An application to declare as discriminatory and unlawful the first Respondent’s decision to exclude the Applicant from the upgrading of positions in Lesotho TV was dismissed by the High Court. The appeal to this Court fails, because the discrimination case was misconceived; the Appellant may not during the appeal change its case from one based on discrimination to alleged irrationality; and the irrationality claim might well not have succeeded.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) 02/2020
In the matter between –
MOSHOESHOE MOLAPO APPELLANT
P.S. MINISTRY OF COMMUNICATIONS,
SCIENCE AND TECHNOLOGY 1ST RESPONDENT
P.S. MINISTRY OF PUBLIC SERVICE 2ND RESPONDENT
THE PUBLIC SERVICE COMMISSION 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
CORAM: P T DAMASEB AJA
N MTSHIYA AJA
DR J VAN DER WESTHUIZEN AJA
HEARD: 14 APRIL 2021
DELIVERED: 14 MAY 2021
VAN DER WESTHUIZEN AJA:
 This is an appeal against a judgment of the High Court by Mokhesi J, delivered on 12 December 2019. It revolves around the Appellant’s unhappiness about the fact that his position in the civil service of Lesotho was not upgraded by the first Respondent, like those of his peers were. At least initially, the Appellant’s case was based on alleged discrimination in terms of section 18(3) of the Constitution. Then it evolved into alleged irrationality in the decision taken by the first Respondent.
 The Appellant is a “media practitioner” employed by the first Respondent, working in Lesotho Television. He joined the civil service in 2001 and rose through the ranks from a producer, then senior producer, to executive producer. This rank he has been holding since 2013.
 In Public Service Circular No 7 of 2013 the anomaly in the grading of persons in the capacity of director and on managerial level was pointed out. This situation had to be normalized. This much is accepted by all parties in the present appeal. The Circular stated that persons on managerial should be upgraded from Grade H to Grade I; and those on the level of director from Grade I to Grade J.
 The Appellant was on Grade H and expected to be upgraded to Grade I.
 The process of normalization took time. The Appellant accepted this. However, he neither expected nor accepted the contents of a savingram of 20 May 2016, which was supposed to implement the normalization policy. Four colleagues of the Appellant, whom he regarded as his peers, similarly positioned with him, were about to be upgraded from H to I. He was excluded.
 The Appellant complained orally and thereafter went through several processes, even involving the Ombudsman. He also complained formally in terms of the Code of Good Practice and Grievance No 194 of 2008. Eventually he turned to the High Court.
The High Court
 The Appellant alleged several irregularities in the procedures followed by the first Respondent. However, the core of his application before the High Court was that he was discriminated against. His application contained the following prayers:
“(1) That it be declared that the exclusion of the APPLICANT from being upgraded to Grade I is discriminatory.
(2) That it be declared that decision by the 1st and or 2nd Respondent to declare APPLICANT ineligible for upgrading in line with … Circular NO. 7 of 2013 is unlawful.
(3) That the GRIEVANCE HEARING(S) conducted by the agents of the 1st and 2nd Respondents be reviewed and corrected and set aside for being irregular ….
(4) Consequent upon the grant of PRAYERS 1, 2 and or 3 – APPLICANT be upgraded to GRADE I ….
(5) Costs of suit be in the attorney and own client scale ….
(6) Granting and/or alternative relief.”
 During the hearing in the High Court prayer (3) was abandoned by the Appellant’s legal representative.
 The High Court dealt in detail with the Appellant’s submission that he had been unconstitutionally discriminated against, in contravention of section 18 of the Constitution. Subsection (2) covers “the performance of the functions of any public office or any public authority”. Section 18(3) prohibits discrimination on the basis of a number of grounds, like race and gender. It includes “status” as a ground on which discrimination is prohibited.
 The only ground that could possibly be relevant in the case of the Appellant is status. The High Court dealt with this ground. In its judgment it mentions “subjecting persons of similar status to disabilities or restrictions”.
 The conclusion of the High Court is that the “justification for excluding the Applicant for upgrade is objective and reasonable”. The judgment mentions the anomaly in the grading system that had to be normalized and states: “The applicant was graded similarly with his supervisor … and therefore, to remedy this anomaly, the applicant’s supervisor had to be adjusted upward in terms of grading.”
 Thus the High Court dismissed the application with costs.
Submissions in this Court
 In accordance with the first Respondent’s answering affidavit and submissions before the High Court, as well as the High Court’s conclusion, counsel argued that, given the responsibilities and positions of the Appellant and his colleagues, there was every reason to upgrade them and not him. He and his supervisor could not remain on the same level as far as their grading was concerned.
 Counsel for the Appellant argued that his client had been unfairly discriminated against, in contravention of section 18(3) of the Constitution. However, while responding to questions from the Bench, he abandoned the entire argument based on discrimination and requested this Court to approach the Appellant’s case as based on the “irrationality” of the first Respondent’s conduct.
 There is indeed no merit in the Appellant’s submission that he was discriminated against in violation of section 18(3). He has to show the ground, mentioned in the clause as prohibited or – as it is sometimes called – “forbidden”. The Appellant attempted to argue that he had been discriminated against because of his status, but misunderstood the meaning of this ground.
 Firstly, one cannot be discriminated against in favour of someone with the same status, just as discrimination on the basis of race or sex cannot happen amongst people of the same race or sex. Differentiation between black people cannot be constitutionally prohibited race discrimination. The same applies to sex. The very essence of discrimination is that differences between people, for example with regard to race or colour, are used to disadvantage some compared to others. In so far as the Appellant and his colleagues enjoyed the same status in the workplace, he could not have been discriminated against when he was excluded from the upgrading they received.
 In this regard the High Court’s mentioning of “persons of similar status”, referred to in paragraph  above, is unfortunate.
 Secondly, one’s situation in the workplace is hardly what the Constitution refers to with the term status. A much more generally accepted example of status would be marital status.
 To cast all forms of perceived unfairness as discrimination, in order to present a complaint as an equality and thus a human rights case, is indeed dangerous for constitutionalism and the project to create a human rights culture. Observations similar to these were made by this Court in its recent judgment in The Principal Secretary, Ministry of Public Service v Tsupane, C of A (Civ) 11/20 .
 Had it not been abandoned, the Appellant’s reliance on discrimination in contravention of section 18(3) of the Constitution was bound to fail.
 Should the Appellant be allowed to change his case, which has all along been one of discrimination, to one based on the irrationality of the first Respondent’s conduct? This is not even the situation that often occurs in litigation, namely that a case is changed when it is taken on appeal. It was actually changed during the appeal.
 Counsel for the Appellant submitted that prayer (6) of the Notice of Motion, for “alternative relief”, is sufficiently open-ended to accommodate the change of focus from discrimination to irrationality. The relief granted by a court is, however, not the same as the case presented to the court, from which the relief follows. It is customary to ask a court for “alternative relief”. The purpose is presumably to allow space for a court order relief which may emerge during the consideration of a case, which was not specified in the prayers. In my respectful view the prayer for alternative relief could not possibly allow for a totally different case that a litigant decides on when realizing that the case before the court is doomed to fail. Such an interpretation could have chaotic consequences for litigants and the court.
 An appeal is against the order and reasoning of the court below the appeal court. The court of appeal is supposed to have the benefit of the lower court’s reasoning in order to consider its correctness. It should not be a court of first instance.
 In this matter the Appellant’s founding affidavit, after setting out the facts, concluded with the allegation that he had been discriminated against, in favour of “similarly placed” colleagues. Irrationality was neither alleged nor explained.
 The High Court’s judgment interrogated the issue of discrimination and even referred to international law. The court neither embarked on a rationality enquiry, nor was it asked to do so. Similarly, this Court was not presented with argument and authority on the meaning and application of rationality in case law.
 The Appellant should have considered the legal basis of its case before storming of in the direction of constitutionally prohibited discrimination; with counsel having to shift the cause of action while on his feet.
 It is in any event far from certain that the Appellant would have succeeded on the basis that the first Respondent acted irrationally. In its conclusion on the issue of discrimination the High Court indeed stated that there was “a reasonable relational connection between the upward adjustment of other individuals to the exclusion of the applicant and the aim sought to be achieved”. This finding does not seem to be unjustified. Rationality indeed has to do with the link between conduct and its purpose.
 In view of the above, it seems inevitable that the appeal must fail. Costs have to follow the result.
 The appeal is dismissed with costs.
DR J VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
___________________________________ PT DAMASEB
FOR APPELLANT: MR. M S RASEKOAI
FOR 1ST RESPONDENT: ADV. M SEKATI
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