C OF A (CIV) NO, 2 OF 1992
and C OF A (CIV) NO. 29 OF 1991
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
GUISEPPE ANTONIO MARIO FLORIO APPELLANT
AND
THE MINISTER OF INTERIOR AND CHIEFTAINSHIP
AFFAIRS 1ST RESPONDENT
THE ATTORNEY GENERAL 2ND RESPONDENT
Coram
Ackermann J.A.
Steyn J.A.
Browde J.A.
JUDGEMENT Steyn J.A.
With the consent of the parties, these two appeals were heard together and I proceed to deal with them in one judgement.
In the appeal that was heard first (i.e. No. 3 of 1992) Appellant sought
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an order before the High Court in the following terms:
"To review and set aside the decision of the 1 st Respondent dated 12 September, 1988 to cancel the permanent residence permit of the Applicant held under number 358/80."
Applicant is described as a person "presently residing in the Republic of South Africa".
1st Respondent is the. Minister of Interior and Chieftainship Affairs responsible inter alia for immigration and aliens' affairs.
2nd Respondent is the Attorney General who is cited as representing the Lesotho Government.
Over a period of 14 years - i.e. from 1974 - 1988 Appellant resided and conducted business operations in Lesotho. Being an alien he did so at first in terms of a temporary residence permit, but since 1980 in terms of an indefinite residence permit issued to him in terms of the Aliens Control Act, 1966.
This permit was cancelled on the 12th September, 1988 by order of the then Minister of Interior one Seeiso. Appellant then brought an application (CIV/APN/293/1988) for an order inter alia restraining the carrying into effect of the cancellation pending the institution of proceedings in the High Court. This application was dismissed with costs by Kheola J. on October 10, 1988. An appeal against this
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judgement was noted but subsequently abandoned. The next relevant step taken by the Applicant was when on September 23, 1991 he launched proceedings in the High Court (C of A CIV 29/91 -the second appeal).
In this application he inter alia sought an order declaring invalid an expulsion order signed by the said Seeiso on the 11th October 1988 and served on Appellant when he attempted to re-enter Lesotho on May 20, 1991. This application was also dismissed with costs in a judgement delivered by Kheola J. on October 22, 1991. The second appeal was also argued before us and is dealt with later in this judgement.
On the 18th October, 1991 Appellant launched proceedings for the setting aside of the decision by the 1st Respondent to cancel his residence permit. This application was dismissed with costs by Lehohla J. in a judgement delivered on the 23rd of January 1992 and is the first appeal dealt with by us.
The grounds upon which Appellant sought to challenge the decision to cancel his residence permit as set out in his supporting affidavit
can be summarised as follows:
He alleges that he had been subjected to improper harassment by the former Chairman of the Military Council and the Council of Ministers
one Justin Metsing Lekhanya. The said Lekhanya had opposed the granting of the interdict application 293/1988 referred to above on the
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ground that the continued sojourn of the applicant in Lesotho "is not in the interests of defence, public safety and public order" (p. 19 of the record of those proceedings incorporated by reference by the Appellant).
It should be noted that the then Minister of Interior - the said Seeiso referred to above - contended in an affidavit opposing the
application, that he had cancelled Appellant's permit "basing myself on Section 10(1) of the Aliens Control Act, 1966 and par. 3 of the First Schedule to that Act". I shall deal with the implications of this reliance on these provisions later in this judgement.
Lekhanya, Appellant avers, had "an ulterior and improper motive" for the cancellation of his permit. This relates to an interest Lekhanya had in the matter by virtue of a shareholding he (Lekhanya) had in an undertaking called ITA LESOTHO (Pty) Ltd. A share certificate evidencing this fact is attached to Appellant's affidavit. This undertaking had, in circumstances detailed in his sworn testimony, become a competitor for the right to conduct quarrying operations with a company known as Lesotho Quality Aggregate Industries (Pty) Ltd. in which Appellant had acquired a substantial interest through the purchase of a shareholder's interest of the Lesotho National Development Corporation for the sum of M.400,000.00.
Appellant submitted in par. 17 of his affidavit that, "in the circumstances, my continued sojourn in Lesotho would, to say the least, have been somewhat of an embarrassment to the said Lekhanya
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after this, which soon became a matter of public knowledge". The circumstances refer to the fact Lekhanya had acquired the interest in this competitive enterprise for the "ridiculous price of M200.00 in a company then worth more than M1 million".
Similar averments of harassment are made by the Appellant in relation to alleged actions of the then Minister of Finance one Rets'elisitsoe
Sekhonyana. Detailed allegations are made in substantiation of this allegation more particularly with reference to attempts by the said Sekhonyana to pressurise Appellant to purchase one hotel "at Quthing and his residence at Maseru at inflated prices".
Appellant also alleges that after his refusal to submit to this pressure from the said Minister his company Lesotho Hotels International (Pty) Ltd. suffered harassment from its landlord company of which the Minister was chairman. The averments in this regard read as follows:
"To start with, the landlord demanded an increase in rent from M11 000,00 in terms of a written agreement, to M35 000,00 per month, in addition to the payment by my company of approximately M350 000,00 in respect of what was alleged to be arrear ground rent. Secondly my company suddenly came under severe pressure from the department of Income Tax which falls under the said Sekhonyana's control for what, in my view, were unconscionable charges which my company was not allowed a reasonable opportunity to challenge and debate.
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The company also, all of a sudden started having difficulties with the departments supplying services like water, electricity and
telephone."
It is clear that the averments involving the former Minister of Finance took place after the Appellant's permit was withdrawn. Indeed
Appellant alleges that the proposed transactions concerning the purchase of the Hotel and the residence were broached "dangling
before me the carrot of rescinding the cancellation of my residence permit."
The evidence is however of some significance in view of the following allegation made by Appellant. After receiving a letter from the Minister of the Interior, the said Seeiso, informing him of the cancellation of his residence permit he went to see him "to seek an explanation for his action". Appellant alleges that he had a good relationship with him. He goes on to say:
"The said Seeiso thereupon told me that the cancellation of my permit had nothing to do with him; that it was all the work of Lekhanya and the then Minister of Finance one Rets'elisitsoe Sekhonyana. He told me that he had written the letter cancelling my permit on Lekhanya's instructions. There was an unspoken understanding between Seeiso and I that I would not endanger his position by disclosing this information that he had given me. He is now no longer a Minister of Government."
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Appellant makes further allegations of harassment allegedly involving the former Minister of Finance details of which are unnecessary to repeat. When on the 8th of May, 1991 he learnt that the said Lekhanya and Sekohnyana were no longer members of the Lesotho Government, he presented himself at the Maseru border post and was permitted to enter for a period of seven days.
However when he subsequently again sought to enter he was served with the expulsion order dated 11th October, 1988, which is the subject matter of the second appeal, and he was refused entry into Lesotho.
The gravamen of Appellant's case therefore is that his right to permanent residence was irregularly withdrawn as it was motivated by improper considerations relating to the advancement of the personal interests of two Ministers of Government.
Respondents in opposing the Appellant's application relied primarily on an affidavit by the Principal Secretary in the Ministry of Information and Broadcasting. He was previously the Principal Secretary in the Ministry of Interior and Chieftainship Affairs. He states that he had dealt officially with matters relating to the revocation of the indefinite residence permit of the Appellant and with the expulsion orders made against him.
In par. 5 of his affidavit he says:
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"As a general observation it is within my knowledge from facts available to me in my capacity as the head of the Ministry
administering the Aliens Control Act that there were numerous instances of brazen defiance of law by the Applicant. This information lies scattered in innumerable Government files and it is virtually impossible for me, or for that matter any Public Officer, to lay their hands on it."
He then alleges that Appellant conducted mining operations in "flagrant violation" of the Mining Rights Act of 1967 "without a mining lease". Subsequently he conducted mining operations in the Ha Foso area again without a permit.
The deponent then makes the following averment in paras. 7 - 12 of his affidavit:
The main factor which triggered the revocation of the Applicant's residence permit by the then Minister of Interior was the
availability of clinching evidence which irresistibly pointed towards sinister attempts by the Applicant to destabilize the
economy of this country.
In this connection I wish to point out that the Applicant was a prime mover behind the incorporation of a company called the Maliba-mats'o
Mining Company (Pty) Ltd. This company applied for the infusion of U.S. 10 million dollars through the financial Rand Mechanism which is controlled
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by the Reserve Bank of S.A.
I am aware that an inquiry was held in terms of Section 14(3) of the Central Bank of Lesotho Act No. 17 of 1978. Based on the finding of the report, the then Deputy Governor of the Central Bank, Mr Hae Phoofolo was removed from office for gross misconduct.
There was evidence that the Applicant was indulging in financial racketeering of tremendous proportions and had it succeeded the
economy of the country would have been in dire peril.
It is a sovereign right of any nation, big or small, to control the flow of immigrants into that country.
The principles which govern the regulation of the entry and sojourn of aliens is set out in the 1 st Schedule of the Aliens Control Act 1966. Paragraph 3 provides that the Minister has to be assured that the action of the alien will benefit and not adversely effect the social and economical condition of Lesotho, the social and economic interest of the residents in the area where the alien is to sojourn and lastly, the interests of defence, public safety and public order.
On the available information it was clear beyond any doubt
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that the Applicant by indulging in foreign exchange irregularities with the active aid and support of some accomplices and highly-placed persons would have created a situation whereby Lesotho's membership of the Common Monetary Area, with it attendant access to the foreign exchange and monetary resources of S.A., with its tremendous resources, would have been in grave jeopardy. It is on these reasons that the Government of Lesotho was satisfied that the Applicant's continued sojourn in the kingdom is against the economic, political and public security considerations of Lesotho. Information about these matters are available with the Central Bank. They were, to the best of my knowledge, intelligence reports which were highly confidential and the disclosure of which would have compromised
Lesotho's short-term and long-term interests."
The deponent then proceeds to say that the reasons for terminating Appellant's residence permit had not been set out in the letter
advising him of this fact annexed to the application for an interdict in CIV/APN/293/88. The reasons which impelled the government "to forebear from being more specific included the sensitive nature of the information, the astronomical sums of money and the public disclosure of it would have caused alarm and despondency amongst business and economic circles not only inside Lesotho, but even outside".
The Principal Secretary then refers to and ad hoc advisory Board investigation conducted by and reported on by Mr Justice Kheola as
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chairman which he states was treated by Government as a "top secret document".
He then concludes his averments in regard to this aspect of the matter by saying the following:
"I entirely repudiate the insinuation that the cancellation of the permit was due to ulterior and improper motives. The basic
motivation which rendered the cancellation of the Applicant's permit almost inevitable was partly due to his unlawful mining activities at Ha Fosa and Mokunutlung (please refer to the affidavit of T.L. Makhakhe which was filed in CIV/APN/293/88). The final straw that broke the camel's back was the applicant's involvement with the financial rand transactions involving the Malibamats'o Mining Company (Pty) Ltd."
An examination of the affidavit by Makhakhe referred to reveals that as Principal Secretary of the Ministry of Water, Energy and Mining he was aware that Appellant had illegally conducted quarrying operations in an area called Mokunutlung in Maseru. He also avers that appellant had "for the past few years" been illegally carrying out quarrying operations at Ha Fosa in Berear (sic) district".
On the key allegation made by Appellant concerning the statement by the then Minister of the Interior the said Seeiso that the cancellation had nothing to do with him, but was the work of Lekhanya and the
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then Minister of Finance Sekhonyana the deponent says the following:
"The contents of this paragraph cannot but be untrue. I know as a fact that the then Minister of Interior had filed an opposing
affidavit in CIV/APN/293/88 and I request that this Honourable Court should look at it. The decision to revoke the applicant's permit for indefinite sojourn was taken by the then Minister of Interior, after a careful and meticulous study of the papers put up to him by me and was taken in a honest manner in the discharge of his public duty as a Minister of the crown."
The reference to an opposing affidavit in CIV/APN/293/88 is an incorporation of averments made by the then Minister of the Interior
to which a brief reference has already been made above. It is necessary to set out the relevant contents of this affidavit in full:
"My decision to cancel Applicant's permit was made after I had fully considered the relevant information at my disposal and after making a full inquiry, and it was done bona fide and in the national interests of Lesotho.
I have cancelled Applicant's permit basing myself on Section 10(1) of the Aliens Control Act, 1966, and paragraph 3 of the First Schedule to that Act. I have not cancelled the permit due to the breach of the conditions which are attached to Applicant's permits "G.F.1."
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The letter Annexure "G.F.3." was written on the 13th September, 1988, yet it was delivered on the 20th September, 1988.
The Applicant could simply have delivered that letter to me by hand because his lawyers' office and mine are situated in Maseru. On receiving Annexure "G.F.1." I deliberated upon the letter and caused a reply to be made by means of Annexure "G.F.4."
I, therefore, deny that the Applicant had no time to contest my decision. I humbly submit that he is playing for time in order to
defeat my decision.
I humbly aver that the Applicant should have lodged review proceedings against my decision, instead of bringing the present proceedings in order to play for time.
The reasons which impelled my decision could not be disclosed in the public interest as the affidavit of the Chairman of the Military
Council and the Council of Ministers reveals."
Concerning the detailed allegations which the Appellant makes concerning what he alleges the true and improper motives for the decision of the 1 st Respondent are, the deponent makes the following assertion:
"AD PARA 10. 11, 13, 14, 15, 16, 17 & 18.
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These refer to matters which in my respectful view are not relevant to the present application. All that I can state is that the reason behind the cancellation of the applicant's residence permit were his unlawful mining activities and the racketeering with financial rands."
He states in conclusion that three years has sped by, that review proceedings should be instituted within a reasonable time and that "the delay is enormous and unconscionable".
The present Minister of the Interior filed a supporting affidavit. After stating that he has acquainted himself with the facts and
circumstances of the case by his predecessor he concludes as follows:
"Having carefully appraised myself of all the relevant information, it is my firm view that the revocation of the Applicant's residence permit was justified and his entry into or residence in Lesotho is against public security and interest of Lesotho. I have no intention to revoke the cancellation of the Applicant's residence permit and having borne in mind the principles set out in the First Schedule to the Aliens Control Act, 1966, I will not allow him to enter into and remain in Lesotho. This decision has
been taken with a full sense of responsibility and in a bona-fide manner in the public interest of Lesotho, the preservation of which is the dominant concern of any Government."
The Minister of Law, Constitutional and Parliamentary Affairs also filed
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a supporting affidavit opposing the application. The relevant averments made by him are the following.
In January 1987 His Majesty The King appointed an Ad Hoc Advisory Board to inquire into all the facts concerning and associated with the approval by the Central Bank of an application for the grant of a financial rand facility in the amount of 10 million US dollars through a company Malibamats'o Mining Co (Pty) Ltd.
The Chairman of the Board reported to the Minister on the 24th of September, 1987 and through originally classified as top secret; was "downgraded" by him on 18th November, 1991 and is annexed to his affidavit.
The Appellant holds 998 of the 1000 shares in the Malibamats'o Mining Co. (Pty) Ltd. The Minister goes on to say
"The infusion of 10 million US dollars into the said Malibamats'o Mining Company according to available documentation, was
to have emanated from Explorinvest, a company incorporated on 21st August, 1986, in Guernsey, Channel Island. Phillip Meyer who was a director of Malibamats'o Company, was the financier behind Explorinvest. The subscribers of this company had bizarre names and it referred to letters of the Greek alphabet."
In terms of the letter which accompanied the report, it concerned "advice to His Majesty regarding the removal from office of Mr
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Phoofolo as Deputy-Governor and director of the Central Bank of Lesotho."
The terms of reference of the Board reads as follows:
"The Advisory Board shall enquire into all the facts concerning and associated with the approval by the Central Bank of Lesotho of an application for the grant of Financial Rand Facility to the tune of 10 Million United States Dollars to Malibamats'o Mining (Pty) Ltd., and the role played by Mr E.H. Phoofolo in the processing of the application."
The investigation was, in terms of paragraph 5 of the order, directed at seeking advice as to whether Mr E.H. Phoofolo ought to be removed from his office for gross misconduct.
The Board found that Mr Phoofolo was guilty of gross misconduct "in that through lies he induced the S.A. Reserve Bank to approve Malibamats'o Mining Company's application for use of the financial rand facility." The Minister does not however produce any evidence that Appellant played a part in Mr Phoofolo's improper conduct.
A Mr T.L. Makhakhe who was Principal Secretary in the Ministry of Water, Energy and Mining also filed an affidavit opposing the application.
He says that the mining of dolerite falls within the ambit of mining
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operations that require a mining lease. During his tenure of office he became aware that Appellant had illegally conducted mining operations at Mokunutlung. Legal action had to be taken against him and on the basis of a judgement of the High Court he was evicted from the area.
Concerning the mining activities at Ha Foso he says the following:
I am also aware that the said Florio had been indulging in unlawful mining activities at Ha Foso for a period of time. I am also aware that at some stage the said Florio entered into a management agreement with ITALESOTHO as is referred to in paragraph 13 of the Applicant's Founding Affidavit.
On the 1st of July 1988 I directed the Commissioner of mines and Geology to instruct Machache Transport owned by Florio to cease all their mining operations at Ha Foso not later than the 5th July 1988. I further instructed Commissioner of Mines and Geology that ITALESOTHO should be given a copy of my directive. In my directive I had clearly pointed out that mining lease has been legally granted."
Machache Transport subsequently submitted 3 copies of a draft mining lease in regard to Ha Foso in August. However he had received information from the Commissioner of Mines that this official could not obtain information on the "financial status of this company and its
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technical ability to carry out relevant operations." The company did not appear to be prepared to supply information. It appeared that they sought the licence for purposes of sub-leasing. He accordingly advised the Minister that the application should not be considered.
The application of ITA LESOTHO had supplied the necessary information regarding financial resources and availability of machinery which rendered their application commercially viable. Their application was accordingly recommended and approved by the Council of Ministers in September 1988.
The acting Director of Immigration filed a brief affidavit to say that Appellant's file had disappeared without trace.
To this case the Appellant responded as follows:
He points to the fact that the gravamen of his case was that he was told by the then responsible Minister that he (the Minister) had not applied his mind to the question of the cancellation of Appellant's residence permit; he had been directed to do so and did not exercise his discretion at all. The respondent had therefore not acted bona fide. To this allegation he avers there has been no reply.
Concerning the charges of alleged impropriety on his part in financial rand dealings, he admits that he sought permission to invest in Lesotho the sum of R10 Million US dollars. At the then prevailing rate this converted into M.50 Million. He was subsequently informed that this
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application had been granted and he proceeded to bring in 400,000 U.S. dollars in financial rands. It was after he had brought in this amount that the then Minister of Finance the said Sekhonyana directed the Central Bank "to stop any further bringing into Lesotho of any foreign currency by way of the financial rand by Malibamats'o Mining Co." He says that he will "not expand on the directive as it will be the subject of later proceedings against EVARISTUS" (Sekhonyana, the former Minister of Finance.)
He concludes his reply concerning these allegations of financial rand impropriety by alleging the following:
"This meant that what I was trying to do through the said company, namely to invest in Lesotho the sum of M50 000 000 (fifty
million maluti), something that had never been done in the history of this country, was found objectionable for some reason or other by the said EVARISTUS. It is this act on my part that is referred to variously as racketeering and such-like offensive descriptions. I crave leave to bring to the attention of the Court that this same EVARISTUS, who was then Minister of Finance, unlike myself,
authorised, during the year 1981 the transfer from Lesotho, by a company called BENCO, the sum of M2.5 million (two point five million maluti) in foreign currency. Within a matter of less than one month this company had been liquidated, its major creditor being the LESOTHO BANK, a Government parastatal of which the said EVARISTUS was a Chairman of its Board of Directors.
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I aver that the transfer of this money was done with the greatest expedition and urgency and contrary to the normal procedures of the CENTRAL BANK. I leave it to this Honourable Court to. come to its own conclusion as who the racketeer was."
Concerning the mining operations without a licence and the ejectment order granted against him he alleges that this application succeeded because the Court found that the quarrying of aggregate constituted mining. He says that in finding that it did so, the Judge held that "I had been misled by the L.N.D.C. who had sold me this quarry with regard to what the law was". The adjudication of this dispute took place in 1983.
He then points to the fact that the Government of the day after his ejectment was quite content to allow him to stay in Lesotho for a further five years "and to continue to conduct my business operations without any interference".
Appellant again reiterates that his case rests on the statement made to him by the former Minister the said Seeiso. He avers that this person lives in this town (Maseru) and is available .....".
Concerning the averments which relate to Appellant's failure to assert his right prior to launching this application, he says that the fall from power of the former Minister of Finance the said Sekhonyana and Lekhanya "gave me hope that at last I may see justice done and spurred me on in my quest for the same". There are many other
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allegations, many of them couched in immoderate language in Appellant's replying affidavits, which are unnecessary to deal with.
It was on this complex set of facts that the Court a quo had to decided the application. In its reasons for judgement the Court held that:
"It indeed casts a wide swath in the applicant's case that a matter based on the same facts in which the same applicant seeks the same remedy that was refused by one judge who granted an order in favour of the same respondents should be brought before another judge under colour of fresh evidence having allegedly been obtained from a man who, though available, has not been asked to make a sworn statement of things, relied on by the applicant and, said to have been said to him by that man. In my view it would be inappropriate to treat decisions of our Courts in a manner that is akin to appealing from Philip drunk to Philip sober."
The Judge a quo concludes in the last two paragraphs of the judgement that
"It seems to me that if the Court of Law having dealt with a matter and decided it, should have their decisions obeyed and their orders carried out only for as long as a certain head of government is in power; and when he falls from authority the same Courts should be approached and asked indirectly but in effect to review their decisions because there was fear that he
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would frustrate the course of justice, the administration of justice and indeed judicial process would be in jeopardy and fall into disrepute. Far be it then from me to subscribe to such a proposition.
The application for review and setting aside of the Ministerial order cancelling the applicant's residence permit both on grounds he has set out and the other ground 1 have just pointed out, is dismissed with costs."
The other principal ground on which the Court relied in dismissing the application was "that he who asserts must prove". The failure of the said Seeiso (the then Minister)
"to testify for the respondents is in the circumstances of this case a double-edged sword that cuts both ways because similarly an inference can and should be drawn against the applicant that the said Chief Mathealira (Seeiso) could not testify for the applicant if in the process he ran the risk of perjuring himself. In such circumstances the rule upholds the opposing party's contention."
Mr Gauntlett who appeared for Appellant advanced the following submissions.
He urged us to review the Respondent's decision in the light of it being an incursion into the freedom of movement of the subject. He sought
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in this regard to rely on the judgement of Grosskopf J.A. in During N.O. vs. Boesak and Another 1990 (3) S.A. 661 (A) at p. 679. He contended that the principles applicable to administrative interventions with the freedom of the individual should be extended to apply to a case such as the present where, although she/he is an alien, a right to remain indefinitely within a particular jurisdiction has been acquired by an individual, he referred us in this regard also to the Human Rights Act 24 of 1983. Section 2 of this Act provides inter alia that
"2. Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in this act without
distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or other opinion, national and social
origin, property, birth and other status. These shall comprise of -.................................
(d) the right to freedom of movement and residence." Section 6 of this provides the following:
"Everyone lawfully within the country shall have the liberty of movement and freedom to choose his residence including the right to freely leave the country subject to restrictions provided by law as are necessary to protect national security, public order, public health or morals or rights and freedoms of others as are consistent with other rights recognized by this Act."
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In construing and in applying the provisions of the Aliens Control Act, 1966 in terms of which 1st Respondent sought to act, the Court - so Counsel contended - would invoke the principles and apply the procedural safeguards reflected in recent Court decisions and those contained in the said Human Rights Act.
On the question of delay Mr Gauntlett challenged the validity of the reasoning of the Court a quo on this issue. In his judgement the learned Judge with reference to Appellant's alleged fear that as long as the said Lekhanya was in power he would "never relent in his objective, even if the Applicant had managed to have Lekhanya's initial action set aside". After calling this a "speculative" averment, the learned Judge goes on to say:
"There is no ground advanced to support the fear that the former Chairman of the two Councils would flout the authority of the Courts of justice. That is an unjustified presumption which ignores a fundamental principle of the law that improbity or wrongfulness may not be presumed. The applicant's apprehension betrays lack of faith in the administration of justice. However a man's faith is his own affair. But the important thing is if it were true or even conceivable that in this country any man whatever his position or status would be allowed to treat decisions of the court with levity and flout them with impunity such a notion if real, would stand as a damning indictment on the very judicial oath which binds those who subscribe to it to administer justice without fear or favour."
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Mr Gauntlett attacked this finding as well as the findings the Court a quo made on the factual disputes.
As would appear from some of the comments in the judgement of the Court a quo, there are two preliminary matters that have to be dealt with. The first concerns the question of delay.
Mr Tampi who appeared on behalf of the Respondent contended that Appellant had made no attempt to explain what he called "the inordinate and unconscionable delay" in instituting the proceedings which are the subject matter of this appeal. He went on to argue that (Appellant) "says that as long as Lekhanya was in power he was diffident in instituting proceedings. This argument is extremely naive. It is a matter of history that Lekhanya was removed from power in April 1991". (The notice of motion proceedings were instituted on October 18, 1991.)
For purposes of determining whether the delay was of such a nature as to debar the Appellant from pursuing his remedy, one should assume - whether his apprehension was justified or not - that he was concerned at the possibility that further administrative actions by the said Lekhanya could thwart any relief that he may obtain. On the uncontradicted evidence of Lekhanya's interest in a competitive
enterprise, there is no basis for holding that Appellant was "naive" in his apprehension.
Certainly a delay from April to October, during which time Appellant
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could have been pursuing the representations to the authorities to which reference was made in the various proceedings, could hardly be called unconscionable. He was clearly also testing the situation by re-entering the Kingdom on the 8th of May 1991 only to find that when he sought to do so again on May 20, that an expulsion order signed on the 11th October 1988 was invoked against him.
I am of the view that considering all the relevant facts of the matter, the delay in this case was not so unreasonable as to merit the Court closing its doors to Appellant on this ground alone. Without holding that it is essential to find that prejudice was indeed visited on a respondent party, we are entitled in considering the validity of the claim concerning delay raised by Mr Tampi, to give appropriate weight to the fact that Respondents have not alleged or proved that they suffered any prejudice as a result of the lapse of time between the implementation of the decision to cancel Appellant's residence permit and the institution of the present proceedings.
The second issue raised by Mr Gauntlett (although not responded to by Mr Tampi) concerns the Court's finding that the Appellant's case is "a matter based on the same facts in which the same Applicant seeks the same remedy that was refused by one judge who granted an order in favour of the same respondents..." In Jones and Buckle "The Civil Practice of the Magistrates Court of South Africa" (Eighth Edition by Erasmus and Van Loggerenberg) p. 191 the learned authors record the following:
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"Where a party pleads that a point in issue is already res judicata because of an earlier judgement in personam, he must show –
that there has already been a prior judgement;
by a competent Court;
in which the parties were the same, and
the same point was in issue."
Under the heading "A prior judgement" the learned authors go on to say:
"There must have been prior litigation or legal proceedings culminating in a final judgement on a decision which has a final
effect between the parties based on the merits of the point in issue."
The relief which the Appellant sought in the relevant prior proceedings was the following:
"2. An order restraining the Respondents from expelling the Applicant from Lesotho pending final determination of an application
about to be instituted by the applicant for a setting aside of the cancellation of his residence permit no. 358/80."
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It is relevant also to state that the application for the above relief was brought as "an application for urgent relief".
It seems to me that the point taken mero motu by the Court a quo should not be sustained. I say this for the following reasons. In bringing the application for an interdict, the Appellant stated that he intended to contest the cancellation, but had had very little time available to do so. For these reasons he had no other remedy but to apply for an interdict restraining the respondents from expelling him. He had, so he alleged, not contravened any of the conditions of his residence permit. In arguing the application, the Appellant urged the Court to hold that it should apply the audi alteram partem rule. It was on this narrow basis that the application was decided. The Court held that Appellant had received sufficient notice in order to make representations, but that he had failed to take the opportunity to do so. In the final paragraph on this aspect of the matter Kheola J. who presided at the hearing says the following:
"I fail to understand the applicant's allegation that he intends to contest the cancellation of his permit by the 1st respondent but that there is very little time available to him to do so. The applicant knew as early as the 12th September, 1988 that his permit was cancelled. On the 27th September, 1988 he was informed of the reasons in a very broad outline. He had the 28th, 29th and 30th September to bring the application in which he intends to contest the cancellation of his permit. He did not do so yet he had three full days at his disposal. The 1st respondent has
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alleged that in bringing the application for an interdict the applicant is playing for time and intends to defeat the order that he must leave this country by the 2nd October, 1988. I entirely agree with that allegation because the applicant had sufficient time to bring his substantive application to challenge the cancellation of his permit.
In the result the application is dismissed with costs."
It is apparent from the above cited passage from the judgement of the Court in the 1988 interdict proceedings, that the points in issue were substantially different from those raised in the proceedings presently on appeal before us. Indeed in adjudicating on an application for the stay of execution of the judgement and in holding that no grounds existed why Appellant should not be ordered to leave Lesotho, the Court in refusing the Application says the following:
"In the present case there is no evidence before me to show that the 1st respondent did not act bona fide in the exercise of his discretion. He has declined to divulge the information on which he relied when he made his decision on the ground that it would not be in the interest of public safety and the security of the State. It seems to me that no court of law can compel disclosure of such information as long as there is no evidence that the 1st respondent acted mala fide."
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As would appear from the facts of this appeal, the issue of mala fides was very pertinently raised on the papers before us and is indeed the issue upon which the Court has been asked to adjudicate.
In my view the Court a quo was wrong in finding (as it clearly did) that the exceptio rei judicatae had to upheld. The issues decided by the Court in the 1988 interdict proceedings were fundamentally different from those that had to be decided in the present case.
I come to deal with the merits. As appears from the facts set out above, Appellant has relied substantially on his averments that:
There was not a bona fide exercise of discretion by the 1st Respondent in determining to end his right of temporary residence.
In this respect there was an ulterior and improper motive for the cancellation of his residence permit. For this allegation he relied Inter alia on the evidence of Lekhanya's shareholding in ITA LESOTHO (PTY) LTD.
The allegations of harassment purportedly perpetrated by the former Minister of Finance is linked to the critically important averment made by the Appellant that he had been informed by the former responsible Minister (Seeiso) that he had not exercised an independent judgement concerning the cancellation of the permit, "it was all the work of the said Lekhanya and the then Minister of Finance....".
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An examination of the case for the Respondents shows that they have substantially relied on the then responsible permanent secretary's
evidence that they had
"acted strictly within the four corners of the powers conferred."
Sachs v. Minister of Justice 1934 A.D. 11 at p. 17 and Tussentydse Regerinq in S.W.A. v. Katoka 1987 (1) S.A. 695 (A) at p. 740-744.
Of course it is true that the permanent secretary cannot himself deny the evidence concerning the conversation Appellant is alleged to have had with the then Minister. However it is clear from the affidavit by the said Seeiso annexed to Appellant's replying affidavit that Seeiso did in the application for a temporary interdict record on oath that his "decision to cancel Applicant's permit was made after I had fully considered the relevant information at my disposal and after making a full enquiry and it was done bona fide and in the national interests of Lesotho".
As can be seen further from the portions of Seeiso's affidavit cited above, he alleges that he had acted in accordance with "Section 10(1) of the Aliens Control Act and paragraph 3 of the First Schedule to that Act".
Section 10(1) reads as follows:
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"If an indefinite permit has been issued on an application which contains any incorrect information, or if the holder of such permit or his agent has furnished any incorrect information in connection with that application, or if the holder of such a permit, in the opinion of the Minister formed in accordance with the principles set out in the First Schedule, should no longer sojourn in Lesotho, the Minister may direct that a notice in writing be addressed to the holder of the permit, whereby that permit is cancelled and whereby he is ordered to leave Lesotho within a period stated in the notice and upon the expiration of that period that permit shall become null and void and that person's presence in Lesotho shall thereupon become and be unlawful for the purposes of Part IV, which relates to the expulsion of aliens".
It is necessary also to cite paragraph 3 of the First Schedule together with the preamble thereto. It reads as follows:
"Subject to the provisions of sections three, paragraph (c) of subsection (2) of section five, section nine, (section eleven), section thirty-seven, section thirty-eight, section thirty-nine and section forty, an alien shall not be permitted or allowed under any provision of this Act to enter, land in, or sojourn in Lesotho, unless.................
3. his actions will benefit, and will not adversely affect –
(i) the social and economic conditions of Lesotho:
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(ii) the social and economic interests of the
residents in the area where the alien is to sojourn:
(iii) the general interest of the existing population
and of Lesotho as a whole; and
(iv) the interest of defence, public safety, public
order, public health, public morality or fundamental human rights and freedoms." (Emphasis added).
It was suggested by Mr Gauntlett that the reasons now advanced for the decision to cancel is on a basis quite different to that originally invoked. Indeed, so he urged, "they repudiate the earlier ones". The decision was, he contended, vitiated on one or more grounds of review summarised per Corbett C.J, in J.S.E. v. Witwatersrand Nigel Ltd. 1988(3) S.A. 132 (A.) at 1 52 A - E.
An analysis of the evidence advanced by the Respondents shows that apart from generalised allegations of impropriety on the part of the Appellant such as "numerous instances of brazen defiance of the law", Respondents rely significantly on "his (Appellant's) unlawful mining activities and the racketeering with financial rands".
It must immediately be pointed out that the allegations concerning unlawful mining activities conducted by Appellant are not new. They
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were in fact raised by 1st Respondent in resisting the application for a temporary interdict in clear terms.
However, on the evidence presently before us, there must be considerable doubt as to the sustainability of the contention that Appellant's unlawful mining activities can be considered a justifiable reason for the revocation of his right of residence. The evidence indicates that certainly insofar as the mining at Mokumutlung was concerned from where he had been ejected by Court order, this event had occurred as long ago as 1983 and that he had been allowed to remain in the Kingdom for a further five years under the provisions of his temporary residence permit.
Insofar as the mining activities at Ha Fosa are concerned, the Court is obliged to have regard to the allegations of the exercise of undue and improper influence by the said Lekhanya for which Appellant has tendered some documentary proof in substantiation of his own averments.
In Everett v. Minister of the Interior 1981(2) S.A. 453 Fagan J. after dealing with the position of an alien wishing to enter a country or one who in the country whose permitted time has expired contrasts their position with that of someone who is lawfully in the country under the provisions of an unexpired permit and is then ordered to leave the country. Concerning the latter, the learned Judge says:
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"I respectfully share the views expressed by Lord Denning .... in the Schmidt case (1969 A.E.R. 904 at 908 - 909) ... that such an alien has acquired a right consistent with a legitimate expectation of being allowed to stay for the permitted time."
It follows that the Court will carefully scrutinise a decision terminating such an expectation and will expect a Respondent to advance some acceptable evidence to substantiate that justification does indeed exist for such an administrative act.
On the evidence before us I am not prepared to hold that Appellant had in respect of the conducting of mining activities acted in a manner which would have entitled 1st Respondent to have terminated his right to remain in the Kingdom.
The case concerning the "racketeering in financial rands" now needs to be examined. The first question Mr Gauntlett has asked us to answer is whether this was done as he contended on "a basis quite different to that originally invoked" and that these reasons "repudiate the earlier ones".
This contention cannot be upheld. Whilst it is true that no specific detailed allegations concerning this aspect of the matter were made in 1st Respondent's affidavits opposing the application for an interdict, there is considerable merit in the contention that,
bearing in mind the admitted scale of Appellant's financial rand activities and its possible impact on public confidence if unlawful
and if revealed, a non-
36
disclosure of detailed information was not unreasonable. Moreover, 1 st Respondent's reliance on par. 3 of the First Schedule is in no way inconsistent with the detailed allegations now made. As can be seen from the above cited provisions of the First Schedule {par. 3) any actions which adversely affect the social and economic conditions of Lesotho or the social and economic interests of its residents could form the basis for sanction under section 10(1) of the Act. Moreover, sub-paragraphs (iii) and (iv) of para 3 are cast in terms which are wide enough to satisfy a compliance with the requirements of the section on the premise that it was the "racketeering in financial rands" that 1st Respondent had in mind.
The question is where does the truth lie in this matter?
Appellant admits that he had applied "to bring in 10 million U.S. dollars via the financial rand mechanism". It is self-evident that this was a very substantial transaction. It is also clear that certain irregularities occurred in relation to the application submitted by a company of which Appellant was for all practical purposes the sole shareholder and that the Deputy Governor of Central Bank was found to have been guilty of such improper conduct that his dismissal was recommended by an independent Board of Enquiry. It would also seem clear to me on a reading of the report of the Advisory Board that a transaction of this magnitude would have to have been underpinned by a clearly defined and approved purpose.
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Moreover, Appellant himself conceded that he was prevented from proceeding with the financial rand project by the then Minister of Finance although he impugns the integrity of the Minister in doing so.
Having analysed the affidavits of the Appellant, especially those submitted by him in reply, I am left with a very considerable level of disquiet and concern as to the reliability of his evidence. Indeed, I find him to be an unsatisfactory deponent, given to making sweeping, even reckless statements.
If this were a bona fide transaction pursuant to which he was seeking to benefit the Kingdom of Lesotho (as he alleges somewhat
disingenuously) why does he not record the purpose for which the funds were to be introduced? I find his strained justification for the action of the then Deputy Governor of Central Bank similarly disingenuous and unconvincing. His bland description of the financial rand transaction as a "windfall" is either naive or misleading. His replying affidavit is redolent with extravagant
statements and unsubstantiated allegations of impropriety. In this regard I refer by way of example to but one paragraph in his replying affidavit, i.e.:
"AD PARAGRAPHS 7, 8, 9 AND 10
The allegations against me in these paragraphs do not, in my respectful submission, do much credit to members of the civil service in Lesotho. That AUGUSTINUS, a Principal Secretary, should describe an attempt by a businessman, a foreigner at that,
38
to invest M50 000 000 (fifty million Maluti) in a poor country like Lesotho as an attempt to destabilise that country's economy shows that his mind is no less warped than that of his brother EVARISTUS. In any case the allegations by AUGUSTINUS in these paragraphs are hearsay and are also in conflict with the affidavits of the said Chief SEEISO and LEKHANYA. As for racketeering, I have already indicated to AUGUSTINUS the direction in which he should look for such rascals. But then, as it is said, there are none so blind as refuse to see."
I should immediately add that there are aspects of the 1st Respondent's case which are also unsatisfactory. Clearly the fact that the then Minister did not testify in this application means that the Court can have reference only to his affidavit incorporated by reference by Appellant in his replying affidavit. Also there is substance in the allegation that the said Lekhanya had good reason for favouring an alleged competitor of the Appellant. The missing files and other records that fail to render evidence of Appellants alleged misdemeanours tend to taint 1st Respondent's resistance of Appellant's application.
There are two major considerations that have to be borne in mind. On the one hand, there is no doubt that serious inroads have been made on Appellant's rights and his freedom of movement. He is, although an alien, someone who had a legitimate expectation that he would be allowed to stay indefinitely in the Kingdom of Lesotho. That expectation has been dashed by an administrative act on the part of the Respondents and in circumstances in which there is a legitimate question mark concerning the probity of at least one of the political
39
decision makers involved.
On the other hand male fides and serious misconduct have been alleged. Appellant has levelled extravagant and even reckless allegations of impropriety at all and sundry involved in this matter. Certainly a serious question mark is also raised against some of his conduct and his reliability as a deponent is open to serious question. On the issue of Appellant's involvement in a substantial transaction involving the importation of financial rand to the value of 50 million Maluti, one is left with very serious doubts as to the acceptability of his motives and the explanations for his involvement.
This matter is before us on notice of motion. Appellant has not asked the Court to refer the matter to trial and has sought to have it adjudicated on the papers before us. The test to be applied in these circumstances has been distilled into the following general rule. See Stellenbosch Farmers Winery Ltd. v. Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235 E-G where Van Wyk J says:
"....where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order ... Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted."
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In Plascon-Evans Paints v. Van Riebeeck Paints 1 984 (3) 623 SA page 634 (A) Corbett J A after quoting the above passage says the following:
"This rule has been referred to several times by this Court (see Burnkloof Caterers (Pty) Ltd v. Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) at 938A-B; Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430-1: Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 923G-924D). It seems to me, however, that this formulation of the general rule, and particularly the second sentence thereof, requires some clarification and, perhaps, qualification. It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1040 (3) SA 1155 (T) at 1163-5; Da Mata v Otto No 1972 (3) SA 858 (A) at 882-D-H). If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be
41
called for cross-examination under Rule 6 (5)(g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1 945 AD 420 at 428; Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see eg Rikhoto v East Rand Administration Board and Another 1983 (4) SA 278 (W) at 283 E-H). Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers (see the remarks of BOTHA AJA in the Associated South African Bakeries case, supra at 924A)."
Adopting this approach and after careful consideration of all the evidence, I conclude that it has not been shown that the decision to terminate Appellant's temporary residence permit was improperly motivated. I am not prepared to find on these papers that First Respondent "had not applied his mind to the question of the cancellation of my residence permit; that he had been directed and did not exercise his discretion at all, that consequently he did not act bona fide". (Appellant's replying affidavit paragraph 5 p. 68 of the record.) I would accordingly dismiss the appeal with costs.
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I come to deal with the second appeal. The substantive relief sought in the notice of motion is the following:
Declaring null and void and of no force or effect a certain document styled an expulsion order signed by one Mathealira Seeiso on the 11 th October, 1988 purporting to expel the Applicant from Lesotho which document is annexed hereunto marked "A".
Interdicting the respondents and any of their officers servants or agents from acting on the strength of the said document; in particular by refusing the Applicant admission to Lesotho for purposes other than residence and sojourn solely on the strength of the said document."
Appellant's contention is summarised as follows in his affidavit:
"I left Lesotho for the specific purpose of avoiding a possible expulsion order which would have had the effect of preventing me from entering Lesotho at all. I understood the position to be, and respectfully submit that this is so in law, that the only effect of the said Seeiso's act of cancelling my residence permit was to deprive me of the right to live or sojourn in Lesotho for restricted periods of the authority of a visa lawfully issued to me at my request by the relevant authority. It is the availability of this very facility, which is available to any foreigner like me, which was of the utmost importance to me having regard to my business
43
interests in Lesotho, and which I sought to protect by departing from Lesotho voluntarily as I have averred."
As would appear from the facts contained in the judgement on the first appeal, Appellant succeeded in entering Lesotho on one occasion in terms of a 7 day visa. However, when he sought to do so subsequently on the 20th of May 1991, he was served with what was purported to be an expulsion order signed by the said Seeiso on the 11th October 1988 i.e. a day after the Appellant had left Lesotho in 1988.
These facts are not in dispute. Respondent's resistance to the claim for relief is based on the premise that "The expulsion order dated 11th October 1988 .... continues to be of full legal effect unless revoked".
In his judgement dismissing the application, Kheola J says that "under normal circumstances an expulsion order is used to expel an alien who is present in Lesotho at the time the order is signed". He goes on to say that "there are exceptional circumstances where the order may be signed after the alien has surreptitiously departed from the country".
The learned Judge then sets out the reasons for this view in the following passage in his judgement:
"Section 25 (1) provides that the Minister may make an order that an alien whose presence within Lesotho is unlawful shall be expelled from and remain out of Lesotho either indefinitely or for
44
a period to be specified in the order. It seems to me that an expulsion order in terms of section 25 (1) serves two purposes, namely to expel the alien from Lesotho and secondly, to make him remain out of Lesotho indefinitely or for a specified period. When the then Minister of Interior purported to expel the applicant who was already out of Lesotho, his act could not be put into effect because the applicant could not be served with the order as he was out of the jurisdiction of the country. However, the same expulsion order remained valid for the purpose of keeping the applicant out of the country. In other words, if the applicant attempted to re-enter Lesotho he could be served with the same order which has the effect of stopping him from entering the country again.
I therefore reject the submission that the expulsion order was null and void because it was signed and issued after the applicant had left this country. It shall remain valid until it is revoked or varied by the Minister in terms of section 25(1) of the Act."
Section 25(1) of the Act reads as follows:
"25 (1) Subject to the provisions of sections thirty-eight and thirty-nine, the Minister may make an order that an alien whose
presence within Lesotho is unlawful shall be expelled from and remain out of Lesotho either indefinitely or for a period to be specified in the order."
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In holding as he did the Judge a quo held that Appellant "omitted to pay attention to the actual meaning of the words "and remain out of Lesotho either indefinitely or for a period to be specified in the order".
I fail to understand this reasoning. The words of the section are prima facie clear and unambiguous. The words cited by the learned Judge do not detract from the explicit provision contained in the statute that the issue which the legislature has authorised the Minister to address is the unlawful presence within Lesotho of the alien affected. The words referred to by the Court a quo cited above are necessary enabling provisions authorising the Minister to order the expulsion of such a person "either indefinitely or for a period ...." and do not in my view add to or affect the ordinary meaning to be attached to the words in question.
A reading of the rest of the section tends to confirm my view that there is no reason to ascribe a different meaning to the relevant provisions of the statute. Indeed they tend to confirm the view that the Act is intended to be applied to a person who is indeed present at the time the order is issued. Thus e.g. sub-section (3) provides as follows:
"3. An alien against whom an order is made under this section may, if the Minister so directs, be kept in prison or in police custody while awaiting expulsion and while being conveyed to the place of departure, and while he is so kept he shall be in lawful custody." (See also the provisions of sub-section (8) and section 26.)
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Indeed inasmuch as the Legislature finds it necessary to validate an expulsion order issued prior to the commencement of the Act it enacts a specific provision to deal with such an eventuality. It then provides that in such an event "an alien .... enters or is found within Lesotho having previously left or been expelled removed or deported .... may again be expelled without further order ...." (Section 25(7)).
It is my view that any order issued under section 25 can only validly be issued in respect of an alien who, at the time of its issue is present in Lesotho.
I would allow the appeal with costs - including the costs of two counsel.
The order issued dismissing the application is accordingly set aside and the order set out below substituted therefore.
I summarise the decisions in the two appeals as follows:
1. In the "first appeal" (C of A (CIV) No. 3 of 1992) i.e. the appeal against the judgement in the High Court refusing to set aside the decision of the 1st Respondent date, September 12, 1988 to cancel Appellant's residence permit,
the appeal is dismissed with costs.
2. In the "second appeal" (C of A) CIV No. 29 of 1991" the appeal is upheld with costs including the costs of two
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Counsel. The order dismissing the application is set aside and the following order substituted therefore:
The expulsion order signed by one Mathealira Seeiso dated October 11,1988 purporting to expel GUISEPPE ANTONIO MARIO FLORIO {the
Appellant) from Lesotho is hereby declared null and void and is set aside;
The Respondent and its servants and agents are hereby interdicted from acting on the strength of the said expulsion order in refusing
Applicant admission to Lesotho.
The Respondents are ordered to pay the costs including the costs of two Counsel.
As appears from the judgement of the Court in dismissing the First Appeal, the above order in no way affects the validity of the
decision of the Respondents in terminating the indefinite residence permit of the Appellant.
J H STEYN
JUDGE OF APPEAL
I agree
L W H ACKERMANN
J BROWDE
DELIVERED AT MASERU THIS 7th DAY OF August 1992.
