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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) NO. 70/2024
CIV/APN/0300/2022
In the matter between
MOLIKUOA SEKHONYANA 1STAPPELLANT
MAKHAUTA MASITA 2NDAPPELLANT
and
PRINCIPAL SECRETARY – MINISTRY OF PUBLIC
SERVICE 1ST RESPONDENT
PRINCIPAL SECRETARY – MINISTRY OF
EDUCATION & TRAINING 2ND RESPONDENT
PRINCIPAL SECRETARY – MINISTRY OF TOURISM,
ENVIRONMENT & CULTURE 3RDRESPONDENT
THE PUBLIC SERVICE COMMISSION 4TH RESPONDENT
THE ATTORNEY GENERAL 5TH RESPONDENT
CORAM: MOSITO P
MUSONDA AJA
VAN DER WESTHUIZEN AJA
HEARD: 11 APRIL 2025
DELIVERED: 02 MAY 2025
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FLYNOTE
Administrative law – Public service – Rationality – Regrading under Circular No. 7 of 2013 – Whether exclusion of officers performing substantially similar duties to regraded counterparts was rational – Distinction between unreasonableness and irrationality – Constitutional imperative of lawful, fair, and rational administrative action – Whether High Court erred in refusing relief and costs.
This appeal arose from a challenge by two Chief Information Officers who had been excluded from a regrading exercise conducted pursuant to Circular No. 7 of 2013, which was issued to rectify anomalies in the public service grading structure. Though performing duties functionally equivalent to those of officers who were regraded from Grade H to Grade J, the appellants were denied similar treatment solely on account of titular differences. The High Court dismissed their application for review and declined to award costs.
On appeal, the Court of Appeal held that Circular No. 7 of 2013, though styled as a policy instrument, bore normative force and created legitimate expectations where its criteria were met. The Court affirmed the constitutional principle that administrative decisions must be rationally connected to their lawful purpose. It distinguished the doctrine of irrationality—concerned with the coherence between means and ends—from the higher threshold of Wednesbury unreasonableness. The Court held that the appellants’ exclusion from regrading, despite meeting the structural and functional benchmarks contemplated by the Circular, was irrational, arbitrary, and incompatible with the constitutional obligation to act fairly, lawfully, and without bias.
Accordingly, the appeal succeeded. The Court declared the refusal to regrade the appellants irrational, ordered their regrading to Grade J with retrospective effect from 1 April 2013, directed payment of arrears due, and awarded costs to the appellants. The decision underscores the constitutional centrality of rationality in the exercise of public power and reinforces the principle that substance must prevail over form in administrative justice.
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JUDGMENT
MOSITO P
Introduction
[1] This appeal considers whether the exclusion of two Chief Information Officers from a regrading exercise conducted under Circular No. 7 of 2013 was lawful. The High Court dismissed their application to be regraded from Grade H to Grade J. They now appeal to this Court.
[2] The question before us is whether public servants entrusted with responsibilities equivalent to those of regraded colleagues may lawfully be excluded simply due to their title. In our judgment, they may not.
Factual Matrix
[3] In 2013, both appellants served as Chief Information Officers, Grade H, in the Ministries of Education and Tourism. They led public relations units, supervised staff, and reported to Deputy Principal Secretaries—functions similar to those of directors.
[4] In response to inconsistencies in the public service grading system, the Ministry of the Public Service issued Circular No. 7 of 2013. It aimed to align grades with responsibility. Directors were regraded to Grade J and managers to Grade I. Although the appellants were regraded to Grade I, they were excluded from Grade J, unlike other similarly placed officers such as Chief Legal Officers.
The Issues
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[5] The appeal presents two interrelated questions:
a. Whether the High Court erred in finding that the appellants failed to establish a case warranting the review of their exclusion from regrading to Grade J under Circular No. 7 of 2013.
b. Whether the High Court erred in declining to award costs to the appellants.
Legal Framework
[6] In public law, particularly in administrative governance, a circular occupies a position of substantial significance. Though often characterised as instruments of executive communication or guidance, circulars may, in appropriate circumstances, acquire the force and effect of binding administrative directives—particularly where they emanate from a lawful source of authority, are intended to regulate conduct or entitlements within the public service, and are applied consistently in practice.
[7] In a well-ordered legal system, and especially under a constitutional regime committed to equality, the principle must be upheld that circulars, once issued under lawful authority and reasonably relied upon, acquire legal significance not merely as policy but as norms capable of generating rights, expectations, and enforceable administrative duties.1
[8] The law does not preclude differential treatment altogether, but it demands that such differentiation be objectively justifiable. Where officials perform similar duties and bear comparable
1 R (Daly) v Home Secretary [2001] 2 AC 532.
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responsibilities, exclusion of some from benefits accorded to others requires an explanation grounded in reason and law.
[9] Since the present appeal involves whether the refusal to upgrade the appellants was justified, it is useful also to say something about the judicial doctrines of unreasonableness and irrationality at this stage. The question is not merely semantic, nor one of pedantic taxonomy. It goes to the very heart of our commitment to legality, rational governance, and the rule of law. It is appropriate to begin by observing that both unreasonableness and irrationality are species of review, not appeal. They occupy a distinct terrain in administrative law. The distinction is perhaps best appreciated when one recalls that courts, when exercising review jurisdiction, do not interrogate the correctness of a decision but rather the lawfulness of the process and the defensibility of the outcome within the confines of public power.
[10] The doctrine of unreasonableness in Lesotho has long borne the imprint of English administrative law. Under this doctrine, a decision may be struck down if it is so unreasonable that no reasonable decision-maker could ever have reached it. This is a high threshold. It is not sufficient that the decision is harsh or even manifestly wrong; it must be shown to be outrageous in its defiance of logic or accepted moral standards. This Court has applied this doctrine in several decisions with restrained vigilance, bearing in mind that the judiciary is not a super-administrator and that administrative decisions must be accorded a margin of appreciation, particularly in complex matters involving policy or discretion. A finding of unreasonableness must reflect more than
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mere disagreement with the impugned decision; it must disclose a kind of arbitrariness or disproportionality so extreme as to violate basic tenets of rational decision-making.
[11] By contrast, the doctrine of irrationality, particularly as it has evolved in South African constitutional jurisprudence, is grounded in section 1(c) of the South African Constitution which is comparable to our section 2 of the Constitution of Lesotho, which affirm the supremacy of the Constitution and the rule of law. Under this dispensation, all exercises of public power must be rationally connected to the purpose for which the power was conferred. This doctrine has been robustly developed by the Constitutional Court of South Africa, where it was held that rationality is a requirement of the rule of law itself, and that any decision taken without a rational connection between the means employed and the ends sought is constitutionally invalid.
[12] The South African courts have thus refined irrationality into a constitutional imperative: decisions must be lawful, procedurally fair, and rational in their design and execution. A decision may, therefore, be irrational even where it is not unreasonable in the Wednesbury sense. Rationality focuses on the relationship between the means and the end, whereas unreasonableness traditionally examines the outcome in the light of the available evidence and relevant considerations.
[13] Both doctrines have found application in the jurisprudence of the Court of Appeal of Lesotho, albeit not always with terminological precision. This is understandable, given the continuing influence of common law traditions, the evolving
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interpretation of the Constitution of Lesotho 1993, and the increasing judicial recognition that rationality is not merely a matter of administrative courtesy but a constitutional necessity.
[14] Farlam AP in Brigadier Mareka & Others v Commander Lesotho Defence Force2 appears to have endorsed the proposition that irrationality, as employed within the context of judicial review, is conceptually aligned with what has historically been referred to as Wednesbury unreasonableness. By referring approvingly to Lord Diplock’s formulation in the Council of Civil Service Unions v Minister for the Civil Service3 (commonly known as the CCSU case), Farlam AP draws upon the traditional administrative law doctrine, which equates irrationality with extreme unreasonableness.
[15] In paragraph [20] of his judgment, Farlam AP cites Lord Diplock’s seminal passage, where irrationality is defined as a decision “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”4 That definition encapsulates the very high threshold inherent in Wednesbury unreasonableness, which, though described in modern terms as irrationality, does not alter its substantive meaning.
[16] Further, by noting that this formulation was later adopted by Dumbutshena CJ in Patriotic Front–ZAPU v Minister of Justice 5 and reaffirmed by the Court of Appeal of Lesotho in Koatsa v National University of Lesotho6, Farlam AP situates his interpretation
2 Brigadier Mareka & Others v Commander Lesotho Defence Force (C of A (CIV) 52 of 2016) paras 20 and 21.
3 Council of Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174.
4 Ibid. at 1196 D-E
5 Patriotic Front – ZAPU v Minister of Justice 1986 (1) SA 532 (ZSC) at 548 F-H.
6 Koatsa v National University of Lesotho LAC (1985-1989) 335 at 339 E-F.
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within an established jurisprudential lineage across Southern Africa. These authorities reflect a continuity of thought in equating the terms irrationality and Wednesbury unreasonableness—not as distinct legal concepts, but as alternative expressions of the same standard.
[17] Thus, while in more recent constitutional contexts (such as in post-1996 South African jurisprudence) the terms irrationality and unreasonableness have evolved distinct legal contours, Farlam AP, is clearly referencing the classical common law approach, in which irrationality and unreasonableness are interchangeable, both denoting a decision so egregiously flawed that it falls outside the range of lawful administrative action.
[18] I am, with respect, unable to accept the formulation advanced by Farlam AP. My disagreement is firmly rooted in the progressive development of constitutional administrative law, and is strongly reinforced by the doctrinal clarity that has emerged, most notably, in the jurisprudence of South Africa since the advent of its 1996 Constitution. To treat irrationality as synonymous with Wednesbury unreasonableness is, in my respectful view, to overlook the deliberate and principled distinction that modern constitutional democracies—governed by the supremacy of the Constitution and the rule of law—have drawn between these two concepts. Though historically connected, they have been clearly and properly separated in contemporary public law, both in substance and analytical approach.
[19] The critical point of departure lies in the source and function of the two doctrines. Wednesbury unreasonableness—as
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articulated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation7—arose from the common law’s traditional reluctance to interfere with the merits of administrative discretion. It reflects a deferential, outcome-focused test, requiring that a decision be so absurd or outrageous that no reasonable authority could have reached it. It is a threshold so high that, in practical terms, it has often insulated administrative decisions from meaningful scrutiny, even where they are plainly questionable in logic or substance.
[20] By contrast, irrationality in the post-constitutional era—particularly under the 1996 Constitution of South Africa—derives from the foundational value of the rule of law. In Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa, the Constitutional Court made it clear that all exercises of public power, whether legislative, executive or administrative, must be rationally related to a legitimate government purpose. This requirement flows not from judicial discretion, but from constitutional obligation. It is structural, not subjective. It asks not whether the outcome is outrageous or morally offensive, but whether the means chosen bear a rational connection to the end sought to be achieved. Thus, irrationality is a process-based inquiry grounded in legality, not the evaluative standard of reasonableness.
[21] This means that irrationality and unreasonableness are no longer co-extensive. They serve different constitutional functions. As the South African Constitutional Court later confirmed in
7 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
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Affordable Medicines Trust v Minister of Health, rationality review has a low threshold and is concerned only with the logical connection between means and ends. In contrast, reasonableness demands a proportionality assessment that interrogates whether the decision was justifiable in light of all relevant considerations.
[22] The Farlam AP’s formulation, with respect, appears to disregard this doctrinal evolution. By collapsing irrationality into Wednesbury unreasonableness, he invokes a pre-constitutional model of review that places excessive deference in administrative decision-makers and thereby risks diluting the constitutional imperative that all public power be exercised lawfully, reasonably, and procedurally fairly.
[23] Moreover, constitutional supremacy renders this conflation problematic. The language of Wednesbury is steeped in the discretionary sensibilities of administrative law as it once stood in the United Kingdom, prior to the rise of rights-based constitutionalism. In Lesotho and South Africa—where constitutions are supreme and justiciable—the rule of law demands a more rigorous and structured framework for controlling public power. As a constitutional norm, irrationality is not a synonym for extreme error; it is a litmus test for the internal coherence and lawful foundation of administrative action.
[24] In sum, while Farlam AP’s reliance on historical precedent is understandable, it is no longer tenable in light of the constitutional reconfiguration of public law. To insist on equating irrationality with Wednesbury unreasonableness is to adopt an outdated analytical framework and neglect modern constitutionalism's
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normative demands. Our jurisprudence must now preserve the conceptual independence of irrationality- as a constitutional requirement of legality—and unreasonableness- as a broader, more evaluative measure of administrative justice. These are not interchangeable, and to treat them as such risks undermining the accountability that the Constitution demands of all public functionaries. This, to our mind, marks a doctrinal convergence between our jurisprudence and that of our South African counterparts.
[25] It is now well accepted that a public authority in Lesotho must act within the confines of the law, and that such action must exhibit a rational nexus to the legitimate ends of governance. In recognising that distinction, this Court is committed to a jurisprudence that does not conflate these doctrines but gives each its due.
[26] In administrative law, irrationality thus performs a vital constitutional function: it polices the outer boundaries of lawful discretion. Public authorities are entrusted with power for lawful purposes, not for whimsical or arbitrary use. Where a decision lacks a rational connection to the purpose for which the power was conferred, it offends the very notion of good administration and undermines public confidence in the integrity of governmental decision-making. In modern constitutional democracies, such as the United Kingdom and the Commonwealth jurisdictions that draw upon its tradition, irrationality is not to be understood merely as a synonym for “bad” or “unfair” decisions. Rather, it is a doctrinal control mechanism that ensures decisions are supported
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by logic, are internally coherent, and are consistent with the public interest the power was meant to serve. It prevents the state from acting in a manner that is inexplicable, incoherent, or completely untethered from the objectives of governance.
Consideration of the appeal
[27] The starting point of this inquiry, as it should be, is the text of the Circular itself. Administrative instruments of this nature—particularly those that alter public service employment's material terms and conditions—must be construed with close attention to language, purpose, and structural coherence. Circular No. 7 of 2013, issued under the authority of the Principal Secretary of the Ministry of the Public Service, is styled a "normalisation" directive, and its stated aim is to rectify identified anomalies in the grading structure of the civil service.
[28] On its face, the Circular confronts a specific misalignment in the hierarchy of Grades H to J, noting, with administrative candour, that certain director positions had been placed at the same or even lower grades than those of managers—a state of affairs that, if allowed to persist, would disrupt the integrity of any rational public service architecture. The anomaly, as recorded, arises from the convergence of director-level posts at Grades I and J, while managerial positions subsist at Grades H and I. This overlaps and compresses the grading distinctions, which should reflect ascending layers of responsibility, skill, and seniority in a well-ordered public service.
[29] The language of the Circular is notable for its precision and restraint. The phrase “In order to rectify this…” signals that what
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follows is a deliberate and targeted intervention, not a wholesale restructuring. The document attaches a revised grading schedule (not reproduced in the body of the Circular but referred to as annexure), and gives the exercise a prospective temporal ambit, specifying 1st April 2013 as the effective date. In legal terms, this is a prospective administrative act intended to apply forward, thereby avoiding the retroactive disturbance of vested rights or settled expectations.
[30] At the core of the Circular lies a set of principles—some explicit, others inferable. First, vertical rationality is a principle: higher responsibility must attract higher grading. Second, a principle of structural consistency: titles and functions must correlate across ministries. Third, a principle of functional substance: what matters is the nature of duties performed, not merely the nomenclature of the post.
[31] The Circular confines the scope of change to incumbents who serve either as heads of departments or as deputy heads. This is an important qualification and one that acts as a gatekeeping criterion. It implies that not all “managers” or “directors” are automatically entitled to upgraded grading. The entitlement is function-based, not merely title-based. The inclusion of this proviso is both deliberate and consistent with the jurisprudential principle that classification must correspond to duties performed—a theme well established in the decisions of this Court.
[32] Titles are easily bestowed, sometimes unevenly distributed, and occasionally out of step with institutional realities. Functions, by contrast, admit objective scrutiny. They speak through
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reporting lines, decision-making authority, supervisory control, and the practical burdens borne by those who occupy the relevant posts.
[33] It follows, therefore, that where an officer performs duties identical in substance to those of a colleague who has benefited from a policy intervention—such as the regrading exercise envisaged by Circular No. 7—it would be plainly irrational, and arguably unlawful, to exclude that officer on account only of a difference in title. In doing so, the employer would resurrect the very incongruities the policy was designed to dissolve.
[34] In its finest expression, the law is not content with formal correctness; it aspires to substantive justice. In this area of administrative law, that aspiration finds expression in the maxim that substance must prevail over form. This principle animates the Court’s conclusion in the present matter and sustains the appellants’ rightful claim to parity in treatment.
[35] The Circular does not operate in a vacuum. Its provisions must be read against the constitutional commitment to fairness, administrative justice, and equality before the law. Indeed, the requirement that ministries submit proposals where nomenclature is inconsistent or ambiguous clearly acknowledges that rigid titularism may obstruct the proper application of the policy. This invitation to ministries to identify functionally equivalent posts for reconsideration is a commendable expression of administrative flexibility—it ensures that form does not triumph over substance and that deserving incumbents are not unjustly excluded by bureaucratic happenstance.
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[36] One also notes the inclusion of a cascading list of additional positions affected by the grading adjustment—these range from housemen (interns) to government secretaries and consultants. The progression is linear and upward, and the document preserves a coherent internal logic: the higher the level of complexity or leadership responsibility, the higher the grade assigned. This demonstrates a deliberate calibration of the public service structure and further signals that the circular was conceived as part of a systematic reform rather than a piecemeal revision.
[37] The final paragraph instructs Chief Accounting Officers to “note this change and take appropriate action.” This is more than a gentle reminder; it is a call to implementation. The phrase “take appropriate action” imports an obligation of execution consistent with the terms of the directive. This implies that chief accounting officers are not mere passive observers but active agents of policy realisation. Failing to implement the regrading where the criteria are met without specific exemption or lawful justification would be administratively indefensible.
[38] Circular No. 7 of 2013 is a rational and coherent administrative instrument. It addresses a recognised structural inequity with clarity and fairness, sets out objective criteria for implementation, and makes express provision for accommodating positions that may be mislabelled or overlooked. In doing so, it affirms the values of fairness, transparency, and rational public administration. The legal force of the Circular lies not merely in its text but in its purposive alignment with the constitutional promise of equal treatment under the law. Its application must accordingly
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be guided not by formalism, but by fidelity to function and the demands of administrative justice.
[39] The circular has some legal and administrative consequences. It introduced a carefully calibrated regrading system, uplifting numerous positions on a prospective basis from 1 April 2013. Notably, it stipulated that regrading applied to those who were either heads of departments or their deputies. Importantly, it also invited ministries to submit proposals where nomenclature or structures had created lacunae.
[40] Turning as I now do to the appeal before us, it is common cause that both appellants were heads of their respective units. Though not formally designated “Directors,” they discharged less consequential functions. They were managers in every sense contemplated by the circular, and the refusal to regrade them appears to rest solely on the absence of titular designation.
[41] This, with respect, is a fundamental misdirection. When the underlying duties are materially the same, upholding a distinction on the sole basis of title is to frustrate the very mischief the policy intended to cure. It is to substitute a bureaucratic taxonomy for a legal and moral principle. It is, with respect, to enthrone a fiction over a fact. And that, the law does not permit.
[42] This conclusion is fortified by the decision of this Court in Fobo v Ministry of Finance and Others.8 There, the Court held that the Public Service Commission's decision to upgrade and retire the appellant in accordance with Circular No. 7 of 2013 could not be
8 Fobo v Ministry of Finance and Others C of A (CIV) 33/2024.
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lawfully ignored unless set aside. The Court emphasised that once a benefit is conferred under a formal administrative instrument such as a circular, it attracts legal protection unless lawfully revoked.
[43] Likewise, the decision in Mpakanyane & Others v Principal Secretary – Ministry of Communications & Others9 provides further authority for the view that the failure to assimilate long-serving public officers into a revised structure, while they continue to discharge equivalent functions, constitutes administrative injustice. The Court emphasised that grading must reflect duties and that exclusion from regrading in such circumstances is unlawful.
[44] The first question for determination is whether the High Court, per Banyane J, was correct in concluding that the decision not to upgrade the appellants to Grade J was not irrational. The Court’s reasoning turned on the proposition that although the appellants headed the public relations units in their respective ministries, they occupied managerial—not directorial—posts and could not lawfully be regraded to J. The Court found the government's decision to be structured, consistent with policy, and thus not arbitrary.
[45] At first blush, this appears to reflect a rational and reasoned approach. However, the deeper inquiry—viewed through the lens of contemporary administrative law—demands a more nuanced
9 Mpakanyane & Others v Principal Secretary – Ministry of Communications & Others C of A (CIV) No. 01/2024.
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appraisal, particularly in light of the careful distinction between irrationality and unreasonableness.
[46] In Democratic Alliance v President of South Africa,10 the Constitutional Court made plain that irrationality is a constitutional baseline—a minimum standard below which no exercise of public power may fall. It is not concerned with whether the decision was fair or correct but whether the means adopted bear a rational relationship to the end pursued. Ngcobo CJ aptly observed at para 32 that ‘[i]t is by now axiomatic that rationality is a minimum threshold requirement applicable to the exercise of all public power.’
[47] Banyane J. rightly began with this principle in mind. However, judicial scrutiny must intensify when that standard is applied. Circular No. 7 of 2013 was intended to correct grading anomalies, not entrench them. It required regrading to Grade J for directors and to Grade I for managers, but it also included those who were heads or deputy heads of department, regardless of nomenclature. The High Court accepted that the appellants were heads of their respective public relations units, reporting directly to Deputy Principal Secretaries. That being so, a central pillar of the Circular’s application was evidently met.
[48] In Affordable Medicines Trust v Minister of Health11 the Constitutional Court clarified the scope of rationality by stating that the decision or action must be rationally related to the purpose for which the power was given; otherwise, it is arbitrary
10 Democratic Alliance v President of South Africa 2013 (1) SA 248 (CC).
11 Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) , para 74.
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and inconsistent with this requirement. On the evidence accepted by the High Court itself, the appellants performed equivalent functions to directors. They managed departments, supervised staff, and were the most senior officials in their units. The refusal to regrade them on the basis that their title did not match their function is, with respect, to elevate form over substance and thereby to undermine the very corrective purpose of the Circular.
[49] Furthermore, the High Court appeared to treat the availability of funding and the presence of formal post creation as dispositive of rationality. Yet, as the Constitutional Court held in Law Society of South Africa v President of the Republic of South Africa12 once correctly, irrationality may arise not merely from an absence of funding or procedure, but from a misalignment between the decision and the stated objective of the policy framework under which it purports to be taken.
[50] Furthermore, Banyane J accepted that other similarly placed officers—most notably, Chief Legal Officers—were upgraded to Grade J, notwithstanding title differences. The justification proffered was a legal opinion from the Attorney General. However, that opinion rested on the principle that grading should follow where functions are the same, not that lawyers constitute a unique exception category. The failure to apply this same logic to the appellants’ case—where parity of function was similarly established—was not adequately distinguished by the High Court. This failure to treat like cases alike undermines the rationality of the outcome.
12 Law Society of South Africa v President of the Republic of South Africa 2019 (3) SA 30 (CC).
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[51] As O’Regan J observed in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs,13 O’Regan J observed that the threshold of rationality is lower than that of reasonableness. Rationality is concerned with the connection between means and ends. Here, the end was the fair alignment of grading across the public service; the means adopted included regrading heads of department irrespective of title. Refusing to regrade two heads of department solely due to their designation—when they meet the structural and functional benchmarks—betrays a failure of alignment between purpose and action.
[52] The High Court’s reasoning also risks blurring the doctrinal line between rationality and justification. It is one thing for the government to argue that certain formal processes (e.g. funding or restructuring) delayed the creation of a directorship. It is quite another to assert that the appellants’ functions, though equivalent to those of directors, did not qualify for the benefits granted under the Circular. The constitutional baseline of rationality insists on more than mere institutional rigidity.
[53] To be clear: the appellants’ case might not have succeeded on the more demanding standard of unreasonableness—that is, they may not have established that no reasonable decision-maker could have arrived at the impugned decision. But that is not the test the Court purported to apply. It was asked to assess rationality: whether the decision logically advanced the objective of the Circular. In our respectful view, it did not.
13 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC).
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[54] While the High Court identified the correct legal principles, it erred in its application. By failing to interrogate whether the decision to exclude the appellants bore a logical relationship to the purpose of the Circular and by overlooking the broader pattern of functional parity with other regraded officers, the Court misapplied the threshold test of rationality. The decision was, at minimum, incoherent with the stated objective of policy and thus fell below the standard demanded by legality. Their exclusion, lacking principled justification, was therefore irrational.
[55] The second question is whether the learned Judge a quo erred in declining to award costs to the appellants despite the respondents’ failure to provide any principled justification for their differential treatment of similarly placed public officers. It is well-established that, in general, costs should follow the event: the unsuccessful party pays the successful party’s costs. That principle applies in public law cases as in other types of litigation unless the court sees good reason to depart from it.
[56] In the present matter, the appellants were public servants who approached the courts to seek correction of a manifest inequality in the application of an administrative circular—a circular intended, by its own terms, to remove grading anomalies. Their complaint was neither speculative nor contrived. It was grounded in their actual functions and substantiated by a broader policy framework recognising that designation alone should not determine grade.
[57] The respondents, for their part, failed to furnish a coherent justification for the appellants’ exclusion. They did not dispute that
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the appellants headed their respective units nor challenged the structural parity with others who were regraded to Grade J. Their opposition was formalistic, resting on nomenclature rather than substance. In so doing, it revived the very defect the circular sought to cure.
[58] Against this backdrop, the refusal to award costs to the appellants must be viewed. The High Court identified no exceptional circumstances that would displace the ordinary rule. Nor was there any suggestion that the appellants acted vexatiously, frivolously, or for private gain. On the contrary, they worked to vindicate administrative fairness and equality within the public service. In these circumstances, the costs should have followed the result. The failure to award them amounted, in effect, to penalising the appellants for asserting their entitlement under a policy designed to regularise inequities in the public service.
Disposition
[59] For the reasons set out above, the appeal must succeed. The refusal to regrade the appellants to Grade J under Circular No. 7 of 2013 constituted an unjustifiable act of unequal treatment. In our respectful judgment, it was irrational and inconsistent with the constitutional obligation to act fairly and without bias.
Order
[60] Accordingly, the following order is made:
1.
The appeal is upheld.
2.
The judgment of the High Court in CIV/APN/0300/2022 is set aside and substituted as follows:
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a. It is declared that the refusal to regrade the applicants from Grade H to Grade J under Circular No. 7 of 2013 was irrational.
b. The respondents are directed to regrade the 1st and 2nd applicants to Grade J, with retrospective effect from 1 April 2013.
c. The respondents shall pay the first applicant within 60 days all arrears and salary entitlements due to her at Grade J from 1 April 2013 to the present.
d. The respondents shall pay to the second applicant within 60 days all arrears that would have accrued to her at Grade J from 1 April 2013 until her retirement.
e. The respondents shall pay the appellants’ costs.
_______________________
K.E. MOSITO P
PRESIDENT OF THE COURT OF APPEAL
I AGREE
_______________________
P. MUSONDA
ACTING JUSTICE OF APPEAL
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I AGREE
_______________________
VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
FOR THE APPLICANT: MR P.J. LEBAKENG.
FOR THE RESPONDENT: ADV T.E MOHLOKI