LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV) No.36/2024
CIV/APN/0046/2023
In the matter between:
THE COMMISSIONER OF POLICE 1ST APPELLANT
THE REGIPOL – NORTH 2ND APPELLANT
THE DISPOL – LERIBE 3RD APPELLANT
THE ATTORNEY GENERAL 4TH APPELLANT
and
LEPOQO MASUPHA RESPONDENT
CORAM: SAKOANE CJ
DAMASEB AJA
CHINHENGO AJA
Heard: 14 October 2024
Delivered: 1 November 2024
Summary
In High Court, respondent contested his transfer from one police station to another; Court finding in his favour that he had legitimate expectation to a pre-transfer hearing. Court however not making finding of fact on disputed material issues and making an order setting aside or reversing the transfer where at best it should have ordered that matter be remitted to the police authority for respondent to be given a pre-transfer hearing, thereby leaving the substantive decision on transfer to the administrative authority;
On appeal order of High Court set aside and substituted with an order that the application be dismissed with no order of costs
JUDGMENT
CHINHENGO AJA:-
Introduction
[1] The judgment in this matter was apparently delivered on 9 February 2024. The appellants noted this appeal in July 2024 and filed the record of proceedings on 28 August 2024. They were of the opinion that they had failed to note the appeal within the time prescribed by rules of the Court of Appeal Rules 2006. On 9 September 2024 they therefore applied for condonation of the late noting of the appeal, stating therein that the learned Judge passed on in April 2024; that they were availed the judgment on 14 June 2024 and the court order was served on them on 19 June 2024. To their surprise, the judgment indicated that the late Judge had delivered the judgment on 9 February 2024 yet the judgment was not brought to their attention until June 2024.
[2] There seems to have been some confusion, fully explained in the condonation application, leading to the appellants belatedly becoming aware of the judgment. On the same day that they applied for condonation, they also filed the heads of argument.
[3] The respondent filed a notice of intention to oppose the appeal in July 2024. He did not file an affidavit in opposition to the condonation application and did not file heads of argument in the appeal. The appeal was set down for hearing on 14 October 2024. On 11 October 2024, three days before the date of the hearing of the appeal, the respondent filed a notice in which he advised that he “withdraws opposition in this matter.” This means that the respondent no longer intended to oppose the appeal. The appeal is therefore unopposed.
Background
[4] The background to this appeal is that the 1st appellant decided to transfer several police officers, including the respondent, from police stations at which they were serving to other police stations. This decision was communicated to the concerned officers on or about 12 April 2023. In the case of the respondent he was to be transferred from Peka Police Station, at which he was Officer Commanding, to Tlalinyane Police Station which, apparently and according to him, is a smaller police station. The respondent resisted the transfer alleging, among other things, that he had not been given a pre-transfer hearing to which he was entitled by reason that such a hearing had been given to him on a previous occasion when he was transferred from one station to another. He contended that he had a legitimate expectation that a pre-transfer hearing should have been given to him before the decision to transfer him was made. Accordingly, he moved a motion in the High Court for an order “reviewing, correcting and setting aside” the decision to transfer him as communicated to him by 3rd appellant’s letters dated 12 April and 16 August 2023.
High Court decision
[5] The High Court decision is dated 9 February 2024. The late NATHANE J found in favour of the respondent and granted the application “as prayed with costs.” Another differently worded order prepared on the same day and signed by the Registrar and, apparently by the Judge, as the final order, reads –
“1. The transfer of the Applicant from Peka Police Station to Tlalinyane Police Post, by the Second Respondent per letters dated 12th April 2023 and 16th August 2023, be and is hereby reviewed, corrected and set aside.
2. The application be and is hereby granted with costs.”.
[6] In reaching his decision the learned Judge stated:
“[32] … Consequently, in my respectful view, the applicant had a legitimate expectation, based on respondents’ past conduct to be given at least an opportunity to make representations before the transfer, which he was undeniably not afforded. I am not convinced, in the absence of any cogent evidence of same, that applicant was given a pre-transfer hearing and/or an opportunity to make representations by telephone prior to the making of the decision to transfer him. Neither am I convinced, as alluded to herein above, that the applicant was given notice of the intended or impending transfer as contended by the respondents.
[33] It is perhaps worth mentioning in passing that much as I am alive to the other arguments raised by the respondents, such as the alleged dispensation of the need for notice (though at some point in time the respondents seem to contend that it was given) where the distance is less than forty (40) kilometres between the posts or stations, and the question of possible prejudice to the applicant, I need not, in view of my above findings, decide the same. (underlining is mine)
[34] Furthermore, and in response to questions I paused to Counsel, it was revealed that the applicant, in order to avoid disciplinary action, had, at the time of the hearing of this matter, taken up transfer at Ha Tlalinyane Police post. In my view, this fact does not and should not have any bearing on the findings which I have made, as it was more an act of caution and not acquiescence on his part.
[35] It therefore goes without saying, that from a conspectus of the factual matrix and my analysis, that there is merit in this application and therefore it should succeed.”
[7] It is against the above decision that the appeal lies. It is to be noted that the late Judge consciously did not find it necessary to consider and decide two issues that he highlighted at paragraph [33] of the judgment. That omission meant that the Judge would not holistically deal with the issue of prejudice, which is important in any complaint that an opportunity to be heard was not afforded to the complaint. It also meant that he would not interrogate the appellant’s statement that a transfer within a radius of 40km did not require that the normal procedure for transfer should be observed.
Grounds of appeal
[8] The grounds of appeal focus on the High Court’s findings on the issue of legitimate expectation only, which appears to be the bedrock of the court’s decision. The appellants contend that the judge erred in -
(a) holding that the respondent had a legitimate expectation to be heard simply because previously he was given the opportunity to make representation when the decision to transfer him this last time “is neither adverse, unfavourable or prejudicial to [him and] legitimate expectation cannot arise;
(b) finding that the decision giving respondent pre-transfer hearings previously binds the appellants when “legitimate expectation does not arise where power exercised is discretionary and to invoke legitimate expectation would fetter such discretion; and
(c) finding that the respondent had a legitimate expectation where the expectation is contrary to the law that an employee is not entitled to a hearing except where such transfer is prejudicial to him.
[9] The focus on legitimate expectation as the foundation of the appeal is made even clearer in appellants’ heads of argument. They posit that there are only three issues for determination, namely –
“(a) whether legitimate expectation can operate contrary to the law?
(b) whether legitimate expectation can arise where the power being exercised is discretionary from one officer to another?
(c) whether legitimate expectation arises where the decision to transfer is neither adverse, unfavourable or prejudicial to the applicant?”
Relief sought and effect of High Court order
[10] It is necessary to look at the essence of the relief that the respondent sought or should have sought in the High Court in order to determine whether, in the end, the order granted by the court is correct.
[11] The relief sought by the respondent in the High Court was the setting aside of the appellants’ decision transferring him from one police station to another. The reason for seeking the relief was that, although he did not disagree with, or object to, the transfer as such, the transfer had been made without following the correct procedure: he was not given an opportunity to make any representation before the decision to transfer him was made, a matter in respect of which he had a legitimate expectation to the right to be heard. That he was not objecting to the transfer but pursuing a matter of principle is apparent from his founding affidavit. Therein he stated –
“I must disclose to this Honourable Court that it is not that I do not want to be transferred from Peka Police Station, however, I am against my transfer on the basis that it is malicious and hence prejudices me as I have alluded to herein above. Under the circumstances, I find myself in a very prejudicial situation that forces me to seek intervention of this Honourable Court regard being had to the fact that I have been treated unfairly and contrary to the tenets of the law on the subject. Hence, I verily believe the legal advice that I am being given is true and correct that as an individual, I ought to be consulted and be given an opportunity to make representations before any adverse decision is taken against me, especially if it has the effect of prejudice. I aver that I have reliably established that the 3rd Respondent has conducted himself in this barbaric manner because there is a possibility of promotions being carried in the police service in the near future, and so wants to put Sub-Inspector Malefane, at the doorpost of such promotions at my expense. Thus a hearing of this matter in due course will not afford me a substantial redress as the horse would have bolted out of the stable by then. I verily aver that my failure to have brought this matter upon receiving the letter dated the 12th April 2023, should not be taken in isolation but in the background of the fact that I had always been contesting this transfer by exhausting the local remedies.”[1]
[emphasis is mine]
[12] A reading of the respondent’s affidavits shows that he was aggrieved by the fact that he was being transferred to what he believed to be a smaller police station when his replacement at Peka Police Station, sub Inspector Malefane, a junior officer, was being assigned to run a bigger station. He believed that by being transferred to a smaller station he was not only being constructively demoted but was also being exposed to reduced chances of promotion. Further, he believed that Malefane’s assignment to run Peka Police station was designed to create improved chances for Malefane’s promotion in the near future and to prejudice his own advancement, thus adversely affecting his career progression. That is the thread of prejudice that runs through his affidavits.
[13] The High Court set aside the decision of the appellants to transfer the respondent in a final fashion. It revoked the appellants’ decision and did not, as it should have done, only direct that the respondent be given a pre-transfer hearing, which was the essence of the relief sought in that court. The High Court order has the effect of substituting the decision of an administrative authority, the Police Service, with that of the court on a matter that is exclusively within the remit of the administrative authority. The decision of such an authority may only be interfered with on review on the basis of established and well-known grounds of review, and not on the merits of thereof. The order should have been clear that while the decision of the appellants was set aside, the matter had to be dealt with afresh by giving the respondent an opportunity to make representations regarding his transfer. To the extent that the order is final in effect by effectively forestalling the respondent’s transfer, it is incorrect. This Court cannot endorse it and would, for this reason alone, set it aside.
[14] The decision that this Court must make has to take into account at least two other issues. The learned Judge a quo recorded that as at the time the matter was heard in that court on 9 November 2023, the respondent had, in order to avoid disciplinary action, acceded to the transfer and was already at his new duty station at Ha Tlalinyane Police Post. In those circumstances what practical purpose would an order that the respondent be given a pre-transfer hearing serve at this stage, except to complicate his relationship with his seniors? Secondly, the respondent has withdrawn his opposition to the appeal. The question therefore arises whether in light of these developments, this Court should make an order setting aside the transfer and remitting the matter to the decision maker to give the respondent a pre-transfer hearing. Would such an order serve respondent’s interest or any interest at that. In my view such an order would fly in the face of the respondent’s posture not to oppose the appeal. The respondent has already acceded, possibly reluctantly, to the transfer. It is also more likely that the Police authority will reach the same decision on his transfer having regard to the true reason that the respondent gave for resisting it. In my view such an order would not benefit the respondent in any tangible or effectual way.
[15] The likely outcome, adverse to the respondent, if the matter is remitted to the Police authority for a re-hearing is evidenced by what transpired when he applied for a stay of the transfer before he instituted the present proceedings. That application was heard by MOKHORO J in Case No. CIV/APN/0044/2023 on 25 August 2023. The judge refused to grant the stay upon a finding that the application was not urgent. According to the deponent’s affidavit[2] MOKHORO J declined to hear the stay application on urgency “mainly on the basis of the letter dated 16th August 2023, asserting that that on the meeting I had with 3rd Respondent on 28th May 2023, we reached an agreement that I will leave to Tlalinyane at the end of June 2023.”
[16] In summing up the respondent’s case the NATHANE J had the following to say[3] -
“This court, per Mokhoro J, declined to grant the requested stay on the basis that on the 28th May 2023, he and the 3rd respondent had agreed that he would resume duty in the new office by the end of June 2023, and that if he had not been satisfied with that decision, he should have approached the court in the manner he had done in CIV/APN/0044/2023ND immediately after the 28th May 2023 and not months thereafter.”
[17] After MOKHORO J decided that the application was not urgent, the respondent withdrew it and lodged a fresh application that later came before NATHANE J and now on appeal.
[18] The respondent averred that, contrary to MOKHORO J’s conclusion that he agreed to a transfer at the end of June 2023, he did not at any point in time agree to the transfer and specifically to the transfer at the end of June 2023. NATHANE J, rather surprisingly, did not deal with the contested fact whether the respondent agreed to the transfer or not, despite that appellants in their answering affidavit and in the written and oral submissions, repeatedly stated that the respondent agreed to the transfer at the meeting held on 28 May 2023. And despite that MOKHORO J had also found that he so agreed.
[19] The respondent outlined the prejudice that he was to suffer if transferred to Tlalinyane Police Post. The main, if not the only prejudice his transfer entailed was constructive demotion by being assigned to head a Police station, lower in status, to the Station of which he was Officer Commanding. In his place at Peka Police Station was to be appointed Sub-Inspector Malefane, a junior officer to him. That, he said, was an unusual and unprecedented move: it never happens in the police service that an officer of that rank is appointed to run a Police Station. He was of the view that his transfer to a smaller station constituted a demotion for him, and the appointment of Malefane to the bigger station was designed to enhance Malefane’s chances of promotion to a higher rank. To drive home this point he stated-
“Peka Police Station has never been headed by a police officer of the rank of Sub-Inspector, it is the first time that such a marvel is being effected by the 3rd Respondent, an exercise with potential prejudice to me as it now imposes a radical change in my job career as I am now unjustifiably demoted.”
[20] Respondent went on to state that upon being advised of the transfer he registered his objection during a telephone discussion with the 3rd respondent. On 28 May 2023 he held a meeting with 3rd respondent. He averred that although he made representations against the transfer at that meeting, the decision to transfer him had already been made and whatever transpired on 28 May 2023 did not constitute a pre-transfer hearing because the audi alteram partem principle requires the hearing to be given before the decision is taken, so as to avoid the natural human inclination to adhere to a decision already made.
[21] The respondent’s second complaint of prejudice is that the transfer did not take into account his family responsibilities and the well-being of his minor children. As at the date of the founding affidavit he was involved in a divorce dispute and living with his daughter who was to sit final examinations at St Rose High School. The transfer would endanger her schooling because his financial position was such that he could not provide transport fare for her to and from school on a daily basis.
[22] The 3rd appellant deposed to the answering affidavit on behalf of the appellants. He stated that prior to respondent’s transfer he called him telephonically and informed him of his intention to transfer him. He asked him if he should send a formal letter advising of that intention. The respondent told him that he had no problem with the transfer and did not intend to make formal representations against the transfer. It was then that he wrote the latter of 12 April 2023 indicating the date of transfer as agreed during the telephone discussion.
[23] The telephonic response of the respondent as alleged accords with his statement that he was really not opposed to the transfer. The 3rd appellant also stated that Peka Police station and Tlalinyane Police Station are less than thirty kilometres apart and the latter is nearer to respondent’s place of residence and within walking distance of it.
[24] The 3rd appellant averred that on 17 April 2023 the respondent informed him that he would not be able to report for duty at his new station on the date scheduled for him to handover the station to his successor because he was attending a court case at Berea Magistrate Court. The handover was postponed. On 24 April 2023 respondent advised 3rd appellant that he had to attend court in his divorce matter and would again not be able to hand over to his successor. The 3rd appellant perceived that the respondent was simply avoiding the transfer. He called the respondent to his office for a meeting on 28 May 2023, which was also attended by Senior Inspector Sekonyela. The purpose of the meeting was to understand why the respondent kept on making excuses for a proper handover of the station. At that meeting the respondent requested for more time to move to his new duty station. His reason was that he wanted to make suitable arrangements for his daughter at St Rose High School. The 3rd respondent said that they “amicably agreed” that he would report for duty at the new duty station by the end of June 2023.
[25] The 3rd appellant said that he became very busy away from office in the period after the amicable agreement and only discovered upon his return to the office in August 2023 that the respondent had not moved to Tlalinyane Police Station. That was when he wrote a formal letter instructing respondent to report at the new duty station without further delay. His letter reads, in part:
“I am writing this letter to remind you of your transfer from Peka to Tlalinyane which was made on 17th April 2023. I also remind you that we had several conversations with you on the discussion of the transfer which in the first place I telephonically represented you after which I also called you to my office in the presence of Senior Inspector Sekonyela.
Let me also remind you that it was on 28th May 2023 on the said meeting where we reached agreement that you will leave to Tlalinyane at the end of June 2023 as you had raised the concern of your child attending school at Peka and promised to make necessary arrangements for her during that time. Until I am making this letter you have never fulfilled or honoured the said transfer without any other reason. I therefore instruct you once again that you comply with the transfer and you are expected to report to your new duty station Tlalinyane on the 28th August 2023.”
[26] Senior Inspector Sekonyela deposed to an affidavit supporting 3rd respondent’s averments. Apart from bare denials, respondent did not put forward any tangible evidence to contradict the averments of the two senior police officers. The judge a quo erroneously did not attach significance to Senior Inspector Sekonyela’s supporting affidavit.
[27] The respondent did not respond to the August letter or otherwise rebut its contents. The 3rd respondent construed the failure as an admission of its contents. He also stated that the respondent failed in the application for stay of the transfer before MOKHORO J because the matter was not urgent, and the balance of convenience was not in his favour.
[28] Concerning prejudice to the respondent, the 3rd appellant averred that such prejudice can only arise “where the person being transferred claims loss of office, status, loss of salary, grade and/or diminution of responsibilities that go with the exercise of authority of that office.” He was correct going by the decision in Khotso Mabaso.[4] He stated that the respondent did not suffer any of these prejudices neither did he indicate what prejudice the transfer would occasion to him. In any event if the matter of his divorce and the circumstances of his school-going daughter was regarded as prejudice, that was addressed by giving him more time to attend to those issues. The 3rd respondent averred that the respondent did not at all raise with him or in his stay application his dissatisfaction with the fact that Sub-Inspector Mafalane was being favoured and his own career was being placed in jeopardy. He was clear that the respondent was not being demoted or reduced to a lower paid grade, rank or position. The complaint was raised for the first time in the application to set aside the transfer and as such it was an after-thought.
[29] The 3rd appellant also disputed that there is any basis for respondent to claim a legitimate expectation. He could not make such a claim against 3rd respondent because 3rd respondent never made any representation to him that he would be given a pre-deployment hearing.
[30] I must observe that the thrust of respondent’s complaint was that the Police Service as an institution, and not 3rd appellant personally, had given him to understand that a pre-deployment hearing would be afforded to an officer before a decision to transfer was made. To the extent that the 3rd appellant confines the making of a representation justifying a legitimate expectation to himself as an individual, he cannot be correct. A representation, which he alleged was made by the institution was sufficient for his purposes.
[31] In the reply the respondent maintained that he was not telephonically advised of the intended transfer neither did he agree to the transfer at the meeting held on 28 May 2023. At that meeting he made known his opposition and they parted on the understanding that the 3rd respondent would further consider his representations and return to him with his final decision. He was therefore completely surprised when he received a letter in August 2023 requiring him to report at Tlalinyane Police Station with immediate effect. He maintained that the major prejudice he suffered was the threat to his career prospects resulting from being transferred from a bigger station with a bigger policing area of fifty-eight villages to a smaller station in charge of twenty-nine villages.
[32] The learned judge a quo defined the issue for determination by the court as being “whether the applicant was entitled to a pre-transfer hearing, and if so, was he heard and afforded such an opportunity.” After so identifying the issue, the judge went on to say –
“I pause here to point out that during the hearing of this matter, it came to my attention that although both parties had adverted to the question of legitimate expectation in the pleadings, none of the respective counsel addressed this point in their heads of argument nor their oral submissions. In the circumstances, as the law enjoins me to do, I ordered both counsel to file supplementary heads of argument on this point and credit to them, they duly obliged within the time frames I had ordered.”
Problem with High Court judgment
[33] An appeal lies against the decision of a lower court in the sense that it is an attack on the merits of that decision or order and not against the reasoning of the presiding judicial officer. The reasoning may not be disregarded in deciding an appeal because it is the reasoning that informs the order.
[34] In deciding any case, it is necessary that a court should, in the body of the judgment, give reasons that justify the court’s conclusion. And one of the most important requirements is that the court must make findings of fact on the basis of which the court applies the law. The major problem in this case is that the learned judge a quo did not make a finding on one major issue that was in dispute between the parties, being whether the respondent agreed to the transfer or not.
[35] The appellants contended that prior to the letter of 12 April 2023 by which the respondent was advised of the transfer, the 3rd respondent had talked to him over the telephone inquiring from him if he would object to the transfer to which respondent said he had no objection and there was no need for any formal written letter advising him of the intention to transfer him. Thus, the letter of 12 April 2023 was written to him and others advising, in the case of respondent, that the transfer would take effect within 3 days of the letter. Second, the 3rd respondent said that although the respondent had no issues with the transfer, he returned to the 3rd respondent and indicated that there were matters he needed to attend to and would not be able to hand over to his successor in office at Peka Police station within the period stipulated. His date of transfer was postponed to 24 April 2023. The respondent still did not report for duty at the new duty station indicating that he had to arrange for his daughter’s schooling and attend to a divorce matter in the court. The 3rd respondent thought that the refusal to hand over and move was an unwarranted procrastination on the part of the respondent. He called him for a meeting on 28 May 2023. He wanted to understand exactly why the respondent was not moving to his new duty station. That meeting was attended by Senior Inspector Sekonyela. Having given his reasons for not taking up the transfer as earlier agreed the parties agreed that he was to report to his duty station by the end of June 2023. When respondent did not do so, that is when the 3rd appellant wrote the final letter of 18 August instructing the respondent to move to Tlalinyane Police station.
[36] The respondent disputed all the above factual assertion and gave his own version of what had transpired over the period from 12 April to August 2023 when he finally moved to Tlalinyane Police station.
[37] The learned judge a quo did not make findings of fact on the issues in dispute. Instead, he latched on the issue of legitimate expectation which he had himself raised. He then came to the conclusion that the respondent had a legitimate expectation to a pre-transfer hearing and that that expectation was frustrated and disregarded. For this reason, he decided that the application should succeed with costs.
[38] The issue of legitimate expectation arises when a person has been denied the right to be heard in circumstances where he is otherwise entitled to be heard depending on whether the administrative authority concerned had given him a basis for that expectation. However, the first inquiry must be an examination whether there has been a denial of the right to be heard. It is a factual finding to be made. In this case it was necessary to establish as a matter of fact whether the respondent had agreed to the transfer, or he had not. If he had agreed that would have been the end of the matter. If he had not, the next inquiry was to be whether he was entitled to a hearing or not.
[39] In determining the entitlement to be heard it might have been necessary to determine whether the complainant had a legitimate expectation so to be heard. Legitimate expectation is an adjunctive consideration to the primary finding that a right to be heard has not been extended to the complainant. It assists in determining the question whether a person is entitled to be heard. In this case a material dispute of fact emerged whether the respondent agreed to the transfer, or he did not. The judge had therefore to decide this factual dispute before concerning himself with the principle of legitimate expectation. He did not. In my view that rendered a consideration of legitimate expectation irrelevant and out of place. Canvassing it mero motu, as he keenly did and hearing argument thereon, was uncalled for. That did not serve any purpose.
Disposition
[40] This appeal is not opposed. So also, the application for condonation of late noting of the appeal and the filing of the record of proceedings out of time. The fact that a respondent has not opposed an appeal does not automatically the appellant to the appeal’s success. The court must be satisfied that success is merited. That is why this rather lengthy judgment has been prepared.
[41] There are at least three reasons for setting aside the decision of the High Court. The order granted, as already stated, was substitutive of the decision of an administrative authority. A court is not entitled to do that. A review is concerned not with the merits of the administrative authority’s decision but with the regularity or legality against which such decision is taken. The court a quo could only have made an order setting aside the appellants’ decision, if that was warranted, and in that event, it had to direct the Police authorities to give the respondent an opportunity to make representations against his transfer. To the extent that the order set aside the transfer of respondent in a final fashion, it was erroneous. Second, the application was beset by a material dispute of fact whether the respondent had agreed to the transfer or not, which the court should have resolved in the normal way, or by resort to the Plascon- Evans rule, or dismissed the application if the dispute was foreseeable and could not be resolved on the papers. Third, the respondent’s decision not to oppose the appeal was, in my view, undoubtedly informed by at least two factors: the futility of pursuing the matter when the respondent was not opposed to the transfer per se but only to the procedure for giving effect to it; and the fact that he took up the transfer and has been Commanding Officer of the new duty station from before the application was heard to date, a period of almost a year, and he may be well ensconced thereat. It is also possible that he considered the real likelihood that if the matter were remitted, the outcome on the merits would not be different having regard to the fact that the only prejudice that respondent alleged was that the transfer amounted to a demotion when no evidence was given that that was the case. For all one can tell, perhaps there may be more challenges in running Tlalinyane Police station than Peka.
[42] From the foregoing, I am impelled to the conclusion that the only proper order to make is to uphold the appeal.
Costs
[43] The issue of costs of appeal must be considered against the backdrop of respondent’s success in the High Court. When an appeal was lodged against that decision, it was not unreasonable for respondent to seek to defend his success in the court below. However, upon further reflection or a re-assessment of his chances on appeal or for other reasons, he withdrew his opposition. These factors considered, and in exercise of the court’s discretion in matters of costs, I think the respondent should not be burdened with the costs of appeal. Although respondent’s application failed, I am satisfied that he did not mount a patently frivolous claim in the High Court. He was bona fide in his contestation of the procedure of his transfer and came short on the law. He is an employee of the large organisation, the Police Service, I exercise my discretion against granting the appellant’s costs in the court a quo and in this Court. The High Court costs order must be set aside.
[44] In the result –
- The appeal is upheld. Each party shall bear its own costs.
- The order of the High Court is set aside and replaced with the following order-
“The application is dismissed with no order of costs.”
______________________________
MH CHINHENGO
Acting Justice of Appeal
I agree
_____________________________
S p SAKOANE
Chief Justice
I agree
__________________________
PT DAMASEB
Acting Justice of Appeal
FOR APPELLANTS: Adv. T Molise
FOR RESPONDENT: No appearance