CIV\APN\338\91

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

GUISEPPE
ANTONIO MARIO FLORIO Applicant

v

THE
MINISTER OF THE INTERIOR &

CHIEFTAINSHIP
AFFAIRS 1st Respondent

THE
ATTORNEY- GENERAL 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 23rd day of January, 1992

The
applicant approached this Court by way of Notice of Motion filed with
the Registrar and served on the respondents on 18th October,
1991.

The
Notice of Motion does not indicate when the application would be
moved.

However
in terms of a notice of set down received by the Registrar in 1992
the matter was scheduled for hearing on 13th January,
1992.

The
applicant in his Notice of Motion wishes this Court to review and set
aside :

1.1 the decision of the 1st respondent dated 12th September 1988 to

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permit of the applicant held under number 358\80.

2. The applicant further seeks an order calling upon the respondents:

2.1 to show cause why such decision or proceedings should not be
reviewed and corrected or set aside; and

2.2 to deliver within 14 days of the receipt of this notice, to the
Registrar the record of the proceedings in which the 1st respondent

took the decision to be reviewed together with such reasons as the
respondents are required to give; and

2.3 also to show cause why they should not be ordered to pay the
costs of suit.

paragraph 3.1 is the usual requirement in the event of opposition to
file it within the period specified in the rules and to appoint
an
address within the specified distance of the Registrar's office.

3.2 requires the respondents to deliver opposing affidavits within 21
days of service of the notice of motion on them.

The
applicant relies on averments set out in. his sole affidavit to
establish his case.

The
application is opposed. The respondents rely on the affidavit of
Bereng A. Sekhonyana supported by those of the 1st and 2nd

respondents Minister Matete and Mr. Maope respectively and those of
one Thabo L. Makhakhe the former Principal Secretary of the
Ministry
of Water, Energy and Mining but afterwards the

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Principal
Secretary for Transport and Telecommunications, and that of Julius
Mothibeli since 1990, the Acting Director of Immigration.

The
applicant has attached to his papers by way of Annexures marked "P"
and "G" affidavits of the former Minister
of the Interior
Chieftainship Affairs and Rural Development Chief Mathealira Seeiso
and the former Chairman of the Military Council
and Council of
Ministers Major General Metsing Lekhanya. These Annexures are park of
proceedings in CIV\APN\293\91 heard by my
Brother Kheola J in 1988,
The applicant's application to set aside the cancellation of his
residence permit No.358\80 was refused.

This is
the decision that the applicant's plea, if successful to set aside
the 1st respondent's decision, would have the effect
of rendering
irrelevant or futile.

It should
be noted that in terms of a notice of withdrawal dated 14-12-88 in C.
of A. (CIV) No. 24\88 relating to CIV\APN\293\86
involving the same
parties as in the instant matter the applicant withdrew his appeal to
the Court of Appeal. The notice of withdrawal
was received by the
Registrar of this Court on 29th December 1988. The copy for the
respondents apparently was served on them on
19th December 1988. om
about 1974 to 10th

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October,
1988 he resided in Lesotho and conducted extensive business
operations there, initially in terms of a temporary residence
permit,
but, since 1980 in terms of an indefinite residence permit issued to
him in terms of the Aliens Control Act by the office
of the 1st
respondent and numbered 358\80.

In the
brief history given by the applicant it is alleged that on 12th
September 1988 the above permit was suddenly cancelled by
the then
Minister of the Interior one Mathealira Seeiso. As stated above the
applicant challenged this cancellation in terms of
CIV\APN\293\88.
This application did not succeed.

The crux
of the matter for review seems to consist in the applicant's averment
at page 6 paragraph 6 that :

"The biggest obstacle in my way when I had to challenge the
cancellation of....(the) permit was that the said Seeiso refused,
in
his reply to my said Application, to disclose, apart from reproducing
certain words appearing in the Act, any reasons for this
inexplicable
act on his part claiming that these reasons were matters of State
security which it would be inimical to the State's
interests to
disclose. In this he was supported by one Justin Metsing Lekhanya who
was then the Chairman of the Military Council
and Council of
Ministers, who submitted an Affidavit to the same effect. I was never
in doubt that there was an ulterior and improper
motive for the
cancellation of my permit but, apart from reports of people who were
afraid to testify in a Court of law, particularly
regarding the said
Lekhanya's interest in the matter, I had no hard evidence to prove to
this Court that the action of the said
Seeiso was mala fide. My other

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difficulty was that I believed that for as long as the said Lekhanya
was in power he would never relent in his objective, even
if I
managed to have his initial action set aside".

But on
behalf of the respondents Mr. Tempi's, submission describes the delay
incurred before moving this application as unreasonable.
The learned
counsel pointed out that the applicant should have made a formal
application to Court for the condonation of the delay.
He pointed out
that the applicant attributes his failure to institute these review
proceedings in time to the fact that he did
not want to file these
papers while the former Major General Lekhanya was in office. It is
indeed a matter of history that the
former Major General was removed
from power in April 1991. Learned Counsel demurred at the fact that
the applicant made no effort
to explain the delay between the fall of
the previous Government and the date he instituted these review
proceedings.

Urging
that the application must fail the learned Counsel referred to
Worldroeiers Afslaers(EDMS) BPK vs Munispalitiet van Kaapstad
1978
(1) SA 13 AD where the court dismissed the application on the grounds
of unreasonable delay despite the fact that it would
have succeeded
on the merits.

The
applicant's averment at page 6 in part advanced as the reason for not
bringing his application without undue delay,

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that as
long as Lekhanya was in power he would never relent in his objective
even if the applicant had managed to have Lekhanya's
initial action
set aside, is in my humble view speculative. There is no ground
advanced to support the fear that the former Chairman
of the two
Councils would flout the authority of the Courts of Justice. That is
an unjustified presumption which ignores a fundamental
principle of
the law that improbity or wrongfulness may not be presumed. The
applicant's apprehension betrays lack of faith in
the administration
of justice. However a man's faith is his own affair. But the
important thing is if it were true or even conceivable
that in this
country any man whatever his position or status would be allowed to
treat decisions of the court with levity and flout
them with impunity
such a notion if real, would stand as a damning indictment on the
very judicial oath which binds those . who
subscribe to it to
administer justice without fear or favour.

Mr. Tampi
dealing with the position of an alien referred this Court to Schmidt
and Another vs Secretary for Home Affairs (1969)
1 All E.R. 904 at
907 where Lord Denning said :

"I have always held the view that at common law no alien has any
right to enter this country except by leave of the Crown
and the
Crown can refuse leave without giving any reasons"

Pointing
out that the position is the same in Lesotho as

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in the
United Kingdom Mr. Tampi referred to page 908 D in Schmidt where Lord
Denning proceeded as follows :-

"I think that the Minister can exercise his powers for any
purpose for which he considers to be in the public good or in the

interest of the people of this country. If his permit is revoked
before the time limit expires, he ought to be given an opportunity
of
making representations for he would have a legitimate expectation of
being allowed to stay for the permitted time".

Much was
made of the application for review in CIV\APN\83\88 E.H. Phoofolo v.
The Chairman of the ad hoc Advisory Board and two
Others involving
matters incidental to the instant application. I don't think anything
turns on that because in any event that
application for review was
withdrawn, according to the Registrar's stamp on 8-5-91, in terms of
a notice in that regard dated 6th
May 1991.

Another
matter that warrants comment is that in reaction to Mr. Tampi's
notice of Motion seeking to strike out passages described
as
scandalous, vexatious argumentative and irrelevant Mr. Sello for the
applicant in part succeeded to water down the pernicious
import of
the words complained of. Even without any notice of motion to strike
such words or phrases out I would boggle at the
description of the
Attorney General of this kingdom as paranoid.

While on
this I should hasten to point out that the

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necessity
to put one's case strongly does not and should not imply random use
of strong language in averments or pleadings. Use
of strong language
has no place in pleading one's case.

In
support of the above remarks it should be profitable to refer to
Findlay vs Knight 1935 A.D. 58 where Wessels CJ said at p.71
:

"Qualified
privilege implies two principles of public policy

1. that
   the welfare of society demands that an advocate or attorney who
   pleads the cause of his client should have a large degree
   of freedom
   in laying his client's case before the Court, even though in so
   doing he defames the other party or even a third party.
   The decided
   cases show that he has this privilege when opening a case in Court,
   when examining and cross-examining witnesses,
   and when addressing
   Court. For the same reasons the

   
   

pleader must enjoy this qualified privilege when he files formal
pleadings and other documents necessary to place his client's
case
before Court. To hamper his freedom in this respect would be contrary
to public policy, and therefore our Courts accord to
attorneys and
advocates a large measure of freedom in drawing pleadings and
pleading causes.

2. The
   other principles of public policy which underlies qualified
   privilege is that the process of the Courts shall not be wantonly

   used for the purpose of defaming either litigants or third parties.
   The Courts cannot allow advocates and attorneys to use the
   process
   of the courts for an illegitimate purpose; (for manifestly the law
   cannot countenance an abuse of the privilege. And
   where the
   privilege is abused, malice is inferred - Kleynhans vs UsMar 1929 AD
   121 at 126"

   
   

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I may
just add that the well-meaning plea by Mr.Tampi to this Court to look
with disfavour at the use of strong language should
be regarded as a
word in season. I wish to leave it just at that and go no further as
I would disdain to notice the unnecessary
and unpleasant atmosphere
that such language generates usually.

To return
to the charge: an intriguing feature of the applicant's case consists
in paragraph 9 at page 8 of the record where he
indicates that after
receiving the Ministerial order cancelling his residence permit he
approached the then Minister . namely Chief
Mathealira Seeiso who had
issued such order. He learnt from Chief Mathealira that the said
cancellation

"was all the work of Lekhanya and the then Minister of Finance
one Retselisitsoe Sekhonyana".

He goes
on

"He (Seeiso) told me that he had written the letter cancelling
my permit on Lekhanya's instructions. There was an unspoken

understanding between Seeiso and I (sic) that I would not endanger
his position by disclosing this information that he had given
me. He
is now no longer a Minister of Government".

It is
common cause that Chief Mathealira has not sworn and submitted any
affidavit in support of the applicants averment. Consequently
Mr.
Taropi drew attention to the affidavit sworn to by Chief Mathealira
Seeiso in CIV\APN\293\88 - C. of A. (CIV) No.

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24\88
page 13 where the averments of Chief Seeiso are contained and give no
support to the applicant's contentions. The applicant
makes a virtue
of his failure to invite Chief Mathealira to support him by placing
the onus on the respondents; the upshot of which
is that if they
themselves failed to call him to support their denial of the
applicant's averments then the only ground on which
their failure can
be based is that they knew he would support the applicant. But the
rule is that he who asserts must prove. There
is no obligation on
anyone to prove the negative. Thus the applicant's contention in this
regard would have the effect of turning
the rule in Small vs Smith
1954 (3) (SWA) on its head. Furthermore the inference the applicant
wishes to be drawn against Chief
Mathealira's failure to testify for
the respondents is in the circumstances of this case a double-edged
sword that cuts both ways
because similarly an inference can and
should be drawn against the applicant that the said Chief Mathealira
could not testify for
the applicant if in the process he ran the risk
of perjuring himself. In such circumstances the rule upholds the
opposing party's
contention.

It indeed
cuts a wide swath in the applicant's case that a matter based on the
same facts in which the same applicant seeks the
same remedy that was
refused by one judge who granted an order in favour of the same
respondents should be brought before another

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judge
under colour of fresh evidence having allegedly been obtained from a
man who, though available, has not been asked to make
a sworn
statement of things, relied on by the applicant and, said to have
been said to him by that man. In my view it would be
inappropriate to
treat decisions of our Courts in a manner that is akin to appealing
from Philip drunk to Philip sober.

The
applicant bemoans the fact that while initially the grounds for which
it was alleged his permit was terminated were that he
constituted
danger to the security of the State, subsequently the respondents'
affidavits and in turn Mr. Tampi's arguments show
that he was
expelled for undermining the economy of. the country.

But
Matador Buildings(Pty) Ltd vs Barman 1971 (2) SA 21 shows that

"A party who repudiates a contract giving a wrong reason for his
repudiation is not bound by the reason given, and if in fact
there
exists a justifiable reason for his repudiation he is entitled to
take advantage of it, notwithstanding the wrong reason
he may have
given." See also . Stewart Wrightson (Pty) Ltd vs Thorpe 1977
(2) SA 943 AD at 944 where it was stated that :

"such fundamental breach of the service contract did not per se
end the contract, but served only to vest the respondent with
an
election either to stand by the contract or to terminate it; further
that the respondent had effectively elected to terminate
the
contract".

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In my
view the principles deducible from the above authorities have a
fitting and comparable parallel to the instant matter. There
was also
an interlocutory application at the start of arguments that the
affidavit of Augustinus Bereng Sekhonyana whose evidence
bears the
most opposition to the applicant's case should be struck out on the
grounds that the said Augustinus impersonates the
actual opponent
namely Minister Matete the present incumbent in the Ministry of the
Interior, Chieftainship Affairs and Rural Development.
In my view the
thrust of this argument was successfully thwarted by the
counter-argument that the present Minister was not the
Minister of
the Interior at the time and could not be expected or even properly
required to depose to things best known by his
Principal Secretary
Augustinus Bereng Sekhonyana who was the man on the spot at the time.
Doing otherwise would do violence to
the observance of the best
evidence rule. The application to strike out Bereng's entire
depositions is refused.

Even if I
should be wrong in this, other considerations which exercised my mind
in this matter should suffice to dispose of it all
the same.

To my
mind the crucial matter that warrants the decision of this Court is
not so much what the respective parties aver in their
affidavits as
the propriety of bringing this application to this Court.

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It seems
to me that if the Courts of law having dealt with a matter and
decided it, should have their decisions obeyed and their
orders
carried out only for as long as a certain head of government is in
power; and when he falls from authority the same Courts
should be
approached and asked indirectly but in effect to review their
decisions because there was fear that he would frustrate
the course
of justice, the administration of justice and indeed judicial process
would be in jeopardy and fall into disrepute.
Far be it then from me
to subscribe to such a proposition.

The
application for review and setting aside of the Ministerial order
cancelling the applicant's residence permit both on grounds
he has
set out and the other ground I have just pointed out, is dismissed
with costs.

JUDGE

23rd
January, 1992

For
Applicant : Mr. Sello

For
Respondents : Mr. Tampi