C of A
(CIV) 1/94 CIV/APN/471/93
LESOTHO COURT OF APPEAL
appeal of :
CO-OPERATIVE HANDICRAFTS LTD 1ST APPELLANT
POULTRY CO-OPERATIVE UNION LTD 2ND APPELLANT
DISTRICT CO-OPERATIVE UNION LTD 3RD APPELLANT
CO-OPERATIVE UNION LTD 4TH APPELLANT
DISTRICT CO-OPERATIVE UNION LTD 5TH APPELLANT
COMMISSION OF INQUIRY INTO COOPERATIVES RESPONDENT
applied in the Court below for an order in the following terms:
"Calling upon the Respondent to show cause, if any, on a date to
be determined by this Honourable Court, why:
decision of the Respondent of the 14th October,
1993 refusing the Applicants' attorney of record the right and/or the
opportunity of putting questions to one NTSOKUNYANE MPHANYA
appeared as a witness before the Respondent shall not be set aside as
constituting an irregularity.
Respondent shall not be ordered to supply the Applicants' said
attorney with an extract of the evidence of the said Mphanya
thereafter arrange a date and venue at which the Applicants' said
attorney shall be allowed to question the said Mphanya
other witness who appeared before the Respondent."
ancillary relief was claimed including alternative relief and costs
are the following:
Notice Number 114 of 1993 a Commission of Inquiry into Co-operatives
(the Respondent) was constituted. Appellants aver
Co-operatives they "are interested in the deliberations and
conclusions of the Respondent." Some of their members
called before the Respondent to testify and been subjected "to
extensive questioning." Appellants go on to
at the hearing of the Commission these witnesses were represented by
their attorneys who were permitted to put questions
to those who
testified before it. These allegations are not denied on behalf of
the Respondent. The Secretary of the Commission
says however that the
Commission is a "common law body" and that "in the
absence of any statutory prescription is
entitled to exercise its own
procedure as to how they gather the facts." All witnesses were
informed of their right to legal
representation and that if anyone
desired to put questions to a witness they could do so with the leave
of the chairman. The Commission
is according to the Respondent "a
fact finding body pure and simple." (The "common law"
nature of Commissions
has been changed since the hearing of this
matter. See in this regard the provisions of the Public Inquiries
Act. 1994, published
in Government Gazette Extraordinary of the 24th
June 1994. The provisions of Sections 11 and 12 are instructive in
regard to issues
in this appeal.
before us arises from events that occurred pursuant to the testimony
of one of the witnesses who gave evidence before
According to Appellants, on the 14th of October 1993, the Minister of
Agriculture, the Hon. Mr. Mphanya, appeared
before the Commission as
a witness. According to Respondent he did so at his own request and
"as a public spirited citizen"
and "not in his
official capacity as Minister
Agriculture and Co-operatives." A copy of his testimony, to
which I will refer hereinbelow was placed before the Court a
had given evidence, Appellants' attorney "made a request to put
certain questions to the said witness, in considering
(sic) that his
evidence touched not only upon the Applicants and their rights and
ultimate fate, but also dealt with evidence given
by members of the
common cause that the Commission declined the request by the
Appellants' legal representative to put questions to this witness.
According to the Secretary of the Commission it "declined to
allow him to do so on the sole grounds (sic) that there was nothing
in the evidence which affected the Applicants in any manner."
submitted in their application that this ruling constituted a gross
irregularity. It was, they contended, a breach of
the audi alteram
partem rule and caused them prejudice. They point to the fact that
the Commission may well act on some of the
evidence of the Minister
and may even base some of its recommendations on it.
per contra contended that there was no right to cross-examination
"envisaged in this fact-finding Commission of
and that the audi alteram partem rule did not apply to these
proceedings. The duty of the Commission was to make
a written report
including recommendations to the Minister. The allegation that the
Appellants could be prejudiced "is baseless
and is denied."
purposes of deciding the issues before us it is necessary to advert
to the evidence of the Minister. It is recorded at page
19-23 of the
record and reads as follows:
WITNESS NO. 72 HON. MINISTER NTSUKUNYANE MPHANYA
the Minister of Agriculture, Co-operatives and Marketing since or
following the general election this year.
not know about the financial difficulties of BCBU because I was not
in the executive Committee.
I was present at the election of an executive Committee. Mr.
Mokhehle was proposed by the BCP and Mr. Thomas Mofolo was suggested
fear of the Colonial Masters then was that the BCP would use
cooperatives which were very strong than for political ends.
result Mr. Mokhehle and his fellow Committee members were expelled
and some white man took over.
Committee was expelled during the course of the year so it cannot be
correct that it was expelled because of any financial
was a member of a cooperative society at Mapoteng which I had
started myself. I think we got benefits from the mother body in
form of inputs.
distribution of inputs was done by BCBU.
personal view is that government should not be involved in the
running of cooperatives.
not sure of what Co-op Lesotho was of late. I am sure of what it was
when it was BCBU.
think of late it was just a government shop.
not think that kind of Co-op Lesotho has any place in the
think since it is government which led to the downfall of Co-op
Lesotho, the present government should put it back in its feet
give it back to the movement.
Lesotho has made its name in the countryside among people who are
not aware of its internal problems, It has amassed good
infrastructure and it could provide good service to the public if
Lesotho was hijacked a long time back. It has existed as a
cooperative in name only.
Lesotho has to be returned to the people and no company no matter
how big should be allowed to run Co-op Lesotho.
think past governments used Co-op Lesotho to misuse or
misappropriate public funds.
speak now we are organising Co-operatives. And we have now 151
co-operatives mushrooming all over the country.
not saying Co-op Lesotho has to be handed back overnight.
Perhaps this can take two to three years. What people have
sensitised about is that it belongs to them.
Lesotho was run as a government shop without the knowledge of people
at grassroots level.
enough Co-op Lesotho is in a mess now. But what is important to note
is that it is not co-operators who misappropriated its
funds. I do
not think people at grassroots level owe that much to Co-op Lesotho.
I think they were paying cash.
mess was not only in Co-op Lesotho. But even many societies had
think the Co-operatives we are forming now are doing so freely
without any interference from us. Of course the Registrar guides
them here and there.
manifesto did say we would encourage people to form cooperatives
but we will not force them to do so. They will form
them if they
find that to be in their best interest,
small co-operatives that are being formed are operating very well.
It is just that they do not have the matter body, (sic)
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
going through the Commissioner's report, especially given the fact
that those member never received any reports from Co-op
in Lesotho have been in the mess they were in because of the past
the Commission's report we would have to call all cooperatives
together and see if they would want to receive the mother
they do not want to, the newly formed Co-operatives have a right to
do so. The problem that might arise is that of distribution
property if there is any. But I cannot comment on that now.
are already assisting co-operatives. We have distributed 120
tractors to the constituencies and we are subsidising inputs.
do not want to spoon feed people.
do not want to use co-operatives as a political weapon at all. Hence
we do not even mind about who gets elected.
is no money out there waiting to be given to Cooperatives.
only money I know about is the money from USAID concerning
liquidation of Co-op Lesotho and grazing fees. We said the Americans
could keep their money if to have it meant that they had to dictate
to us as to what we ought to do.
The Co-operatives which have mushroomed are village Cooperatives.
wonder if you have had time to listen to our speeches. We are
totally against imposition of things on people.
has led to many projects collapsing in the past.
co-operatives that are being formed are all voluntary,
Co-operatives have been with us for a very long time. In fact one
co-operatives in Mafeteng was formed in 1939.
are not new to Basotho. What is new is the term. Basotho have all
along used Co-operatives in the name of "Matsema".
think Co-operatives have failed because they have tended to imitate
foreign views and the laws were also foreign. Even the law
to come will have to be referred to the co-operators.
have been strong all along. But they got distorted along the way
when they were used to work on the chiefs' fields.
not sure about the education the new co-operators have been given.
But I am sure about their activities. I have seen the
Shelengs" co-operate successfully. If they succeed in "Mpate
Sheleng" I do not see why they should
not succeed in "Ntemele
do agree that we are understaffed and we are planning on increasing
Co-operative laws are very old and they need to be updated.
people form companies and partnerships because they have learned
about them in school. But Co-operatives are formed not
what people have learned but because of a felt need. I hold a
different view to yours. I feel young people are interested
other factor which has contributed to the downfall of the
co-operative movement is unavailability of a Market.
thinking of one big supermarket with departments of pricing,
statistics and bureau of standards and it should work hand in
with the co-operatives as an outlet for these Co-operatives.
p.m. TEA BREAK.
P.M. Meeting called to order and Witness reminded he is still under
new Co-operatives are not being formed at the expense of old one.
The old ones have to be revitalised. In fact some old co-operatives
have already come to the office and we are dealing with their
problems. For example one Co-operative in Mafeteng where a Committee
was imposed in the past is being assisted now to hold elections for
a new Committee.
We have had discussions with the University to have a faculty of
Co-operatives and our discussions in that regard are very advanced.
We are working on having co-operative officers in every
district and qualified supervisors in every constituency.
We are also working in upgrading the posts within the department of
49 .The Registrar's duty is to register co-operatives so long as
their by laws do not contradict the main law. He should not be
influenced in his decision making.
50.Yes for about a year or two I think government would have to play
some role but afterwards it should pull out.
The Court a quo dismissed the application. As I understand the
judgment it did so on two grounds, namely that Appellants failed
take any steps to rebut the evidence of the Minister and/or that they
failed to prove that they were prejudiced by the refusal
cross-examination of the Minister. In this regard the Court held that
there was nothing the Minister said which made
it imperative to ask
him questions "in defence of Applicants' interests."
on behalf of the Respondent contended that to apply the audi alteram
partem principle would be an unwarranted
of the rule. With reference to the fact that Commissions "are
simply a number of individuals who are expected to
co-operate and to
operate within the confines of their commission" - see S v
Sparks N.O. and others 1980 (3) S.A. 952 at 956
- he urged us to hold
that the rules of natural justice did not apply to the proceedings of
a Commission of Inquiry. Mr. Tampi
also relied on the decision in
Bell v Van Rensburg, 1971 ( 3) SA 693 for the proposition that the
rules of natural justice did
not need to be observed by legal bodies
(regsinstansies) except by Courts of Law and other legal institutions
which had the capacity
to take decisions with regard to the rights of
persons. No right to the cross-examination of witnesses therefore
existed in respect
of Commissions of Inquiry under the provisions of
the Commissions Act then in force in South Africa. The same approach
urged should be adopted in the Kingdom of Lesotho. See also
South African Defence and Aid Fund v Minister of Justice 1967 (1) SA
Administrative Law at p.222 has the following instructive comment
concerning Commissions of Inquiry and the manner in which
proceedings are conducted:
Institutions such as commissions of inquiry are an important channel
through which individual and collective representations may
transmitted to decision-makers.
used regularly in South Africa. and their investigations may often
lead to decisions which seriously affect individual
interests. The right to make representations ought to be construed as
liberally as possible where the possibility of
against individual rights exists. Yet in at least two South African
decisions the courts have revealed a
strange reluctance to apply the
principles of fairness (which are designed to facilitate
participation). For this reason it is
worth noting the recommendation
by both the Canadian Law Reform Commission and the New Zealand Public
and Administrative Law Reform
Committee that legislation governing
commissions of inquiry should make adequate provision for the right
of representations by
individuals who may be adversely affected as a
result of investigations, and that commissions should conduct their
in public wherever possible. There is every reason to
advocate similar reforms in South Africa."
pointed out with validity in footnote 218 to the above quotation (at
page 223) and with reference to the Law Reform Commission
of Canada -
Commission of Enquiry: a New Act (working paper 17:1977,33) that in
an enquiry of this kind "a man not suspected,
let alone charged
with wrongdoing may be ruined by irresponsible accusers whom he is
not even able properly to
Moreover as the author points out at page 556-555 of his work,
cross-examination may often be the only means by
evidence may be challenged. He goes on to say "that
cross-examination may be a requirement of a fair hearing
where it is
necessary to serve the purposes of natural justice -especially that
of promoting accuracy." (P.555.)
light of these comments and developments it may be necessary for a
reconsideration of the approach to be undertaken towards
proceedings before a Commission of Enquiry as formulated in Bell v
Rensburg (supra). However, in my view the facts of the present
are clearly distinguishable and created a situation in which the
rules of natural justice should be enforced.
this for the following reasons: In Ridge v Baldwin 1964 A.C 40 the
right to a fair hearing was reinstated by the House of
Lords as a
rule of universal application in the case of administrative acts or
decisions affecting rights. (In this regard see
also Lord Loreburn's
statement that the duty to afford it is "a duty lying upon
everyone who decides anything" (cited
with approval in Wade:
Administrative Law, (4th Ed.) 451.) However, it must be emphasised
that "it is not possible to lay
down rigid rules, as to when the
principles of natural justice are to apply; nor as to their scope or
on the subject matter." (Per Lord Denning M.R. in R v Gamine
Board for Great Britain etc.  2 Q.B.417 at 430.
"subject matter" in the present case was a Commission of
Enquiry presided over by a Judge of the High Court. The Commission
was appointed to enquire into "(A) the operations of
co-operative Societies in general and (B) the operations of Co-op
in particular." The Commission had settled on procedures
which conformed to the principles of natural justice. Witnesses and
individual parties were allowed legal representation (a right now
enshrined in sec. 12 of the Public Inquiries Act of 1994) and
right to cross-examine was extended in respect of all witnesses. A
witness - none other than the Minister responsible for the
administration of the subject matter of the enquiry - is called and
testifies. However, when the representative of a number of
Cooperative Societies seeks to question him, the request is refused.
The sole ground advanced is that "there was
nothing in the
evidence which affected the applicants in any manner."
cited the evidence of the Minister in extenso above. I have done so
because a reading of his evidence demonstrates the unacceptability
the bald proposition advanced. Whilst it is true that the Minister
did give evidence of a general import it was of a wide ranging
fundamental nature. Moreover, he was
person who was going to decide on the response to the recommendations
of the Commission. Cross-examination may have elicited
information that could have had a direct bearing on the findings and
recommendations of the Commission. Moreover, the
taking the unusual step to testify before the Commission he had
appointed, should have been prepared to face those
affected by his
views and have been prepared to respond to their contentions and
their views. They clearly gave evidence which
cried out for further
examination, elucidation and possible challenge.
satisfied that there is no substance in the contentions and the
reasons advanced for a refusal to allow cross-examination to
place. The real reason may well have been to protect the Minister
from what was bound to have been a confrontational, and
experience. However, the Minister having decided to enter the fray,
should have been treated in the same way as any
other witness and not
have been afforded the protection extended to him by the Commission.
Moreover, if it is necessary for the
party who alleges an
irregularity of this kind to prove prejudice (a point which we do not
find it necessary to decide) then, in
these proceedings, such
prejudice was proved. It was clearly insufficient for the Respondent
simply to have sought to avoid the
inference of prejudice by making
the bald allegation it did.
satisfied, as a result of allowing cross-examination of other
witnesses and then, to the prejudice of Appellants refusing such
request in their case, a failure of justice occurred. The
proceedings, previously administered in accordance with natural
ceased to be so conducted.
follows that Appellants have established that they are entitled to
relief. However, it became clear during the hearing of the
that the Commission had already completed its task and had already
reported to the Minister. Mr. Sello who appeared for
said that in these circumstances it would meet the exigencies of the
case if the Court were to grant Appellants
an appropriate declaratory
order that their rights had been infringed. A precedent confirming
the need for the rules of natural
justice to be observed would be of
considerable importance. Mr. Tampi for the Respondent was not heard
to resist the Court following
this course of action should it decide
to grant Appellants relief.
that it would be right in principle for us to accede to this request.
In a country which has moved to a democratic order
and has adopted a
Constitution that enshrines democratic values, it is important for
Courts to be supportive also in the establishment
of a human rights
of the principles of natural justice including the right to a fair
hearing as rules of universal application in decisions
rights, are important components of such a culture. In a case such as
the present where the principles of natural justice
been followed but where thereafter a clear and discriminatory
departure from these principles occurred. I believe
that it would be
right for us to exercise our discretion to grant a declaratory order.
That we have this power is clear. Although
the Appellants' Notice of
Motion did not, in clear terms, ask for a declaratory order, it
nevertheless sought an order setting
aside as constituting an
irregularity, the Respondent's decision not to allow
cross-examination of the Minister. The papers reveal
a dispute in
this matter which is sufficient foundation for a declarator. In any
event the Notice of Motion asks "for further
relief." With reference to the effect of that phrase see
Queensland Insurance Co. Ltd v Banque Commerciale
Africaine 1946 AD
272 in which at p286 Tindall J.A. refers to the Roman-Dutch practice
of construing the phrase as meaning "such
other relief as the
Court may deem best for the plaintiff." The learned judge then
said "The effect of the prayer for
"such further or other
relief as the nature of the case might require" in the English
practice seems to be the same.
reasons we have decided to issue the following
The decision of the Respondent of the 14th of October 1993. refusing
Applicants' attorney of record the opportunity of
to the witness the Honourable Minister Ntsukunyane Mphanya, who gave
evidence before the Respondent constituted
an irregularity in as
much as it prevented Respondents from receiving a fair hearing
before the Commission.
Respondent is to pay the cost of suit,"
appeal is allowed with costs and the above order is substituted for
the order decreed in the Court below.
I agree :
Delivered at Maseru this 28th day of July. 1994.
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