IN THE HIGH COURT OF LESOTHO
the matter between
PHAMOTSE MOSEHLE APPLICANT
REASONS FOR JUDGMENT
For the Applicant : Mr.N.Mphalane For the
Respondent: Miss N.G. Thabane
Delivered by the Honourable Mr. Justice T. Monapathi on
the 20th day of June 2000
These written reasons follow my ex-parte judgment of the
24th May 2000.
The facts in this proceedings were amply shown in the
affidavits of the parties including the founding one attached to the
of motion. It was in an application for review of the
dismissal of the Applicant by a domestic disciplinary tribunal, in
of a committee of his employer the Respondent Bank. The
panel consisted of the following: Mrs Thakalekoala (Personnel
S. Sehlabaka (Internal Auditor) Mr. M. Tsoaeli (Property
Manager) Mrs M. 'Mefane (Assistant Personnel Manager) Miss L. Motjope
Manager). No attack was
2 made nor was there any point taken against the
composition of this Committee.
The charge which the Applicant had faced before the said
disciplinary committee concerned a disappearance of keys to the Forex
of the bank. The Applicant had allegedly known about the
disappearance of the keys and had neglected to inform the employer
the person who he knew to have had possession of the keys. This
Court's error was later corrected to say that the amount of One
and Two Hundred Maloti (M1,200.00) concerned damages for
repair and replacement of the key and did not concern a disappearance
cheque (in that amount) as had been the Court's error.
The circumstances of the misconduct were explained
before the Committee
in the presence of the Applicant who was being asked to
explain. This followed a
charge which was communicated to the Applicant and which
was dated the 3rd
November 1993. It was followed by a letter dated the 4th
November 1993 which
appointed the hearing of the disciplinary matter on the
11th November 1993.
Before the Committee as said before the circumstances
were explained as suggested in the charge and in the questions which
to the Applicant in which he was asked to explain. The
tribunal concluded that the Applicant's explanation did not make
also decided that the Applicant appeared to be
unreliable and untruthful. The last two pages of the eight paged
the reasons for the finding and the
recommendations which included one for the Applicant's dismissal.
Interestingly the Applicant
had also stated that he had been to a
diviner hence his discovery and knowledge that the keys had been with
one Tayob. The unanswered
question had been why the Applicant delayed
to inform his superiors of the facts for close to three (3) months.
Originally the Applicant's sole explanation and the
ground for revision of the proceedings was that he had not been
allowed to cross
examine a witness or witnesses. Later when it was
shown that no witnesses were called and the nature of the inquiry, he
that he was not allowed to call witnesses. This was an
additional ground which was not part of the founding papers. It had
that there had not been anything in the nature of
witnesses eliciting facts such as where one would then have had an
to question a witness.
Applicant added that he was not even granted an
opportunity to (himself) call a witness nor to testify on his own
behalf or make a
statement. This became his attack as his Counsel Mr.
Mphalane argued. In addition Mr. Mphalane picked up a point that the
acted as a judge and prosecutor in this matter (over the
Applicant) at the same time contrary to what is known as memo judex
I have found that there would have been a lot to
complain about the way these proceedings were conducted. This would
be so if lawyers
of administrative law would have had their way with
their legion of attacks as found in the law books. I may illustrate
Applicant could have done to have brought this into play.
Firstly, he could have asked for an opportunity to get legal
Secondly, he could have asked for particulars to the
charge. Thirdly, he could have asked for a list of witnesses.
Fourthly, he could
have asked for a list of documents. Fifthly, he
could have taken that point obliquely raised as to who of the persons
(of the Committee)
present was a prosecutor. Sixthly, he could have
asked who of those was a witness. This he could have asked before or
after his explanation.
Seventhly, he could have asked for the
opportunity to put in his own statement. Eighthly, he could have
asked to put in his own witnesses
to testify and ninthly, he should
have been allowed to comment on the evidence led. And finally, there
should have been reasons for the decision reached. Most
of these are tests as to whether interests of natural justice has
whether there was an opportunity for a fair hearing,
whether there was a fair hearing and whether or not there was a
of justice. There is nothing mythical or axiomatic about
them. Had the Applicant made a prior demand and or invoked and or
of those procedures that would have been a different thing.
But then the question would have still been: "Did fairness
it?" See ADMINISTRATIVE LAW, Lawrence Baxter, 1st
edition, pages 593 - 597, particularly at 597.
I was not prepared to accept that there was unfairness
in the way the proceedings were conducted in the total circumstances.
up one issue in isolation would be a technical approach which
would work against the need to act
simply but fairly. As it is said:
"In the application of the concept of fair play
there must be real flexibility. There must also have been some real
to the complaint: there is no such thing as a merely
technical infringement of natural justice" - ADMINISTRATIVE LAW.
Wade & C. F.Forsyth, 7th edition at page 519.
In the circumstances of the present case the Applicant
was given a notice of hearing of about seven (7) days. And then in
and the charge the content of the complaint against him
was stated so clearly and abundantly to have enabled him to explain.
furthermore where as herein most centrally the approach was that
of asking the Applicant to explain and where the result was that
did explain and he having had notice of the procedure intended for
seven (7) days before. Where there was no sign (nor was it
that there had been bias nor bad faith nor prejudice towards the
Applicant. Then I would conclude that there was utmost
possible fairness. This I do consider also that the
nature of the charge had been put to the Applicant. I decide that
this was done
most fairly and openly. He was therefore given an
opportunity to state his case.
As the tribunal had been acting in what appeared to be
its normal way of inquiry into disciplinary conduct of the Respondent
employees, there was no reason to suggest that the procedures
adopted by the tribunal ought to be inflexible or less simpler than
what they were. There is normally no reason for a Court to insist on
a judicial approach or an inflexible one unless in apparently
simple investigations. This is because the demands for fairness vary
and what is called a strict adjudicative procedures and
requirements are not always called for. Once there has been a fair
and unbiased hearing then there ought to be no complaint.
TIMBER PRODUCTS v TOPE (1997) 3 BLLR 263 (LAC).
It appeared that the proceedings were conducted with all
fairness despite that appearance of no distinction between a
one had and a judge on the other. I said I would not
insist on such a requirement to be always built into the rules of
This seemed to have been the way the tribunal was
prescribed to work unless the opposite was suggested and it was not.
There is certainly
no need to import a strictly judicial approach
into the scheme which appeared to have been always accepted as
In the circumstances the application fails with costs.
JUDGE Judgement noted by Mr. L. A. Molete
CRI/APN/84/2000 IN THE HIGH COURT OF LESOTHO
HER WORSHIP PINDA - SETSABI 1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS 2ND
For the Applicant : Mr. R. M. Masemene For the
Respondent: Mr. R. M. Rantsane
Delivered by the Honourable Mr. Justice T. Monapathi on
the 12th day of June 2000
The Accused had been convicted of assault with intent to
do grievous bodily harm and was sentenced to three (3) years
with an option of a fine of Three Thousand Maloti
(M3,000.00) by the magistrate of Maseru (First Respondent). This
review was refused. The proceedings were
substantially in accordance with justice and fairness
including the sentence which was not harsh in the circumstances. Nor
require the Court's intervention for any reason whatsoever.
The fact of the Accused not being advised of his right
to legal representation alone, which resulted in no prejudice to the
cannot vitiate the proceedings where as in the instant case,
the Accused understood the proceedings and particularly the charge
was a simple one and where he was offered an opportunity to
defend, reply and state his case. Nothing was reviewable at all. That
is why the application ought to fail- contra MAKHEBE RAMOKOENA v DPP
CRI/APN/152/2000 of 3rd May 2000.
In the RAMOKOENA CASE what the Court was mainly
concerned with was the requirement which is constant and unambiguous,
a magistrate is required to cause proceedings to be
interpreted from Sesotho language to English language and vice-versa.
not appear that this had been done. Hence the absence in the
record of those proceedings of any statement to the effect nor
on the charge sheet that there had been an interpreter. I
also referred in that case to R v TSELISO MAFEKA 1991-1996(2) LLR
in that regard.
I also felt in RAMOKOENA case, on the force of section
12(d) of the Constitution of Lesotho, that the provision could only
force, strength and efficacy when a practice is entrenched
whereby magistrates be obligated and enjoined to ask accused persons
or not they have lawyers of their choice:
"That would lead to the issue of whether a
(Legal Aid) would be sought if events led to that."
In that way the right of an accused to A fair trial would be clothed
3 proper Constitutional effect and not a pious
It remains a useful attitude by the Crown, though not
frequently adopted nowadays, to protest that matters raised in some
complaints against convictions and sentences belong to
appeals procedure and not review procedures strictly speaking. This
to be one of them.
One clearly sees in most of these criminal applications
for review a manifest abuse of process of Court. It cannot be said
minuscule non-compliance with principles of natural justice,
unfairness, unreasonableness and errors of law or fact is a vehicle
for these proliferating applications which conveniently avoid
launching of regular appeals for the least of excuses.
T. MONAPATHI JUDGE
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