SUMMARY
Application for rescission – The Respondent having been dismissed from work by the 1st Applicant – The 1st Applicant having been the Principal Secretary of the 3rd Applicant – The 4th Applicant having been the lawful representative of the Applicants – The Respondent having instituted an application for review against her dismissal on the ground of having been irregularly conducted – The Applicants having not answered the application but proposed a settlement – The Applicants having not appeared before Court on the date scheduled for submission of the deed of settlement – The proposed deed of settlement not having brought before Court – The time for filing answering affidavit having been elapsed – The Court having granted the application as prayed for in the Notice of Motion – The Applicants having consequently instituted the present application for rescission through a counsel working for the 3rd Applicant.
Held:
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/208/2019
In the matter between:
P.S MINISTRY OF LABOUR & EMPLOYMENT 1ST APPLICANT
MAKHOABANE LEDIMO – N.O.
(CHAIRPERSON OF HEARING) 2ND APPLICANT
MINISTRY OF LABOUR & EMPLOYMENT 3RD APPLICANT
THE ATTORNEY GENERAL 4TH APPLICANT
AND
NTHOATENG RUSSEL RESPONDENT
Neutral Citation: P.S Ministry of Labour & Employment & 3 Ors v Nthoateng Russel CIV/APN/208/2019 [2021] LSHC 48
JUDGMENT
Coram : Hon. Mr. Justice E.F.M.Makara
Dates of Hearing : 17 February 2021
Date of Judgment : 15 April 2021
ANNOTATIONS
CITED CASES
STATUTES & SUBSIDIARY LEGISLATION
[1] It is prudent at this early stage to mention that this application for rescission is consequential to an order made by this Honourable Court on the 14th December, 2020 which was couched in these terms:
[2] For the sake of clarity, it is also important to state the prayers which the Applicant who is now the Respondent sought in the main application. They stood thus:
(a) That it be declared that the act of the 1st Respondent of dismissing her is a nullity;
(b) The 1st Respondent’s decision to dismiss the Applicant from the official employment of the Ministry of Labour and Employment be reviewed, corrected and set aside
(c) Consequent upon grant of Prayers 1 and or 2, applicant be reinstated to her position as Principal Legal Advisor of the Ministry of Labour and Employment forthwith without loss of benefits;
(d) Costs of suit be in the attorney and own client scale in the event of the opposition hereof;
(e) Granting further and or alternative relief.
[3] Having been aggrieved by the Court Order, the present Applicants instituted this application in which they ask the Court to grant them an order in the following terms:
[4] In order to create a comprehensive picture, it is significant to illustrate the brief history of this matter up to this far. It unfolds that the current Respondent was an employee of the 3rd Applicant where she was dismissed. Following her dismissal, she instituted an application for review on the 19th June 2019. Having been served with the Notice of Motion, the present Applicants filed their Notice of Intention to Oppose on the 25th July, 2019 but no opposing papers were duly filed. This state of affairs prevailed for over a period of a year.
[5] After a realization that the Applicants were not doing anything, the Respondent filed her Heads of Argument on the 17th August, 2020 and thereafter approached the Court for a date of hearing. Subsequently, the matter was set down for hearing on the 20th October, 2020.
[6] On the date scheduled for hearing, Adv. T. Lebakeng from Attorney General’s Chambers appeared before Court and advised it that it appears that indeed there had been irregularities in the disciplinary hearing. She went further to state that her instructions are that she should not oppose the matter but pursue a settlement. Resultantly, the matter was postponed to the 25th November, 2020 to enable the parties to engage on settlement negotiations.
[7] Surprisingly, on the 25th November, 2020, Adv. T. Lebakeng did not show up but instead one Adv. T. Matete, a Legal Officer of the Ministry of Labour appeared. He did not seek to change the position of Adv. T. Lebakeng but rather aligned himself with the settlement. Consequently, the matter was postponed to the 14th December, 2020 with the order couched in these terms:
[8] However, on the 14th December,2020 Adv. T. Lebakeng did not appear as she was ordered by the Court. Resultantly, Counsel for the Respondent asked the Court to grant the application as prayed with the lamentation that the Applicants do not want to conclude this matter. Finally, the application was granted as prayed for in the Notice of Motion. This is the order that gave birth to this application for rescission.
Common Cause Factors
[9] It is common cause that the Applicant was an employee of the 3rd Respondent and that she was dismissed following a disciplinary hearing. It is this dismissal which triggered the Applicant to file an application for review on the 6th June, 2019. Having been served with the Notice of Motion, the Respondents filed their Notice of Intention to Oppose on the 25th July, 2019 through Adv. Lebakeng from Attorney General’s Chambers. However, a period of more than twelve months lapsed without any answering affidavit being filed by the Respondents.
[10] On the 17th August, 2020 the applicant filed her heads of argument and subsequently, the matter was set down for hearing on the 20th October, 2020. On the same date, counsel for the Respondents Adv. T. Lebakeng appeared and proposed a settlement, the Applicant consented and the matter was postponed to the 25th November, 2020 to enable them to draft a Deed of Settlement.
[11] However, on the 25th November, 2020, Adv. T. Lebakeng did not appear as expected but one Adv. T. Matete did. The matter was once again postponed to the 14th of December with the order that Adv. T. Lebakeng should appear and update the Court concerning the Deed of Settlement. Once again, on the 14th December, 2020, only the Applicant appeared before Court and successfully asked the court to grant the application as prayed for in the Notice of Motion.
The Issues for Determination
[12] The main issues for determination in this matter is whether, in the circumstances of this case, the Applicants are properly before this Court and if so, whether they have made a case for rescission of the judgment of this Court made on the 14th December, 2020. In simple terms, the main questions are whether they have the requisite authority to institute this application and whether they have established the well-known elements of an application for rescission.
Case for the Applicants
[13] It is the Applicants’ case that they have the authority to institute this application in the manner they did since their representative namely, Adv. Thokoana Matete is authorized to do so. To substantiate this point, they referred the Court to a savingram signed by one L.V. Letsie dated the 19th January, 2021 which was marked Annexure NR4 before this Court.
[14] The applicants’ case is further that the Court Order as granted on the 14th December 2020 must be rescinded since it was granted without the Applicants being represented. It was only granted based on one sided story of the Respondent herein. This is because the Office of the Attorney General had constructively and unilaterally abandoned the case. This the Attorney General did because he was conflicted and he could not recuse himself.
[15] The Applicants further contents that even this Honourable Court had no Jurisdiction to have entertained the Respondent’s case in that she had not exhausted all the local remedies prior to her coming to this Honourable Court. Furthermore, the Applicants content that the Court Order as granted on the 14th December 2020, ought to have been informed by the output of the Order granted on the 25th November 2020, by this Honourable Court.
[16] In addition, the Applicants argue that this Court order is impracticable and impossible to execute, the reason being that the Respondent’s position has long been filled. Even if she could be reinstated, it would still be a problem to pay her because, salaries of all public servants are paid through the ministry of Finance, a totally different ministry, and that the employing ministry also, namely, the ministry of public service, has not been joined as party
[17] In an endeavour, to show that they have established the elements for the relief sought, the Applicants cited the case of Colyn v. Tiger Food Industries Ltd t/a Meadow Feed Mills[1] which state the elements of application for rescission as conventionally known, namely:
(a) Giving reasonable explanation of the default
b) Showing that the application is made bona fide and
c) Showing that there is a bona fide defence to the plaintiff’s claim which prima facie has some prospectus success.
[18] In an effort to show a reasonable explanation for their default, they indicated that they relied on the office of the Attorney General which failed to show up on the relevant dates. Furthermore, they could not come to court on the 14th December, themselves because, the court had earlier pronounced itself that it could not allow any appearance from the ministry, but only of the Attorney General through one Advocate Lebakeng. This is why a compelling order was granted to secure her attendance. In showing that this explanation is reasonable in the circumstances, reference was made to the case of Standard Bank V. Resethuntsa[2].
[19] It is their contention that their application is made bona fide as it is clear from their founding papers, that their default was not willful. They simply and legally relied on the office of the Attorney General, which is the one legally tasked with the responsibility to represent Government in matters of this nature. In this respect, they relied upon Attorney General v. His Majesty The King and Others[3]. Above all, they pointed out that on the 25th November 2020, the Applicants had shown their intent to stand by themselves before this Honourable Court, but the Court denied Adv. Matete who appeared on their behalf, audience. Even on the 14th December 2020 when the Order was made, the Applicants could still not appear, because the Order that was made on the 25th November 2020, was clearly specifying who should attend the proceedings for then.
[20] In a move to convince the Court that they have a bona fide defence and prospects of success in the main case, it is their contention that they have shown in their founding papers that they have a bona fide defence in the main case. This is because they are adamant that this Honourable Court has entertained this matter and yet it had no jurisdiction to have done so. The Respondent ought to have first exhausted the local remedies by appealing her dismissal to her head of Department. This is in terms of code 9. (1) of the disciplinary Codes of Good Practice 2005. In this regard reliance was made to the case of Mpeta v. Lesotho Highlands development Authority.
[21] In essence, the case for the Applicants is that the Court Order forming the subject matter herein, was erroneously sought for and granted on the 14th December 2020. In the same vein they assert that they have the qualification to have lodged this application before this Honourable Court.
Case for the Respondent
[22] In her answer to the Applicants’ case, the Respondent started by raising points of law and characterized the application as having been filed irregularly since it has not been filed under the authority of the Attorney General. It is her argument that the 1st to 3rd Respondents have no authority to institute proceedings on behalf of the Government without representation and or authorization by the Attorney General.
[23] On a different note, she cautioned that ex facie the Notice of Motion and founding affidavit, it is clear that the proceedings were brought by the Ministry and not the Attorney General as their contents clearly lack concurrence with the approach adopted by the Attorney General’s Office. According to her, this is evident from the fact that when looking at the last page of the Notice of Motion, the Court will easily realize that the address given therein is that of the Ministry and not of the Attorney General.
[24] In addition, she says, what makes the proceedings more irregular is the fact that they are based on an alleged misconduct by the Attorney General himself and yet he has not been cited as the Respondent but rather as the 4th Applicant yet their entire case rests on a complaint leveled against him. The absurdity in this approach is that this Court is asked to view the Attorney General as the Applicant. The irony of it is that the Attorney General has brought the rescission application on grounds of his own misconduct.
[25] Furthermore, she attacked the application upon the ground that in the circumstances of this case the Attorney General ought to have been cited as the Respondent in order for him to react to the allegations preferred against him. Finally, on the points of law, she states that what is effectively the status quo, is that the Attorney General does not even know about the existence of these proceedings.
[26] In reaction to the merits, the Respondent indicated that it is perhaps perplexing that the Applicants seek to impeach the credibility of the Attorney General in handling this case without acknowledging the fact that Adv. Lebakeng was the one handling the matter on behalf of the office of the Attorney General. The argument modeled by the Applicants gives credence to a rather absurd notion that the Attorney General personally oversees every single case against the government.
[27] The suggestion that the Applicants had thought that the Attorney General would file an answering affidavit is also equally absurd. On the contrary, when Adv. Matete appeared before Court he was aware that there had been no answering papers filed on behalf of the government and he personally indicated that the Ministry of Labour was looking for a convenient settlement and would not file an answering affidavit.
[28] The Respondent further found it prudent to remind this Honourable Court that now that the Applicants were served with the founding papers after a year, they were already been barred from filing an answering affidavit without leave from this Honourable Court. The presence of Adv. Matete in Court at this stage very much indicated that the Ministry of Labour was aware that no affidavit would be filed. According to the Respondent, at this stage the Ministry should have objected to the trajectory the case was taking. At that juncture the Applicants could have very well filed an application for leave to file an answering affidavit or filed an answering affidavit and applied for condonation from this Honourable Court.
[29] It is her contention further that the Attorney General has an exclusive authority to represent government unless he personally delegates such powers. If the Applicants are not satisfied with the approach taken by the Attorney General and or his agents in this case, they ought to have proceeded against the Attorney General administratively instead of trying to overturn the result of the case handled by him.
[30] It is further absurd that the Applicants are attempting to draw a distinction between themselves and the Attorney General. The Attorney General much like the Applicants, is a branch of government. He is not an independent body from the government in a sense similar to that of a practicing lawyer and his client.
[31] In terms of the Government proceedings & Contract Act, The Attorney-General must be cited in all the proceedings against the government. The other governmental structures are joined as a matter of convenience and not necessity. This position in fact nullifies the argument posed by the Applicants that other ministries should have been joined to the present proceedings. It has always been sufficient that the Respondent herein had joined the Attorney General to the main case.
[32] The Respondent submitted that the Applicants have not satisfied the requirements for rescission as set out in Colyn v Tiger Food Industries Ltd t/a Meadow Mills Cape[4] and Loti Brick v Thabo Mpofu[5].
[33] On the question of whether the Applicants have given a reasonable explanation for their default, the Respondent indicated that their explanation is twofold. On one hand, they argue that they had never instructed the office of the 4th Applicant not to file their answering papers and pursue settlement. On the other hand, they argue that the 4th Applicant had decided not to defend the interests of the government as his office is the one which had instituted the main case. It is her contention that the Applicants should not be allowed to shift the blame to their erstwhile counsel and she, in this regard, authoritatively cited the case of Colyn v Tiger Foods Industries[6].
[34] According to the Respondent, there are a number of flaws concerning the reasoning given hereto. Firstly, it is untrue that the Applicants only became aware that the office of the 4th Applicant was attempting to settle the case before Court. The 4th Applicant had through Adv. Lebakeng clearly communicated this issue with the Applicants after they had discussed the case and found that there were serious procedural flaws with the disciplinary hearing that was held.
[35] Furthermore, Adv. Matete, who is the Legal Officer of the 1ST Applicant, is the one who appeared before Court on the 25th November, 2020 when the issue of settlement was discussed by this honourable Court in his presence and he never objected to the settlement. He did not come before Court in order to indicate that the Applicants were desirous of filing an answering affidavit. He instead, echoed sentiments that were similar to those of his colleague to the effect that they were considering settlement. It must be emphasized however that even at this stage the Court allowed them to consider settlement as a matter of courtesy as they had long been barred from filing opposing affidavits.
[36] It is her submission that the Applicants had already failed to file any papers for more than a year, yet they are a government ministry with a functional legal department. However, they have failed to explain what they did when they saw that there was absolutely no progress in relation to their case for more than a year. According to her, this offends Rule 8 (10) (b) of the High Court Rules which provides for the time limits for the filing of Answering Affidavit, Notice of Intention to Oppose and points of law if any. In this regard, she sought credence from the case of Standard Bank of South Africa Ltd v Carien Erasmus[7].
[37] It is her case that Applicants must give a full and reasonable explanation covering the entire period of delay in accordance with the decision in Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae)[8]
[38] The gist of the Respondent’s case is that, she has obtained the Court Order and that she must be reinstated to her position without loss of entitlements. It is further her contention that the said Court Order was correctly sought for and granted and as such, must accordingly be executed. It is also her argument that the Applicants have been represented correctly by the office of the Attorney General who has acted according to the mandate given. And finally, that the present counsel for the Applicants has no requisite authority to have lodged this application purportedly on behalf of the ministry before Court.
Decision
[39] At this juncture this Court finds it befitting to start with the issue of the Applicants’ authority to have instituted these proceedings before it. In terms of Section 98 of the Constitution of Lesotho[9] the Attorney General is the one bestowed with the power to provide legal advice to the government, either personally or by officer’s subordinate to him. This is captured in the wording:
(1) There shall be an Attorney-General whose office shall be an office in the public service.
(2) It shall be the duty of the Attorney-General—
(a) to provide legal advice to Government;
(b) to exercise ultimate authority over the Director of Public Prosecutions;
(c) to take necessary legal measures for the protection and upholding of this Constitution and the other laws of Lesotho;
(d) to exercise or perform any of the rights, prerogatives, privileges or functions of the State before courts or tribunals; and
(e) to perform such other duties and exercise such other powers as may be conferred on him by this Constitution or any other law.
(3) The Attorney-General may exercise his functions personally or through officers subordinate to him in accordance with his general or special instructions.
(4) In the exercise of the functions vested in him by subsection (2)(a) and (b) and section 69 of this Constitution, the Attorney-General shall not be subject to the direction or control of any other person or authority.
[40] It will be gleaned from Section 98 of the Constitution that it is in harmony with the Office of Attorney General Act[10]. In terms of this Act the Office of the Attorney General is vested with the power to represent the government of Lesotho in all legal proceedings in which the government is a party[11].
[41] Clearly, Attorney General has exclusive power either to sue for or defend the government. This power may be exercised by him personally or by officers subordinate to him. It is also apparent that if the Applicants in casu allege that Attorney General has clothed them with the power to institute these proceedings, they ought to have introduced a written authority to do so from the office of the Attorney General.
[42] Now, the question is whether Annexure NR4 is the requisite authority from the office of the Attorney General given to the Applicants to institute the present proceedings before Court. Its features may assist in this regard. It bears the date stamp from the Attorney General’s office and the name of the Senior Officer therein. However, the case number that it refers to is different from the one before Court. To make matters worse, it does not bear the citation of the parties to enable the Court to detect if there was an error on the writing of the case number. It was upon the Applicants to prove their allegation that the Attorney General has authorized them to institute the matter, but they failed to do so.
[43] In the circumstances, this Court reaches a conclusion that the Applicants have no authority to have lodged the present rescission application before Court. Therefore, they are improperly before this Court. Thus, this application is dismissible on this ground alone.
[44] However, although the adverse finding on the issue of authority to institute a case is determinative and disposable of the matter, this Court wishes to go an extra mile and determine whether the case for a rescission application has been established. The fact that the parties are in ad idem regarding the elements of rescission application[12] will make the work of the Court much easier since its task is just to consider whether they have been established or not.
[45] The first element is whether the applicants have given a reasonable explanation for their default. Their explanation is that they were in default because the Attorney General did not enlighten them about the developments concerning the matter and that he did not act in accordance with the mandate that they had given to him. In effect, the Applicants put the blame on the shoulder of their erstwhile counsel without disclosing what they did themselves, for this period of more than a year.
[46] The courts have shown their displeasure concerning a litigant who sits back and does nothing in relation to the progress of her matter but only shift the blame to his attorney’s incompetency. The court condemned this practice in Colyn v Tiger Foods Industries supra in these words:
I have reservations about accepting that the defendant’s explanation of the default is satisfactory. I have no doubt that he wanted to defend the action throughout and that it was not his fault that the summary judgment application was not brought to his attention. But the reason why it was not brought to his attention is not explained at all. The documents were swallowed up somehow in the offices of his attorneys as a result of what appears to be inexcusable inefficiency on their part. It is difficult to regard this as a reasonable explanation. While the courts are slow to penalize a litigant for his attorney’s inept conduct of litigation, there comes a point where there is no alternative but to make the client bear the consequences of the negligence of his attorneys (Saloojee and Another NNO v Minister of Community Development). Even if one takes a benign view, the inadequacy of this explanation may well justify a refusal of rescission on that account.[13]
[47] The similar sentiments were also echoed in Standard Bank of South Africa Ltd v Carien Erasmus supra in this manner:
The court then dealt with its displeasure where litigants do not comply with the time limits or directions setting out the time-limits. Courts are also unhappy with litigants dumping their matters with their attorneys and failing to make the necessary follow ups. Courts have expressed their unhappiness where a litigant blames his attorney without demonstrating that he or she is not to blame for the ineptitude or remissness of his or her attorney[14].
[48] It is clear that in casu the Applicants only dumped their case with the Attorney General without making the requisite follow ups on the developments of their matter. This is gathered from their explanation which only seeks to attach the blame on the Attorney General without accounting for what they did for this inordinate period of more than a year. Therefore, their explanation is insufficient thereby offending the principle enunciated in Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) supra that:
An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation given must be reasonable.[15]
[49] It is therefore, found that the Applicants’ explanation is unreasonable and consequently justify the Court to dismiss this application at this juncture without a need for dealing with its bona fides and the prospects of success. In this regard, this Court is fortified by the decision in Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) supra that:
A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation, would undermine the principle of finality and cannot be in the interests of justice. It is true the case raises an important question concerning the constitutional right of access to information. This in itself is no reason to come to the assistance of a litigant who has been dilatory in the conduct of litigation. This court has previously refused to come to the assistance of litigants where there was a delay of some nine months regardless of the issue raised. The applicant has submitted that her application for leave to appeal bears prospects of success. Prospects of success pale into insignificance where, as here, there is an inordinate delay coupled with the absence of a reasonable explanation for the delay.[16]
[50] In the premises, the application is dismissed with costs in an attorney and client scale.
________________
E.F.M. MAKARA
JUDGE
For Applicant : Mr. M.J. Rampai instructed by Phoofolo Associates
Inc.
For Respondents : Adv. T. Matete from the Ministry of Labour &
Employment
[1] 2003 (6) SA 1 (SCA) 2003 2 ALL SA 113
[2] CIV/APN/204/07
[3] CONS/CASE/02/2015 LSHC 3
[4] [2003] ZASCA 36
[5] 1996 LLR, 446 at 450
[6] supra
[7] [2016] ZAGPPHC 126
[8] 2008 (2) SA 472 (CC)
[9] Constitution of Lesotho 1996
[10] Act No.6 of 1994
[11] Section 3 of the Act
[12] As discussed in the case of Colyn v Tiger Food Industries Ltd t/a Meadow Mills Cape supra
[13] [2003 All SA 113 (SCA) ad para
[14] Ibid para 14.
[15] 2008 (2) SA 472 (CC) para 22.
[16] Ibid, ad para 31.
