C OF A
(CIV) NO. 19 Of 2005

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

COMMANDER
LDF FIRST APPELLANT

MINISTER
OF DEFENCE SECOND APPELLANT

ATTORNEY
GENERAL THIRD APPELLANT

and

RETSELISITSOE
RAMOKUENA FIRST RESPONDENT

TLOTLISO
KHETHISA SECOND RESPONDENT

Held in
Maseru

CORAM :
STEYN, P.

RAMODIBEDI, J.A.

GUNI J.

HEARD :
30 March 2006

DELIVERED
: 11 April 2006

SUMMARY

Discharge
from the Army - Section 31 (b) and (c) of the Lesotho Defence Force
Act, 1996 - Interpretation thereof- Whether Commander
entitled to
discharge a soldier who has already been convicted and punished in
disciplinary proceedings -Audi alteram partem rule
- Whether
observed.

2

JUDGMENT

RAMODIBEDI,
JA

[1] This
appeal concerns discipline, or lack of it, within the context of a
military setting and, more particularly, as defined
by the Lesotho
Defence Force 1996 "(the Act"). It requires to be stated at
the outset, and this is common cause, that
on several occasions the
Respondents who were members of Lesotho Defence Force ("the
Force") found themselves on the
wrong side of the law. Each time
they faced disciplinary action and were duly punished for their
indiscretion.

[2] On
the last of such punishments in respect of each respondent, the First
Appellant ("the Commander"), acting in terms
of section 31
of the Act, duly discharged the Respondents from the Force. This was
met by the Respondents making separate applications
to the High Court
for prayers declaring their discharge from the Force null and void.

The High
Court upheld the Respondents' applications, hence the present appeal.

3

[3]
Before proceeding further, it is necessary to point out that because
of similarities in the Respondents' applications, these
were heard
together in the court below. Similarly, this Court has adopted the
same approach on appeal.

[4] It is
important to note that the Respondents' case in the court below
rested, and rested only, on two premises, namely:-

1. That
   they were not afforded the right to be heard before their discharge
   from the Force.

   
   

2. That
   the decision to discharge them amounted to "double punishment"
   or "double jeopardy" in respect of one
   and the same
   offence.

   
   

The court
a quo upheld these contentions in their entirety.

[5] In
this Court, however, Adv Phafane for the Respondents sought to argue
in the forefront of his submission a new constitutional
issue to the
effect that section 31 of the Act is discriminatory and that
therefore it contravenes section 18 of

4

the
Constitution. Counsel further sought to submit that this section
"strikes at the heart of section 19 of the Constitution
which
guarantees equality before the law".

[6] This
Court declined to hear the so called constitutional issue and
intimated that reasons would follow. Before proceeding further
with
the judgment therefore it is convenient to give the reasons.

[7] It
will be observed at the outset that the so called constitutional
issue referred to in paragraph [5] above was not the basis
for the
Respondents' case in the court a quo. On the contrary, and as will be
recalled from paragraph [4] above their complaint
rested on two
premises only, namely, (1) failure to afford them an opportunity to
be heard and (2) double jeopardy.

[8] Now,
it is instructive to bear in mind that pleadings in the High Court
are governed by Rule 20 of the High Court Rules 1980.
Rule 20(4)
reads as follows:-

5

"Every pleading shall contain a clear and concise statement of
the facts upon which the pleader relies for his claim, defence
or
answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto"

Similarly, Rule 22(3) obliges a defendant to "clearly and
concisely state all material facts on which he relies".

The main
purpose behind Rules 20 and 22 of the High Court Rules is evidently
to ensure that no litigant is ambushed by the other
side in the
conduct of litigation. Indeed it is salutary to have regard to the
following remarks of this Court in Frasers Lesotho
Limited v
Hata-Butle (Pty) Ltd 1995 - 1999 LAC 698 at 702:-

"It has been stated often enough that the requirement of a rule
in terms such as these is to enable each side to come to trial

prepared to meet the case of the other (see Benson and Simpson v
Robinson 1917 WLD 126), and to enable the court to isolate the
issue
it is to adjudicate upon (Robinson v Randfontein Estates Gold Mining
Co Ltd 1925 AD 173 at 198) The cause of action or defence
must appear
clearly from the factual allegations made {Dun and Bradstreet (Pty)
Ltd v South Africa Merchants Combined Credit Bureau
(Cape) (Pty) Ltd
1968 (1) SA 209 (C) at 224)"

[9] It is
now well recognised that it is in particular wrong to direct the
attention of the other party to one issue and then attempt
to canvass
another. See for example Frasers Lesotho Limited v

6

Hata-Butle
(Pty) Ltd (supra) : James Theko Lerotholi and Others v Chalale
Morojele and Others C of A (CIV) No. 27/2000 (unreported);
Sehlomeng
Mota v Motlatsi Motokoa C of A (CIV) No. 23/2001 (unreported): The
National Executive Committee of the Lesotho National
Olympic
Committee and Others v Paul Motlatsi Morolong C of A (CIV) No.26/2001
(unreported).

In AG v
Michael Tekateka and Others C of A (CIV) No.7/2001 (unreported) this
Court said the following:-

"It is trite that an applicant must make out his or her case in
the founding affidavit and that a court will not allow an
applicant
to make out a different case in reply or still less, in argument."

[10]
Regarding constitutional litigation, the following seminal remarks of
the Constitutional Court of South Africa in Prince v
President. Cape
Law Society and Others 2001(2) SA 388(CC) at 399 equally bear
reference:-

The
parties who challenge the constitutionality of a provision in a
statute must raise the constitutionality of the provisions sought
to
be challenged at the time they institute legal proceedings. In
addition, a party must place before the Court information relevant
to
the determination of the constitutionality of the impugned
provisions. Similarly, a party seeking to justify a limitation of
a
constitutional right must place before the Court information relevant
to the issue

7

of
justification. I would emphasise that all this information must be
placed before the Court of first instance. The placing of
the
relevant information is necessary to warn the other party of the case
it will have to meet, so as (sic) allow it the opportunity
to present
factual material and legal argument to meet that case. It is not
sufficient for a party to raise the constitutionality
of a statute
only in the heads of argument, without laying a proper foundation for
such a challenge in the papers or the pleadings.
The other party must
be left in no doubt as to the nature of the case it has to meet and
the relief that is sought. Nor can parties
hope to supplement and
make their case on appeal."

See also
National Director of Public Prosecutions v Phillips and Others
2002(4) SA 60 (W) at 106- 107.

[11] In
paragraph 4.2 of his heads of argument, Adv Phafane for the
Respondents advances the following submission:-

"It is humbly submitted that the Honourable Court will readily
find that, the section under which the First Appellant acted
in
dismissing the Respondents is discriminatory in as much as it
subjects soldiers to double jeopardy of punishment. Soldiers are
a
class of civil servants but they are the only ones who are subjected
to double punishment. They are thus discriminated against
as compared
to other civil servants and other employees in the private sector."

These, as
it seems to me, are clearly factual issues which should have been
pleaded in the first place. As was pointed out in National
Director
of Public Prosecutions v Phillips and Others (supra), it is vital
that evidence upon which a

8

constitutional challenge is made must be placed before the court.
This must be so because an allegation of constitutional invalidity
is
not, in the words of Heher J in National Director of Public
Prosecutions v Philips and Others (supra), "a mere conclusion
of
law".

[12] The
Respondents' first contention which is based on the right to be heard
can quickly be disposed of as it presents no real
difficulty in my
view. This is so because both Respondents aver in their respective
founding affidavits that they were indeed given
an opportunity to be
heard before being discharged from the Force.

[13] In
amazingly identical terms, each of the Respondents says the following
in his founding affidavit:-

"7.

Prior to
my purported dismissal from the L.D.F., I was required to explain in
writing within ten(10) days, as to why I could not
be discharged from
the Force. I responded as directed. That notwithstanding, the First
Respondent went ahead and dismissed me summarily
as appears from
annexure "RR1" ("TK1" in respect of the Second
Respondent) above. A copy of the letter addressed
to me prior to
(sic) dismissal and my response thereto are hereto

9

annexed and marked "RR2" ("TK2" in respect of the
Second Respondent) and "RR3" ("TK3" in
respect of
the Second Respondent) respectively."

[14] The
letters, annexures "RR2" and TK2" respectively, make
it abundantly clear in my view that the Commander did
invite the
Respondents to make representations and show cause why they should
not be discharged from the Force by reason of their
indiscipline.
Each letter was in these terms:-

"RE : YOUR RECOMMENDED DISCHARGE FROM THE FORCE

1. It
   is common course (sic) that you have been convicted of several
   military offences.

   
   

2. You
   are thereby requested to make a representation within ten (10) days
   from receipt of this letter showing cause if any, why
   because of the
   said conduct you cannot be discharged from the force in accordance
   with Section 31(b) and (c) of the Lesotho Defence
   Force Act of 1996.

   
   

3. Your
   representation should be in writing, failure of which shall
   automatically indicate that the discharge should be effected.

   
   

AM Mosakeng LTGen Commander LDF"

[15] It
will be noted that these letters, annexures "RR2" and "TK2"
respectively, are identical, word for word,
save to say that the
letter addressed to the Second Respondent has the following

10

handwritten
sentence at the end of paragraph 1, "Therefore you are an
undisciplined soldier."

[16] It
is equally important to note that in paragraph 6 of his answering
affidavit in respect of each respondent, the Commander
avers that the
Respondents were

"properly given an opportunity to make representations as to why
[they] could not be discharged."

[17] It
requires to be further noted that each of the Respondents did in fact
make a representation in writing in terms of annexures
"RR3"
and "TK3" referred to in paragraph [13] above. Each letter
was in identical terms as follows:-

"The Commander Lesotho Defence Force P.O. Box 54 Maseru 100

Sir,

I humbly request not to be discharged from the Force, on the grounds
that I was charged and pleaded guilty, I was punished and
I served
the given punishment, I think discharge would be very harsh and
second punishment. Therefore I think I still deserve to
be in the
Force."

11

[18] With
the aforegoing prelude, one would have thought that there was no
genuine dispute that the Respondents were given an opportunity
to
make representations, and that they did make representations, before
they were discharged from the Force. Nor could there be
any doubt, in
my view, about the acceptance of the Appellants' version as the
respondents in the court below on the well known
Plascon-Evans Paints
Ltd rule.

[19] The
learned Judge a quo, however, saw it differently. She approached the
matter by stating the following in her judgment:-

"The principle of audi alterem (sic) parten (sic) applies to all
people alike including members of the L.D.F. In the instant
case the
applicants were requested to make representations in writing within
10 days from receipt of the letter from the commander
of the L.D.F.
showing cause why because of certain conduct they shall not be
discharged from the force in accordance with Section
31 (b) and (c)
of the Lesotho Defence Force Act 1996.

They duly complied with that request and they responded as per "RR3"
and "Tk3". To that extend (sic), it can
be argued that they
were given a hearing but when despite their response and plea that
they be not discharged from the L.D.F. for
reasons they have stated
there at; the Commander was bound not to discharge them without a
further hearing since they had both
served the punishment which had
been imposed upon them, (presumably by the Commander) for the
offences which they were alleged
to have committed. They should have
been heard even on the decision to finally discharge them from the
L.D.F., in total disregard
of their response as per letter "RR3"
and "TK3"

12

[20] With
due respect, the learned Judge a quo's conclusion that the Commander
was bound not to discharge Respondents without "a
further
hearing" before discharging them is incomprehensible to me. She
clearly misconstrued the clear terms of the letters,
annexures "RR2"
and "TK2" respectively, which called upon the Respondents
in unmistakable terms to show cause
why they should not be discharged
for having been "convicted of several military offences".

[21] In
the light of the aforegoing considerations, I accordingly conclude
that the court a quo's conclusion that the Respondents
were not
afforded the right to be heard before being discharged from the Force
is insupportable on the facts of the case. In this
regard it is as
well to remember the following remarks of this Court in Matebesi v
The Director of Immigration and Others 1997-98LLR
and LB 455 at 464;
1995 - 99 LAC 616 at 625 - 626, namely: -

"(7) The right audi is, however infinitely flexible. It may be
expressly or impliedly ousted by statute, or greatly reduced
in its
operation (Blom, supra, at 662H-I and Baxter, Administrative Law
(1984) 569-570). Thus in appropriate instances, fairness
may require
only the submission and consideration of written representations; the
right to be heard

13

is not necessarily to be equated with an entitlement of judicial-type
proceedings, with their full attributes). Or while a statute
may not
per se exclude the operation of the rule, it may confer an
administrative discretion which permits that result. Or the
operation
of the rule may be ousted or attenuated by a particular set of facts,
where it cannot practicably be implemented, at
all or to its fullest
extent, respectively."

See also
the Commander of the Lesotho Defence Force and Others v Pakiso Paul
Mokuena and Others C of A (CIV) No. 12 of 2002 (unreported).

[22] It
remains then to deal with the Respondents' second contention that the
decision to discharge them amounted to double jeopardy.
As pointed
out in paragraph [4] above, the court a quo upheld this contention.

[23] It
will be observed from the outset that the Respondents' contention is
premised on the fact that they had already been "fully
punished
by the Disciplinary Committee".

14

[24] At
this juncture, I venture to say that the doctrine of double jeopardy
is essentially a doctrine of criminal law. In this
regard section
12(5) of the Constitution provides as follows:-

"No person who shows that he has been tried by a competent court
for a criminal offence and either convicted or acquitted
shall be
tried again for that offence or for any other criminal offence of
which he could have been convicted at the trial for
that offence,
save upon the order of a superior court in the course of appeal or
review proceedings relating to the conviction
or acquittal".

It will
be observed that there is no corresponding section with regard to
civil actions. Nor can anyone be heard to seriously argue,
for
example, that a person who has been convicted in disciplinary
proceedings cannot be criminally charged for the same offence
or the
vice versa in appropriate cases.

[25] In
any event, the court a quo overlooked the fact that the Respondents
were not discharged for their latest disciplinary offences
only but
for "several military offences", obviously taken
cumulatively.

15

[26] This
brings me to section 31 of the Act. It will be recalled that this is
the section which the Commander relied upon for his
discharge of the
Respondents. It reads as follows:-

"31. A soldier of the Defence Force may be discharged by order
of the Commander of the Defence Force at any time during the
currency
of the term of engagement on the grounds that -

1. the
   soldier cannot carry out his duties efficiently;

   
   

2. it
   is not in the best interests of the Defence Force for the soldier to
   remain in the force;

   
   

3. the
   soldier has been convicted of a civil or military offence;

   
   

4. the
   soldier engages in active politics; or

   
   

5. the
   public interest so requires."

   
   

[27] It
is clear, as it seems to me, that this section gives the Commander
wide-ranging powers to dismiss soldiers for indiscipline.
Having
regard to the fact that the Force is essentially an organization
which depends entirely on good discipline, it is hardly
surprising
that the Legislature in its own wisdom deemed it fit to confer these
wide powers on the Commander.

16

[28] Of
particular importance for the purposes of this case is sub­paragraphs
(b) and (c) of section 31. The so-called doctrine
of double jeopardy
is in my view clearly in direct conflict with sub­paragraph (c)
and this, I suggest, is by design in order
to maintain discipline in
the Force. In clear terms, this sub­paragraph empowers the
Commander to discharge a soldier who has
been convicted of a civil or
military offence. That the Respondents were so convicted admits of no
doubt.

[29]
Moreover, it is, in my view, right to say that the Respondents were
convicted of very serious military offences. In this regard
it is not
disputed that the First Respondent had been convicted of "striking
his superior officer" on 22 February 2003.
He had also been
convicted of using "insubordinate language" to his superior
on 22 February 2003, absenting himself without
leave on the same day
and "beating up his superiors."

[30]
Similarly, the Second Respondent had been convicted of disobeying
"particular orders given to him on the 21 February 2003,
using
"insubordinate language to his superior" on 21

17

February
2003, and absenting himself without leave on 22 February 2003.

[31] In
these circumstances, I consider that the Commander was justified in
resorting to Section 31 in the best interests of the
Force. In this
regard, it is convenient to reproduce the contents of paragraph 9 of
his answering affidavit. He says the following
in respect of each
Respondent:-

"I aver that double punishment does not arise in this case.
Applicant was discharged under the law because it was not in the
best
interest of the Defence Force to retain a soldier who is
indisciplined like him in the force. The several convictions against

him show that he is indisciplined, which, as stated earlier, is very
important in the force."

[32] Nor
do I think that courts should be insensitive to the evil that
indiscipline can cause to the Force and indeed to the Basotho
Nation
as history will show. One must remember, therefore, that the Act was
enacted precisely to remedy this mischief. Approached
in this way, it
follows that the interpretation of section 31 by the court a quo to
the effect that the Commander has no power
under the section to
discharge a member following disciplinary convictions and consequent
punishment

18

thereof
is insupportable. It is the type of reasoning which was rejected by
this Court in Koatsa v National University of Lesotho
1985-89 LAC 335
at 338-339. Mahomed JA (as he then was) said this:-

"The first contention advanced on behalf of the appellant was
that the Council of the respondent University was bound by the

punishment which had been imposed on the appellant by the
Non-Academic Staff Discipline Committee, and that the Council was not

entitled thereafter to punish the appellant by causing his
appointment to be terminated. In my view, this contention is without

substance. It is perfectly true that the powers of the Non-Academic
Staff Discipline Committee do not include the power to terminate
the
employment of the appellant. The Non-Academic Discipline Committee
(which is a Committee appointed by the Appointments Committee
in
terms of para 4.1 of Ordinance No 11 of the University can only
impose a reprimand, a fine not exceeding R30.00, or suspension

without pay for a period not exceeding one month. This limitation on
the powers of the Non-Academic Staff Discipline Committee
does not
detract from the power of the University Council itself to dismiss
its officers and servants in accordance with the powers
vesting in
the Council of the University in terms of s 13(2) of the National
University Act, 10 of 1976 ('the Act'). Nor can it
be doubted that
the University is entitled to invoke this power in terms of s
13(2)(a) of the Act where the Council of the University
has resolved
that the officer concerned has been guilty of conduct rendering him
unfit to continue his appointment. Where a security
guard is believed
on reasonable grounds to have abused his position by assaulting a
student whom he is employed to protect, the
University could have
legitimate grounds to conclude that his conduct renders him unfit to
continue his employment as a security
guard. The power of the
University Council to terminate his appointment in such circumstances
is clear. The question as to whether
the University Council has
followed the proper procedure in invoking this power, is a different
question to which I will return
later."

19

[33]
Similarly, it is wrong, in my view, to equate "discharge"
to "punishment" in the context of the Act as
the court a
quo has done. A correct interpretation, in my judgment, is to
recognize that the Legislature in its own wisdom clearly
made a
distinction between the two concepts. Hence sections dealing with
punishment (part VII of the Act) are set out separately
from section
31 which is specifically on discharge from the Force.

[34]
Indeed the absurdity of equating "discharge" to
"punishment" was graphically highlighted during the course

of argument when it was pointed out to Respondents' counsel that
section 30 of the Act provides for voluntary discharge by a soldier.

The rhetorical question was, therefore, "who is punishing such a
soldier?"

[35] In
the ordinary course of events then, it follows that the Commander is
entitled to consider previous disciplinary convictions
and attendant
punishments when dealing with the question of a soldier's discharge
from the Force. Viewed in this way, it will be
recognized that the
Respondents' latest

20

disciplinary
convictions and attendant punishments were the last straw that broke
the camel's back. Accordingly the discharge of
the Respondents from
the Force was inevitable.

[36] It
remains for me to stress that this is not a case where the Commander
as the functionary or repository of power has been
shown to have
acted mala fide or for reviewable reasons on the well-known grounds
such as illegality, irrationality or procedural
impropriety. See
Council of Civil Service Unions v Minister for the Civil Service
[19841 3 All ER 936 (HL); also reported in [1985]
AC 374 (HL).

[37] In
the result the following order is made:

1. The
   appeal is upheld with costs.

   
   

2. The
   order of the court a quo in each case is set aside and there is
   substituted in its stead the following:-

   
   

21

"The application is dismissed with costs."

M.M.
RAMODIBEDI

JUDGE OF
APPEAL

I agree:

J.H.
STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree:

EX
OFFICIO

JUDGE OF
APPEAL

For
Appellants : Mr R. Motsieloa

For
Respondents : Adv S. Phafane