HIGH COURT OF LESOTHO
CHAIRMAN - LESOTHO PRISON SERVICES
COMMITTEE - QUTHING 1st Respondent
OFFICER COMMANDING LPS QUTHING 2nd Respondent
OF PRISONS 3rd Respondent
GENERAL 4th Respondent
Applicant: Mr. Metlae
Respondents : Mr. Mapetla
by the Honourable Mr. Justice T. Monapathi on the 10th day of
Applicant herein, who was an employee of the Government of Lesotho,
in the Prisons Department challenged his dismissal made pursuant to a
disciplinary hearing, convened in Quthing on the 11th November 1998.
introduction may prove useful. As should be clear by now the First
Respondent presided over this tribunal which was established under
Prisons Service Regulations. The tribunal is constituted by Commander
of a prison (who presides) where the accused is not a senior officer.
Where the officer charged is a senior officer the Director of Prisons
has to reside. The charge before the disciplinary hearing had been
"By this carelessness or neglect contribute(s) to the escape of
the persons to wit that on the 5th October 1998 on or about 02.30 am
the said Accused officer did wrongly and neglectfully failed to see
and prevent the escape of prisoners (1) Tšeliso Mafantiri, (2)
Lethusang Mochaba, (3) Pule Thene and (4) Kotsoane Mathibeli."
charge sheet also stated that witnesses against the accused officer
would be Senior Prison Officer (S.P.O), M. Metsing Prison Officer
(P.O), T. Klaas, (3) Lethusang Mochaba (prisoner) (4) Pule Thene
(prisoner). On part B of the form it was stated the List of Defence
witnesses if wanted by the accused officer (Applicant) would be
Tšeliso Mafantiri, Kotsoane Mathibeli, Lethusang Mochaba.
be noted these were the escaped prisoners.
record of proceedings itself showed that S.P.O, Metsing who was PW 1
having duly sworn, testified and was cross-examined by the Applicant.
Then followed PW 2, P.O E Klaas who having been duly sworn he then
testified and was cross-examined by the Applicant. The third witness
was Lethusang Mochaba a remand prisoner who was duly sworn then
testified and was cross-examined by the Applicant. Lastly came the
evidence of Pule Thene who testified having been duly sworn and was
cross-examined by the Applicant.
close of prosecution case the Applicant was duly sworn: He presented
his defence and was cross-examined by the prosecutor. Two witnesses
were called by the defence namely Tšeliso Mafantiri (an
escapee) and Kotsoane Mafantiri (another escapee). Both were duly
sworn, testified and were cross-examined.
24 of the record was a short summary by the prosecutor. Next
followed, at pages 25-26, what was called the Court's summary. Then
the verdict of "guilty as charged" was entered. Then
followed an entry on page 27 titled "mitigation" which I
reproduce as follows:
seems the breakage occurred the previous days. I don't deny that
prisoners have escaped. I am asking for a lighter award. It is our
negligence that we have not been checking the prison all the time
prior to the escape. It is my first time to see this kind of an
escape. I beg for mercy."
the same page followed a list of previous convictions which show ten
such convictions on different dates and different disciplinary awards
(punishments). The said disciplinary awards as prescribed in Rule
163(1) of the Prison Rules (see Government Notice 27/1957). The
recommendation of dismissal was shown on the same page. The last
entry was a notice that "Accused wishes to appeal."
notice of motion was filed against the above background. In addition
to usual prayer for dispensing with periods and modes of service
(prayer 1) Applicant sought for a rule nisi "calling upon the
Respondents to show cause why:
decision of the 1st and 2nd Respondents as contained in pp 35976
dated 14th March 1998 shall not be reviewed, corrected and set aside
2nd and 3rd Respondents shall not be directed to forward to the
Registrar of this Honourable Court the proceedings of the
Disciplinary Hearing of the 9th day of December 1998 held against
the Applicant to be reviewed, corrected and set aside.
and/or alternative relief.
prayer 1 operate with immediate effect as an interim Court order."
The notice of motion was accompanied by the founding affidavit of the
indicated intention to oppose the Respondents' answered through the
affidavit of Lephotla Siimane, the Acting Director of Prisons (Third
Respondent). In support thereof was the affidavit of Thabang Elliot
Klaas and that of the First Respondent. In response to the answering
papers was the replying affidavit of Applicant.
with Mr. Mapetla that most of the issues which were debated before
the Court were not alluded to in the Applicant's papers except the
dispute over the finding over the facts. The one about expiration of
the time within which to file disciplinary proceedings was abandoned
(see paragraph 11 of founding affidavit) Several issues were raised
in Counsel's submissions. First of all I agreed with the Applicant
that review powers of the Court were not only intended for decisions
of inferior courts but included decisions of public bodies and
administrative tribunals. See I. Isaacs Beck's Theory and Principles
in Civil Actions (1982) p.327.
and most saliently Applicant said where a statute left a matter to be
determined by a person or body of persons, it was implied in the
absence of anything to the contrary in the regulating statute, that
the decision given by such person or body was not appealable. See R v
Steenkamp 1967(1) SA 714. This was apparently in answer to why if
there was a dispute over the finding on facts the avenue for appeal
had not been resorted by the Applicant. In other words the decision
of the tribunal was not appealable as Applicant submitted in as much
as there was nothing in the Prison Rules that made provision to that
effect. With respect I disagreed. See Rule 166.
as Applicant's Counsel submitted, as a general rule Courts do
interfere with decisions of administrative persons or bodies. But
where an administrative person has acted beyond the scope of its
powers and/or where the method of acting has been irregular, Courts
are justified to interfere with such a decision. See Singh v Umzinto
Rural Licencing Board and Others 1963(1) SA 872. I thought it had
been too simply put. I thought that it had to be more than that. It
has to be an irregularity of a demonstrably gross kind. In addition
it had to be shown that the irregularity that had been caused or had
been calculated, in total circumstances, to cause prejudice to the
party who complained. As amply argued the alleged irregularity was in
connection with the fact that the presiding officer appeared to have
put a premium towards his verdict on the fact of previous convictions
against the Applicant.
Counsel further submitted that administrative tribunals must act in
accordance with the tenets of natural justice. See Gliksmen v
Transvaal Province Institutes of Architects and Another 1951(4) SA
56(W). Counsel argued that irregularities such as prejudice bias and
admission of hearsay evidence contravened tenets of natural justice.
This he argued more about as will be shown later.
that a tribunal's decision will not be reviewable and cannot be set
unless it is shown that the alleged irregularity caused or was
calculated to cause prejudice to one who complains. See Shidiack v
Union Government 1912 AD 642 and Liverock and Meat Industry Control
Board v Robert S Williams (Pty) Ltd 1963(4) SA 592(T). The Applicant
would consequently (as he did) point to certain alleged
irregularities which he said took place during the said proceedings
of the to 11th November 1998 which he said were prejudicial to his
noted that superior Courts have inherent powers of review by virtue
of being State Organs charged with administrative law. I was referred
to the work Administrative Law by L. Baxter (1984) (See High Court
Rules - Rule 50) I noted that it was within the competence of courts
of law to review and set aside the decision of administrative
tribunals. See Sebe v Government of Ciskei 1983(4) SA 523 (TK) and
Administrative Law (supra) page 564-565. Almost the same principles
are applicable, as in the English cases shown below, to
following background is bound to be useful. It is that: In the event
of a disciplinary hearing an accused officer who is not an
officer-in-charge of a prison will be tried by an officer who is in
charge of a prison in terms of Rule 159 of the
Rules. The Applicant was accordingly tried by an Officer-in-Charge of
a prison in Quthing where he worked. In the nature of things this
being an administrative tribunal with quasi-judicial powers an
officer's record is made available to the presiding officer for
certain endorsements of recommendations. The presiding officer in the
position of the Officer-in-Charge of a prison would ordinarily be
possessed at all times with the records of an accused officer.
records of an officer are part and parcel of the documents that are
placed before the presiding officer, in any event under Rule 165. It
is the record of charges or awards that are sent to the Director of
Prisons after recommendation, for his action, even if there has been
no appeal provided for under Rule 166. So that there is no way of
arguing that it is not right or proper that the presiding officer
will have available before him at all times an accused's officer's
record of service of which the previous convictions and awards are
part. Hence it cannot be realistic to expect a senior officer not to
be alive to the contents of a service record of an officer under him.
This is separate from the way the presiding officer was said to have
used the record which I will discuss hereunder.
account will partly put to rest this Applicant's submissions grounded
on alleged bias which were couched as follows. Firstly that the
conviction which were delivered by the presiding officer show that
the presiding officer was availed of the Applicant's record of
previous conduct and records and that the conduct and the records
influenced his decision. Applicant submitted that from the record of
proceedings it appeared that the previous records of the Applicant
were considered by the tribunal before pronouncing its verdict on
whether the accused was guilty as charged. Indeed the presiding
officer happened to have said at page 26 of the record:
"Accused's previous conviction(s) on very serious offence(s) and
very serious awards including a record 12 months special probation
have persuaded this Court to find accused guilty as charged and the
recommendation of dismissal was the only alternative." (My
Applicant then cited L Baxter Administrative Law 1st Edition at page
564 where the learned author had this to say:
"Real or apparent pre-judgment of the issues to be decided by
the decision maker gives rise to disqualification or grounds of bias.
Prejudice could arise ........... as a result of the decision maker's
manner of conduct during the decision making process.........".
in connection with the Applicant's allegation of prejudice. It is
correct that nowhere in the record of the proceedings itself is there
evidence of previous conduct. But as I have said the record of
service is all along available to the presiding officer who is even
required to forward the record to the Director of Prisons in the
event that he is required to deal with it by virtue of an endorsement
which he must make following an award. See section 165(1) (b) of the
Prison Rules. It was not suggested that "the procedure in the
case involved unfairness: no one can be expected to be perfect in all
the circumstances" per Lord Russel in Fairmont Investments Ltd v
Secretary of State For The Environment (1976) WLR 1255 at 1266 E.
It is to
be conceded that the way in which the statement about previous
convictions is expressed, and the stage at which it occurs, that is,
before the sentencing stage is strange to the traditional legal
procedure and practice of a Court in the strict sense. That is things
to do with sentence would normally be expected to be raised only
after verdict. In this inquiry before that tribunal that was not the
case. Strangely enough, as I observed, the question of previous
convictions came at the time of the verdict and not after. Supposing
it was an error
was it such a material flaw? Griffith CJ said in R v Chief Registrar
of Friendly Society (1984) QB 260; 260G-261A in that regard:
"In a decision involving the weighing up of complex factors it
will always be able to point to some factors which arguably should
have been taken into account or left out of account; even if they
should have been the court should not interfere unless it is
convinced that this would have resulted in the decision going the
other way. The same applies to an error of law on the face of the
record. If the error is fundamental to the decision the Court should
intervene but certiorari is a discretion remedy and not every error
of law will justify quashing the decision. And finally particular
care must be taken in stigmatising a decision as one at which no
reasonable person could have arrived, for this is coming dangerously
close to the court substituting its own discretion for that of the
tribunal." (My underlining)
respectfully agreed with above statements. I have also reached the
conclusion contended for namely that the tribunal's decision ought
not to be disturbed. And that this application could not succeed.
other related submissions were as follows. First, that where a
presiding officer had a past relationship with the affected
individual there was likelihood of prejudice, inasmuch as the officer
was likely to identify himself with a particular view, which was
directly relevant to the subject matter of the administrative
decision and the presiding officer could not therefore remain
impartial. I was referred to Administrative Law (supra) at pages
564-565. It speaks of real or apparent prejudice. This is however so
widely stated in the book that I wondered if the treatment of the
subject by the author concerned the facts or a situation similar to
case I have already commented about the relationship between the
presiding officer and an accused officer who is charged in terms of
the Prison Rules. I would find nothing wrong with the relationship
which is in any event envisaged in terms of the Rules. In short the
past activities of the decision-maker, current external commitments
or manner of conduct during decision making process did not suggest
any bias or ulterior motive. I did not quite appreciate how the
presiding officer was said to have identified himself with a
particular view, which was directly relevant to the subject matter of
administrative decision and could not remain impartial. Except for
this aspect of previous convictions I did not find that there was
anything arguable in an attempt to persuade the Court to disturb
tribunal's finding. In particular it was not suggested that the
had to be
disturbed because they had been arrived at dishonestly. See Koatsa v
NUL 1991-92 LLR 163 at 167-168.
for the six line paragraphs that speaks about the Accused's previous
convictions which I have quoted on page 10 above, the presiding
officer's summary runs up to one and half pages. All this which is on
the surface a fair evaluation of credibility, reliability of
witnesses and probabilities and so forth in an approach that appeared
to be objective in dealing with known facts and from which came out a
reasoning process which moved towards determination of the facts in
dispute. It is said by the Applicant the conclusion on the facts was
wrong in that no tribunal properly directed would come to the
flaws were pointed out with regard to the criticisms directed at the
Court's conclusion on the facts. One was in connection with alleged
wrongful admission of hearsay evidence.
contended that the only evidence led before the tribunal which could
have led to the judgment was the evidence of one witness who informed
the tribunal that he had been informed by one Mokheseng who had been
tribunal. I was referred to Record of Proceedings at page 25 in which
the tribunal stated makes mention that according to the evidence of
PW 1 and PW 2 the escape was around 0200 hours.
addition Applicant submitted that apart from hearing of PW 1 there
had been no evidence to controvert the evidence of PW 3, 4, 5 and 6.
I was referred to the evidence of Lethusang Mochaba at pages 8 and 9
and that of Pule Thene (PW 4) at pages 10-11. Furthermore it was said
that the evidence of PW 1 made no mention of the time of escape. I
was referred to page 2 of the proceedings. And lastly that PW 1
merely mentioned that one "Sebota" said he realized at 0200
hours that there had been an escape.
above objection goes, it is being contended by the Applicant that the
factual evidence did not support the charge that the Applicant had
defaulted as charged. It is not without problems. I have considered
it as sufficient warning the remarks of Mahomed JA in Koatsa v NUL
(supra) where the learned judge said at pages 167-168, that:
"Neither the High Court nor this Court sits as a Court of Appeal
against the findings of the disciplinary committee of the Respondent
University. The findings of those organs cannot be disturbed if they
were arrived at honestly and if they were findings to which a
reasonable man, properly applying his mind could honestly have come."
It is a
plain indication as to the inadvisability of a reviewing judge going
through the exercise of evaluating the evidence which was led before
a tribunal, in search of whether a correct conclusion has been
arrived at by a tribunal. This would be without advantage of
observing the witnesses' demeanour which (demeanor) the tribunal must
have taken into account with the necessary circumspection. Although
we know that findings based purely on the demeanour of witnesses are
rarely, if ever, rational.
the problem of the Court being required to investigate a tribunal's
conclusion on facts, a few examples would be useful. This would do by
way of comparison while presuming that such bodies, officials or
tribunals are entrusted with certain decisions, be they
quasi-judicial or not, and have been so delegated by parliament to
positions where the investigation of the facts is in their day to day
area of operation. That is why Lord Greene M. R. has said in
Associated Provincial Picture House Ltd v Wednesday Corporation
1948.1 KB 223 at 230:
"It is clear that the local authority are entrusted by
parliament with decisions on the matters which the knowledge and
experience of that authority can be trusted to deal with."
This is a
consideration that should make the Court reluctant to interfere with
finding of tribunals. I have already described the position of the
presiding officer who is commander of a prison. He must be having
adequate knowledge and experience of things in the mileau in which
the Prison Rules operate.
attitude expected of a High Court judge on review can further be
compared to the situation in R v Inland Revenue Commissioner , ex
parte Rossminster 1980 AC 952 per Lord Diplock at 1013 EH where it
"When parliament has designated a public officer or decision
maker for a particular class of decisions the High Court, acting as
reviewing Court under Order 53 is not a Court of appeal."
analogous position of the presiding officer in the instant matter and
that of the public officer in the above English case is reinforced.
In addition it became very clear that "Judicial review is not
just a move in an interminable chess tournament"
Templeman in Nottingham Country Council v Secretary of State for the
Environment (1986) AC 240 at 267. Thus there are limits of review.
towards the closing of the judgment I agreed with Respondents that
although the application purported to be a review, the matters raised
herein including the question of findings of fact were matters which
fell outside the scope of review proceedings and therefore should be
ignored by the Court by way of making no attempt to inquire into
them. For example the question of the time of escape and whether
there were any parts of the prison which were out of view from the
control tower, were issues of fact which would best be properly left
to the tribunal to determine. See for example Administrative Law
(supra) at page 305 and Steyn v City Council of Johannesburg 1934 WLD
146-7. Thus as Lord Acker says in R v Secretary of State for Home
Department, ex parte Brind (1991) AC 696:
"............It would be a wrongful usurpation of power by the
judiciary to substitute its judicial view, on the merits and on that
basis to quash the decision."
there are limits to judicial review.
Civil Practice of the Supreme Court of South Africa, Van Winsen at al
(4th edition) at pages 946-948 at G. "The Modern Law
Reformulated" the authors say that the modern law relating to
common law review has been stated in the two cases which the authors
mention. I was attracted to the following principles which the
authors have culled from those decisions which I quote below as
issue before a court on review is not the correctness or otherwise
of the decision under review unlike the position in an appeal; a
court of review will not enter into and has no jurisdiction to
express an opinion on the merits of an administrative finding of a
statutory tribunal or official for review does not as a rule import
the idea of a consideration of the design of the body under review.
rules relating to judicial proceedings do not necessarily 20 apply
to quasi-judicial proceedings.
court on review is concerned with irregularities or illegalities in
the proceedings which may go to show that there has been "failure
of justice". A mere possibility of prejudice not of a serious
nature will not justify interference by a superior
wholeheartedly agreed with the principles. I was therefore fortified
in my view that the Applicant has demonstrated no right to have
applied for review of the proceedings of the tribunal. On this ground
alone application stands to be dismissed.
that the Applicant was entitled to and should have proceeded by way
of appeal in the circumstances of the kind of complaint that he has
brought forward. This includes his query over conclusions of fact
reached by the tribunal. He has decided not to appeal. Refer to Rule
166 of the Prison Rules.
circumstances the application was dismissed with costs.
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