CIV/A/4/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TAELO
MALEKA APPELLANT

V

LAND
SURVEYORS' BOARD FIRST RESPONDENT

THE
ATTORNEY-GENERAL SECOND RESPONDENT

Before
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 22nd
day of April, 1992.

For the
Appellant : Mr. M. Ntlhoki

For the
Respondents : Mr. T.M. Matooane

Mr, T. Putsoane

JUDGMENT

Cases
referred to:

1. Dimes
   v Grand Junction Canal (1852)3 HLC 759;

   
   

2. Tolputt
   (H.) & Co. Ltd. Mole (1911)1 KB 836;

   
   

3. The
   Judges v A.-G. for Saskatchewan (1937)53 TLR 464;

   
   

4. Re
   Manchester (Ringway Airport) Compulsory Purchase Order (1935)153 LT
   219;

   
   

5. Mokotso
   & Ors. v The King & Ors. (1989) L.R.C. (Const.) 24;

   
   

6. Brixton
   Prison ex p. Armah (1968) AC 192;

   
   

7. R v
   Inland Revenue Commissioners ex parte Preston (1985) A.C. 835;

   
   

8. Law
   Society of Lesotho v Masoabi CIV/APN/30/87, Unreported;

   
   

9. Law
   Society. Cane v Koch (1985)4 S.A. 379.

   
   

This is
an appeal under section 10 of the Land Survey Act,

2

1980.

The
appellant is a licensed surveyor. He appeared before the Land
Surveyors' Board, convened to inquire into his professional conduct

in relation to ten separate matters. The latter two matters concerned
professional correspondence by the appellant, which the Board

considered was phrased in language unbecoming a professional
surveyor, but on which the Board took no action, due to an apology
in
the matter by the appellant. As to the other eight matters, the Board
unanimously found all the complaints proved and imposed
a punishment
of six months' suspension of licence in respect of each of six
complaints, such suspensions to run concurrently, and
a fine of M250
or two months' suspension of licence, on each of the other two
complaints, that is, a total fine of M500 or six
(sic) months'
suspension of licence in respect of those two complaints, such latter
suspensions, in default of payment of the fines,
to run consecutively
to the former suspensions, that is, a total suspension of licence for
ten months.

The
appellant appeals against the Board's findings and the punishments
imposed. Before considering such grounds it is necessary
to set out
the relevant provisions of The Land Survey Act 1980:

"3. (1) There shall be a Chief Surveyor whose office shall be an
office in the Public Service and he

3

shall, subject to this Act-

1. direct
   and control all public surveys;

   
   

2. supervise
   and control all other surveys;

   
   

3. examine
   all general and particular plans of surveys and authenticate such
   surveys if satisfied that they have been carried out
   under the Act;
   ............

   
   

4. cancel
   or amend any survey found to be incorrect, out-dated or inadequate;
   ...."

   
   

"4. (1) There is established a Board, to be known as the Land
Surveyors' Board consisting of the Chief Surveyor, who shall
be the
Chairman of the Board, and three other persons appointed by the
Minister and who shall (if practicable) be surveyors recognised
to
practise in Lesotho.

2. A
   member of the Board appointed by the Minister shall hold office for
   two years, and may at any time resign his appointment by
   notice in
   writing given to the Minister.

   
   

2. The
   Board may, from time to time, appoint a secretary who shall hold
   office during the pleasure of the Board.

   
   

5. It
   shall be the duty of the Board-

   
   

1. to
   grant to persons duly qualified (therefor) in accordance with this
   Act, licences to practise land surveying in Lesotho;

   
   

2. to
   provide for examinations (where necessary) to be taken by applicants
   for such licences;

   
   

3. to
   keep a register of all licensed surveyors in accordance with section
   8;

   
   

4. to
   take disciplinary proceedings against licensed surveyors in
   accordance with this Act;

   
   

5. to
   hear and determine any dispute between .... any licensed surveyor
   and the Chief Surveyor; and

   
   

6. to
   perform such other functions as are prescribed by this Act.

   
   

6. The
   Board shall not grant a licence to practise land surveying under
   this Act to any person unless such person has passed such

   examination as the Board may from time to time prescribe."

   
   

4

"9. (1) Where, after due inquiry by the Board, a licensed
surveyor has been found to have been guilty of professional
misconduct,
or, having been convicted of a criminal offence, is found
by the Board to be unfit to practise, the Board may -

1. revoke
   the licence granted to such licensed surveyor; or

   
   

2. suspend
   the licence for a period not exceeding three years; or

   
   

3. impose
   a fine not exceeding M250 on such licensed surveyor; or

   
   

4. reprimand
   such licensed surveyor. ..."

   
   

"10.
Any person aggrieved by a decision of the Board made under section 9
or under section 19(4), may within two months after
the date of the
decision, appeal to the High Court against the decision and, on any
such appeal, the High Court may give such directions
in the matter as
it thinks proper including directions as to costs of the appeal, and
no appeal shall lie from an order of the
High Court under this
section.

11. Where an order has been made for the revocation of the licence
granted to any person or for suspending such a licence, the
Board may
either of its own motion or on the application of the person so
concerned, and in either case after holding such inquiry
as the Board
thinks fit, grant a new licence and cause the name of that person to
be restored to the register."

"13. (1) If a dispute arises between a licensed surveyor and
the Chief Surveyor over the application of either any regulation
or a
general direction issued under section 16(1) either party may refer
the matter to the Board to hear and determine such dispute
and its
decision shall be final.

2. In
   the case of a dispute under subsection (1), the Chairman shall stand
   down remaining a member of the Board and an interim Chairman
   shall
   be elected by the members for the purposes of hearing and
   determining the dispute.

   
   

14. (1) Every licensed surveyor shall carry out every survey
undertaken by him in such manner as will ensure that the survey

accords in all respects with this Act and

5

shall be responsible for the correctness and completeness of every
survey carried out by him or under his supervision........."

"15 (1) Any survey of land made for the purposes of this Act,
shall be carried out in accordance with general directions
issued by
the Chief Surveyor..............."

"18. (1) A licensed surveyor carrying out any survey under this
Act, shall send to the Chief Surveyor all plans, field notes
and
computations relating thereto, and all such plans, field notes and
computations shall become the property of the Government.

2. Upon
   receipt of the documentation referred to in sub-section (1), the
   Chief Surveyor may authenticate the survey and, upon authentication

   shall notify the licensed surveyor in writing that the survey has
   been authenticated, supplying him free of cost, with copies
   of plans
   if necessary, to enable him to collect survey fees.........."

   
   

"19. (1) The Chief Surveyor may at any time undertake such
field and office checks on the survey work of a licensed surveyor
as
he thinks fit.

2. The
   Chief Surveyor may by notice in writing, instruct any licensed
   surveyor to correct at his own expense within a time specified
   in
   such notice, any error made by him in the survey represented by the
   plan submitted for authentication.

   
   

2. In
   the event of the licensed surveyor refusing or neglecting within the
   time specified, to correct the error, it shall be lawful
   for the
   Chief Surveyor to undertake the correction and to recover the whole
   cost thereof from the licensed surveyor concerned.

   
   

2. If
   the licensed surveyor refuses or neglects to pay the costs of the
   correction referred to in subsection (3) within one month
   of the
   same having been demanded of him, the Chief Surveyor may report the
   facts to the Board for disciplinary action and after
   due inquiry the
   Board may order the licensed surveyor to pay the costs of correction
   to

   
   

6

the Chief Surveyor; and if the licensed surveyor refuses or neglects
to comply with the order within one month after the date of
the
order, the Board may, suspend the licence of the licensed surveyor
until the cost of correction has been paid, or for a period
not
exceeding three years, whichever it thinks fit."

"24. The Chief Surveyor may delegate any of his functions under
this Act to a public officer.

25. (1) The Minister may make regulations for any one or more of the
following purposes-

1. providing
   for the issue of general directions for survey by the Chief Surveyor
   to any surveyor: ....."

   
   

I
consider that the reference in section 13(1) to "section 16(1)",
is an error as the Chief Surveyor's General Directions
are not
'issued' under any section of the Act but, as will be seen, under
regulations made by the Minister under section 25 (there
is
incidentally no sub-section (2) under that section). The Minister
exercised the power under section 25 in making the Land Survey

Regulations 1982 (L.N. 50/1982) (hereinafter referred to as "the
Regulations" and by regulation), regulation 3 thereof
empowering
the Chief Surveyor to issue directions to surveyors, prescribing in
general the manner in which surveys are to be made.
The Chief
Surveyor issued General Directions to surveyors on 9th August, 1982.

The
present proceedings originated from correspondence between the Chief
Surveyor and the appellant. The former wrote to the latter,
stating
that it had come to his notice that in two

7

surveys,
"there is evidence that you have changed your field measurements
to fit your calculations which are in error",
and pointing out
that the appellant had been given a strong warning by the Examiner.
The letter advised the appellant that "any
future occurrence of
a similar incident will definitely be reported to the Land Surveyor's
Board who will take the necessary disciplinary
action". The
appellant's reply to that letter was a very long one, which indicated
that the appellant was unrepentant in the
matter. The Chief Surveyor
replied to the effect that he intended to refer the matter to the
Board. Ultimately the Chief Surveyor,
as Chairman of the Board, wrote
to the appellant stating that the Board had instructed him to request
the appellant "to give
reasons in writing why the survey jobs
listed below should not be considered as constituting professional
misconduct". There
followed a list of eight surveys, including
the two earlier mentioned, the complaints in respect of each survey
being specified.
The appellant addressed a response to the Chairman
of the Board that is, through the offices of his Attorney, Mr.
Ntlhoki. The
Chief Surveyor, as Chairman, replied stating that the
Board "intends to enquire into your professional conduct"
in relation
to the eight surveys previously listed and also two
complaints of "discourteous and unbecoming" language in the
appellant's
correspondence. The Chairman informed the applicant of
the date, time and venue of the inquiry, inviting the attendance of
the
appellant and his Attorney. The appellant and Mr. Ntlhoki duly
attended the hearing.

8

Arising
out of the Board's findings, the appellant filed a number of grounds
of appeal. In opening his submissions and indeed in
composing his
heads of argument, Mr. Ntlhoki informed the Court that the appellant
did "not contest the aspect of misconduct,
except on one item",
and that the grounds of appeal could be grouped under three grounds
thus:

1. The
   Board's decision was affected by bias.

   
   

2. The
   Board acted ultra vires.

   
   

3. The
   "splitting of charges" and imposition of more than one
   punishment was invalid.

   
   

Certainly
the first two grounds are more appropriate to review, rather than
appeal. The legislation is quite specific, however,
that is, that
this is an appeal and not a judicial review. In any event, as will be
seen, the authorities indicate that the first
two grounds are not
inappropriate on appeal, which aspect I propose to defer for the
moment. I will deal with the grounds seriatiam.

BIAS:

Mr.
Mtlhoki points out that the Chairman of the Board, in his capacity as
Chief Surveyor, had previously dealt administratively
with the eight
surveys involved: he had rejected the surveys, instructed the
appellant to correct them

9

and had
eventually authenticated them himself. He points out that another
member of the Board was a public officer in the Department
of Lands,
Surveys & Physical Planning, who had administratively dealt with
such matters and indeed that the Secretary to the
Board had performed
the function of Examiner in respect of the particular surveys. Mr.
Ntlhoki ultimately submitted indeed that
only two members of the
Board, one of them an Attorney of this Court, were unprejudiced.

The long title of the Act reads thus:

"To make provision for the licensing and professional conduct of
Land Surveyors, for regulating the making of land surveys
and for
connected purposes." (Italics supplied)

Clearly
the supervision of private surveyors and the establishment of a code
of professional conduct was one of the main functions
of the Board.
Both parties are agreed that at the time only four licensed surveyors
were in practice in the Kingdom. The profession
is but in its
infancy. With only four private surveyors in practice, it would be
difficult for the Minister to make appointments
to the Board from
amongst those most in need of supervision. I would anticipate that as
the ranks of the profession swelled and
the members thereof gained
experience, more appointments would be made from amongst the more
senior and experienced members of
the profession. All this is
emphasised by the legislation, namely that the Minister was only

10

obliged
under section 4(1) to appoint persons who were surveyors, where such
appointment was "practicable".

As for
the Chief Surveyor, his statutory duty is that of supervision, and
the nature of his duties and no doubt his professional
experience was
such as to point to his appointment as Chairman. In any event, it was
the choice of the legislature to appoint the
Chief Surveyor as
Chairman. When it comes to the rule against bias, Sir William Wade in
his work Administrative Law 6 Ed. at p.473
refers to the focus
classicus of Dimes v Grand Junction Canal (1) where the House of
Lords set aside decrees made by the Lord Chancellor
which affirmed
decrees made by the Vice-Chancellor in favour of a canal company, in
which it transpired that the Lord Chancellor
was a shareholder. The
House in fact then dealt with the appeal on its merits and affirmed
the Vice-Chancellor's decrees, Lord
Campbell observing at p.793 that,

"it is of the last importance that the maxim, that no man is to
be a judge in his own cause, should be held sacred."

Further
on in his work at pp. 478/479, Sir William Wade observes thus:

"In all the cases so far mentioned the disqualified adjudicator
could be dispensed with or replaced by someone to whom the
objection
did not apply. But there are many cases where no substitution is
possible, since no one else is empowered to act. Natural
justice then
has to give way to

11

necessity, for otherwise there is no means of deciding and the
machinery of justice or administration will break down.

This point made an appearance in Dimes v. Crand Junction Canal (1),
already recounted. Before the appeal could proceed from the

Vice-Chancellor to the House of Lords, the Lord Chancellor had to
sign an order for enrolment. But it was held that his shareholding
in
the company, which disqualified him from hearing the appeal, did not
affect the enrolment, since no one but he had power to
effect it.
'For this is a case of necessity, and where that occurs the objection
of interest cannot prevail'. (Dimes) (1) at p.
787) Reference was
made to a year book case of 1430 where an action was brought against
all the Judges of the Court of Common Pleas
in a matter which lay
only in that court. Comparable situations have occurred in modern
cases. In one, a county court registrar
was sued unsuccessfully in
his own court, and had to tax costs in his own favour. (Tolputt (Hut)
& Co. Ltd. v Mole (2)) In
another, the government of Saskatchewan
called upon the court to determine whether the salaries of judges
were liable to income
tax; and the Privy Council confirmed that the
court was right to decide it, as a matter of necessity (The) Judges v
A-G for Saskatchewan
(3)).

In administrative cases the same exigency may easily arise. Where
statute empowers a particular minister or official to act, he
will
usually be the one and only person who can do so. There is then no
way of escaping the responsibility, even if he is personally

interested. Transfer of responsibility is, indeed, a recognised type
of ultra vires. In one case it was unsuccessfully argued that
the
only minister competent to confirm a compulsory purchase order for
land for an airport had disqualified himself by showing
bias and that
the local authority could only apply for a local Act of Parliament.
(Re Manchester Ringway Airport compulsory Purchase
Order (4) The
court will naturally not allow statutory machinery to be frustrated
in this way."

12

Professor
Baxter in his work Administrative Law (Reprint 1989) at p.570
observes:

Apart from expressly excluding the operation of natural justice,
Parliament is also able to modify the principles of natural justice.

Often statutes codify these principles in detail or in part, and
sometimes a narrower or limited form of natural justice may be

substituted for that which would otherwise have been applied by the
courts. In certain circumstances the implication of the statute
might
even be such that natural justice is excluded out of necessity: for
instance, where 'biased' officials are authorized to
decide despite
their bias or because there is no other body that can possibly
decide."

As for
the latter situation, where "no other body ... can possibly
decide", that situation I consider is well illustrated
by the
situation confronting the Court in e.g. the case of Mokotso v Ors. v
The Kin & Ors. (5) at pp. 133/139 and in particular
p.139. As for
the present case, the aspect of e.g. wilful falsification of survey
documents was considered by the legislature to
constitute
professional misconduct; by the very nature of his duties such
falsification would be dealt with administratively by
the Chief
Surveyor. Nonetheless the legislature conferred upon him the power,
as chairman of the Board, to also deal with the matter
on a
disciplinary basis. This the Chairman must do. It will be seen that
under section 13 where a dispute arises between a licensed
surveyor
and the Chief Surveyor, as to the application of any regulation or
General Direction, which is referred to the Board,
the Act requires
the

13

Chairman
to stand down because of such dispute. He nonetheless remains a
member of the Board, that is, without a casting vote, in
determining
such dispute. It is significant however that where, under section
19(4) of the Act, the Chief Surveyor refers to the
Board a
disciplinary matter, the Act does not require him to stand down.

I observe
that section 24 enables the Chief Surveyor to delegate "any of
his functions under this Act" to a public officer.
It will be
seen however that the incumbent of the post of Chief Surveyor holds
two offices, that of Chief Surveyor, "an office
in the Public
Service", and again that of Chairman of the Board. No doubt he
holds the latter office virtute officii of the
Chief Surveyor.
Nonetheless there are, in my view, two separate and distinct offices
involved. Section 4(2) and (3) describes the
appointment held by the
other members as an "office" and that must surely also
apply to the Chairman. When the Chief
Surveyor sits as Chairman of
the Board he functions not as Chief Surveyor but as Chairman. The
functioning of the two separate
offices is apparent, for example, in
the provisions of sections 13(2) and 19(4) of the Act. I observe in
particular that section
13(2) refers not to "the Chief
Surveyor", but to "the Chairman", as such.

It might
be said that the Chief Surveyor could only delegate his functions as
Chief Surveyor, as such to another public officer,
so that the
reference in section 24 to "a public

14

officer"
indicates that the Chief Surveyor's function as Chairman of the Board
is also capable of being delegated. On the other
hand, it can be said
that the reference to "a public officer" indicates that
only the functions of the Chief Surveyor,
as such, are contemplated.
I am inclined to the view that the reference in section 24 to "a
public officer" is a measure
ex abundanti cautela. The Chief
Surveyor has statutory functions under the Act. So also has the
Chairman. In my judgment therefore,
apart altogether from the
exercise of the Chairman's functions by a person formally appointed
to act as Chief Surveyor (see section
45 of the Interpretation Act,
1977), the Chairman of the Board may not delegate his functions under
the Act.

It was
surely contemplated by the Legislature that the Chief Surveyor would
be involved in disciplinary matters at the administrative
stage. If
he was to recuse himself on that basis, then it is likely that he
would do so in the vast majority if not all of the
cases coming
before the Board, which would result in the frustration of the
statutory provisions. He is required to determine the
disciplinary
matters before him as best he can, in an unbiased way, whether or not
it can be said that there is a reasonable suspicion
of bias. I should
add that, in any event, there is no evidence of any actual bias
before me.

The
objection to the Secretary is, I consider, without merit. The
Secretary's function is to record the proceedings: he takes no
part
in the deliberative process and there is no

15

evidence
whatever before me that such was not the case. There is also the
objection to an unspecified member of the Board, who is
also a public
officer. There is nothing before me, however, to establish that such
member was in any way involved in the disciplinary
matters raised,
that is, at the administrative stage. Even if he was, I consider that
he was required, as with the Chairman, to
sit on the Board and act to
the best of his ability, in an unbiased way. There is again no
evidence of any bias before me. Indeed,
the appellant does not
contest the findings as to misconduct, except for one unspecified
complaint. This ground of appeal must
therefore fail.

ULTRA
VIRUS

As I
understand this ground, Mr. Mtlhoki submits that the Board took
cognizance of matters, such as incompetence and negligence,
or the
failure to follow the Chief Surveyor's General Directions, and
treated them as "professional misconduct". He submits
that
this did not accord with the provisions of the Act. If the submission
is well grounded, I would be tempted to consider the
Board's act as
simply constituting an error in law, rather than an act in excess of
its jurisdiction. In this respect Lord Reid
once observed, in the
case of R v Governor of Brixton Prison ex p. Armah (6) at p.234:

"If a magistrate or any other tribunal has jurisdiction to enter
on the inquiry and to decide a particular issue, and there
is no

16

irregularity in the procedure, he does not destroy his jurisdiction
by reaching a wrong decision. If he has jurisdiction to go
right he
has jurisdiction to go wrong. Neither an error in fact nor an error
in law will destroy his jurisdiction."

Sir
William Wade ibid at p.294 observes that, in its "own time
(1968) and context", that statement was "unexceptionable",

the word 'jurisdiction' being used in the narrow sense of the
tribunal being entitled to enter on the inquiry in question. As Sir

William Wade observes ibid at p.44:

"It is the word 'jurisdiction' which is the stumbling-block
here: if 'power' were substituted, there would be less difficulty.

Judges sometimes think of 'jurisdiction' as meaning merely the
authority to inquire into and determine a case, as opposed to what
is
done in the course of the proceedings",

and again
at p.294,

"In fact 'jurisdiction' has traditionally borne the wide sense,
synonymous with 'power'; for plainly a tribunal must not only
have
jurisdiction at the outset but must retain it unimpaired until it has
discharged its task .... if a tribunal in the course
of its inquiry
addressed itself to the wrong question or violated the rules of
natural justice, it thereby stepped outside its
jurisdiction. If the
tribunal's determination is in the end a nullity, it must at some
point have exceeded its powers." (Italics
supplied)

And
therein lies the difference between appeal and review, namely that,
as Sir William Wade puts it at p.715,

17

"appeal is concerned with merits, while review is concerned with
legality; ... review is the primary mechanism for enforcing
the rule
of law under the inherent jurisdiction of the court, while appeal is
a statutory adjunct with no such fundamental role."

The
doctrine of ultra vires is then the Court's principal weapon on
review. But this is not an application in judicial review but
a
statutory appeal, the Court having no inherent appellate powers. The
question on appeal is, " right or wrong?", and
the Court on
appeal may then substitute its own decision for that of the inferior
tribunal. It is not necessary for the appellant
in the present case
therefore to establish that the Board's decision was a nullity, as
such, by reason of 'illegality', 'irrationality',
or 'procedural
impropriety'. While it is true to say that the dichotomy between
'merits' and 'legality' is observed, the two systems
of appeal and
review to some extent overlap, so that the dividing line is blurred.
Nonetheless, the remedy of judicial review is
available, inter alios,
to those who have no right of appeal, or who may appeal only to an
administrative tribunal. In the present
case, appeal lies to a
superior court.

Suffice
it to say that I consider the Court's powers on appeal to be wider
than those on review, that is, when one considers the
narrow scope of
the ground 'irrationality'. Thereafter in respect of the grounds of
'illegality' and 'procedural impropriety',
the Court on appeal, as
Lord Templeman

18

observed
in R v Inland Revenue Commissioner ex p. Preston (7) at p.862, can
correct all kinds of errors of law including errors
which might
otherwise be the subject of judicial review. Again, Sir William Wade
observes ibid at p.946 that

".... in practice an appellant will often wish to raise
questions which strictly are questions of legality, such as violation

of natural justice or some objection to the tribunal's jurisdiction.
It is important that this should be freely allowed, since
otherwise
many cases could not be fully disposed of on appeal."

I turn
then to consider the aspect of professional misconduct. The Act
offers some guidance in the matter, the following definition

appearing in section 2 thereof:

""professional misconduct" includes wilfully making or
causing to be made any falsification in any document, statement
or
mathematical figure related to any survey made under this Act."

Regulation
4 reads as follows:

"4. (1) Before submitting any survey to the Chief Surveyor a
Surveyor shall ensure that such survey shall accord with any

conditions or specifications which may have been laid down under the
provisions of any law relating to the land under survey.

(2) Submission of any such survey to the Chief Surveyor in
contravention (of) regulation 4(1) shall constitute professional
misconduct."

19

Regulation
5(5) then prescribes the following:

"5. If the Chief Surveyor finds that work done by a survey
technician appears not to have been adequately supervised and checked

by the licensed surveyor he shall report the matter to the Board
whose decision on whether professional misconduct has occurred
shall
be final."

The Chief
Surveyor's General Directions numbered 3 to 6 read as follows:

"No departure from C S Directions

3. These
   directions are to be followed by all surveyors and no departure is
   permitted without the prior consent of the Chief Surveyor.

   
   

Surveyors shall know relevant laws

3. Every
   surveyor shall acquire a good knowledge of the Land Survey Act
   1980, the Land Survey Regulations 1982, these Directions
   and those
   parts of the Land Act 1979 and the Land Regulations 1980 and of any
   other law he needs to know to perform his professional
   services
   properly.

   
   

Surveyors
shall be accurate and impartial

3. All
   surveys shall be executed as

   
   

20

accurately as is necessary and the surveyor shall be impartial in his
professional judgement and shall refuse any assignment which
could
require him to suppress or deviate from true unbiased work.

Need for care and accuracy

3. A
   surveyor shall carry out sufficient fieldwork calculations and
   drafting to prove that the work is complete and within the

   tolerances laid down,"

   
   

Again,
General Directions 35, in part, and 36 read as follows:

"Field Record

35. (1) Every surveyor shall record all measurements taken during
survey in either a field book or field sheets which shall be

presented with the survey to the Chief Surveyor. When field sheets
are used they shall be presented securely bound together.

3. No
   erasure shall be made in the

   
   

field record; any alteration shall be made by drawing a line through
the erroneous entry so that the original entry remains legible
and by
inserting the correct value

21

outside the erroneous entry. Overwriting is not permitted even if
legible and may lead to a survey being rejected.

3. Alterations
   to actual observations and measurements may be made on the field
   record page containing the erroneous entry provided
   that direct
   remeasurement occurred immediately after the erroneous entry was
   made and a remark entered in explanation. If re-observation
   or
   re-measurement occurred after the surveyor has carried out survey
   computations such new work shall be recorded on a new
   field record
   page and cross referenced to the cancelled entries.

   
   

3. If
   for any reason which the surveyor shall explain, the field record
   is not clearly legible, a certified fair copy may be made
   and duly
   checked and submitted to the Chief Surveyor provided the original
   is also submitted. The submission of a fair-copied
   field record as
   if it were an original may be considered professional misconduct.
   Photo-copied field records are admissible
   in certain circumstances.

   
   

22

Independent Checks

“36. Survey methods shall be appropriate to the category of
survey undertaken and shall be subject to the specific directions
in
the schedules but all surveys regardless of the standard of accuracy
allowed shall contain sufficient checks, usually in the
form of
redundant measurements, to eliminate the possibility of any gross
error not being detected by the surveyor." (Italics
supplied)

As
indicated earlier, Mr. Ntlhoki informed the Court that "We don't
contest the aspect of misconduct, except on one item".
His
subsequent submissions however indicate that, apart from one
unspecified item, the facts were not disputed, but the finding
of
misconduct as such in respect of the various complaints was disputed.
Mr. Ntlhoki submitted that the Board found that the appellant's

particular work was "contrary to established principles of land
survey theory and practices and to the Chief Surveyor's Directions",

or that the appellant's work displayed incompetence or negligence. He
submits that there is no evidence before the Court as to
what
constitutes such theory and practice and, in particular, that the
specific provisions of the Regulations nowhere indicate
that
non-compliance with the Chief Surveyor's General Directions
constitutes per se professional misconduct. That is undoubtedly

correct. The Court must be

23

guided by
the definition of "professional misconduct" in the Act, and
the instances thereof specified in the Regulations.
It must be
remembered however that the definition in section 2 of the Act is by
no means exclusive. With such aspects in mind I
proceed to examine
the Board's findings in respect of each complaint seriatim.

1. The
   Board found that the appellant "changed field measurements
   without re-observation". The appellant was asked for
   an
   explanation, of what can only be regarded as a falsification, but
   his defence was solely that the work had been re-surveyed
   and then
   authenticated by the Chief Surveyor.

   
   

2. The
   appellant admitted that he had made erasures in his field
   measurements and also that he had not completed any re-observation.

   The appellant's defence was that he considered such erasures were
   allowed, which defence could not reasonably be true,
   

   
   

3. In
   this case the appellant had surveyed a plot 160 metres out of its
   true position on the ground, which became apparent when the
   detail
   was compared with that on orthophoto mapping. The method of survey
   used by the appellant was that known as 'Resection'.
   The resection
   appeared to be perfectly correct, despite the fact that the plot was
   so much out of place,

   
   

24

leading
to the only reasonable inference that the appellant, who gave no
satisfactory explanation in the matter, had falsified his
figures,

4. In
   this case the plot surveyed was 200 metres out of position. which
   was apparent when compared with orthophoto mapping. The Board

   observed that surveys should be self-checking and that observational
   checks should have revealed such error. The Board concluded
   that
   instead of going back to the plot to re-observe positions and check
   co-ordinates on the field, the appellant did not do
   so, but instead
   deliberately resorted to "making his figures agree with his
   result". That was the only reasonable inference
   to be drawn.

   
   

4. The
   appellant surveyed a fence, the actual fencing on the ground
   differing by up to 13 metres from the surveyed straight line.
   The
   Board found that the appellant had fixed only 7 beacons, instead of
   the 15 necessary to reflect the true fenced boundary.
   While this
   reflects negligence on the part of the appellant there is nothing to
   indicate that the negligence was of such a degree,
   as will be seen,
   as to constitute professional misconduct.

   
   

4. It
   was alleged that the appellant failed to depict

   
   

25

occupations, correctly related to what was on the ground. The
appellant claimed that he had lost his field sketch and could not

therefore relate building shapes to his polared points which had been
surveyed. Despite this, the appellant presented the survey
to the
Chief Surveyor without explanation, which of course conflicted with
the provisions of sections 15(1) and 18 of the Act and
General
Direction 35. He admitted that it was his duty under the
circumstances to have returned to the site and to have re-observed

positions and to have made fresh sketches reflecting the true
positions and shape of buildings to fit his polared points which
had
been surveyed. He indicated however, that it was difficult to gain
access to the site on a week-end, which was when he carried
out
private surveys, despite the fact that he had so gained access to
carry out the original survey. The Board then concluded that
the
appellant had "falsely based his occupations survey on a sketch
which did not exist at the time of plotting". On
the facts, I
consider that that conclusion was inescapable.

7. The
   complaint here was that the appellant showed occupations incorrectly
   on the survey and also misdescribed two beacons as wooden
   fence
   posts, whereas he later described them as an "NI concrete slab"
   and an "SFP/Wall" respectively. The
   Board

   
   

26

considered it "a serious matter to misdescribe beacons or any
relevant point in survey work" and that therefore the appellant

was "guilty of misconduct". The facts before the Board did
not necessarily indicate however that such misdescription
was wilful
or was a false one, due to e.g. failing to physically inspect the
beacon. The misdescription may well have arisen from
inadvertence or
negligence, and there was again nothing to indicate that such
inadvertence or negligence necessarily constituted
professional
misconduct.

7. Again,
   this was a case of misdescription of a beacon as a wooden fence
   post, whereas it was in fact an iron pin in the ground.
   Again the
   Board found the appellant, for the same reasons as under complaint
   7, "guilty of professional misconduct".
   Indeed the Board
   found the appellant "guilty" of "falsely describing
   beacons", but there was no satisfactory
   indication of such
   falsity. Indeed the Board subsequently grouped this complaint under
   the category of "those where carelessness
   and incompetence were
   involved." As was the case with complaints 5 and 7, there was
   no satisfactory indication that the
   carelessness or incompetence
   involved was of such a degree as to constitute professional
   misconduct.

   
   

The Board
divided its findings into two groups:-

27

"(A) Those involving falsification and dishonesty.

(B) Those where carelessness and incompetence were involved."

Thus the
Board held that its findings under complaints (1), (2), (3) (4), (6)
and (7), which involved "falsification and dishonesty"
fell
under category A. For the reasons indicated, however, the finding of
misconduct under complaint (7) cannot stand.

The Board
then held that its findings under complaints (5) and (8) fell under
category B. While the definition of "professional
misconduct"
in the Act is not exclusive, nonetheless it does indicate that the
behaviour must, as I have already observed,
be 'wilful'. Regulation 4
provides that the submission of a survey which is not in accord with,
say, a specification contained
in any "law" relating to the
particular land, "shall constitute professional misconduct".
That provision seemingly
creates a form of strict statutory
liability, and it may be said, that in view of the definition
contained in the Act, regulation
4(2), where it implies strict
liability ,is ultra vires the Act. For example, failure to adequately
supervise a survey technician
does not necessarily constitute
professional misconduct, under regulation 5(5). I do not say that
negligence or incompetence does
not constitute 'misconduct'. I
consider that everything depends on the subject matter and again the
extent of the negligence or
incompetence. I consider that it is

28

generally
recognized that 'gross negligence' or 'gross incompetence', may
constitute misconduct, that is, where the matter involved
is a very
serious matter and the negligence or incompetence does not amount to
mere inadvertence or carelessness, but is wilful
in character.

I pause
here to observe that the provisions of section 9 could have been
better drafted. I consider that the words, "is found
by the
Board to be unfit to practise", relate solely to a licensed
surveyor who has "been convicted of a criminal offence",
as
of course much depends on the nature of the criminal offence
involved. In that event, if a licensed surveyor is "unfit
to
practise", it seems to me that the punishment of revocation of
licence must be applied, bearing in mind of course that
the
provisions of section 11 indicate that such revocation is not
necessarily absolute. That section makes provision for an enquiry
in
the case of a revocation or suspension of licence, before restoration
to the roll. That cannot mean that, for example, the Board
might
decline to restore after the expiry of a term of suspension imposed
under section 9: considering the power of appeal under
section 10,
the Board is functus officio as to its decision under section 9, and
it would require further complaints and further
proceedings under
section 9 to in any way extend the period of suspension. The
provisions before me are virtually penal in nature
and can only be
construed in favour of the subject. I can only construe section 11
therefore as empowering the Board, where it,
or ultimately the High
Court, has

29

imposed
e.g. a suspension, of reviewing such suspension and "after
holding such enquiry as the Board thinks fit", of confirming,
or
reducing, but not extending the period of such suspension.

To return
to the present case, the Board was concerned only with the allegation
of professional misconduct as such. There is nothing
to indicate that
the negligence or incompetence under complaints 5, 7, and 8 was gross
in nature. For the reasons indicated therefore,
I find that
professional misconduct was established only in respect of complaints
1, 2, 3, 4, and 6.

SPLITTING
OF CHARGES

Mr.
Ntlhoki submits that the Board should have dealt with the complaints
against the appellant as "one single count of not
performing his
duties". But clearly there were completely separate transactions
involved, and it was necessary to inquire
into each and every
complaint. To have dealt with all complaints as a course of conduct,
would have been contrary to the interests
of the appellant himself,
in that it would have rendered any defence most difficult and
complicated. It seems that Mr. Ntlhoki's
real objection is that the
'splitting of charges' exposed the appellant to separate punishments.
There is no doubt that the phraseology
of section 9 did little to
assist the Board in the matter, and presumably the Board considered
that the logical thing to do was
to impose a separate punishment in

30

respect
of each finding, to indicate the particular gravity of each
complaint. To some extent the punishment imposed was a global
one, in
that six suspensions of licence were made 'concurrent', but then the
punishments in respect of the other two complaints
were cumulative.

The power
of a court in a criminal case to impose separate punishments for
separate offences and to order e.g. that punishments
of imprisonment
shall run concurrently, is contained in the specific provisions of
section 301 of the Criminal Procedure &
Evidence Act, 1981, such
provisions enacting that, in default of such order, separate
punishments of imprisonment are otherwise
cumulative. Again, the
power to impose separate punishments in respect of separate
disciplinary offences and indeed the power to
impose more than one
punishment in respect of one offence, are contained in specific
statutory provisions: see e.g. sections 70
& 71 of the Royal
Lesotho Defence Force Act, 1980, sections 18 and 35 of the Police
Order, 1971, section 33(1) of the Medical,
Dental & Pharmacy
Order, 1970, and section 6(2) of the Public Service Order, 1970.
There are no such provisions in the Land
Survey Act 1980.

I observe
that section 36 of the Legal Practitioners Act, 1983 contemplates the
imposition of only one punishment, suspension or
removal from the
roll, based on the practitioner's cumulative behaviour, though indeed
any one of a number of complaints might
be sufficient ground for such
punishment: see

31

the case
of Law Society of Lesotho v Masoabi (8) and see Law Society. Cape v
Koch (9) at p.389. The provisions of section 9 of the
Land Survey
Act, 1980 are virtually penal in nature and must be construed in
favour of the appellant. Under the circumstances I
hold that in the
present case the Board was empowered to impose only one punishment in
respect of all complaints.

The
appeal is allowed therefore to the extent that I set aside the
findings of guilty and punishments imposed in respect of complaints

number 5, 7, and 8. It will be seen that the Board in imposing six
punishments of suspension, for six months, concurrently, considered

that a global punishment of suspension for six months was appropriate
in respect of six findings of professional misconduct.I cannot
say
that such punishment in any way comes to me with a sense of shock as
being manifestly excessive. Nonetheless one of those findings
has
been set aside. The appellant is then entitled to some reduction of
global punishment and the Court is at large in the matter
of such
punishment.

The
profession is in its infancy and standards of professional behaviour
must be seen to be maintained. Nonetheless, one must not
lose sight
of the fact that the appellant had not apparently appeared before the
Board on any previous disciplinary matter, and
that aspect alone is
mitigatory in effect. In all the circumstances the appeal against