheld in its entirety.

 

3. The appellants are ordered to pay the costs of the appeal jointly and severally, the one paying the other to be absolved.

 

________________________________

K E MOSITO

PRESIDENT OF THE COURT OF APPEAL

 

 

FOR THE APPELLANTS:    Adv M.E. Teele KC

 

FOR RESPONDENT:          Adv N. Mafaesa with K.W LETUKA