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CIV/APN/417/93

IN THE
HIGH COURT OF LESOTHO

In the
Matter between:

LESOTHO
CO-OPERATIVE HANDICRAFT LTD 1st Applicant

LESOTHO
POULTRY CO-OPERATIVE

UNION LTD
2nd Applicant

LERIBE
DISTRICT CO-OPERATIVE

UNION
LTD 3rd Applicant

PHELA-U-PHELISE
CO-OPERATIVE

UNION
LTD 4th Applicant

MAFETENG
DISTRICT CO-OPERATIVE

UNION LTD
5th Applicant

vs

THE
COMMISSION OF INQUIRY INTO CO-OPERATIVES

JUDGMENT

Delivered
by the Hon, Mr, Justice W.C.M. Maqutu, Acting Judge on the 21st
December, 1993.

This is
an application in which the Commission of

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Enquiry
is called upon to show cause why:

1. Its
   decision of 14th October, 1993 refusing the attorney for respondent
   the right and or opportunity to put questions to one Ntsukunvnane

   Mphanya who appeared before the Commission of Enquiry should not be
   set aside as irregular,

   
   

2. The
   Commission shall not be ordered to supply an extract of the evidence
   of the said Mphanya and arrange a venue and date for
   the purpose of
   enabling the said attorney to put questions to the said . Mphanva
   like any other witnesses

   
   

3. The
   Commission of Enquiry shall not pay costs of this application.

   
   

The
incident complained of occurred on the 14th October, 1993 during the
hearing of evidence by the Commission of Enquiry. But this

application was only filed on the 23rd November, 1993. The matter was
(in terms of the Notice of Motion) supposed to have been
heard on the
6th December, 1993.

The
resolutions in terms of which applicant authorised the bringing of
these proceedings are undated. These resolutions are also
extracts of
undated minutes. When Counsel for applicants was asked why this
application was brought six weeks after

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the
incident, the answer given was that, applicants are scattered all
over Lesotho. Even if this is so, minutes of bodies such as
the
applicants are normally dated.

From the
papers, it is clear that the attorney for applicants and the
applicants were annoyed by the fact that Mr. Ntsukunyane Mphanya,
the
Minister of Agriculture, Co-operatives and Marketing, who was witness
number 72 at the enquiry was not cross-examined like
other witnesses.
They wanted him to be given the same treatment that other witnesses
got. They have brought this application so
that the Commission of
Enquiry can in terms of their prayer 2 be ordered to:

"arrange a date and venue at which the applicants said attorney
shall be allowed to put question the said Mphanya like other

witnesses who appeared before the Commission."

From the
outset, the Court could not understand how a Commission of Enquiry
could be directed to pay costs of this application.
It seems to the
Court that the Attorney General in his capacity as representative of
Government should have been cited. The reason

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being
that this Commission was appointed by the King. No objection was
raised by the Attorney General who appeared for the Respondent.

Nevertheless in future the court will expect Section 3 of the
Government Proceedings and Contracts Act of 1965 to be followed.

The court
asked to be addressed on whether or not it had the power to entertain
this application. It seemed to be common cause that
in a proper case,
the court had an inherent jurisdiction to make such an order. Both
parties agreed that this power is a discretionary
one. It is for this
reason that in Thome Rural District Council, v Bunting 1971(1) All
E.R. 439 the court said it will not entertain
the matter where what
is sought is too indirect to the applicant and of such an
insubstantial nature that granting the order sought
would not provide
applicant with a relief in a real sense. In other words, applicant
must show a substantial specific or personal
interest in what has
occurred in order for them to be deemed to have a title to sue.

What in
effect applicants are asking for is a declaratory order that a
serious irregularity has occurred. Consequently, the court
should
direct the

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Commission
to reconvene so that questions might be fired at the Minister. The
High Court Act of 1978 gives people a right to have
declaratory
orders to be made by this Court in its discretion, "notwithstanding
such a person cannot claim any consequent
relief upon determination."
In the past English courts used not to declare rights in the
abstract. In Helzqer v. Department
of Health 1977 (3) All E.R. 444 at
451 it indicated that they still will in general not use their
discretion to decide academic
question. In the exercise of this
judicial discretion great caution has to be exercised.

This
inherent power which enables the court to review proceedings of
Commissions of Enquiry such as the respondent is based on the

principle of the duty of the Supreme Court to maintain the rule of
law and legality in the State. It has to see to it and to secure

performance of duties by all institutions in accordance with their
governing statutes. The court will avoid usurping discretion
given to
these bodies and institutions, but the courts will sometimes
endeavour to prevent improper vexation and oppression under
the guise
of using the discretion given by a statute.

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It is
common cause that the Commission of Enquiry was entitled to determine
its procedure so as to achieve its objects. Indeed the
Commission
ought to have (and in fact had a duty) to protect any witness against
abusive and overbearing cross-examination. See
Jerold Taiz The
Inherent Jurisdiction of the Supreme Court Juta Cape Town (1985). The
problem here is that the nature of the questions
which applicants
wanted to ask were stopped before they could even be asked in
accordance with the procedure that the Commission
of Enquiry had laid
down. This according to applicants' attorney created an impression in
his mind and those of the applicants
that the court was being
discriminatory. If the Commission had heard the questions, it would
have been in a position to assess
whether or not they were improper.

Mr. Sello
for applicants during argument said his aim was not to discredit the
Minister as a witness or to harass the Minister in
any way. All he
intended was to elicit information for the benefit of the Commission.
Mr. Sello went on to say it is unheard of
for a Minister to cause a
Commission to be appointed in order to advise him and then proceed to
give evidence before it. The Minster
was pre-emptying the

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Commission
in announcing what he intended to do. So to speak, the minister was
dictating to the Commission. If his questions were
intended to be a
criticism of the Minster and to discredit the Minister's method of
doing things, perhaps the Commission instinctively
did the right
thing in stopping such cross-examination and stopping questions.

Nevertheless
as Hefer J. in Santam Insurance v. Liebermberq and Ano. 1976(4) S.A.
312 at 323 B - D said:-

"The power which a court exercises to prevent such an abuse is,
after all one which is exercised sparingly .... In such a
case, the
court cannot act on appearances or prima facie impressions."

That
being the case, the Commission ought to have given applicants'
attorney sufficient latitude to enable the Commission to act
on
something concrete in order to stop questions that could be regarded
as an abuse of the Commission's procedure. That, however,
does not
automatically imply that applicant's attorney anger (however,
righteous) ought to have beclouded judgment, and led to
this
application.

The right
to representation by legal

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practitioners
was accorded to parties in order to protect the rights and interests
of those parties. If I am correct in this, then
questions that were
asked by these legal practitioners were expected only partly to
enhance the work of the Commission. But what
was primarily their
function was to do whatever was necessary to enhance and protect the
interests of their clients. The question
that applicants ought to
answer before bringing this application is what specific prejudice
did applicants' suffer. Mr. Sello was
unable to show the prejudice
except to say that he believed that the Minister wanted to give away
Lesotho Co-op to the people of
Lesotho although it belonged to
applicants. This was not born out by the extract of the evidence of
the Minister. The prejudice
had not even been clearly spelt out in
the application nor were questions the applicants wanted to put to
the Minister disclosed.
With such information, the court would have
(in exercising its discretion whether or not to grant the declaratory
order against
the Commission) been be able to determine whether,

"Some tangible advantage in relation to applicants' position
with reference to an existing future or contingent legal right
or
obligation must flow from the grant of the declaratory order sought,"

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Williamson
J. in Adbro Investment Ltd V. Minister of Interior 1961 (3) S.A. 283
at page 285,

Mr.
Mohapi, counsel for the respondent referred the court to the case of
Bell v. Van Rensburq 1971 (3) S.A. 693. This case was interpreting

the South African Commissions Act 8 of 1947. It was held that a
Commission of Enquiry is not a quasi- judicial tribunal but a fact
-
finding body. A witness has no right to demand legal representation,
to demand to see the record, cross-examine witnesses and
address the
commission. The case is in Afrikaans. There the court was
interpreting South African law of the day. That legislation

presumably excluded the rules of natural justice. There is no such
draconian legislation in Lesotho nor was this Commission of
Enquiry
conducted in that spirit. Therefore, this South African case is of no
assistance to this court.

Nevertheless,
in the British tradition when Royal Commissions such as this one are
investigating a particular problem in order to
make recommendation.
no particular procedure is prescribed. The Commission may hear oral
evidence and receive oral submissions.
It allows (on record) opinions
as well as facts.

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Every
attempt is (by tradition) made to be fair especially where a risk of
incrimination exists. That is why parties are often represented
and
allowed to cross-examine. A Royal Commission such as this one could
never be regarded as purely administrative. It is headed
by a judge
of this court because it is expected to gather information in a
manner that is as fair, just and independent as a court
of law would
in dispensing justice.

It can
never be equated to an administrative body such as a State
President's Commission of the Republic of South Africa set up
under
the Suppression of Commission Act of 1950. which was operating in
order to gather information for presentation to a Minister
of State.
In Real Printing and Publishing v. Minister of Justice 1965(2) 782
where such was the case, a South African court had
no hesitation in
holding such information gathering intended to assist a South African
State President (to decide whether or not
to prohibit publication of
a newspaper) was not bound by the rules of natural justice. The
system of apartheid of which the Suppression
of Communism was one of
the legal instruments is frowned upon by the Constitution of Lesotho.
Consequently case - law from that
South

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African
era is not of assistance to Lesotho. In Real Printing and Publishing
Co. v. Minister of Justice at page 783 - 4 the court
noted that no
judge was sitting on that body. A magistrate was sitting on it, to
ensure it was acting responsibility. It was seen
as a "piece of
administrative machinery" to collect information like a
policeman. It is doubtful if a Commission headed
by a judge even in
that era of apartheid would be described in ,this manner.

It will
be observed that where evidence is given before a Commission such as
this one publicly and the press is free to report what
is being said,
it cannot be said rights of people are not affected. There is,
therefore, no justification in saying people's rights
should be
disregarded when such proceedings are purely an administrative fact
finding exercise. This is because negative publicity
of the
Commissions proceeding by the press creates more injustice and damage
than a hearing by a tribunal whether administrative,
or quasi
-judicial. With this Commission (over which a judge presided) this
danger was recognised and consequently it allowed cross-examination

by interested parties. There are no grounds to critise this
Commission because it felt

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itself
obliged to allow questions to be put to witnesses where an interest
of a party was affected or where such a question enhanced
the work of
the Commission.

Mr. Sello
was requested to show the Court portions of the Minister's speech
that made it necessary for the Minister to answer questions.
He was
also requested to tell the court what questions he might wish to put.
The following passages were singled out:-

12. I
    think since it is government which Ted to the downfall of Co­op
    Lesotho, the present government should put it back on its
    feet and
    give it back to the movement.

    
    

15. Co-Op
    Lesotho has to be returned to the people and no company no matter
    how big should be allowed to run Co-op Lesotho.

    
    

17. As I
    speak now we are organising Co-Operatives and we have now 151
    Co-operatives mush - rooming all over the country.

    
    

In Mr.
Sello's view the Minister wanted to give Co-op Lesotho to the 151 new
co-operatives as a way of returning it to the people.
He felt since
applicants

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were
members of Co-op Lesotho they were obliged to challenge this
statement through questions. Mr. Sollo could not answer the question

whether the Minister had anywhere in his speech said he would ignore
the constitution of and rules of Co-Op Lesotho on the question
of
Membership. He agreed according to the existing law the Minister
could not just give Co-Op Lesotho to all and sundry. Mr. Sello

conceded that the term people included the applicants who are the
constituent members of Co-op Lesotho,

Mr. Sello
said applicants had brought before this court CIV/APN/230/93 against
the Minister of Agriculture and others to determine
the fate of Co-op
Lesotho. These proceedings were still pending. The court put
questions to Mr. Sello trying to find out why he
felt the Commission
and the Minister would prejudice proceedings in CIV/APN/230/93. He
conceded the matter would be ventilated
in that application but felt
this would be in three years time. He invited the court to read those
proceedings. Unfortunately the
file has been misplaced. The court
cannot wait for it to be found.

Mr.
Mohapi for the Commission invited the court

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to read
the entire evidence of the Minister in order to determine whether
there was any prejudice that was brought about by failure
to
cross-examine the Minister. The Minister had merely shown that
government's participation in Co-op Lesotho had not been for
the
benefit of the co-operative movement. He quoted the following
passages from the Minister's speech:

"10. I think it was just a government shop.

14. Co-op
    Lesotho was hyacked a long time back. It has existed as a
    co-operative in name only.

    
    

16. I
    think past governments used Co­op Lesotho to misuse or
    misappropriate public funds.

    
    

25. I
    think genuine co-operatives have a right to claim back Co-op
    Lesotho. But as to whether they can have it back, I would know
    after
    going through the Commission report, especially given, the fact that
    those members never received any reports from Co-op
    Lesotho.

    
    

25. 26.
    Co-operatives have been in a mess, they were because of past

    
    

authoritarian rule".

In Mr,
Mohapi's view, the Minister wanted to hand back Co-op Lesotho to
applicants as they had asked in CIV/APN/230/93. It appears
applicants
do not want Co-

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op
Lesotho now that the Minister is willing to see the government out of
co-operatives by giving Co-op Lesotho to applicants. All
the Minister
had said was that government had in the past abused its powers to the
detriment of the co-operatives in Lesotho. There
was nothing that was
said by the Minister which made it imperative to ask the Minister
questions in defence of applicants' interests.

The court
asked Mr. Sello whether applicants ever asked for an opportunity to
rebut anything that the Minister had said. Mr. Sello
replied that
such an opportunity was not sought. That being the case, Mr. Sello
was requested to substantiate the allegation that
the audi alteram
partem rule was breached. He could not. If the Commission had refused
to allow the applicants an opportunity to
answer the Minister on
anything, they believed was adverse to their interest, the allegation
that they were denied a hearing would
have substance.

Mr. Sello
was critical of the fact that the Commission had according to the
affidavit of Mr. Mohau "concluded it labours, the
report has
been drafted and it is proposed to submit it to the Minister not
later

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than 30th
November, 1993," Mr. Sello submitted that this showed lack of
respect for the courts. In court Mr. Sello had to concede
that his
delay of six weeks in filing this application could have had the
effect of defeating this application. The reason being
that on the
25th November, 1993 the Commission might have already drafted its
final report. The court is not persuaded that applicants
believed
they had suffered any prejudice on the 14th October, 1993 when they
were refused an opportunity to put questions to the
Minister. If they
had been I am of the view that they would have acted instantly.
Indeed, they would have requested the Commission
there and then to
give evidence in rebuttal of what the Minister had said there and
then.

While as
the learned Chief Justice in The Law Society of Lesotho v. Minister
of Defence and Internal Security & Ano. CIV/APN/111/88

(unreported) has said the courts' attitude has become liberal in the
exercise of its discretion to make declaratory orders, it
remains a
fact that the court must be persuaded that the case is a fitting one.
Courts partly remain what Innes C.J. found then
to be in Geldenhus &
Neethlino v. Benthin 1918 A.D. 426 at 440 - 441 when

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he
remarked

"Courts of law exist for settlement of concrete controversies
and actual infringements of rights, not to pronounce upon abstract

question or to advise upon differing contentions however important".

Section
2(1) (c) of the High Court Act, No. 5 of 1978 as amended has modified
the old position by making it possible in a fitting
case of
importance to make a declaratory order that has the effect giving a
ruling upon differing contentions. The High Court now
has in its
discretion:

"power to inquire into and determine any existing, future or
contingent right or

obligation notwithstanding that such person cannot claim any relief
consequential upon determination;"

Except
that the review court is not like an appellate one confined to the
four corners of the record, powers of review are in many
respects
similar to those of the court on appeal. Although the powers
mentioned in Section 6 (2) of the High Court Act. 1978 are

specifically directed to criminal appeals, they also apply to civil
appeals and all matters on review. These particular words in
that
sub-section which are relevant on powers of the High Court generally
are put

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as
follows:

"Notwithstanding that the point raised might be decided in
favour of the accused, no, conviction or sentence shall be set
aside
or altered by reason of any irregularity or defect in the record of
proceedings, unless it appears to the High Court that
a failure of
justice has in fact resulted therefrom."

A wrong
decision in law or an irregularity are not in themselves always
sufficient unless they are of the nature that was likely
to prejudice
applicant. Furthermore, the irregularity must be of a nature that
there are no alternative methods of remedying it
except coming to the
superior court. See Herbstein and Van Winsen. The Civil Practice of
the Superjor Courts in S.A. 1st Ed at
page 585, If the applicants
satisfied the requirements, the court might have been persuaded that
this application was a necessary
one and the relief sought justified,
belated though it is.

The court
has to clarify the fact that what it is saying in this application is
confined to the facts of this case. It has to avoid
making general
rules governing Commissions of Enquiry such as this one because the
procedure must of necessity be dictated by the
terms of reference of
the Commission, the subject

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under
investigation and the circumstances under which it operates.

This
application is dismissed with costs.

W.C.M.
MAQUTU

ACTING
JUDGE

21st
December, 1993,

For
Applicant: Mr. Sello

For
Respondent: Mr. Mohapi,