C OF A
(CIV) NO. 28/2002
COURT OF APPEAL OF LESOTHO
OF THE NATIONAL
OF LESOTHO 1st APPELLANT
UNIVERSITY OF LESOTHO 2nd APPELLANT
- hearing confined to in limine issues - judge nevertheless
proceeding to deal with merits - unfair, and judgment set
aside-matter not remitted; judge wrong to interdict appellants in
effect from remedying earlier procedural irregularities - status
Court of Appeal directions regarding ex parte applications, urgency
and certificates of urgency.
The appellants are the Vice-Chancellor of the National University of
Lesotho, and the University itself. The respondent is
the successful applicant in motion proceedings instituted by him
against the appellants in the court a quo. That court (Hlajoane
granted a final order interdicting the appellant from excluding the
respondent from his office "pending the determination
proceedings in CIV/APN/305/2001 and this application". In
addition, the court granted an interdict restraining the appellants.
"from excluding the (respondent) from office, on the grounds
that the intended exclusion is aimed at circumventing and rendering
nugatory and of no force and effect the judgment.....in
directed the appellants to pay the respondent's costs.
appellants appeal against these orders on a number of grounds. Two
concern issues relating to the urgency of the proceedings
court below. The third is that the respondent failed to exhaust what
are contended to be domestic remedies in terms of
University-Order 19 of 1992 ("the Order"). Two more relate
to the finding that exclusion of the respondent
from his position by
the appellants would be "presumptuous and pre-emptive" in
relation to an audit inquiry not yet
completed. The last contends
that the court erred in dismissing the application after only the
appellant's points in limine had
been determined, and before the
merits had been canvassed.
application in the court below had been preceded by two earlier
applications (CIV/APN/248/2001and CIV/APN/305/2001), both
Mofolo J. The first application - also brought on an urgent basis -
sought and obtained an order setting aside a decision
appellant "excluding" the respondent (in terms of s.16 (8)
(b), read with s.16 (7) of the Order) from his office.
This was in
response to a written notice by the appellants to the respondent on
8 January 2001 informing him that he was being
from entering university premises since the university had
authorized a forensic audit of the bursary to be
carried out. The
temporary exclusion was expressly limited to completion of the
after the judgment in the first application was delivered, the
appellants issued a fresh notice to the respondent
inviting him to
present reasons as to why he considered the forensic audit could
reasonably proceed with him still in his office.
the second application. Evidently the appellants conceded the
defectiveness of the second notice, and on 24
September 2001 Mofolo
J. granted a final order setting it aside. (As the matter had become
unopposed, no judgment was handed
down in the second application).
the same date the court a quo heard the present matter (the third
application by the respondent against the appellants). It
instituted on 23 August 2001 for the relief already summarized in
paragraph  above.
her judgment in the court below, the learned acting judge echoed a
finding by Mofolo J. in his judgment in the first application
".........under a Bursar are several mini bursars accountable to
the Bursar engaged in daily transactions. Although he is
for overall management, he is not immediately accountable until an
audit enquiry has revealed otherwise. I find the
exercise by [the
appellants] to have been presumptuous and pre-emptive, something this
court cannot allow".
learned acting judge continued:
"This judgment constitutes a bar to future administrative action
on the part of the University to a certain extent, until
enquiry has revealed otherwise."
my respectful view, the judgment and orders made by the learned
acting judge are insupportable for several reasons.
the first place, it is apparent - and counsel before us confirmed
-that the hearing which preceded her judgment was confined
ambit to the appellants' in limine defences. In effect, there was a
separation of issues: full argument was heard on the
issues, and none on the merits. Yet the learned acting judge
not merely to dismiss the in limine defences, but to deal with the
merits too. She made a finding on these without hearing full
argument, and issued an order dismissing the entire application, with
the circumstances she had no entitlement to do so. If the learned
acting judge did not wish to be confined in her ruling to
limine points, she should have said so in terms to counsel, and
given them a proper opportunity to address the merits.
circumstances, CorbettC.J. said this:
"It was undoubtedly procedurally incorrect for the trial judge
to have thus telescoped the proceedings and this irregularity
potential prejudice [for the parties)".
vs Dilley 1992 (3) SA 944 (A) at 963 C-D). As a consequence, the
appeal in that matter was allowed and the matter remitted
before another judge.
the court a quo did in this matter was not only in breach of basic
procedural principles. It was also materially unfair.
Not only at
common law but as an entrenched right under the constitution (s.12
(8)), litigants are entitled to a fair hearing.
In this case they
were not given one in relation to the merits of the matter.
this basis alone the judgment and orders must be set aside.
judgment in my view cannot stand for a further reason, and one very
relevant as to the order we should make on appeal.
the reasons which follow, we (with the consent of counsel) shall not
remit the matter, but deal with it further ourselves.
Mofolo J. set
aside the first notice because (as I understand his judgment) the
audi alteram partem principle fell to be applied,
but the appellants
had failed to do so. Mofolo J. unfortunately does not refer to the
decision of this court dealing with the
scope and application of the
audi principle -more particularly in the sphere of employment in the
Public Service of Lesotho -
in Matebesi vs Director of Immigration
1997-1998 LLR & LB 455 (LAC). Nor does he refer to this court's
further judgment (applying
the principles laid down in Matebesi.
supra) in Selikane vs LTC 1999-2000 LLR & LB 127 (LAC). It is
unnecessary to say anything
further about his judgment other than
that its correctness may require in due course to be considered.
Whether or in what circumstances
a person who is the subject of a
contemplated suspension or exclusion from University premises in
terms of s.16 (8) (b) of the
Order is entitled first to a hearing,
is a matter which I expressly leave open.
J.'s judgment in the first application constituted in reality no
"bar to future administrative action on the part
University to a certain extent, until an audit enquiry has rewarded
otherwise" as the court a quo put it. Mofolo
J had identified
what he considered to be a
procedural irregularity; nothing in law prevented the appellants from
taking a fresh decision (and issuing another notice) premised
the correctness of the first or for that matter, second order by
Mofolo J. If, as Mofolo J considered, the first two notices
issued in breach of the audi rule or were otherwise procedurally
defective, they were nullities. Orders to this effect were
no bar to
a new notice giving the respondent a proper opportunity to be heard.
strategy employed by the respondent in fact was (as the appellants
contended) an abuse. It resulted in a paralyzing of the
ability to give effect to the two orders by Mofolo J. This appears
not to have occurred to the learned acting judge.
these circumstances, it is not necessary to deal with the further
grounds of appeal, other than to note this. The discretion
an application to be heard on an urgent basis requires, this court
has repeatedly emphasized, a discriminating exercise
discretion. Important in that regard is insistence by the court of
first instance on a proper case for urgency being
made out in the
founding papers, and that the certificate of urgency states the
grounds. It is not apparent from her judgment
that the learned
acting judge gave a sufficiently rigorous consideration to the
requirements laid down in this regard in the
judgments of this court
in Commander, Lesotho Defence Force vs Matela 1999 -2000 LLR &
LB 13 (LAC), Molapo Qhobela vs BCP
1999 - 2000 LLR & LB 243
(LAC) and Sea Lake (Pty) Ltd
Rules. The purpose of the judgments cited in paragraph , and this
one, is to make that clear. The passages in question in these
judgments constitute practice directions by this Court, which are to
be appropriately enforced by the High Court and this court,
are binding on litigants and their legal representatives.
appeal is accordingly upheld, with costs. The orders made by the
court a quo are set aside and substituted by this order
"The application is dismissed with costs."
I would add, in relation to paragraphs  to , that I have
consulted the Chief Justice in relation to the importance
to the High
Court of these matters. It is also the Chief Justice's view that our
directions regarding bringing applications ex
parte, urgency and
certificates of urgency are important to the administration of
justice in the High Court, and enjoy his full
for the appellants: Adv. M. Mosae
for the respondent: T. Mahlakeng & Co.
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