LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO. 10/2025
In the matter between:
MATHEBE MOTSEKI APPELLANT
AND
NATIONAL EXECUTIVE COMMITTEE 1ST RESPONDENT
LESOTHO POLICE STAFF ASSOCIATION
LESOTHO POLICE STAFF ASSOCIATION 2ND RESPONDENT
RETS’ELISITSOE HLAHENG 3RD RESPONDENT
CORAM: MOSITO P
DAMASEB AJA
MATHABA AJA
HEARD: 24 APRIL 2025
DELIVERED: 2 MAY 2025
FLYNOTE
Voluntary associations Law — Audi alteram partem — Suspension and termination of membership from a police staff association — Whether the refusal to grant an oral hearing violated the duty of fairness — Whether show-cause procedure sufficient where serious reputational harm results — Whether decision taken by a properly constituted body with requisite quorum — Procedural and substantive irrationality — Review and setting aside of decision.
The appellant, a former National Treasurer of the Lesotho Police Staff Association (LEPOSA), was suspended and later permanently expelled from membership following allegations of serious misconduct. The National Executive Committee (NEC) of LEPOSA relied on clause 19.5.4 of the Association’s Constitution to effect her termination, after issuing a show-cause letter to which she declined to respond substantively, instead demanding an oral hearing in accordance with clause 36.3.3 of the Constitution and the principle of audi alteram partem. Despite her request and reliance on prior Constitutional Court precedent affirming the necessity of oral hearings in disputed disciplinary matters, she was dismissed without such a hearing. The High Court dismissed her review application.
On appeal, the Court of Appeal held that the refusal to afford the appellant an oral hearing, in the face of serious allegations carrying lasting reputational harm and permanent disqualification from the Association, was unreasonable and procedurally unfair. The NEC failed to justify its decision to deny the hearing, particularly where clause 36.3.3 of the Constitution contemplated impartial and fair hearings, and where the NEC acted simultaneously as accuser and adjudicator. The Court found that the show-cause procedure adopted did not meet the requirements of fairness in the circumstances. The Court further found the initial suspension to have been procedurally flawed, as it was made without a quorum, and this defect had not been remedied in subsequent proceedings.
Held, allowing the appeal (Damaseb AJA, delivering the judgment of the Court):
In the circumstances, the refusal to grant an oral hearing constituted a breach of the audi alteram partem principle.
The disciplinary process culminating in termination was unreasonable and procedurally unfair.
The suspension decision was made ultra vires the constitution of the association and without a quorum.
The decisions to suspend, discipline, and terminate the appellant were reviewed, set aside, and declared void ab initio.
Costs awarded to the appellant both in the High Court and on appeal.
JUDGMENT
P.T. DAMASEB AJA
Introduction
[1] This appeal concerns the lawfulness of the appellant’s termination from membership of the Lesotho Police Staff Association (LEPOSA). The appellant, Ms. Mathebe Motseki, was a member of LEPOSA until May 2024. On 16 May 2024, she received a letter from the General Secretary of LEPOSA (the GS) entitled “Termination of Membership”, which informed her that:
“…the National Executive of LEPOSA has resolved, after careful consideration, to invoke section 19.5.4 of the Association’s Constitution in view of your persistent misconduct despite prior written warnings.”
[2] Clause 19.5.4 of the LEPOSA Constitution provides:
“Membership shall be terminated if the NEC finds that a member’s conduct undermines the aims and objectives of the Association or tarnishes its image or reputation, as outlined in the Code of Conduct. A person whose membership is terminated in terms of this provision shall be permanently barred from rejoining the Association.”
Background to the termination
[3] At the relevant time, Motseki served as both a member of LEPOSA and its National Treasurer. In January 2024, LEPOSA’s National Executive Committee (NEC) requested her to address
certain disciplinary concerns involving her. At a meeting convened on 30 January 2024 to consider the matter, the GS proposed her suspension. The proposal was adopted, and on 1 February 2024, Motseki was formally served with a suspension letter and instructed to return all LEPOSA property in her possession.
[4] Subsequently, Motseki instituted urgent proceedings in the High Court, seeking interim and final relief to set aside her suspension. Among other things, she sought:
a.
Suspension of the (NEC’s) suspension decision pending final adjudication,
b.
An interdict against any interference with her functions as Treasurer, and
c.
A declaration that the 30 January 2024 proceedings and the resulting suspension were unlawful and procedurally irregular.
[5] She challenged the suspension on several grounds, contending, inter alia, that:
“The decision to suspend me was not subjected to a proper vote by the NEC. In fact, only six members supported the proposal, namely members from the Central Region and two from the Northern Region, the third being disqualified under the Constitution.
I was verbally informed that I was placed on a partial suspension and would retain access to the Association’s funds. Such a suspension is procedurally flawed and contrary to the Constitution, which does not provide for partial suspensions of NEC members.”
[6] In essence, Motseki asserted that her suspension was unlawful and contravened LEPOSA’s constitution.
[7] The High Court declined to hear the application on an urgent basis and the matter had to proceed in the normal course. While Motseki was under precautionary suspension, disciplinary charges were instituted against her, culminating in a six-month punitive suspension.1 It is common ground between the parties that the punitive suspension was time-sensitive and lapsed after it had been served.
[8] During the pendency of the punitive suspension, Motseki was alleged to have committed further acts that displeased the LEPOSA’s leadership. As a result, on 15 April 2024, the GS issued a show cause letter against Motseki requiring her to explain why her membership of the association should not be terminated in terms of section 19.5.4. The show cause letter listed the following allegations:
a.
She had, through her legal representative, instructed Nedbank Lesotho to freeze LEPOSA’s accounts, thereby hindering its operations.
b.
She gave an unauthorised interview to The Post newspaper, in breach of section 7(g) of the Constitution, despite being reminded on 22 February 2024 to adhere to protocol regarding media engagements.
1 See Clause 11.6 of the LEPOSA Code of Conduct and Policy under Penalties which reads: ‘Suspension from committee membership for prescribed period, recall from the committee structures’.
c.
She contradicted NEC reports in the Association’s WhatsApp group, thereby causing confusion.
d.
She participated in and disseminated audio messages through a dissident WhatsApp group titled LEPOSA Voice of the Voiceless, fully aware that it was unauthorised.
e.
She repeatedly refused to return keys, money, documents, and a LEPOSA vehicle to the third respondent despite written demands, causing the Association to incur unnecessary costs.
[9] The letter concluded that Motseki was required to show cause, within seven days, why her membership should not be terminated.
[10] In response, by letter dated 18 April 2024, Motseki declined to address the merits of the allegations in writing as demanded in the show cause letter. She invoked her right to a hearing under Clause 12(8) of the LEPOSA constitution and relied on a 2020 Constitutional Court judgment in LEPOSA v Commissioner of Police2, which held that factual disputes underpinning dismissal required an oral hearing. She denied the allegations, characterising them as serious, and insisted that written representations were an inadequate substitute for an oral hearing before an impartial tribunal.
[11] According to Motseki:
2 Case No. 14/2020.
“The gravity of the allegations requires a proper hearing with the opportunity to present oral evidence and cross-examine witnesses. A decision of such finality cannot be justly made on the basis of written submissions alone.”
[12] Despite her request for an oral hearing, Motseki was served with a letter of termination. She again approached the High Court, seeking interdictory and substantive relief. The substantive relief she sought was to review and set aside the termination as unlawful.
[13] Although she raised several alleged violations of the LEPOSA constitution to justify the unlawfulness, Motseki’s principal argument was that the charges against her were of such gravity that a formal disciplinary hearing should have been held in accordance with clause 36 of the Constitution. That clause states:
‘36.0 Disciplinary Committee
36.1 The Association shall have the power to discipline its members at district, regional and national levels. In disciplining its members, the Association shall be guided by the LEPOSA code of conduct.
36.2 The Association shall have the power to discipline its employees and shall be guided by the Association’s code of conduct.
36.3 A Disciplinary Committee in LEPOSA shall be consisted with 3 members and will play a crucial role in ensuring fair and just practices within the Association and addressing violations of rules and codes of conduct. Their roles and responsibilities shall be as follows:
36.3.1. Composition: The Disciplinary Committee shall be consisted of impartial and knowledgeable members appointed by GS.
36.3.2. Investigation: They shall conduct thorough investigations into alleged violations of the Association rules, code of conduct, or disciplinary matters brought to their attention. They shall also gather evidence, interview relevant parties, and review relevant documents to establish facts and determine the nature and severity of the violation.
36.3.3. Fair Hearing: They shall provide individuals accused of misconduct with a fair and impartial hearing. They shall also ensure that all parties involved have an opportunity to present their case, provide evidence, and call witnesses if necessary. They shall adhere to the principles of natural justice, including the right to be heard, (no legal representation in relation to members), and the right to a timely resolution.
36.3.4 Decision-Making: Based on the evidence presented during the hearing, deliberate on the alleged violation and they shall determine the appropriate course of action. They shall make fair and unbiased decisions, considering the Association’s rules, code of conduct and any applicable laws and regulations. They shall consider mitigating factors, past behaviour, and the severity of the violation when determining appropriate penalties or disciplinary actions.
36.3.5 Disciplinary Actions: They shall determine and impose suitable disciplinary actions or penalties, outlined in the code of conduct, such as suspension, expulsion, or other measures deemed appropriate. They shall communicate the disciplinary decision in writing to the concerned parties, outlining the reasons for the decision and any applicable consequences, they shall also ensure that disciplinary actions are proportionate to the severity of the violation and promote fairness, accountability, and the best interests of the Association.
36.3.6 Appeals Process: They shall provide an avenue for individuals to appeal against disciplinary decision if they believe there are grounds of appeal for reconsideration. GS shall establish an appeal team with clear
process that allows for a fair review of the original decision as an impartial body or designated appeals committee.
36.3.7 Confidentiality: They shall maintain strict confidentiality throughout the disciplinary proceedings to protect the privacy and reputation of all parties involved. They shall limit the disclosure of information to those directly involved in the proceedings and ensure compliance with applicable data protection and privacy laws.
36.3.8 Documentation and Record-Keeping: They shall maintain accurate records of all disciplinary cases, including documentation of allegations, evidence, hearings, decisions, and disciplinary actions taken. They shall also safeguard these records in a secure and confidential manner, ensuring they are accessible for future reference if needed.’
[14] Motseki maintained that even under clause 19.5.4, on which the NEC relied, she was entitled to a hearing. In her own words:
‘The invoking of section 19.4.5 of the LEPOSA constitution by way of a show cause will be against my constitutional right of a fair hearing in terms of section 12(8) of the Constitution of Lesotho. Importantly, it will be against the very same decision of the Constitutional Court mentioned above that the Association that I am a member of, approached to the Constitutional Court and declared the actions of the Commissioner of Police unconstitutional for not affording members of LMPS a fair hearing and relying on show cause when there are hotly disputed issues. It would be a travesty that I am being subjected to a procedure that the Association went to court, challenged and won.’
[15] In oral argument on appeal, LEPOSA’s counsel conceded that the NEC neither in its minutes nor in its answering affidavit offered an explanation why it denied Motseki’s request for a face-to-face
hearing. LEPOSA merely asserted that the audi principle does not necessarily require such a hearing.
The High Court [16] The High Court dismissed Motseki’s application. It held: ‘Given the foregoing considerations, this court finds that the applicant failed to discharge the burden that the decision of the NEC terminating her membership in LEPOSA should be reviewed and set aside for being unlawful, wrongful and irregular. The declaratory order sought by the applicant that the termination of her membership be declared unlawful, wrongful and irregular would be incidental to the granting of the prayer for review. The court finds that there was nothing unlawful, wrongful or irregular about the respondent’s decision to terminate the applicant’s membership in LEPOSA. The declaratory is by the same token bound to fail. The application in CIV/APN/0142/2024 is therefore dismissed with costs. [17] As regards the suspension, the High Court held:
‘On closer consideration of the applicant’s case in CIV/APN/0022/2024 it became apparent that the reliefs sought therein have indeed become moot. In that application, the applicant challenged her precautionary suspension pending investigations into the alleged acts of misconduct against her. The disciplinary hearing against her ultimately proceeded in default, and the disciplinary committee imposed a punitive suspension of six months from the portfolio of the national treasurer. The applicant has not challenged the latter punitive suspension and any decision by this court regarding the precautionary suspension will serve no practical benefit to the applicant and will thus be academic.’
The Appeal
[18] Motseki’s appeal to this Court is premised on the following grounds of appeal:
a.
The honourable Judge erred and misdirected herself in finding that CIV/APN/0022/2024 had been overtaken by events; yet the respondent conceded in the answering affidavit and before court that the decision to suspend her was made erroneously by the 1st respondent as the 1st respondent did not form a quorum in terms of section 24.1 of the Constitution.
b.
The learned Judge erred and misdirected herself in CIV/APN/0022/2024 in finding that the application is moot in that section 25.1.5 provides that determination of suspension of an NEC member shall be endorsed by the general conference or special conference.
c.
The learned judge erred and misdirected herself in finding that the respondents in CIV/APN/0142/2024 rightfully terminated the appellant’s membership in the association without affording the appellant a hearing in terms of section 36.3.3 of the association’s constitution which provides for procedure in disciplinary proceedings.
d.
The learned judge erred and misdirected herself in finding that the show cause letter served upon the appellant was a sufficient mode of disciplinary action despite the association’s constitution stating under section 36.3.3 and section 36.3.5 the procedure that has to be followed in holding disciplinary actions in the association.
e.
The learned Judge erred and misdirected herself in finding that the constitution LEPOSA grants the 1st respondent the power to terminate the appellant’s membership.
f.
The learned judge erred and misdirected herself in finding that the applicant brought new evidence in her written heads of arguments and submissions.
Submissions
Appellant [19] Motseki challenges the suspension and termination of her membership by the first respondent, arguing both actions were unlawful, irregular, and contrary to the LEPOSA constitution and principles of natural justice. She contends that her suspension as National Treasurer was invalid because it was imposed without a quorum as required by section 24.1. She maintains that the court erred in finding that the suspension had become moot due to a subsequent disciplinary process, arguing that the constitutional irregularities in the initial suspension warranted judicial review and remained a live issue. [20] Regarding her termination, Motseki argues that it was procedurally flawed and in violation of Clause 36.3.3 of the Constitution of LEPOSA, which guarantees the right to a fair hearing. She asserts that she was not given a proper opportunity to present her case, adduce evidence, or call witnesses. Furthermore, she asserts that the first respondent acted with bias by serving both as accuser and adjudicator, rather than referring the matter to an impartial body like the General Conference. She also points out that the NEC meeting minutes failed to substantiate any claims that she had acted in a way that damaged LEPOSA’s reputation, as required under section 19.5.4.
[21] Motseki contends that the court below misapplied constitutional provisions and failed to consider key procedural safeguards, particularly those related to fair hearing and impartiality. She argues that the court overlooked the importance of the quorum, the required endorsement of her suspension, and the flawed disciplinary process. As such, she maintains the High Court’s findings were legally and factually flawed, resulting in a miscarriage of justice. She urges that the appeal be upheld, and that both the suspension and termination be declared unlawful and set aside.
Respondent [22] The respondents contend that Motseki’s membership termination was lawful under section 19.5.4 of the LEPOSA constitution, which allows for termination where a member's ‘way of life’ harms the Association’s image or is prejudicial to its objectives. They emphasise that termination under this section is final and bars re-joining, rendering the relief sought in CIV/APN/0022/2024 moot. According to the respondents, the process was procedurally fair, noting the appellant was given a chance to respond to allegations via a ‘show cause’ letter, followed by a second notice after her non-response, which they argue satisfied procedural fairness requirements. [23] In response to Motseki’s reliance on Clause section 36.3.3 of LEPOSA’s constitution, the respondents submit that the process
did not require a formal disciplinary hearing, as administrative fairness can be fulfilled through written submissions. They cited Commander of LDF v Mokoena3, to support their position that a quasi-judicial-type hearing was unnecessary. They further assert that the appellant’s NEC membership did not confer substantive benefits beyond a minor airtime allowance, thus her termination did not result in punitive consequences.
[24] Finally, the respondents argue that there were no legal grounds for judicial review, as the NEC’s decision met the standards of legality, rationality, and procedural fairness. They emphasized that courts should defer to specialized administrative bodies unless decisions are unreasonable or unsupported by evidence. They concluded that the court rightly dismissed the appellant’s application, as the respondents acted within the law, and therefore the appeal should be dismissed with costs.
Disposition [25] In my view, LEPOSA’s refusal to afford Motseki a hearing is dispositive of this appeal. There still remains the issue of the suspension, which the High Court concluded had become moot. [26] Clause 19.5.4 of LEPOSA’s constitution imposes a penalty of enduring severity: permanent expulsion. Such a sanction carries with it a serious moral and reputational stigma and will inevitably
3 Commander of the Lesotho Defense Force & others v Mokoena & others (C of A (CIV) 12 of 2002) [2002] LSCA 132 (11 October 2002).
affect Motseki’s career prospects within the police service. It is idle for the respondents to suggest otherwise.
[16] Given the grave implications of a termination on Motseki’s reputation and career advancement, LEPOSA was obliged to meaningfully consider her request for an oral hearing. LEPOSA’s inflexible position ─ that audi need not entail a face-to-face hearing ─ fails to explain why such a procedure was inappropriate or unfeasible in Motseki’s case. If regard is had especially to the fact that she invoked a binding precedent of the Constitutional Court in support of the request and complained that the procedure being adopted made the NEC both accuser and judge in own cause.
[17] Therefore, the reasonableness of LEPOSA’s stance is to be measured against the fact that a show-cause procedure was not the only avenue that was available to grant audi to Motseki. The question that arises is whether LEPOSA’s refusal to entertain Motseki’s request for a face-to-face hearing was one which a reasonable authority could reach.4 In other words, was the refusal ‘conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt’ and whether LEPOSA, in refusing Motseki’s request, ‘struck a balance fairly and reasonably open to [it]’.5
[18] Courts generally defer to an administrative decision-maker where the latter’s choice falls within a range of reasonable alternatives. However, judicial intervention is warranted where the
4 Per Lord Cooke in R v Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd [1999] 1 ALL ER 129 (HL) at 157.
5 Ibid.
decision-maker arbitrarily excludes all rational options without explanation.
[19] As O’Regan J stated in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others6:
‘[45] What will constitute a reasonable decision will depend on the circumstances of each case, much as what will constitute a fair procedure will depend on the circumstances of each case. Factors relevant to determining whether a decision is reasonable or not will include the nature of the decision, the identity and expertise of the decision maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected. Although the review functions of the Court now have a substantive as well as a procedural ingredient, the distinction between appeals and reviews continues to be significant. The Court should take care not to usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness as required by the Constitution.’
[20] LEPOSA’s refusal of Motseki’s request, absent justification, leads to the inescapable inference that its decision was unreasonable. It dismissed, without reason, a viable procedural option available to it for dealing with Motseki’s suspected misconduct.
[21] The decision to terminate Motseki had grave personal consequences for her; yet her request for a hearing was not
6 [2004] 4 SA 490 para 45.
capricious and was well-reasoned. LEPOSA has offered no justification for refusing it. That renders its conduct unreasonable and irrational. The decision to terminate Motseki’s membership without an oral hearing was therefore unlawful and liable to be reviewed and set aside.
[22] Motseki had made out a case for the reviewing and setting aside of the termination of her membership of LEPOSA and as National Treasurer. The High Court erred in dismissing her application. The appeal must accordingly succeed on that score.
The suspension
[23] In her founding affidavit challenging the suspension (paras 4.12 to para 5.2 ) Motseki alleged that the decision to suspend her was not a valid decision because the National Office bearers, qua NEC members, were denied the right to vote thereon by the GS. Except for a bald denial, it is not issuably disputed on behalf of LEPOSA that National Office bearers are NEC members and that they were denied to vote either for or against the suspension. A mere bald denial of this critical allegation is not such that it raised a genuine dispute of fact on the papers. It follows that Motseki had made out a case for the invalidation of the suspension.
ORDER
[23] I therefore make the following order:
1.
The appeal succeeds and the judgment and order of the High Court are set aside and replaced by the following:
‘(i) It is declared that the termination of the Applicant’s membership of LEPOSA is unlawful, wrongful and irregular.
(ii) The first respondent’s decision to (a) suspend the applicant (b) to hold a tribunal against the Applicant and (c) to terminate the applicant’s membership of LEPOSA, are reviewed and set aside and void ab initio.
(iii) Costs are granted to the applicant against the first and second respondents, jointly and severally, the one paying the other to be absolved’.
2.
The appellant is granted costs of the appeal against first, second and third respondents in the appeal, jointly and severally the one paying the other to be absolved.
_______________________________________
P. T DAMASEB
ACTING JUSTICE OF APPEAL
I agree:
––––––––––––––––––––––––––––––––––––––
K. E MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree:
____________________________________
A. R MATHABA
ACTING JUSTICE OF APPEAL
FOR APPELLANT: ADV N.K LESENYEHO
FOR RESPONDENTS: ADV T.V MASASA