C of A
(CIV) No 3 of 2000
COURT OF APPEAL OF LESOTHO
GENERAL 1st Appellant
OF JUSTICE 2nd Appellant
OF FINANCE 3rd Appellant
OF PUBLIC SERVICE 4th Appellant
MAKESI & 85 ORS Respondents
On 1 June
1995 the Minister of Justice delivered a speech in the Senate in
which he stated that after consultation with the Chief
the Cabinet, he had decided to enhance the jurisdiction of the
Central and Local Basotho courts. He explained that
both the civil
and criminal jurisdiction of these-courts were to be substantially
increased. He went on to state that the salaries
of Local Court
was to be upgraded from the grade of 6 to 7 to the grade of 8 to 9
and that Central Court Presidents who were being paid
at grade 8
would be upgraded to grade 10 to 11. These upgradings were to take
place in April 1996.
By 5 May
1998 the salary increases foreshadowed in the Minister's speech had
not been implemented. On that date 86 Local and Central
Presidents launched an application in the High Court, citing the
Attorney General, the Minister of Justice, the Minister
and the Minister of Public Service as first, second, third and fourth
respondents respectively. The applicants claimed
an order directing
respondents to upgrade them in accordance with the Minister's speech
and to pay their arrears of salary commencing
from April 1996.
application was opposed and answering and opposing affidavits were
filed. On 26 November 1999 the court (Maqutu J) made the
"It is ordered:
Respondents implement the Cabinet Order of 9th May, 1995 as they are
obliged to do.
is further ordered that the budgetary machinery for putting that
order of Cabinet into effect be put in operation.
are directed to pay costs".
noted an appeal to this Court on a number of grounds against the
orders made by the court a quo.
convenience the parties will be referred to as in the court a quo or
by their respective titles.
common cause that on 9 May 1995 the Cabinet approved the upgrading of
the salaries of Local and Central Court Presidents as
announced by the Minister of Justice in his speech to the Senate on 1
June 1995. The Cabinet approval appears from
a savingram dated 12 May
1995 from the Acting Government Secretary to the Permanent
Secretaries for Justice, Finance and the Public
savingram reads as follows:
OF LOCAL AND CENTRAL COURT PRESIDENTS
C3 (95) 41 by the honourable Minister of Justice and Human
meeting on Tuesday 9th May, 1995 under "Memoranda"
approved the review of salary grading of Local and Central Court
Presidents so as to attract candidates with suitable qualifications
and retain capable officers.. The grading as scheduled below, to be
effective April, 1996.
On 23 May
1995 following the decision of the Cabinet, the Minister of Justice,
acting in terms of the powers vested in him by section
2(1) of the
Central and Local Courts Proclamation, No.62 of 1938, issued a
warrant increasing the jurisdiction of the Local and
with effect from 1 July 1995.
August 1996 a savingram was sent from the Department of Justice to
the Principal Secretary, Public Service, stating that -
"With the concurrence of the Honourable the Chief Justice, the
Minister of Justice and Human Rights conferred powers [on]
and Central Courts as follows".
increases in the jurisdiction of these courts, as described above,
were then set out. The savingram proceeded as follows:
"With the increased powers of the Courts Presidents, it was
further decided that the position of Local Court President be
upgraded from 6-7 to Scale 8-9 and that the position of Central Court
President be upgraded from Grade 8 to Grade 10-12. It was
that the upgrading be with effect from 1st April, 1996.
You are requested to formally authorise the intended changes of
Grades. The variation forms are attached".
Variation Form attached, which was signed by the Principal Secretary,
Head of Department, contains a request that the Local
Court Presidents be upgraded in accordance with the savingram. Under
the heading: "Any other Relevant Remarks",
"There is need to upgrade these positions as the jurisdiction of
Central and Local Courts Presidents is enhanced".
request contained in the savingram of 20 August 1996 was not
implemented. Nor has implementation occurred since that date.
opposing affidavit was deposed to by one Malefetsane Nkhahle, the
Principal Secretary of the Ministry of Public Service
who stated that
he deposed to the affidavit on behalf of the respondents, duly
opposing affidavit the following defences are raised:
Cabinet decision of May 1995 was not immutable and has been changed.
upgradings were matters of government policy in respect of which the
jurisdiction of the courts is excluded.
the basis of the application is a promise which has not been
established, applicants cannot rely on the doctrine of legitimate
argument before this court Mr. Makhethe, who appeared for
additional defence, namely that the application had been brought as a
matter of urgency and that as urgency had not been
application should have been dismissed.
consideration apply in this case depending on whether or not the
Cabinet decision of 9 May 1995 was changed. Nowhere in
papers is there a categorical statement that the Cabinet has changed
that decision. Mr Nkhahle stated in paragraph
5 of his opposing
affidavit that it was correct that the Cabinet had decided as alleged
and that the Minister had made the speech
in the Senate, but -
"Nevertheless, it is my respectful contention that the decision
was mutable and I aver that there is evidence that it was
way of instituting a task force/commission that would review the
whole public service employment structure, conditions
of work and
deponent annexed a number of documents as evidence of the general
upgrading that was taking place in the civil service and went
state that -
"The 1995 endeavour regarding applicants had to give way to a
more broader concerted effort to improve the whole public service
earliest document annexed to Mr Nkhahle's affidavit dealing with this
matter is dated 2 September 1996. It indicates that a
consultants selected and funded by the British Government was due to
arrive in Maseru on 15 September 1996 in order to
commence a review
of salaries in the civil service. The exercise was expected to be
completed by December 1997. According to Mr
Nkhahle's affidavit which
was deposed to on 3 June 1998, the final report of the consultants
was "very recently" submitted
to the Cabinet for its
documents are relied on by Mr Nkhahle as "evidence" that
the Cabinet decision of 9 May 1995 was changed. In the
absence of an
explicit statement that the Cabinet has changed its decision,
respondents were obliged to rely on an implication
to that effect,
based on the documents annexed to the opposing affidavit. In my
judgment this is not a necessary implication. The
establishment of a
task force to review civil servants' salaries is not inconsistent
with the earlier Cabinet decision to upgrade
the salaries of
applicants. Had effect been given to the Cabinet decision of 9 May
1995 applicants would, by the time
general salary review started, have been in the higher grades
provided for in the Cabinet decision and their salaries would
like those of all civil servants, have been subject to review by the
event the documents and correspondence annexed to applicants'
founding affidavit show that this was in fact the attitude
letter dated 28 September 1997 addressed by the Senior Resident
Magistrate of Maseru to the Permanent Secretary, Justice, reference
is made to a discussion concerning applicants' upgrading at a meeting
held on 24 September 1997 at which "D.P.S. (Deputy Principal
Secretary) Mr Ralitsie" stated that he did not know anything
about the matter. However, the letter continues:
Ralitsie re-visited the matter again on 25-09-97 at 2:15p.m. His
findings were as follows:
found a copy of the speech by the Hon. Minister of Justice Mr.
Maope, where the question of up-grading of scale appears/is
reflected, and where the commencement date of the upgrading is shown
as 01-04-96, and whereupon Hon. Mr. Maope confirmed that
the matter has been passed by Cabinet
had just met the Hon. Minister of Justice and the Principal
Secretary who had told him that the decision on upgrading still
November 1997 the Chief Justice wrote to the Principal Secretary,
Justice, reiterating the dissatisfaction of the Court Presidents
the Government's failure to implement their upgradings. The Chief
".............in July, 1996 at C.T.C. you informed them that
their salaries were being processed. Again in November, 1996
the same promise that the salaries were being processed".
statements are not denied. The answer in the opposing affidavit is
simply that the correspondent shows that this is a Government
decision for the Government to deal with as it deems fit.
the date on which the decision to undertake a general review of civil
servants' posts and salaries was taken, does not
appear from the
statements in the correspondence referred to above were made
subsequent to that decision which was taken on an unspecified
but at any rate prior to 2 September 1996.
circumstances the statement in the opposing affidavit that "there
is evidence that (the decision) was changed"
is not supported by
the evidence. It is also not without significance in this regard that
none of the three ministers who were
cited as respondents has gone on
oath as stating that the Cabinet has changed its decision.
appeal must accordingly be approached on the basis that the Cabinet
decision remained unchanged. I interpose here to point
out that had
that not been the case i.e. had the Cabinet reversed its decision,
applicants would have been entitled to contend
that they had a
legitimate expectation that the decision would not be altered without
affording them a hearing. They were not given
Consequently, had the decision been changed, applicants would have
been entitled to have the decision to reverse the
set aside and an order that it be reconsidered after having given
applicants a fair hearing on an issue which
affected their rights. See Attorney General of Hong Kong v. Ng Yuen
Shiu  2 All ER 346 (PC).
I pass on
to deal with the next defence raised by respondents, namely that this
is a matter of government policy in respect of which
jurisdiction is excluded.
counsel submitted that the power to make a decision or to declare a
policy includes the power to cancel it or to withhold
implementation. There can be no dispute that a policy-maker is
entitled to change policy decisions. The importance of an unfettered
power to change policy has been stressed. See Hughes v. Dept. of
Health and Social Security  AC 776 at 788. But this does
mean that the power of the courts to intervene in appropriate
circumstances has been removed. As Sedley J stated in R v. Ministry
of Agriculture, Fisheries and Food, ex parte Hamble (Offshore)
Fisheries Ltd.  2 All ER714 at 731 c-d:
"While policy is for the policy-maker alone, the fairness of his
or her decision not to accommodate reasonable expectations
policy will thwart remains the court's concern (as of course does the
lawfulness of the policy)".
learned judge continued at 731 d-e:
"..........it is the court's task to recognise the
constitutional importance of ministerial freedom to formulate and to
policy; but it is equally the court's duty to' protect
the interests of those individuals whose expectation of different
has a legitimacy which in fairness outtops the policy
choice which threatens to frustrate it".
these statements were made in the context of a legitimate expectation
situation, they serve to illustrate the point that
limitations on the power of a policy maker to change policies. This
was emphasised by Lord Denning MR in Reg, v Liverpool
parte Liverpool Taxi Fleet Operators Association  2 All ER 589
(CA) at 594 where he stated that a person
or public body entrusted
with powers for public purposes, cannot divest themselves of those
powers e.g. by contract.
Lord Denning went on to point out that -
".........that principle does not mean that a [public]
corporation can give an undertaking and break it as they please. So
long as the performance of the undertaking is compatible with their
public duty, they must honour it".
Craig: Administrative Law, 3rd ed 672-675.
14 In the
present case there has not been a mere expression of policy, for
example that the government intended to increase the
certain courts and to upgrade judicial salaries. A decision was taken
by the Cabinet to increase the jurisdiction
of certain specified
courts and to upgrade in a specified manner the salaries of the
judicial officers who function in those courts
. But the matter does
not rest there. On 20 August 1996, pursuant to the Cabinet decision,
a specific request was directed by the
Department of Justice to the
Principal Secretary, Public Service, to give effect to the decision
which was to come into operation
on 1 April 1996. Save for the
contention that the Cabinet decision was changed, which, for the
reasons stated above, I have found
to be devoid of substance, there
is no explanation from the respondents as to why this direction was
not carried out.
circumstances there is no reason why the aid of the court should not
be invoked in order to ensure that effect is given
to the Cabinet's
decision and to the direction for its implementation contained in the
savingram dated 20 August 1996, provided,
of course, that
implementation would be intra vires the person responsible therefor.
It is to that question that I now turn.
154 (3) of the Constitution provides as follows:
"(3) In this Constitution, unless the context otherwise
requires, reference to an office in the public service shall be
as including references to the office of a Judge of Court
of Appeal, of a Judge of the High Court and the office of a member of
any subordinate court or tribunal (being an office the emoluments
attaching to which, or any part of the emoluments attaching to
are paid directly out of the monies provided by Parliament) but shall
not be construed as including references to the office
of assessor in
section 154 (1) "subordinate court" is defined as meaning -
"Any court of law established for Lesotho other than -
Court of Appeal;
Court Martial; and
tribunal exercising a judicial function".
"Public office" is defined in section 154 (1) as "any
office of emolument in the public service" and "public
officer" is defined as "a person holding or acting in any
Central courts are therefore subordinate courts. Moreover, the
who preside in those courts, which include the present applicants, in
accordance with section 154 (3) of the Constitution,
hold offices in
the public service, i.e. they are public officers as defined in
section 154 (1).
of the Public Service Order 1970, Order No.21 of 1970, a "public
officer" means a person holding any public office
office" means any office in the public service. These
definitions are the same as those in the Constitution.
of the Public Service Order 1970 gives the Minister responsible for
the public service the power to -
"make, alter or revoke provision for all or any of the following
matters by means of rules or regulations published in the
by other means:-
(viii) Scales of salaries, wages and allowances .... of classes and
grades of public officers".
section 40 of the Public Service Act 1995, Act No 13 of 1995, the
Order 1970 was repealed but the regulations made under the repealed
remain in force until repealed by regulations made under the Act.
provisions of the 1995 Act in so far as the powers of the Minister
are concerned, do not differ from those of the 1970 Public
Order. Thus in terms of 9 (2) the Minister responsible for the Public
Service is empowered to make provision for, inter
"(iii) the number and grading of public officers; and (iv)
scales of salaries of all classes and grades of public officers".
office" and "public officer" have the same meaning as
in the Constitution.
clear from the legislation referred to above, including the
Constitution, that the power to implement the Cabinet's decision
intra vires the Minister responsible for the Public Service. It
follows, for the reasons set out in this judgment, that his
to carry out that decision is unlawful and that the court has the
power to enforce compliance by means of a mandamus. See
Forsyth: Administrative Law, 7th ed. 657; De Smith, Woolf &
Administrative Action, 5th ed. Paras 4-002; 4-031.
disposes of the defences raised in the opposing papers. To sum up, my
findings on those defences are as follows:
have not established that the Cabinet decision was changed.
the Cabinet decision has not been changed, questions of legitimate
expectation do not arise.
Court's jurisdiction to enforce compliance with the Cabinet decision
and the direction that it be carried out, has not been
I pass on
now to deal with the submission by respondents' counsel that the
application should not have been brought as a matter
of urgency. It
is correct that the application should not have been launched as a
matter of urgency. However, it was not dealt
with on that basis in
the court a quo. Ample opportunity was given to respondents to file
opposing affidavits. Moreover no one
was projudiced by the
the application was wrongly brought as one of urgency. In the
circumstances this is not a ground on which this Court should
these reasons the appeal is dismissed with costs.
I agree :
Appellants - Mr. Makhethe
Respondents -Mr Mosae
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