Collections
LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) 07/2025
CCA/0105/2023
In the matter between:
GLORIFIED GROUP OF COMPANIES (PTY) LTD APPELLANT
And
THE MINISTER OF AGRICULTURE AND FOOD
SECURITY 1ST RESPONDENT
THE PRINCIPAL SECRETARY,
MINISTRY OF AGRICULTURE AND
FOOD SECURITY 2ND RESPONDENT
THE MINISTRY OF AGRICULTURE AND
FOOD SECURITY 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
CORAM: MOSITO P
CHINHENGO AJA
MATHABA AJA
HEARD: 18 APRIL 2025
DELIVERED: 02 MAY 2025
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FLYNOTE
Contempt of Court – Procurement Tribunal – Enforcement of Tribunal Order – Validity and Limits of Court Orders – Public Procurement Regulations – Res Judicata – Statutory Illegality as Defence – Whether disobedience of court order can be justified on grounds of statutory non-compliance.
The appellant, a company that had secured a tender for the supply of seeds, sought to enforce a Procurement Tribunal decision requiring the Minister to accept a consignment of goods. Though the Tribunal did not order payment, the High Court later ordered the respondents to pay M6,020,000. Upon their failure to comply, the appellant instituted contempt proceedings. The High Court dismissed the application on the basis that enforcement of the order would have required public officials to act unlawfully in contravention of Regulation 30(3) of the Public Procurement Regulations, 2007, as no operative contract had come into being. The appellant appealed.
Held: Dismissing the appeal.
(1) A court order, even if erroneous, must ordinarily be obeyed. However, obedience may not be compelled where compliance would entail statutory illegality. The refusal of public officers to comply with the order in casu was not wilful but legally justified. (2) The High Court erred in reopening matters already determined by the Tribunal and in entertaining issues not raised by the parties, thereby offending the audi alteram partem rule. Nonetheless, these misdirections did not affect the outcome, as the order purported to enforce obligations under a non-existent contract. (3) Public officials cannot be punished for contempt where no valid and enforceable obligation exists under procurement law. Where execution of an order would contravene statutory procurement requirements, non-compliance cannot be deemed wilful.
Per Mosito P: While courts must preserve their authority, enforcement must not compel illegality. The appropriate course in such instances is to remit the order for clarification or variation.
Appeal dismissed. No order as to costs.
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JUDGMENT
MOSITO P
Introduction
[1] In the present appeal, the Court is called upon to scrutinise the decision of the High Court (Commercial Division) in which an application for contempt was dismissed. At its core, this matter implicates the sanctity of judicial orders, the doctrine of res judicata, and the enduring tension between fidelity to court decrees and the limits imposed by statutory and regulatory frameworks governing public procurement. It raises a further and novel question of constitutional and administrative significance: what becomes of a valid court order which, in its execution, would compel a public official to act unlawfully?
Factual background
[2] The facts giving rise to the present dispute are not in contention. The appellant, Glorified Group of Companies (Pty) Ltd, was the successful bidder for the supply of agricultural seeds under a public procurement process. The contract that materialised, however, was limited in scope due to fiscal constraints communicated by the 2nd respondent. Although the appellant delivered in accordance with the reduced contract and received payment therefor, it subsequently instituted proceedings before the Procurement Tribunal seeking enforcement of what it claimed to be the outstanding balance of the original tender.
[3] The Tribunal granted an order favourable to the appellant. That order, significantly, directed the 1st respondent to accept the
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remaining consignment of seeds. It did not, however, direct payment of the monetary value thereof. The Tribunal's decision was never appealed. Upon alleged non-compliance with that decision, the appellant approached the High Court and obtained an order erroneously or otherwise, on 6 February 2024, which included a directive that the respondents pay M6,020,000.00.
[4] When compliance was not forthcoming, the appellant launched contempt proceedings, seeking, inter alia, imprisonment of the second respondent and a coercive order to purge the alleged contempt. The court a quo, per Kopo J, dismissed the application. This appeal lies against that decision.
Issues for determination
[5] Three discrete but interrelated questions fall for resolution in this appeal:
(a) Whether the court a quo erred in dismissing the application for contempt of court, notwithstanding the existence of an extant and binding court order.
(b) Whether the learned judge misdirected himself by re-opening the merits of the Procurement Tribunal's decision and the mandamus order, when those matters were res judicata and not properly before him.
(c) Whether a party may lawfully decline to obey a court order where such obedience would entail a contravention of a statutory prohibition—in this case, regulation 30 (3) of the Public Procurement Regulations, 2007.
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[6] The resolution of these issues requires the Court to engage with foundational principles concerning the enforcement of court orders through contempt proceedings, the doctrine of res judicata as it circumscribes judicial re-examination of final decisions, and the extent to which statutory illegality may constitute a lawful defence to an otherwise binding court order.
The Law
[7] The law of civil contempt is well settled. In Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), the South African Supreme Court of Appeal, whose authority is persuasive in this jurisdiction, held that the applicant in contempt proceedings bears the burden of establishing: (a), the existence of the order; (b), Knowledge of the order by the respondent; (c); non-compliance with the order; and (d), wilfulness and mala fides in such non-compliance. Once the first three elements are proven, the evidential burden shifts to the respondent to establish, on a balance of probabilities, that the disobedience was neither wilful nor mala fide.
[8] Further, it is trite that court orders must be obeyed. As Scott JA opined in Takalimane v Serobanyane LAC (2011–2012) 222, “A person may not, save in exceptional circumstances, refuse to obey a court order because it has been wrongly made.” The lone exception is where compliance would compel a party to commit an act that is unlawful or absurd and thereby undermine public respect for the administration of justice (S v Mushongo 1994 (2) SACR 782 (ZS)).
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[9] While the common law principles governing civil contempt remain well-settled, they must be construed in harmony with the statutory regime regulating public procurement, particularly where judicial enforcement risks colliding with legislative prescriptions. The awarding of public contracts is not a matter of mere administrative discretion or private agreement. Rather, it is a tightly regulated process, governed by procurement laws that stipulate both the manner in which contracts must be awarded and the conditions under which they may be lawfully concluded, amended, or enforced. Any circumvention of these statutory requirements, whether by informal agreement between the parties or by judicial order, imperils the rule of law and risks subverting the legislative framework designed to ensure transparency, accountability, and fairness in public administration.
[10] In this regard, Regulation 30 of the Public Procurement Regulations, 2007, provides a meticulous procedure for awarding contracts. It stipulates:
30. Awarding of Contract
(1) The Unit shall invite the tenderer who has satisfied the specified requirements and submitted the most favourable tender to enter into a contract.
(2) The remaining tenderers shall be notified in writing by the Unit that the most favourable tenderer has been invited to contract.
(3) The Unit and the successful tenderer shall sign the contract within fifteen working days following the notification of the invitation, and within the tender validity period; the contract shall not come into operation until fifteen working days after the notice of award has been issued.
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(4) Should the tenderer who submitted the most favourable tender decline to contract, its tender security shall be forfeited, and the Unit shall annul the invitation to contract and proceed to invite the second most favourable tenderer. If no such tenderer exists, the Unit must seek approval from the Public Procurement Advisory Division (PPAD) to adopt direct contracting.
(5) Where the Unit opts for the lowest quotation under Schedule I item 1(b), the Chief Accounting Officer must approve the decision.
(6) Where the Unit decides not to accept the lowest quotation under Schedule I item 1(b), the Tender Panel shall make the decision.
[11] The scheme of Regulation 30 leaves no room for informal variation or judicially imposed amendments outside the procedures it prescribes. Thus, Public officers are legally obliged to act within the four corners of the regulatory framework. To compel them otherwise, even under the cloak of a court order, would constitute an illegality and a direct affront to the constitutional principle that public power must be exercised lawfully.
Against the backdrop of these settled principles of civil contempt and the strict statutory framework regulating the lawful awarding and enforcement of public contracts, it becomes necessary to turn to the facts and circumstances of the present case to determine whether the court a quo correctly applied the law to the issues it was called upon to decide.
Consideration of the Appeal
[12] I begin with the first ground. It is a common cause that a court order existed and was served. The respondents did not
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appeal it. Ordinarily, the High Court would have been correct to insist upon compliance, even if the order were wrongly granted. However, as the court below recognised—albeit not in the clearest of terms—the present case falls within the narrow class of exceptions to the general rule.
[13] The High Court concluded that the Procurement Tribunal acted beyond its statutory mandate. The order purportedly enforced by the subsequent mandamus required the respondents to accept delivery of goods not covered by the signed contract and to effect payment outside the scope of budgeted allocations. The High Court observed that such action would contravene regulation 30 (3) of the Public Procurement Regulations 2007, which prohibits modification or extension of procurement contracts except through formal and lawful mechanisms.
[14] Though the High Court erred in purporting to “reconsider” or “review” the correctness of the Tribunal’s decision, which was res judicata, the conclusion it reached finds fortification in principle. It is a constitutional aberration to expect an organ of state to obey an order that compels it to act ultra vires. No matter how solemn, a court order cannot lawfully override an express statutory prohibition. In such circumstances, refusal to comply does not constitute wilful disobedience, but lawful resistance.
[15] Moreover, the argument that Regulation 30(3) could found an order of contempt is misconceived where, as here, no contract had been signed between the parties. Regulation 30(3) explicitly prescribes that the contract “shall not come into operation until fifteen working days after the notice of award has been issued,”
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and requires prior signature within the tender validity period. The Regulation creates a structured sequence in its design: invitation, signing, and then deferred commencement. Where signing has not occurred, there is no operative contract to which legal obligations could attach. It follows that the respondents could not be in contempt for failing to perform duties that presuppose the existence of a contract. The jurisdiction to commit for contempt, being penal in nature, demands proof of wilful disobedience of a clear and operative obligation. In this case, the obligation was not only uncertain—it was non-existent. The law cannot punish public officers for failing to execute obligations under a contract that had not come into being by operation of procurement law.
[16] As for the second ground, the court below exceeded its remit by engaging in an evaluative reconsideration of the merits of the Tribunal’s ruling and the subsequent court order. It was not seized with a review or rescission application—the sole question before it was whether contempt had been proven. The parties were not invited to address the legal propriety of the Procurement Tribunal’s award. The High Court violated the audi alteram partem rule—a cardinal principle of our constitutional and procedural order.
[17] Nevertheless, this misdirection does not alter the outcome. For the reasons already set out, sufficient exceptional circumstances existed to rebut the presumption of wilfulness. The order of 6 February 2024 was unenforceable to the extent that it compelled the respondents to act contrary to procurement laws. Thus, while the High Court’s reasoning was partly flawed, its conclusion was not.
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6. The Proper Approach to Invalid Orders
[18] The most delicate issue raised in this appeal concerns the legal effect of an order which, though valid on its face and not appealed, requires a party to act unlawfully. In my judgment, the resolution lies in striking a principled balance.
[19] Courts must jealously guard their authority, and parties must not be permitted to defy orders on a whim. Yet, where obedience would amount to a statutory breach, a court must be slow to punish what is, in truth, a refusal to become complicit in illegality. The better course is to remit such orders for proper variation or clarification, rather than to insist upon their blind enforcement.
7. Disposal
[20] The appeal must therefore fail, albeit for reasons that differ materially from those articulated by the court a quo. The High Court erred in reopening matters that were res judicata and in entertaining questions not squarely before it. Nonetheless, the evidence failed to establish the respondents' non-compliance was wilful and mala fide. In that respect, the judgment cannot be faulted.
8. Order
[21] In the result:
(a) The appeal is dismissed.
(b) By consent, there shall be no cost order.
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______________________________
K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
I AGREE
___________________________________
M H CHINHENGO
ACTING JUSTICE OF APPEAL
I AGREE
______________________________
R. MATHABA
ACTING JUSTICE OF APPEAL
FOR APPELLANT: ADV. LESENYEHO
FOR RESPONDENTS: ADV. TAU