CIV/APN/256/95 IN THE HIGH COURT OF
LESOTHO

In the matter between:

AMANDUS MPITI TAOLE APPLICANT

AND

THE DEPUTY PRINCIPAL SECRETARY 1ST DEFENDANT
MINISTRY
OF INFORMATION & BROADCASTING 2ND DEFENDANT
ATTORNEY
GENERAL 3RD DEFENDANT

JUDGMENT

Delivered by the Honourable Mr. Justice W.C.M. Maqutu on
the 9th day of August, 1995.

On the 7th August, 1995, this matter was argued before
me by Mr. Phafane, Counsel for Applicant and Mr. Letsie,
Counsel for the Respondents.

At the conclusion of argument, I made the following
order:-

"Application is dismissed with costs on the

/...

2

grounds that the Public Service Commission and not the
First Respondent should have been sued or at least joined in these
proceedings.
Rea­sons for judgment to follow at 2.30 p.m. on the
9th August, 1995."

1 explained that this was being done because I
considered the matter as urgent and that it was in Appli­cant's
interest to know
the Court's decision to enable Applicant to assess
his position and to take what further action he considers advisable.

This application was brought by the applicant on the
27th July, 1995. Applicant brought an ex parte applica­tion
for an order in the following terms:

"1. That a Rule Nisi issue returnable on the
date and time to be determined by this Honour­able Court, calling
upon the Respondents to show cause (if
any) why:

a) The 1st Respondent shall not be restrained and
interdicted from removing Applicant from his office in the Ministry
of Informa­tion
and Broadcasting without due process

/...

3 of the Law.

2. 
   The Respondents shall not be interdicted
   and
   restrained from retiring Applicant from
   the civil service without
   due process of
   the Law.

   
   

3. 
   The 1st Respondent's letter dated 21st July
   1995 and
   contents thereof shall not be
   declared unlawful, null and void
   and of no
   legal force and effect.

   
   

4. 
   The Rules as to service and process shall
   not be
   dispensed with.

   
   

5. 
   The Respondents shall not be ordered to pay
   costs
   hereof.

   
   

6. 
   The Applicant shall not be granted further
   and/or
   alternative relief.

   
   

2. That prayers 1 (a) (b) and (d) shall not operate with
immediate effect as an Interim Order."

/...

4

It is now in ray view settled law that orders should not
be granted without hearing both parties unless special reasons for so
doing
exist. In Republic Motors v Lytton Road Service
Station 1971(2) SA 516 at page 518 FH, Beck J correctly noted
that:

"The procedure of approaching the Court ex parte
for relief...is somewhat lightly employed. Although the relief
that is sought...is only temporary in nature, it necessarily invades,
for . the time being, the freedom of action of a person or persons
who have not been heard and it is, to that extent a negation of
the
fundamental precept of audi lateram partem..."

Herbstein and Van Winsen in Civil Practice of
the Superior Courts of South Africa 3rd Edition at page 59
says an order should only be granted without hearing the other side
in an urgent matter if giving notice tot
he other side "may
precipitate the very harm that applicant is trying to forestall".

I took the view that an urgent application (even if on
notice) may be dealt with speedily if the Court chooses to do so.
Granting
an order ex parte has not often led to

5

the speedy hearing and determination of the matter.
There are urgent matters for which a rule nisi has been issued
that are two years old, and which keep on being postponed and the
rule nisi extended. I took the view that this matter was
urgent and dispensed of all rules and pro­cedures that could
delay its hearing.
The result of these measures was that this
application has been finalised within ten days.

As all parties are in Maseru, I directed that the
Respondents be served. In view of the urgency of the matter I ordered
that ordinary
rules of Court be dispensed with. I also directed that
all opposing and replying papers should have been filed by 2nd
August, 1995.
The matter was postponed to the 4th August, 1995 for
the full hearing on the merits. Applicant's Counsel seemed sat­isfied
with
what the Court did because the whole matter would be dealt with
expeditiously and consequently be finalised within seven days.

On the 4th august, 1995, I directed that heads of
argument be filed as they had not been filed. I postponed the
application to 2.30
p.m. on the 7th August, 1995.

Harms in his Civil Procedure in the Supreme
Court S1

6 at page 499 says the following about an interdict:

"An interdict is an order of Court that the
respondent must refrain from doing something or must do something.
The first order
is referred to as a prohibitory interdict and the
second as a mandatory interdict."

Applicant is applying for both a prohibitory inter­dict
and a declaratory order rolled into one. The inter­dict that is
being
sought is a final one. The reason being that it is, (if
granted):

"... granted in order to secure a permanent
cessation of an unlawful course or conduct or state of
affairs."Erasmus Superior Court Prac­tice
E8-2.

There seems to be little doubt that Applicant had to
take action if his rights were infringed. He previously brought
CIV/APN/129/95
against the Principal Secretary for Information when
he had purportedly retired him from the public service and Monapathi
J had ordered
that Applicant be reinstated to office in the Ministry
of Information and Broadcasting from which Applicant had been
unlawfully removed.
If First Respondent in these proceedings had in
defiance of the order of Monapathi J again retired Appli­cant
from the Public
Service, that would be contempt of

/.....

7

Court. I would have expected contempt of Court
proceed­ings to have been instituted.

Before me today, there is another application for an
order restraining the Ministry of Information and Broad­casting
from retiring
applicant from the Public Service unlawfully. Should
the same application be repeated over and over again?

First Respondent denies that he has retired Applicant
from the Public Service. He says he was simply communi­cating the
decision
of the Public Service Commission to Applicant. First
Respondent adds that if applicant wishes to challenge the decision of
the Public
Service Commis­sion, Applicant must do so.

Applicant in his Replying Affidavit says the Public
Service Commission does not communicate directly with the Public
Servants. Applicant
does not deal with First Respondent's submission
that Applicant ought to challenge the decision of the Public Service
Commission
directly. If Applicant does not do so, the decision
stands, some­thing that Applicant does not want.

Section 136(11) of the Constitution of Lesotho
says

/.....

8 this about the Public Service Commission:-

"The Commission shall, in the exercise of its
function under the Constitution, not be subject to the direction or
control of
any other person or authority."

By this I understand that neither the Deputy Principal
Secretary for Information and Broadcasting, the Minister, the Prime
Minister
or Government itself is responsible for its decisions.
Therefore if it transgresses the law, it is directly answerable.

The role of the Public Service Commission has
drasti­cally changed from what it was in 1970, Until the coming
into operation of
the Constitution the present functions of the
Public Service Commission were exercised by the Minister in Charge of
the Public Service.
The role of the Public Service Commission under
the Public Service Order No.21 of 1970 was an advisory
one. Section 20(1) thereof provides:

"There shall be a Public Service Commission which
shall make recommendations in those cases in which this Order
requires that
the Commission is to be consulted concerning the
exercise of the power to exercise the power to appoint per­sons
to hold or act
in the offices of the public service."

9

An entirely different situation now obtains in under The
Constitution because in terms of Section 137(1) of
The Constitution:

"...the power to appoint persons to hold or act in
offices in the public service (including power to confirm
appointments) the
power to exercise disciplinary control over persons
hold­ing or acting in such offices and the power to remove such
persons shall
vest in the Public Service Commission."

It would seem therefore that Government cannot answer
for what the Public Service Commission has done rightly or wrongly
against Applicant.
The Public Service Commission, under the
Constitution, being "not subject to the direc­tion or
control of any other person
or authority", must therefore be
held accountable.

In the light of what I have said above, First
Respon­dent cannot answer for what the Public Service Commission
has done. Indeed
although Applicant has brought this application
against First Respondent, his own annexure "CC" dated 21st
July, 1995 is
clear. It states that First Respondent is merely
passing on to the Applicant the decision of the Public Service
Commission. How do
I declare the letter dated 21st July, 1995
(Annexure "CC") null and void while the decision (of which
Applicant is

10 aware) still stands?

It seems to me this application is not in order in the
form it has been brought. Applicant ought to reassess his position
and try
again. The fact that the Public Service Commission is not a
party to these proceedings strikes me as a serious omission. This is
particularly so because the letter of 21st July, 1995, (annexure
"CC") left Applicant in no doubt as to whose decision
it
was that had aggrieved Applicant. Applicant has brought proceedings
against the messenger and omitted haul before the Court the
Public
Service Commission, which had made the decision that is prejudicial
to him.

At paragraph 17 of Applicant's founding affidavit,
applicant says he pleaded with First Respondent as well as the
Principal Secretary
to give him a hearing. Nothing was directed to
the Public Service Commission, which is the body that had taken the
decision to retire
Applicant. I do not understand why this was not
done by Applicant.

I think it is necessary to deal briefly with the merits
in order to show why I felt I could not, during argument, entertain
(at that
stage) the applicant ion for joinder of the Public Service
Commission that Applicant's

11

Counsel attempted to make. Erasmus in Supreme
Court Practice at page E8-5 dealing with requisites of
final interdicts says:

"Whether applicant has a right is a matter of
substantive law; whether it is clearly estab­lished is a matter
of evidence.
In order to establish a clear right the applicant has to
prove on a balance of probability the right he seeks to protect."

I therefore have to go over the merits in order to show
why I consider the application as presently stated as unsatisfactory.

Applications are not meant for matters that are
potentially contentious on the facts. The reason being that if it
cannot be decided
on papers, the application might, in terms of Rule
8 (14) of the High Court Rules 1980 be dismissed with
costs. Waiting for over 24 years before Applicant stated that he was
born in December 1942 is suspect as the
First Respondent has stated
in his Opposing Affidavit. It is all the more so because when it was
said, his retirement was imminent
(because of the informa­tion he
himself had given) he for the fir9t time revealed to his immediate
superior that he was born
in December 1942.

12

Applicant's averrment as to how he came to give 19th
February, 1940 as his date of birth is not helpful in application
proceedings.
The reason being that an appli­cant stands or fall
by what he said in his Founding Affidavit. Applicant says he thought
this
was his date of birth and he has now discovered that he was
mistaken. Children (normally) are told when they were born. If
Applicant
had said he had been given wrong information which he
readily believed, that would have been under­standable. Unless
Applicant
gives further details, what he has said could not have
persuaded a reasonable man. The question of date of birth is an
essential
part of the contract of employment in the public service.
Altering this term of employment is a step that should be seriously
and
formally approached and cogent reasons given. Appli-cant was
obliged to establish a clear right on this aspect in order for the
Court to grant the interdict he sought. This (on the face of the
papers as presently framed) Applicant had not done.

It is not helping Applicant's case that he is relying on
a very brief photostat copy of Applicant's mother's affidavit. It was
not
meant for this application or drawn in order to persuade me of
his date of birth. It was simply meant (so Applicant says) to quash
a
rumour of

13

Applicant's impending retirement as the letter of 28th
November 1994 shows. Even if this affidavit was an original, it is
too short
to be effective in a case such as this one. The law of
Lesotho on this is succinctly put by Hoffmann and Zeffertt The
South African Lav of Evi­dence 4th Edition at page 390
where the learned authors state:

No evidence is ordinarily admissible to prove the
contents of the document except the original document itself. This is
traditionally
regarded as the most important surviving remnants of
the best evidence rule."

Section 17 of the Evidence in Civil
Proceedings Ordinance 72 of 1830 on best evidence remains
the law of Lesotho. I do not therefore understand why Applicant has
chosen to prove the most important
element of his case (namely his
date of birth) by producing before me a photostat copy. Section 17
clearly states that:

" no evidence as to any such fact, matter or thing
shall be admitted in any case in which it was in the power of the
party who
proposes to give such evidence to produce, or cause to be
produced, better evidence as to such fact, matter or thing.."

Even
if Applicant had sued the correct body in respect of

14

his retirement, he would not have succeeded on the
papers as they stand.

What is on record is that Applicant never took the
formal step of correcting the records in the hands of Government
concerning the
date of birth that he had given when he was first
employed. The letter of Applicant to the Principal Secretary,
Ministry of Information
and Broadcasting, dated 28th November, 1994,
which has been annexed by First Respondent, is certainly not an
attempt to correct records
that he himself submitted to Government
when he was first employed. He treated the information he himself
gave as only a rumour.
That letter reads:

"Sir,

It has come to my notice that there is a rumour going
around that I be retired. The rumour is quite false and baseless.

I attach hereto ray mother's affidavit as to when and
where I was born. This in law is the best evidence available. ,.

I request you therefore to quash the said

15

rumour and to advise the Honourable Minister of the
facts stated above...

I have not reached the compulsory retire­ment age.

Yours faithfully,

AMANDUS MPITI TAOLE"

It was for the Applicant to approach the appropriate
authority and persuade it that he genuinely gave mistaken information
about his
date of birth when he was first appointed and asked that
records be put straight. Mem­ories about dates cannot always be
relied
upon, that is why baptismal certificates and birth
certificates give useful back-up systems in proving dates of birth.

In the circumstances of this case, it was a dangerous
over-simplification to say an affidavit made by Appli-cant's mother
more than
fifty two years after his alleged date of birth is
unchallengeable. It does not follow that in applicant's circumstances
an affidavit
from his mother would necessarily be unchallengeable. To
illustrate ray point, I asked Counsel for Applicant when his second
child

16

(who is about three years old) was born. Mr, Phafane
could not remember, he said he would have to check his documents
or ask around. Applicant relies on his mother for his date of birth,
it does not follow that his mother's memory would be reliable after
more than fifty years from his date of birth.

It was in order to give applicant an opportunity to
proceed against the appropriate organ of State that I dismissed this
application.
The belated joinder of the Public Service Commission at
this stage with papers of this kind, would not have been the proper
thing
to do as it would not have helped Applicant in any way.

I therefore dismissed the application with costs as
already stated .

W.C.M. MAQUTU JUDGE

For Applicant : Mr. S. Phafane For Respondents: Mr.
L.V. Letsie