Contempt of court – Application not opposed - Party not properly cited – Notice of Motion not addressed to anyone - Elements of Contempt – facts relied upon not proving contempt– facts alleged supporting ad pecuniam solvendam – applicant failed to discharge burden – no contempt proven beyond reasonable doubt – no order as to costs.
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between
MAKOBELI LIMPHO KABANE APPLICANT
PRINCIPAL SECRETARY 1ST RESPONDENT
MINISTRY OF POLICE AND PUBLIC SAFETY 2ND RESPONDENT
PUBLIC SERVICE COMMISSION 3RD RESPONDENT
MINISTRY OF PUBLIC SERVICE 4TH RESPONDENT
ATTORNEY GENERAL 5TH RESPONDENT
Neutral citation: Makobeli Kabane vs Principal Secretary & 4 others  LSHC 147 Civ (17 June 2018)
CORAM : M.P. RALEBESE J.
HEARD : 24 MAY 2022
DATE OF JUDGMENT: 17 JUNE 2022
National Executive Committee of Lesotho National Olympics Committee and Others v Morolong (2000-2004) LAC 450
Marabe v Maseru Magistrate’s Court and Others (CC No 18/2020)  LSHCONST 51 ( 07 June 2021).
President of the Court of Appeal v The Prime Minister and Others (C of A (CIV) No 62/2013)  LSCA 1 (04 April 2014).
Ramoholi v Principal Secretary Ministry of Education and Another 1991-1996 LLR 916
Rat’siu v Principal Secretary Ministry of Forestry and Another (C of A (CIV) 9 of 2017)  LSHC 28 (07 December 2018)
Bayat and Others v Hansa and Another 1955 (3) SA 457
Chairman Board on Tariffs and Trade v Brenco Inc 2001(4) SA 511
Fakie NO v CCII Systems (Pty) Ltd ( 653/04)  ZASCA 52; 2006 (4) SA 326 (SCA)
The Constitution of Lesotho 1993
High Court Rules No.9 of 1980
Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South
Africa, 4th Edition.
BACKGROUND AND FACTS
2. Before going into the background of the matter, let me note in passing but
with concern the citation of 1st respondent merely as ‘Principal Secretary’ in the heading of the notice of motion and founding affidavit. It is a notorious fact, of which I take judicial notice, that all government ministries in Lesotho have Principal Secretaries, hence the importance to identify the particular Principal Secretary against whom these proceedings have been instituted. It is only in paragraph 2.1 of the founding affidavit that applicant mentions that 1st respondent is the Principal Secretary for Ministry of Police and Public Safety. It is my considered view that parties should be named with particularity in headings of the pleadings for ease of their identity. Proper citing of a party is even more critical in casu where there is a prayer for committal of 1st respondent to jail for contempt. It will be a challenge for anyone to execute an order of committal against “Principal Secretary” as that could be any of the number of Principal Secretaries in the Government of Lesotho.
“When relief is claimed against any person, or where it is proper to give any person notice of such application, the notice of motion shall be addressed to both the Registrar and such person, otherwise it shall be addressed to the Registrar only.”(my emphasis)
While non-compliance with the prescribed forms of processes for parties instituting or defending proceeding to comply with the terms of processes as prescribed it is important the Rules, it will not necessarily result in the proceedings being a nullity that cannot be condoned by the court, (See Herbstein and Van Winsen, The civil Practice of the Superior Courts in South Africa, 4th Edition).
With this letter I stand to raise my grievance, and I request your intervention on the following issues;
The Applicant to withdraw the action filed under CIV/APN/226/2018 in pursuit of an out of court settlement as agreed.
1st and 2nd Respondents afford a fair hearing to the Applicant on her grievance filed”
ISSUE FOR DETERMINATION
THE LAW ON CIVIL CONTEMPT
“Every person shall be entitled to personal liberty, that is to say, he shall not be arrested or detained save as may be authorized by law in any of the following cases, that is to say-
(b) in execution of the order of court punishing him for contempt of
that court or of a tribunal.
(c) in execution of the order of court made to secure the fulfilment
of any obligation imposed on him by law.”
In Marabe v Maseru Magistrate’s Court and Others Sakoane J. relying on the case of Fakie NO v CCII Systems (Pty) Ltd concluded that after the constitutional dispensation, the following elements of civil contempt should no longer be established on a balance of probabilities but beyond reasonable doubt:
(c there must have been non-compliance with the order; and
APPLICATION OF THE LAW TO THE FACTS
by the parties’ legal representatives is unquestionable.
respondent. The question is whether the 1st respondent was aware of the
existence of the court order. The answer to this question is contained in Annexure MLK-2 to the founding affidavit in the instant contempt proceedings. This is a letter dated 14th December 2018 written by the Principal Secretary Ministry of Police and Public Safety (1st respondent) to the applicant and it reads in part:
“This letter serves to inform you that your grievance hearing in view of the attached court order will be held on 24th December 2018 at the Ministry of Police and Public Safety Boardroom at 9:00am (my emphasis).”
It is apparent from MLK-2 that 1st respondent was aware of the existence of the court order now the subject matter and was through that letter, taking steps towards compliance with the said order.
order now in issue. The order as endorsed by the Registrar and Moiloa J. simply reads:
“The Deed of Settlement between the Parties dated 24th October 2018 is hereby made an order of Court by agreement of the parties.”
The relevant part of the Deed of Settlement in this regard is to the effect that 1st and 2nd respondents shall afford a fair hearing to the applicant on her grievance as filed.
“The general rule which has been laid down repeatedly is that an applicant must stand and fall by his founding affidavit and the facts alleged in it, and that although sometimes it is permissible to supplement the allegations contained in the affidavit, still the main foundation of the application is the allegation of facts stated there, because those are the facts that the respondent is called upon either to affirm or deny…”
See also: National Executive Committee of Lesotho National Olympics Committee and Others v Morolong where Ramodibedi JA said:
“Indeed it requires to be stressed that in motion proceedings, as in this case, it is to the founding affidavit to which the court will look to
determine what the complaint is. As a general rule, an applicant must stand or fall by his petition and the facts alleged therein. The court is
confined to resolving the dispute on the issues raised in the
founding affidavit and must not have regard to extraneous issues and
“…an applicant for relief must (safe in exceptional circumstance) make his case and produce all the evidence he desires to use in support of it in his affidavits filed with the notice of motion, whether he is moving ex parte or on notice to the respondent …”
“There is no single set of principles for giving effect to the rules of natural justice which will apply to all investigations, enquiries and exercises of power, regardless of their nature. On the contrary, courts have recognised and restated the need for flexibility in the application of the principles of fairness in a range of different contexts.”
This view was reiterated by Maqutu J. in Ramoholi v Principal Secretary Ministry of Education and Another wherein he stated:
“This audi alteram partem principle is a flexible one which has to be exercised within the inherent constraints imposed by a particular situation.”
Brand AJA in President of the Court of Appeal v The Prime Minister and Others also said:
“…procedural fairness (component of a fair hearing) is a highly variable concept which must be decided in the context and the circumstance of each case and…the one-size-fits all approach is inappropriate…” (My emphasis)
“Thereafter I personally made several attempts to enforce the Order of Court to operate in my favour…The allowances that had become the subject of my concern, which triggered me to file a mandamus court action in this Honourable Court under case number CIV/APN/266/2018, were now being paid, but were stopped halfway without any good cause shown. The allowance payments were made during the financial years 2013/2014 – 2020/2021 and were not fully paid aforesaid. I have avoided annexing the proof of payments of allowances because that will create document. I will do so in the event the 1st Respondent may so require. On many occasions I demonstrated to the Human Resource, Deputy Principal Secretary and ultimately to the 1st Respondent, that there was no reason why I ought not be paid all my acting allowances. I also did calculations myself of inconsistent payments of my acting allowance which have come to the shortage in the amount of EIGHT THOUSAND MALOTI (M8,000.00). The latter constitutes an outstanding balance that is due and payable to me. I did however instruct my counsel to write letters of demand on my behalf to the 1st Respondent through his legal representative in the Attorneys Office, being Advocate Thakalekoala, but they were still ignored. The Honourable Court is referred to annexure “MLK-6” and “MLK-7” appended hereto for ease of reference.” (My emphasis)
“We once more bring your attention to an outstanding matter that relates to a Deed of Settlement which has been made an order of court. Pursuant to the latter your client failed to adhere to the terms thereof, instead client has been paid insufficient acting allowances. Client on doing a verification exercise discovered that there was a deficit in the amount of M8,206.62…
Over and above this figure there is an outstanding issue of costs which our client avoided to address.
Indicate Counsel when we should have the matters addressed without issuing court process.” (My emphasis).
“The Applicant’s claim in an action for Mandamus that was filed against the 2nd Respondent on the 11th July 2018 has been for inconsistent payments of acting allowances from 4th February 2014 against the position she had been appointed to act upon.” (my emphasis)
In paragraph 2.4.1 he stated:
“It is submitted that the stopping of the full payment of acting allowances was deliberate and clear intention not to comply with the court order. It is further submitted that the actions of the 1st Respondent are willful and mala fide in the circumstance not to comply with the order of court. It is submitted again that the 1st Respondent’s continuance to ignore and to disobey the order of court exhibits and constitutes unequivocal contempt of court” (My emphasis)
that 1st respondent failed to afford her a fair hearing regarding her grievance and thus in contempt of the court order. Even if applicant would have proven that 1st respondent failed to comply with the court order, the next issue would be whether the non-compliance was wilful or mala fide. Upon perusal of applicant’s founding papers, it appears that the respondents fulfilled one aspect of applicant’s grievance, being a demand for confirmation on the position of Financial Controller (Grade G) which was later re-designated to Finance Officer (Grade G) in which she had been acting. In terms of annexure MLK-1 to applicant’s founding affidavit in the instant contempt proceedings, applicant was promoted to the position of Finance Officer (Grade G) effective from 01st October 2019. MLK-1 is a letter from the Principal Secretary for Police addressed to applicant and it reads (in relevant parts):
“As per the Public Service Commission resolution, 8969th Minutes, Item 1824/19 dated 6th September, 2019; I have a pleasure to inform you that you have been appointed on promotion to the position of Finance Officer, in the Grade G scale in the Ministry of Police and Public Safety with effect from 01st October, 2019.”
Applicant’s promotion in that regard partly addresses applicant’s written grievance dated 23rd April 2018 (annexure LK-8 to the founding affidavit in the main application) which in item 3 reads:
“My request is to be confirmed on this position given my experience”.
promotion on her grievance, the court could infer that the promotion vitiated
the need for a fair hearing on her grievance. This would lead to a finding that
1st respondent’s failure to afford applicant a fair hearing on her grievance,
(had it been proven) would not have been wilful and mala fide in the
circumstances, as such hearing would be moot and therefore futile.
M.P RALEBESE J.
For applicant: Advocate Mathe
For respondents: No appearance
 At page 351 (2)
 (CC No.18/2020) LSHCONTS 51 (07/June 2021)
 653/04  52; 2006  SA 326 (SCA)
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