C of A
(CIV) No. 14 OF 2003
COURT OF APPEAL OF LESOTHO
TEACHERS TRADE UNION (L.T.T.U.) APPELLANT
SERVICE DEPARTMENT FIRST RESPONDENT
SECRETARY - FINANCE SECOND RESPONDENT
Maseru on 7 October 2003
main thrust of appellant's case in this matter is that its members
arc entitled to the same stop-order facilities which have
been granted to those of its rival association known as Lesotho
Association of Teachers (L.A.T.). The case commenced
by way of a
notice of motion before Nomngcongo A.J. in the court
The prayers sought were simply couched in the following terms:-
1st and 2nd Respondents to extend stop-order facilities to
Applicant's members for repayments of loans.
Applicant costs of this application.
Applicant such further and/or alternative relief this Honourable
Court shall deem fit."
June 2003 Nomngcongo A.J. dismissed the application with costs but
regrettably gave no reasons for so doing other than
two-page document styled"Ex Tempore Judgment" consisting of
14 lines only. The appellant has accordingly appealed
to this Court
but before considering the merits of the appeal it is imperative, in
my view, to deal with the learned Judge a quo's
failure to give
reasons as this is an issue which has perturbed this Court for a long
time now. A few examples will suffice.
Rex v Tseliso Masike C of A (CRI) No. 7 of 2002 (unreported) this
Court had occasion to slate the following remarks at page
"On16 August 2002 the High Court (Peete, J) upheld the appeal
against the conviction and accordingly ordered the return of
firearm in question to the
respondent. The appeal fee and the fine in question were also
refunded to the respondent. Regrettably the learned Judge a quo
advanced no reasons for his order. This, despite several warnings by
this Court strongly deprecating the failure by judicial officers
provide reasons, something which can only bring the justice system
into disrepute. See for example Mpho Hlalele & Another
v DPP- C
OF A (CRl) No.12 of 2000 (unreported) where Steyn P (Ramodibedi and
Van den Heever JJA concurring) expressed himself in
"The failure by both Courts to give reasons for their decisions
is particularly reprehensible. See in this regard Molapo Ohobela
B.C.P. - C of A 8 of 2000 (unreported). See also S v Immelman 1978
(3) S.A. 726 at p.729 (A) where Corbett JA says the following:
'The absence of such reasons may operate unfairly, as against both
the accused person and the State. One of the various problems
may be occasioned in the Court of Appeal by the absence of reasons is
that in a case where there has been a plea of guilty
but evidence has
been led, there may be no indication as to how the Court resolved
issues of fact thrown up by the evidence or
on what factual basis the
Court approached the question of sentence.'"
Similarly, in Attorney-General and 5 Others v Mantsane Tsoloane
Bolepo and 29 Others C of A (CTV) No. 8 of 2002 (unreported)
Court expressed its concern in the following terms at page 3 thereof:
"On 20 March 2002 this order, with interest and costs, was
granted by Monapathi J. The learned judge undertook to amplify
"ruling" with "full reasons/1 One notes, with grave
concern, that they have not been furnished."
long ago 1968 Lord Denning MR, in the Court of Appeal in England,
Padtield v Minister of Agriculture. Fisheries and Food 1968 (1) ALL
ER694 (also reported in1968 AC 997) that failure to
give reasons may
justify the court to infer that there are no good reasons. That was
admittedly said in the context of an administrative
decisions but the
principle laid down therein is, in my view, equally valid for
decisions of courts of law.
have had occasion in the past to say something on this subject and it
is with regret that I have to return to it. It has come
attention in the Court of Appeal that there are judges in the High
Court ,who fail, sometimes even often fail, to produce
their judgments. In such cases appeals in the Court of Appeal are
heard without the benefit of reasons. Quite obviously
such a practice
cannot be deprecated strongly enough as it is not only unethical but
it also leads to a perception that judges
give arbitrary decisions
which are not supported by any reasons. It need hardly be slated that
arbitrariness is itself a form of
dictatorship which is in turn a
foreign concept to the rule of law that we seek to uphold as judges.
If allowed to continue, such
practice will no doubt bring the whole
justice system into disrepute. It undoubtedly leads to loss of public
confidence in the
ability of courts to resolve disputes.
cannot be emphasized strongly enough that a duty to give reasons
public confidence in the courts that their decisions are not
arbitrary but rational. It enables the litigants concerned
why a decision was reached one way or the other.
Having said this, however, I should not be understood to convey that
the practice of delivering an ex tempore judgment should
resorted to in all cases. Each case must obviously turn on its own
particular circumstances. I would lay it down as a general
proposition, however, that such practice should be avoided. In this
regard it is useful to bear in mind the definition of the term
tempore" which is this: "without preparation or
premeditation" (see Black's Law Dictionary - Abridged Fifth
Edition at page 300). Once that is so, it follows that an ex tempore
judgment cannot inspire confidence in the litigants about
correctness of such judgement. Not only docs it lead to uncertainty
but it also encourages litigation rather than discourage
to say that to discourage litigation through sound, lucid and well
reasoned judgments is the fundamental function
of the courts of law.
 It is
hardly necessary to repeat that failure to give reasons on the other
hand is a practice completely foreign to a proper
judicial system in
society, It is in essence a special form of dictatorship and as such
may only briny our justice system into disrepute.
The learned Chief
Justice's urgent attention in now accordingly drawn to this
unacceptable practice for appropriate action.
is evident from paragraph  above the appellant's claim was
squarely founded upon a stop-order facility which is enjoyed
members of its rival association, L.A.T. I interpose here to point
out that the case for the appellant was poorly presented
in the Court
a quo. For example there are no averments in the founding affidavit
of Joachim Malimabe Motopela to show that the
appellant is a
registered trade union with locus standi to sue on behalf of its
relevant facts in this case are hardly in dispute and can be shortly
summarised as follows:
On 16 May
2001 the Secretary General of the appellant union namely one Joachim
Malimabe Motopela wrote a letter annexure "MM3"
a stop order facility for the appellant's members in order to enable
them to service repayment of loans. That letter
received a quick
response from the first respondent who replied on
May2001 in terms of a letter annexure "MM6" in which he
informed the appellant that the Department was currently reviewing
policy concerning the launching of the stop order facility in
question. The letter concluded with these remarks:
"It is our utmost promise that as soon as the final conclusion
has been reached', you will be informed about the outcome."
August 2001, the first respondent followed up annexure "MM6"
with another letter "MM7" in which it requested
detailed information of the loan scheme" in question including
its purpose and who the sponsor thereof would
"MM7" was met with an angry response from the appellant's
lawyer who wrote a letter annexure "MM8"
"Surely your Department should know that the proposed loan
scheme is already in existence but for the fact that only L.A.T.
members arc its beneficiaries. All (sic) L.T.T.U. is requesting is
for the same facility to be extended to its members."
'The appellant's lawyer then disclosed the sponsor for the proposed
loan scheme as a certain MAMOTH. He, however, declined to reveal
"modalities of implementation" on the ground that the
Department "should know better."
September 2001 the appellant's General Secretary then-wrote a letter
annexture "MM9" to the second respondent
in which he
"plead[ed] with [the letter's good office to grant or extend to
the teachers stop order facility with banks like
Lesotho Bank and
money lending agencies like MAMOTH". Interestingly, no mention
was made of previous correspondence nor was
there any reference to
the fact that I.A.T. mambers already enjoyed stop order facilities.
That completed the correspondence between
the parties in the matter.
respondents' attitude, through the answering affidavit of Lekula
Tsepo Matlejane is basically that they are prepared to
appellant in obtaining the stop-order facility in question. They
however need to be "clear as to the nature of
facility sought and what is (sic) relates to" as well as its
implication on existing financial regulations.
Another aspect that requires to be borne in mind is the respondents'
version set out in paragraphs 8, 10.2 and 10.3 of the
affidavit of Letuka Tsepo Matlejane wherein he states in part:
"8. I however wish to state that, if by "same facility"
deponent to (sic) founding affidavit refers to stop order
even applicants' (sic) members enjoy that facility."
"10.2 My Department does not carry out stop-order remittance,
but only negotiate (sic) on behalf of teachers that bodies
responsible for such remittance extend them to teachers."
"10.3 Accountant-General's office is the body that carries out
stop-order facilities remittance on matters affecting public
All those averments have not been met in point of substance and must
therefore be accepted as correct.
amplification of their version that they needed more information in
order to conclude the negotiations in the matter, the
wrote to the Accountant-General for guidance in the matter. The
latter in turn replied in terms of a letter annexure
dated 22 January 2002. That letter reads in part:-
"Salaries Section at TSD is assigned the work of the office of
the Accountant General and Salaries of civil servants are answerable
to the Treasury and for that reason there is no association or
company that has leverage to coerce or through court of law or
lawyers demand anything which contravenes the Financial Regulations
of the Government of Lesotho.
Experience has shown that government money is eroded by mixing it
with the private money. As for TSD more losses of money have
incurred through the nature of the staff in (sic) teaching service
who normally move from one place to another within a short
time while payments of deductions arc remitted to private companies
without being stopped. Recovery of overpayments made
companies is difficult and costly.
The Treasury is not a private bank and for that reason it cannot do
the bank's work except under mutual agreement through legal
negotiations with the
parties concerned. There are no binding agreements on the Treasury or
coercion of some sort.
Please note that the following Financial Regulations 1973 Section
1603 should be observed or remembered at any time:-
FR 1603:- Remittances by public, not to be accepted:-
Person who wish to remit money other than public money from one place
to another shall not be allowed to do so though government
Public money" see F.R. 104 Interpretation (a) & (b) I do
hope this will suffice to meet any challenge or misunderstanding
the financial operations of the government."
follows from the aforegoing correspondence, in my view, that the
parties are still in the process of negotiation and that
word has not yet been spoken. That notwithstanding, however, the
appellant launched the present proceedings in December
2001 in which
they now sought what may be termed a mandatory interdict or order to
extend stop-order facilities to, its members.
order to succeed in its claim, the appellant must establish a cause
of action namely a clear right, an injury actually committed
reasonably apprehended and the absence of similar protection by any
other ordinary remedy. See Setlogelo v Setlogelo1914 AD
221 at 227.
Nowhere has the appellant established a cause of action or a clear
right in the founding affidavit of Joachim Malimabe
as I have
pointed out earlier, the matter was still at the negotiation stage
when the application was launched. As matters stand,
there is no
binding agreement between the appellant and the respondents. It
follows in my view therefore that the application was
prematurely and in this regard it is necessary to record that the
ball-is no doubt in the appellant's court to reply issuably
letter annexure "MM7" referred to in paragraph (11) above.
Thereafter, this Court can only express the hope that
all the parties
to the dispute will act sensibly and thus conclude the negotiations
in the matter.
conclusion renders it unnecessary for me to deal with the so-called
constitutional issue, namely the appellant's allegation
that it was
discriminated against. In any event it is salutary to bear in mind
the following remarks of this Court in Khalapa v
Compol & Another
1999 - 2000 LLR& LB 350 at 357:-
"It is again an important principle of constitutional litigation
that a court will not determine a constitutional question
matter may properly be adjudicated on another basis. Its African
genesis is a single sentence by Kentridge AJ in S v Mhlungu
SA 867 (CC) at 895 E:
"1 would lay it down as a general principle that where it is
possible to decide any case, civil or criminal, without reaching
constitutional issue, that is the course that should be followed."
the light of the aforegoing considerations the appeal is dismissed
I agree :
at Maseru this 10th day of October 2003.
Appellant : Adv T. Fosa
Respondent : Adv T.S. Putsoane
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