Appeal – Against order confirming termination of contract of engagement of an ambassador – Appellant’s contract as ambassador to Beijing terminated by incumbent government on the basis that it has no confidence in her that she would confidently carry out its foreign policy because she belongs to the opposition party of ousted government – termination challenged on administrative review grounds because allegedly in breach of contractual termination clauses. Application dismissed a quo.
Court on appeal holding that termination clause in contract to be used only for lawful purpose and had to be rational; that on facts the appellant accepted termination if certain conditions met; court holding that such conditions met and therefore appellant had no valid basis to challenge termination.
Appeal dismissed with costs.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO.: 14/2018
In the matter between:
LEBOHANG NTSINYI APPELLANT
PRINCIPAL SECRETARY MINISTRY OF
FOREIGN SERVICE AND INTERNATIONAL
RELATIONS 1ST RESPONDENT
MINISTER OF FOREIGN SERVICE
AND INTERNATIONAL RELATIONS 2ND RESPONDENT
MINISTER OF PUBLIC SERVICE 3RD RESPONDENT
ATTORNEY GENERAL 4TH RESPONDENT
CORAM: DAMASEB AJA
VAN DER WESTHUIZEN AJA
HEARD: 21 OCTOBER 2019
DELIVERED: 1 NOVEMBER 2019
The appeal is dismissed, with costs.
P T Damaseb AJA
Common cause facts
How the appellant was appointed
The termination of her engagement
Salient allegations in her affidavit
‘(c) In order to meet the stipulated three (3) months’ notice, you will be paid cash in lieu of notice for one month.
(d) On conclusion of this recall, you will be paid terminal benefits due in terms of your contract including, but not limited to salary for the remaining term of your contract.’
Opposition to the application
Judgment of the High Court
Concession on appeal
‘(a) the respondents shall pay the appellants in cash on or before March 2020, all terminal benefits due in terms of the contract, including but not limited to salary for the remaining term of her contract, calculated from the date of her recall in terms of the respondent’s ‘Notice of recall’ dated 05 March 2018.
(b) Each party shall bear its own costs.’
Arguments on appeal
Brief facts of Foreign Affairs and others v Mohafa and ratio
‘the person engaged may at any time after the expiration of three months from the commencement of any service, terminate his/her engagement on giving the government three months’ notice in writing or paying to the government three months’ salary in lieu of such notice.’
‘It cannot be forgotten that the duties of the applicant are to head, exercise command over and control the Agency. The functions of the Agency itself include the duty to gather, evaluate and analyse domestic intelligence in order to identify any threat or potential threat to the security of the Republic or its people. This duty extends to national counter intelligence responsibilities, which includes gathering and co-ordinating counter intelligence, in order to identify any threat or potential threat to the Republic or its people. And importantly, the Agency bears the responsibility to inform the President of any such threat. It follows that in order to fulfil his duty in relation to national security, the President must subjectively trust the head of the intelligence services. Once the President had apprised himself of the facts from the Minister; the report of the Inspector-General; the various reports of the applicant himself; the meetings he had with the applicant; the attacks on his integrity and accusations of falsehoods contained in the papers on suspension proceedings, the President concluded that he had lost trust in the applicant and that it was in the national interest to terminate his appointment as head of the Agency. In my view, that break-down of the relationship of trust constitutes a rational basis for dismissing the applicant from his post as Director-General of the Agency.
‘12.6 I proposed that I should be paid my money for the remaining period in the contract and all attendant benefits. And only in that event, I can accede to termination of my services.
12.7 I was informed that I will be notified of the outcome in writing.
12.8 The outcome was the service upon me of a letter of recall on the 6th March 2018.’
ACTING JUSTICE OF APPEAL
J VAN DER WESTHUIZEN
For the Appellants: Adv. M.A Molise
For the Respondent: Adv. T.D Thejane
 By letter dated 20 February 2018 from the first respondent.
 (CCT 122/11) ZACC 24, para 34.
 The court relied on Turnhbull-Jackson v Hibiscus Coast Municipality 2014 (6) SA 592 (CC); Helen Suzman Foundation v Judicial Service Commission 2017 (1) SA 367 (SCA);
 Clause 7(1) is identical to clause 6(2) in the present appeal.
 2008 (5) SA 31 (CC)
 The national powers and functions specifically excluded from the definition of PAJA are listed in section 1 with reference to relevant constitutional provisions. The President’s powers under section 85(2), particularly those included in section 85(2)(e) of the Constitution, are expressly excluded in section 1(i)(aa) of PAJA. In President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) at paras 141-143 (SARFU), this Court distinguished between executive and administrative action. It held that the power in question was conferred upon the President and that it was an original power, derived directly from the Constitution. Hoexter above n 35 at 212 argues that the meaning of “executive” in section 1(i)(aa) of PAJA has the effect of excluding “only distinctively political decisions and not characteristically administrative tasks such as implementing legislation.” See also Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 78; and Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA); 2005 (10) BCLR 931 (SCA) at para 27.
 See Pharmaceutical Manufacturers above n 39 at para 85 and Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC) at para 25.
 Section 10(1) of ISA states:
“The Director-General concerned or the Chief Executive Officer must, subject to the directions of the Minister and this Act, exercise command and control of the Intelligence Services or the Academy, as the case may be.”
 Para 86.
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