CIVIL PRACTICE: Functus officio- Judgment and an order of court brought for interpretation – Applicable principles considered and applied.
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/463/2020
In the matter between
THE PRIME MINISTER 1st APPLICANT
THE MINISTER OF JUSTICE AND LAW 2nd APPLICANT
THE CHIEF JUSTICE 3rd APPLICANT
THE ATTORNEY GENERAL 4th APPLICANT
TRIBUNAL ON THE REMOVAL OF DIRECTOR
GENERAL OF THE DIRECTORATE ON
CORRUPTION AND ECONOMIC OFFENCES 5th APPLICANT
JUSTICE TEBOHO MOILOA 6th APPLICANT
JUSTICE SEMAPO PEETE 7th APPLICANT
JUSTICE POLO BANYANE 8th APPLICANT
MAHLOMOLA MOSES MANYOKOLE 1st APPLICANT
Neutral Citation: The Prime Minister & 7 Others v Mahlomola Manyokole (CIV/APN/463/2020)  LSHC 12
CORAM: MOKHESI J
DATE OF HEARING: 22nd FEBRUARY 2021
DATE OF JUDGMENT: 22ND FEBRUARY 2021
Prevention of Corruption and Economic Offences Act No.5 of 1999 (as Amended)
High Court Rules 1980
Childerly Stores v Standard Bank of S.A 1924 OPD 163
De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A)
Firestone South Africa (PTY) Ltd. V Gentiruco AG 1977 (4) SA 298 (A)
S v Wells 1990 (1) SA 816
Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010)  ZASCA 13 (15 March 2012).
“the general principle now well established in our law; is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it.The reason is that it thereupon becomes functus officio; its jurisdiction in the case having been fully and finally exercised, its authority over the subject-matter has ceased…
There are, however, a few exceptions to that rule which are mentioned in the old authorities and have been authoritatively accepted by this court.Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement in it one or more of the following cases:
(ii) the court may clarify its judgment or order, if, of a proper interpretation, the meaning thereof remains obscure ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter “the sense and substance of the judgment or order….
(iii) the court may correct a clerical arithmetical other error in its judgment or order so as to give effect to its true intention… this exception is confined to the mere correctio of an error in expressing the judgment or order, it does not extend to altering its intended sense or substance ….
(See also: S v Wells 1990 (1) SA 816 ).
“45. (1) The court may, in addition to any powers it may have mero motu or upon the application of any party affected, rescind or vary-
(2) Any party desiring any relief under this Rule shall make application therefor upon notice to all parties whose interests may be affected by any variation sought.
(3) The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed…..”
The 1st Applicant is a Director General (D.G.) of the Directorate on Corruption and economic Offences (DCEO). The DCEO was established in terms of the Prevention of Corruption and Economic Offences Act 1999 as amended by Act No.8 of 2006(hereinafter ‘the Corruption Act’). This application was lodged on an urgent basis seeking interim and substantive reliefs in the main. He is seeking a review of the 1st respondent’s decision to appoint a Tribunal to probe his incapacity and/or misconduct in terms Sections 4(3) – (6) of the Corruption Act. I revert to the grounds of review advanced by the applicant in due course.
 BACKGROUND FACTS
Although this matter is heavily laden with sensationalism, factual fire and fury which are totally ungermane to its determination, its factual background is, however, largely common cause. On the 10th December 2020, the 2nd respondent (Minister of Justice) authored a correspondence to the 1st applicant in terms of which he sought representations( first show-cause letter) from the latter why he could not be suspended from office pending recommendation by the former to the 1st respondent (Prime Minister) to establish a Tribunal to investigate “Your Fitness of Hold Office in terms of Section 4(5) of the Prevention of Corruption and Economic Offences Act No.5 of 1999 (as Amended).” Aggrieved by this move on the part of the 2nd respondent, the 1st applicant launched a review application challenging that decision, in CIV/APN/451/2020. In the wake of this challenge the 2nd respondent withdrew the show-cause letter presumably upon realization that he had committed fatal procedural missteps. Even though CIV/APN/451/2020 still pends before the court, in essence, the withdrawal of that show-cause letter had effectively gouged the matter of its substratum.
 On the 18th December 2020, unrelenting in his efforts to have the 1st applicant dealt with in terms of the law, the 2nd authored another show-cause letter (second show-cause letter). This time the 1st applicant was informed that the Tribunal had been established to investigate his fitness to hold office, and that, pending that investigative exercise by the tribunal, the 1st applicant was requested to make representation as to why he could not be suspended from exercising the functions of his office pending the disciplinary inquiry by the tribunal. The said tribunal was established in terms of Legal Notice No.139 of 2020 (hereinafter “Legal Notice”). The tribunal’s terms of reference were provided in section 2 of the Legal Notice as follows:
“Terms of reference
2. The terms of reference of the tribunal are –
 It is common ground that when the 2nd respondent made representations to the 1st respondent and the latter deciding to establish the said tribunal, the 1st applicant was not afforded a pre-decision hearing. In a written representation to the 1st respondent, the 2nd respondent detailed what he terms the incidences of misconduct and/or incompetence which he alleged ought to be investigated by the tribunal. The reasons which were posited are materially the same as those contained in the first show-cause the letter the subject matter of CIV/APN/451/2020 which is yet to be heard save for one allegation appearing in the second show-cause letter to the effect that the 1st applicant should be probed for using ‘gratuitous and intemperate language in the affidavits filed of record’ against both the 1st and 2nd respondents..
 In respect of the second show-cause letter, the 1st applicant did not respond but instead launched the current application on the 31st December 2020. In terms of this show-cause letter which was served on the 29th December 2020, the 1st applicant was given three (days) within which to make written representations, failing which the 2nd respondent would advise the Prime Minister to suspend him. As already said, instead of responding to the show-cause letter, the applicants launched this review application in terms of which they sought interim interdicts against the 2nd respondent advising the 1st respondent to suspend the 1st applicant, pendent lite.
 In the main, the applicants sought to assail the decision of the 1st respondent appointing the tribunal variously on the grounds that there was no jurisdictional fact for establishing same and that the decision to appoint the tribunal was made without observing the audi alteram partem rule, and therefore constituted an incursion into the independence of the DCEO; that the Legal Notice is void for intelligibility, vagueness and over-breadth and in violation of the Corruption Act; that the decision by the 3rd respondent (Chief Justice) to appoint Justice J.T. Moiloa was irrational as he is the subject of DCEO investigations for transgressions relating to money laundering.
 In the interim, the 1st applicant sought an interdict pendent lite against the 2nd respondent advising the 1st respondent to suspend him, and interim interdict against the 1st respondent suspending the 1st applicant, and further, suspension of his suspension in the event the decision to suspend him being already made by the 1st respondent.
 An interim order was made by a Duty-Judge and directives as to the filing of subsequent papers was made, and that parties were directed to appear before court on the 4th January 2021. On that date, the respondents had not yet filed their answering affidavits and the period given to the 1st applicant to respond to the show-cause letter had accordingly lapsed. On that date I was allocated the matter even though I was on duty and I gave directives for filing of the answering affidavits and set down the date for hearing of the matter on the 07th January 2021 for arguments on the interim reliefs. On that date the matter was not ready to be heard as the respondents had not(sic) yet again failed to file their answering affidavits. The matter was again set down for hearing on the 14th January 2021. In the meantime, the 2nd respondent had advised the Prime Minister to suspend the 1st applicant from exercising the functions of the office, and on the 07th January 2021 the 1st respondent suspended the 1st applicant as contemplated.
 In response, the respondents raised two points in limine, viz, misjoinder of the 2nd applicant (DCEO), and (b) delayed jurisdiction of this court as regards prayer 2.6 of the Notice of Motion: The said prayer reads:
“2.6 The decision of the Chief Justice to select JUSTICE TEBOHO MOILOA as a member and chairperson of the tribunal on the Removal of the Director General of the DCEO shall not be reviewed, corrected and set aside.”
 After hearing arguments on the 14th January 2021 I determined that the decision of the 2nd respondent seeking representations on suspension of the 1st applicant pending the determination of the main matter cannot be assailed. Before I deal with this aspect of the case, I wish to deal with the points in limine raised by the respondents.
 I turn now to deal with the interim reliefs sought by the applicant. It is common ground that when the applicant launched these proceedings there was a pending show-cause letter initiating the process of his suspension from exercising his duties and functions as the DG – DCEO. A specific prayer was sought interdicting the 2nd respondent from advising the 1st respondent that the 1st applicant be suspended, and that in the event that the 1st respondent acts on the basis of the 2nd respondent’s advice to suspend the applicant, that such suspension be suspended pending the final determination of this matter. It is common ground that pending the hearing of this matter, the 2nd respondent advised the 1st respondent to suspend the applicant, and indeed he was accordingly suspended. This suspension was effectuated although the issue of the interdict against 2nd respondent advising the 1st respondent not to suspend the applicant was yet to be argued and determined by this court.”(emphasis added)
 In the main judgment I dealt specifically with the conduct of the 2ndrespondent
advising the 1st respondent to suspend the applicant when that issue was squarely before this court to decide. I took an issue with that conduct as I considered it usurpation of this court’s powers. Consequently, I declared the applicant’s suspension null and void ab initio. What that declaration meant was that we reverted to the point where we were before the Minister advised the Prime Minister to suspend the applicant despite the fact that that issue was sub judice. At that point, there was a show-cause letter which the applicant had not responded to and was still extant. In other words, what the declaration of nullity, furthermore, meant was that I proceeded to deal with the matter based on the status quo which existed prior to the Minister advising the Prime Minister to suspend the applicant.
For the Applicants: Adv. C.J. Lephuthing assisted by Mr. M. Rasekoai
For the Respondent :Adv. Maqakachane instructed by Clark Poopa Attorneys
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