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.
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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.
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[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:-
That they were not afforded the right to be heard before their discharge from the Force.
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
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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:-
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"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
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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
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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
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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
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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
It is common course (sic) that you have been convicted of several military offences.
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.
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
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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."
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[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"
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[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
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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".
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[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.
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[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 -
the soldier cannot carry out his duties efficiently;
it is not in the best interests of the Defence Force for the soldier to remain in the force;
the soldier has been convicted of a civil or military offence;
the soldier engages in active politics; or
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.
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[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
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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
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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."
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[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
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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:
The appeal is upheld with costs.
The order of the court a quo in each case is set aside and there is substituted in its stead the following:-
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"The application is dismissed with costs."
M.M. RAMODIBEDI
JUDGE OF APPEAL
I agree:
J.H. STEYN
PRESIDENT OF THE COURT OF APPEAL
EX OFFICIO
For Appellants : Mr R. Motsieloa
For Respondents : Adv S. Phafane