CIV/APN/504/98
IN THE HIGH COURT OF LESOTHO
In the matter between:
TŠELISO MATELA APPLICANT
and
THE COMMANDER OF THE LESOTHO 1ST RESPONDENT
DEFENCE FORCE ATTORNEY-GENERAL 2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo on the 4th day of March. 1999.
This is an application in which the applicant has applied to this court on an urgent basis for an order in the following terms:-
Dispensing with ordinary rules pertaining to period and modes of service.
A Rule Nisi be and it is hereby issued returnable on the date and time to be determined by this Honourable Court calling upon the respondents to show cause (if any), why:
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The first respondent and all officers subordinate shall not be interdicted from continuing to defame applicant by issuing any kind of documentation and/or statements which have the effect of defaming applicant.
The first respondent shall not be directed to release to applicant or his attorneys of record herein, applicant's salary and risk
allowances for the months October, November and December, 1998.
The first respondent shall not be directed to make a decision upon the disciplinary case of applicant expeditiously.
Respondents shall not be directed to pay costs hereof only in the event of opposition hereto.
(Applicant shall not be granted such further and/or alternative relieve as this Honourable Court may deem meet.
First respondent shall not be directed to withdraw his message in Annexure "A" and
Prayers 1 and 2(a) operate with immediate effect as interim court orders.
On 16 December, 1998 the interim order was issued as prayed for and the Rule was made returnable on 04 January, 1999. The application was opposed and
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at the same time respondents applied for striking out in terms of Rule 29 (5) of the Rules of Court.
When, on 26 January, 1999 the matter was argued before me, Mr. Mosito objected to the application to strike out in that it was not filed timeously in terms of Rule 29 sub-rule 5 of the rules of court. According to him, respondents require seven (7) days notice in advance which was not done. He says issues raised in the replying affidavit flowed directly from the answering affidavit.
In reply Mr. Makhethe has said the application was deemed urgent and rules pertaining to modes and periods of service had been dispensed with. It was curious that applicant's counsel wanted to eat his cake and have it. The court had allowed the filing of a 4th affidavit by the 1st respondent to respond to any new matter(s) raised in the replying affidavit. Application to have the application dismissed is refused in that this being an urgent application rules pertaining to modes and periods of service were dispensed with not requiring parties to the application to abide by them. Costs are ordered to be costs in the application.
The application had been postponed to 30 January, 1999 and when on this date it resumed Mr. Makhethe for the respondents had raised the point that the availability of the applicant was in issue and the application could not proceed in his absence. To this Mr. Mosito for the applicant had said although the applicant was available, this being an application, his attendance was unnecessary. The court had held that in ordinary applications the presence of an applicant who was represented was not essential unless the application was converted into a rial or the
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respondents) applied to have certain issues referred to trial requiring the applicant to give viva voce evidence on them. In the absence of such an application the court had no choice but to decline applicant's attendance. The application (if it can be called that) to have applicant attend proceedings was accordingly refused.
Mr. Mosito has said that in the light of information received by the applicant, and more particularly because applicant has since been discharged from his duties by the first respondent, prayers 2(b) and © of the Notice of Motion were no longer being pursued and that so far as prayer (e) being alternative relief is concerned, the prayer was being amended to read that 1st respondent retract his statement appearing in annexure "C" pages 12 and 17. The reason for this according to Mr. Mosito, is that applicant was on leave on 22 September, 1998 when SADC (Southern African Development Community) forces landed in Lesotho. From 08 October - 15 October, 1998 applicant was on sick leave, a factor confirmed by annexure "AA". According to Mr. Mosito. it is not said when, exactly, applicant became fugitive from justice considering that on 26th September, 1998 in reaction to a call over Radio Lesotho by the 1st respondent applicant had 'handed over firearms' with which he had been issued.
As to the allegation that applicant surrendered personal firearms, the 1st respondent in his Answering Affidavit at paragraph 7 denies that applicant handed over any firearms, he also denies that there is a record of arms and ammunition allegedly returned. Mr. Mosito has said that the onus is on him who alleges and that if true the 1st respondent could at least have furnished record of an inventory showing arms and ammunition that was returned. This court agrees with this
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submission and moreover the truth of whether or not arms and ammunition was returned and a record of these kept is within the special knowledge of the 1 st respondent to satisfy the court whether or not such a record was kept. This court is not satisfied that a bare denial by the 1st respondent is sufficient. Mr. Mosito has also said that allegations by the 1st respondent regarding the applicant and particularly that applicant is a fugitive, is dangerous, is in 'possession and/or custody and/or control of a stock-pile of heavy guns and ammunition and he is engaged in some underground activities* is pretty baseless in that these are purely speculative suspicious. The strangest thing, according to Mr. Mosito. is that applicant was dismissed while on leave and disciplinary proceedings were inconclusive. There was no way this court could ever take 1 st respondent seriously for he lacked bona fides and besides, he blew hot and cold having dismissed the applicant in one breath and not dismissed him in another. 1st Respondent had not taken the court into his confidence. Where there is a valid defence, the court was unlikely to grant the application, but not where there is no defence.
Mr. Makhethe's worry is that the application is in the form of an interdict and yet essentials of an interdict are lacking. Mr.
Makhethe- has said an interdict having to do with defamation must be pendente lite. He says the applicant has not said that the wrong is continuing for he should have alleged he fears there may be more publications. Mr Makhethe has also said the delay in issuing an interdict can be fatal for the attitude of courts is that action is to be taken immediately. The issue was whether applicant was dismissed or not and dismissal was a question of law. He says for there to be a dismissal the person affected must have been given a hearing, with prior notice for a dismissal is a solemn, juristic act. If the court
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decided applicant was not dismissed from service, it would mean that the applicant is subject to military law.
In reply Mr. Mosito has said that it is unthinkable that the 1st respondent can challenge his own act of dismissal for that would make him benefit by his own wrong. In so far as the act of dismissal was concerned, the 1st respondent was functus officio. The only way 1st respondent can challenge his own act is by application for in the event he would be seeking a declaratory in that, afterall, it was only on being challenged that the 1st respondent has claimed there was no dismissal. As for the audi rule, it had not been raised in 1st respondent's papers. According to Mr. Mosito. the 1st respondent is functus officio and his act can only be undone by a court of law. The 1st respondent had said that applicant be liquidated on sight making the applicant fear for his life; the liquidation claim had not been denied and applicant's interdict could not depend on formalities but on reasonable fear entertained by the applicant. He says individual freedom of movement is enshrined in the constitution and this individual right cannot be defeated by technicalities. He says violation of movement overrides any other legal requirements. Mr. Mosito says he has properly taken the theme freedom of movement because this forms an integral part of applicant's case. As for the claim that an interdict based on defamation was to be pedente lite, Mr. Mosito has said it's all a question of values and the applicant was defending these. Many things apart, this is a proper case where the court can grant a permanent interdict. The commander had no right in law to issue the statement attributed to him. By saying 'that man is dangerous' this imports a defamatory statement. The test in delay (if any) was whether there was prejudice suffered.
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In order to decide this application, it appears to this court a determination must first be made whether;
The applicant is a fugitive from justice; if the court decides he is, it stands to reason that the applicant cannot have protection of the law and will be automatically liable to military law. If the court decides applicant is not a fugitive from justice, it follows that he will be entitled to protection of the law. At the same time, this court may have to decide whether the applicant was discharged from his duties.
The court must also decide the nature of the interdict sought and
The alternative relief rephrased as retraction of annexures "C", "F' and "G".
Fugitives from justice are persons absolutely barred from bringing an action (see Maluleke v. Dupont.NO and Another. 1967 (1) S.A. 574 (R. A.D.) Herf v. Germani 1978 (1) S.A. 440 (T.P.D) they have no locus standi in judicio (Minister of Home Affairs v. Bicle. 1983 (2) S.A. 457 (ZSC) and as was said in Mulligan v. Mulligan, 1925 W.L.D. 164 at 167 Maluleke's case above, Maluknke 1967 (4) S.A. 31 (R. A.D.)and Botes v Goslin. 1987 (2) S.A. 716(C.P.D).
'were the court to entertain a suit at the instance of such a litigant, it would be stultifying its own process, and it would,
moreover, be conniving at and condoning the conduct of a person who, through his flight from justice, set law and order at defiance.'
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From the above judgments it is trite law that a fugitive from justice cannot institute proceedings by way of summons nor can he issue a writ of execution. Thus a fugitive from justice who had escaped from gaol where he was serving sentence and wished to appeal against sentence it was held he had no locus standi in judicio to seek relief and his appeal was struck off. (see. S. v. Nkosi 1963 (4) S.A. 87 (T.P.D.). S. v. Kennedy. 1967 (1) S.A. 297 (C.P.D) S V Isaacks. 1968 (21 S.A. 184 (ADAS. V. Moshesh & Ors 1973 (3) S.A. 962 (A.D.I And S. V. Molotsien Andere. 1976(2) S.A 404 (O.P.A)
As to who is a fugitive from justice Stegmann, J. In Escom v. Rademeyer, 1985 (2) S.A. 654 (T.P.D.) adopted the dictum in Mulligan v. Mullijan. 1925 W.L.D. 164 at 167 that a 'fugitive from justice' may be accepted as being one who is 'wilfully avoiding the execution of processes of the court of the land,' or one who is 'avoiding the processes of the law through flight out of the country (voluntary exile) or hiding within the jurisdiction of court.'
According to Stegmann, J., it made no difference whether one was an exile or simply a fugitive from justice for he is not amenable to processes of the court and, as such, cannot involve the authority of the court for the purpose of establishing his legal right. According to Stegmann J., before a person seeks to establish his rights in a court of law, he must approach the court with clean hands. But where he himself through his own conduct, makes it impossible for the processes of the court (whether criminal or civil) to be given effect to, he cannot ask the court to set its machinery in motion to protect his civil rights and interests. Were it not so, so Stegmann J. has said, such a person would be in a much more advantageous position
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than an ordinary applicant or even a peregrinus, who is obliged to give security. He would have all the advantages and be liable to none of the disadvantages of an ordinary litigant because, if unsuccessful in his suit, his successful opponent would be unable to attach his property, supposing he had any, or his person, in satisfaction of his claims for costs. In Rademeyer's case above, Rademeyer misappropriated Escom funds, transferred them into his Swiss banking account and disappeared. A warrant of arrest had been applied for and granted. It read:
'Whereas from written application by the senior public prosecutor there is a reasonable suspicion that Gert Johannes Rademeyer of Escom, Megawatt Park, on 3 December, 1984 committed the crime of fraud, you are hereby directed to arrest and bring him before a lower court in accordance with provisions of s.50 of the Criminal Procedure Act 1951 of 1977.'
A provisional order of sequestration had been granted against Rademeyer and on the return day, though he was absent, he had asked for the indulgence of the court through a lawyer that the rule be extended. The court although it held Rademeyer had locus standi to extend the rule nevertheless confirmed and made final the sequestration order on the ground that Rademeyer had no bona fide defence. And in Moshesh's case above, the appellant Makhabane Gavin King Moshoeshoe had been convicted in the Eastern Cape Division of theft. He had been released on bail with the condition that he was to report Monday every week between the hours of 6.00 a.m. and 6.00 p.m.; when, however, his appeal came to the Appeal Court, it appeared he had removed from Mount Frere where he stayed and was presently in Maseru, Lesotho. More precisely, it had been found by the Appellate Division that 'on this information the appellant is clearly a fugitive from
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justice.' Quite clearly therefore, a fugitive from justice can be said to be a person who escapes or hides from the law. Examples of such persons being those who breach their bail conditions, escape from gaol or lawful custody, people in respect of whom warrants of arrest have been applied for and granted. Such persons are fugitives from justice whether at civil or criminal law no matter whether they be outside or within the jurisdiction of the court of the land so long as they have disobeyed, are fleeing from or hiding or breaching judicial processes or injunctions of the law.
Notwithstanding what Mr. Mosito has said regarding 1st respondent's allegations, according to Annexure "G", it appears that Warrant of Apprehension was issued against the applicant that 'there are reasonable grounds of suspicion that No. Pte Tšeliso Matela of Botha-Bothe, Makhoakhoeng c/o L.D. Force did on the 11th day of September, 1998 commit the crime of mutiny. These are therefore, in His Majesty's name, to command you that immediately upon sight hereof you (apprehend or cause to be apprehended) the said Pte Tšeliso Matela and brought before Magistrate Court, Maseru to be examined and answer to the said information and to be further dealt with according to law'. Earlier on, there was the perception that avoiding, running away from or hiding from 1st respondent's processes accounted to frustrating processes of the law. A warrant of apprehension is a process of the law. Indeed a warrant issued against the applicant is no different from that which was issued against Rademeyer. It is to be recalled although a warrant of apprehension was issued against the applicant, it depends on whether at the time of its issuance applicant was a serving member of the Lesotho Defence Force.
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On the basis that a fugitive from justice is also one who avoids processes of the law, it is perhaps safe to say that processes emanating from 1st respondent in course of duty and within the scope of his employment fall within the purview of processes of the law. As I have said, sight is not to be lost of the fact that in a long line of cases a 'fugitive from justice' may be described as one who is 'wilfully avoiding the execution of the processes of the court of the land' or one who is 'avoiding the processes of the law through flight out of the country (voluntary exile) or hiding within the jurisdiction of the court.
Significantly though, applicant's case is a case in it's own right since fugitive from justice in the instant case are to fall within the four comers of the Lesotho Defence Act, 1996. In other words, fugitives from justice can only be active and serving members of the Lesotho Defence Force who are, consequently, subject to military law and discipline
According to sec.29
ss(l)of the Defence Force Act,
1996,'----until discharged'
every solder of the regular force remains subject to military law.
The implication of the above section is to the effect that a discharged soldier of the regular forces once discharged is not subject to military law. According to annexure "AA", whose (d) reads:
'DISMISSAL'
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'No.9804 Pte. Matela is dismissed from the force with effect from 1st October, 1998',
There can be no doubt that the applicant was dismissed by the 1st respondent for the respondent has signed the instrument of dismissal. 1st respondent has not denied the existence or veracity of the instrument, only he questions applicant's motives in having obtained
it and lambasts doctors who seem to be, according to him, in cahoots with fugitives from the law. This court is not in the least
interested in method(s) of having obtained the instrument; it is interested only in whether the instrument is genuine or not and
particularly whether the document is privileged, 1 st respondent has not said that the document is privileged nor has he denied its existence or genuiness.
The court has taken a close look at the instrument annexure "AA" and has formed the impression that the document, bearing all the features of a defence force document, it emanated from the office of the 1st respondent. The annexure was of course result of a replying affidavit but to counter anything new in the document, 1st respondent was allowed a 4th affidavit though it does not seem that 1 st respondent satisfactorily countered any new information contained in annexure "AA." To be precise, reference to annexure "AA" appears in so-called paragraph 2 of applicant's replying affidavit. I have used so-called advisedly on account of there being two (2) paragraph two's in applicant's replying affidavit. In reply to this, 1st respondent's answer is a cursory 'applicant has not been dismissed', 'dismissal is a formal juristic act'; 'in this case there has been no dismissal, as a matter of fact and law.' I do not understand how 1st respondent goes into rationalization of what dismissal is for by his own hand the act was done. It is immaterial whether the act was juristic or not
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for applicant understood himself to have been dismissed. An act of dismissal is valid until it's validity has been tested. I agree with Mr. Mosito that the 1st respondent cannot benefit by his own wrong and that so far as applicant's dismissal is concerned 1st respondent is functus officio Besides, there are two contradictory versions attributable to the 1 st respondent and it appears the single version of the applicant is to be preferred.
Applicant has abandoned his prayers regarding his salary and disciplinary proceedings and consequently this court is not prepared to decide whether applicant's dismissal was lawful or not. All that the court has to decide is whether, within the meaning of the Defence Force Act, 1996 it can be said that applicant was a fugitive from justice and not being one, to stop 1 st respondent from further defaming applicant by calling him a fugitive and of course to order 1st respondent to retract statements posturing applicant as a fugitive from the law.
I have already said that there is proof that 1 st respondent dismissed the applicant from the force and that this dismissal stands until it has been set aside. 1 have also said that military law applies to serving soldiers of the regular force and that the converse applies to those who have been discharged from service. I have also said that courts do not protect rights and interests of fugitives from justice and that courts do and would protect those rights and interests relating to non-fugitives from the law.
At paragraph 9 of his Founding Affidavit, applicant says: 'I was surprised on 5th day of November, 1998 when I happened upon Annexure
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"C" which is self-explanatory.' Now, annexure "C" was 1st respondent's throwback in which on radio he recapitulated past events and South African Broadcasting Corporation's review of events showing there were two hundred (200) soldiers whose whereabouts were unknown. 1st respondent wished to correct the information for in effect all soldiers but four had reported themselves and that applicant was amongst those who had not reported. Of the four who had not reported, none except the applicant had been on leave. It appears to this court whether one was on leave or not, for some mysterious reason one was to report and if one did not report, it was concluded that he was mutinous.
Admittedly applicant should have reported himself at the barracks on the expiry of his leave or on being called upon to report himself. Applicant says he did report himself by handing in arms in his possession save that no inventory of arms he handed in was taken. As I have said, 1st respondent denies this but has not produced a record of arms handed in which would reflect whether or not in fact applicant surrendered his weapons. Applicant does not say where he was on 5th November, 1998 when he came across annexure "C" though since his sick leave had expired he should have been back to work. Applicant also does not say exactly when he chanced upon annexure "AA" for if he chanced upon it while he was on leave, he was not obliged to report himself as 1 st respondent had requested. The odd thing though is that applicant was dismissed on 1 October, 1998 and on 8 October, 1998 exactly a week after his dismissal, applicant was granted leave.
If 1 st respondent was admitting that he authorised the sick leave granted, it would mean that there was an act of rectification on the part of 1st respondent or
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that 1 st respondent's mind was not ad idem with what he had done before or he had mero motu recalled the dismissal.
Unfortunately, 1st respondent is denying that he dismissed applicant. 1st respondent cannot be allowed to eat his cake and have it. Either he dismissed the applicant or didn't. This court finds that 1st respondent did dismiss the applicant from the Lesotho Defence Force and would grant the application and it is granted in its original form and as amended. Importantly too, at paragraph 12 of his Answering Affidavit 1st respondent says
'we do not even have record of the alleged leave ---.'
Challenged on this by producing annexure "AA" 1st respondent has found himself in a quandary questioning how applicant came by annexure "AA" and questioning the doctor's motives instead of either admitting or denying the same. Sight is not to be lost of the fact that 1st respondent had said 'we do not even have record of the alleged leave.' I have said that 1st respondent has contradicted himself in essential respect; apart from this, 1st respondent is the type who would deny the truth hoping it will not surface.
1st respondent underwent hair-raising and unenviable experience enough to have impaired anybody's mind and judgment. It's a pity 1st respondent was allowed to say who were deserters, mutineers and Fugitives from justice. In the instant case, there is no way the applicant can be labelled as either desenter, mutineer or fugitive from justice because events of which he is associated with transpired when applicant had been dismissed by the I st respondent making him not
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fall within military order or discipline of Lesotho Defence Force
As Mr. Mosito has submitted, technicalities cannot be allowed to override fundamental rights like individual freedom and freedom from arbitrary curtailing of these freedoms.
This court holds that applicants fundamental rights having been not only threatened but violated, applicant has unhindered access to this court. Moreover, applicant's case is arguable and cannot be allowed to depend of procedural technicalities. See Jaundoo v. Attorney-General, judgment of the Privy Council, Appeal from the Court of Appeal Guyana, (1971) A.C. 972 (P.C.) At 983 Lord Diplock; Rwanyarare & Ors, judgment of the High Court of Uganda, 2 December, 1993 Misc. App. No.85 of 93 (unreported) at 13 (Egonda Ntende, J. Attorney-General v. Alli & Ors Judgment of the Court of Appeal Guyana (1989) LRC (Const. 474 (Harper, J.A.); Tinyefura v. Attomey-Gneral judgment of the Constitutional Court of Uganda, Constitutional Petition 1 of 1997, 25 April 1997 (unreported)' 29 January, 1993, Misc. Civil Appeal No. 11 of 1993 (unreported at 6).
Accordingly, the application is granted as indicated above and the 1st and 2nd respondents are ordered to pay applicant's costs jointly and severally the one paying and the other to be absolved.
G.N. MOFOLO
JUDGE
1st March. 1999.
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For the Applicant: Mr. Mosito
For the Respondents: Mr. Makhethe
