Appellants obtaining relief in High Court but lodging appeal nonetheless- appeal essentially against reasoning of court – real issue in dispute between parties having been determined appeal of no practical effect;
Court holding appeal lies only against substantive judgment or order of court and not reasoning of court- appeal accordingly struck off roll with costs
IN THE COURT OF APPEAL OF LESOTHO
C of A (CIV) No. 58/2019
HELD AT MASERU
In the matter between
PRIME MINISTER 1ST APPELLANT
MINISTER OF DEFENCE & NATIONAL SECURITY 2ND APPELLANT
MINISTER OF LAW & CONSTITUTIONAL AFFAIRS 3RD APPELLANT
ATTORNEY GENERAL 4TH APPELLANT
and
TUMO LEKHOOA RESPONDENT
CORAM: DR K E MOSITO P
DR P MUSONDA AJA
M H CHINHENGO AJA
DR J W VAN DE WESTHUIZEN AJA
MTSHIYA AJA
Heard: 15 October 2020
Delivered: 30 October 2020
Summary
JUDGMENT
CHINHENGO AJA:-
Introduction
“Notice to terminate secondment may be done by either party through a written notice of three (3) months. The termination shall not affect or otherwise limit any rights including benefits accrued to the Employee party during the subsistence of the secondment.”
“Dear Colonel Lekhooa,
RE:TERMINATION OF YOUR APPOINTMENT ON SECONDMENT AS DIRECTOR GENERAL, NATIONAL SECURITY SERVICE
The above matter refers.
You are hereby informed that your appointment on secondment as Director General, National Security Service (NSS) is hereby terminated with effect from 10th July, 2017. As you are aware, the appointment of your secondment was done on the 6th September, 2016, in accordance with Section 148(3) of the Constitution of Lesotho read with Section 6 of the National Security Service Act, of 1998.
Clause J of your contract with the Government of Lesotho on termination of secondment provides that, notice to terminate secondment may be done by either party giving three (3) months’ notice thereof. Please note that, you will be paid all your benefits accruing from your contract.
You are expected to handover the duties of your current office to Ms. Malejara Mothabeng, the Director of Administration, and also report yourself to the office of the Commander of the Lesotho Defence Forces, and assume your responsibilities in the army.”
“(a)
(b) It is declared that the applicant is entitled to emoluments and commensurate benefits for three months’ notice period as Director General of the National Security Service calculated from the date of termination of Secondment.
(c) That Applicant is awarded costs.”
Appeal against High Court decision
“1. The learned judges in the court a quo erred and misdirected themselves in concluding that the application was a constitutional matter as envisaged in the Constitutional Litigation Rules. In so concluding the learned judges in the court a quo erred and misdirected themselves in concluding that the nature of the application fell within purview and jurisdictional powers of the High Court sitting as a Constitutional Panel.
2. The learned judges in the court a quo erred and misdirected themselves on the same subject of jurisdiction expressed in paragraph 1 above by incidentally failing to exercise their judicial discretion in favour of constitutional avoidance to the extent that there were adequate means of redress for the contravention alleged and such means of redress were clearly available to the applicant under the law of contract.
3 Still incidental to the point of jurisdiction the learned judges in the court a quo erred and misdirected themselves by wrongly interpreting section 119(1) to be giving the High Court sitting as a constitutional panel the requisite jurisdiction to hear and entertain the matter. The Constitutional Litigation Rules derive their existence from the provisions of Section 22(6) not the relevant provisions.
4.The learned judges in the court a quo erred and misdirected themselves by failing to attach due weight to the national security dimension of the case and the factors which prompted the disengagementof the applicant from the intelligence agency.
5. The learned judges in the court a quo erred and misdirected themselves by failing to attach due weight to the fact that there was an irreconcilable breakdown of the relationship of trust between the Prime Minister and the applicant which justified the termination of the contract.
6. The learned judges in the court a quo erred and misdirected themselves by failing to draw the line of demarcation between termination of a contract of engagement and dismissal from employment.
7. The learned judges in the court a quo erred and misdirected themselves by arriving at a factual finding that there was no evidence to support the Prime Minister’s assertion that applicant is a security risk when in fact the court a quo disavowed itself of the opportunity to hear the evidence in camera as suggested by the Prime Minister.”
“The remedy awarded in the court a quo is in line with what the Prime Minister undertook to pay the respondent in the termination letter. We would then not have a big problem with the order in line with that letter, save to argue that it was given before a wrong forum and the reasoning employed does not rhyme with the law or adequately interpret the position of the law. We will submit that the court a quo was not entitled to make a declaratory order of unconstitutionality as already alluded to above.”
“It must be admitted that the consequential relief granted by the courta quo under paragraph (b) of the order does not do much harm to the case of the Prime Minister, if anything it is in line with the termination Clause J. But the declaratory (sic) and costs order do a great deal of harm in the following senses:
(i) the reasoning employed in justifying both orders is unsupportable in law;
(ii) the court does not accurately draw a distinction between termination of contract of employment and dismissal.
The two concepts are not synonymous in law notwithstanding the fact that they both lead to severing of ties between employer and employee.”
[22] The contentions of the appellant’s counsel effectively required this court to jettison a sound principle which has been confirmed in numerous decisions, including decisions of this court over a long period and as recently as the same day on which the present matter was heard.
[23] While it is so that this court has in recent times, as is evident from the decisions referred to above, adopted a more flexible and pragmatic approach in determining whether interlocutory orders are appealable, that did not extend to making reasons of judgments, or orders, appealable.
[24] The approach contended for by the appellant not only holds the potential of ‘opening the floodgates’, with its inherent challenges, but also the undesirable prospect of matters being disposed of in a piecemeal fashion. And, even more concerning, the ‘hollowing-out’, or erosion, of the substratum of judgments and orders that are not before this court, and the negative consequences accompanying such a process.
[25] In any event, I am not persuaded that there are any exceptional circumstances present that would justify what would be a radical departure from a sound, tried and, doubtlessly, trusted principle. The contention that the appellant and others, who may have to comply with s 9(2)(b) of the ECA, would not be able to do anything about the binding effect of the court a quo’s interpretation of that section and s 13 of the ECA, is, in my view, grossly exaggerated. There is nothing preventing anyone affected from challenging the correctness of that interpretation in a matter where it is properly raised. It was not for this court, in a matter such as the present, to anticipate what may or may not be faced by those that are required to comply with the BEE requirement, and to act precipitately and thereby unleash the undesirable consequences referred to above, which, until thus far, have been restrained by the sound principle that reasons for judgments and orders are not appealable.
[26] In truth the appellant was requesting this court to give an opinion on the meaning of s 9(2)(b), read with s 13(6), of the ECA, in circumstances where the substantive order made by the court a quo is not before this court, and which, consequently, is incapable of being altered or substituted. That is not in the interests of justice.
[27] This court does not have jurisdiction in the present matter,….”
“This court mero motu drew counsel’s attention to the fact that the so-called notice of appeal was not a notice of appeal at all, for it does not purport to note an appeal against any part of the order made by the court a quo. Even apart from sub-rules (2) and (3) of Rule 6 of this Court, it is clear that an appeal can be noted not against the reasons for judgment but against the substantive order made by a Court.”
See also Tecmed Africa (Pty) Ltd v Minister of Health & another [2012] 4 All SA 149 (SCA), Ponnan JA put it thus (paras 16-17):
“[16] Before us, Counsel was constrained to concede that securing a licence for the use of the machine by Cancare at the Durban Oncology Centre had indeed become academic. That notwithstanding, so he urged upon us, the appeal should nonetheless be entertained. His argument, consistent with the approach adopted in the affidavit filed on behalf of Tecmed on this aspect of the case, amounted to this: the approach and reasoning of the Full Court to the disputed factual issues on the papers would stand and were it not to be set aside by this court, would serve as an insurmountable obstacle in due course to the successful prosecution of its envisaged civil claim against the Minister. In my view, for the reasons that follow Counsel’s submission lacks merit.
[17] First, appeals do not lie against the reasons for judgment but against the substantive order of a lower court. Thus, whether or not a Court of Appeal agrees with a lower court’s reasoning would be of no consequence if the result would remain the same.”
M H CHINHENGO
ACTING JUSTICE OF APPEAL
I agree
_______________________
DR K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree:
_____________________
P MUSONDA
__________________________
DR J VAN DE WESTHUIZEN
NT MTSHIYA
FOR APPELLANTS: MR M RASEKOAI
FOR RESPONDENT: ADV M E TEELE KC
