CIV/APN/418/04
IN THE HIGH COURT OF LESOTHO
In the Matter Between:
MAMPHO MOFOLO APPLICANT
And
MINISTER OF HOME AFFAIRS 1ST RESPONDENT
COMMISSIONER OF POLICE 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
JUDGMENT
Delivered by the Honourable Ms Acting Justice N. Majara
on 14th January 2005
Applicant herein approached this court on an urgent basis for relief in the following terms:
A rule nisi be issued returnable on the date and time to be determined by this Honourable Court, calling upon respondents to show cause if any, why:
The ordinary rules pertaining to periods and mode of service shall not be dispensed with on account of urgency of this matter.
An order shall not be made declaring the applicant purported compulsory retirement from the Police Service null and void.
An order shall not be made reinstating applicant to her position in the Lesotho Mounted Police Service.
An order shall not be made declaring respondents’ failure to give applicant reasonable notice of the intention to retire her compulsorily an illegal act.
Respondents or their servants shall not be restrained and interdicted from withholding applicant’s salary pending the finalization of this application.
Alternatively, directing the respondents to determine and pay applicant’s pension as if she retired at the age of 55 years.
Respondents shall not be directed to pay costs of this application.
Granting applicant further and or alternative relief.
Prayers 1 (a) and (e) operate with immediate effect as
interim relief.
On the 3rd September 2004, the application was granted as prayed by my brother, His Lordship Mr. Justice S Peete and the rule was made returnable on the 17th September 2004. On the return date, the matter was further postponed and placed before me on the contested roll .
On the 25th October, the matter was duly argued before me and both counsel for applicant, Mr Phoofolo and counsel for respondent, Mr Putsoane had filed their Heads of Argument for which this court is greatly indebted to them. Before presenting applicant’s case, Mr Phoofolo moved the court to amend the Notice of motion by adding Minister of Home Affairs as 1st respondent and moving the other respondents down so that the initial 1st respondent now became 2nd respondent and so on and so forth in sequence. Mr Putsoane had no objection to this amendment and the court accordingly granted it.
The facts that brought about this application are common cause and both counsel addressed the court on points of law only. A brief summary of the facts is that prior to this application, applicant in casu, was under the employ of the Government of Lesotho on permanent and pensionable terms as Inspector with the Lesotho Mounted Police
Service and was stationed at C.I.D Division at Maputsoe Border Police Station having been first appointed in April 1975. She however only became permanent and pensionable after the 10th August 1984 as will appear more clearly at a later stage.
After a series of transfers and promotions within the Police Service, in the year 2001, applicant was transferred to Maputsoe C.I.D. where she became Second in Command. This was the position until on the 17th June 2004 when she got hold of a wireless message which was communicated to all stations and addressed to one Superintendent Sehlabo instructing him to make his subordinates aware that per the provisions of Regulation 3 (b) of LMPS Administration Amendment Regulations 2004 officers aged 50 years were to be retired. The wireless message was attached in the court’s file and marked annexure MM 1.
Subsequent to this wireless message, applicant received another wireless message form, instructing the Officer Commanding Maputsoe to inform her that she should proceed with leave with effect from 23rd July 2004 to 24th November 2004. This message was also attached and marked annexure MM 2 in the court’s file. The said message was followed by a formal letter from 2nd respondent informing applicant of her compulsory retirement with effect from 24th November 2004. This letter was also attached in the court’s file and marked annexure MM 3.
It was on the basis of these three documents that applicant approached the court for relief. Applicant’s case was that her compulsory retirement is not valid as she ought to be properly retired at the age of 55 years by operation of law like other public servants as per the provisions of Section 30 (1) of the Public Service Act 1995 and not by 2nd respondent (The Commissioner of Police).
It was Mr Phoofolo’s contention that when she approached this court applicant’s case was based on the provisions of Regulation 3 (b) of the Lesotho Mounted Police Service (Administration) (Amendment) Regulations 2004 which is the regulation under which she was purportedly being compulsorily retired. He argued that respondents have not denied that applicant was not given a hearing before her compulsory retirement as per the provisions of Regulation 3 (b) and that they should not be allowed to make a new case by claiming that applicant was retired erroneously per Regulation 3 (b) instead of per Regulation 3 (a).
He based his argument on the grounds that initially, 2nd respondent made two wireless messages (Annexures MM 1 and MM 2 respectively) wherein he quoted Regulation 3 (b). These were then followed by the letter retiring applicant (Annexure MM 3) confirming previous notification under the same regulation. Applicant then obtained an interim interdict against respondents under those circumstances following which respondents purported to correct the “erroneous” quoting of the regulation.
It was Mr Phoofolo’s further contention that respondents had not made any mistake but instead were playing tricks and trying to build a new case upon their realization that their acts were of no substance and were as such, null and void.
Mr Phoofolo’s submission was that applicant in casu had a legitimate expectation arising from both practice and promise. The main basis of this submission was that prior to the promulgation
of the Lesotho Mounted Police Service Regulations 2004 the practice was that all public servants were compulsorily retired at the age of 55 years. Applicant therefore legitimately expected
that this should also apply in her case.
He submitted further that applicant’s legitimate expectation arose from promise. The basis of this submission was previous communication from the Ministry of Public Service to all public servants in the form of circulars which changed the employment contracts of married women from temporary terms to pensionable terms effective from 10th August 1984. These circulars were attached and marked MM 14 and MM 15 respectively. The said communication is common cause.
In so far as the contractual terms were varied and are relevant to the case at hand, MM 15 in its first, second and third paragraphs was couched in the following terms:
“It is hereby notified for information of all Officers that the Government has sanctioned the appointment of married female officers on pensionable terms since 10 August 1984.
It is to be noted that variation of terms of appointment from temporary to pensionable status is optional….
The advantages of a pensionable appointment include payment of gratuity together with full/reduced pension upon retirement on option at age forty-five (45) or compulsory retirement at the age of fifty-five (55).” (my underlining).
In response, respondents’ case was that although when applicant joined the Police Service in 1975, the age of compulsory retirement for all police officers was 55 years and 45 years for early retirement, this was not so in terms of any specific provision of the law, but by practice. They argued that the compulsory age of retirement for subordinate police officers was only fixed by law to be 50 years in May 2004 per the Lesotho Mounted Police Service (Administration) (Amendment) Regulations 2004 contained in Legal Notice NO.95 of 2004. They argued that because applicant holds the rank of Inspector, she was a subordinate officer as per the definitions section and
therefore the regulations (as amended) applied to her.
Mr Putsoane submitted that although applicant contended that she was being retired by 2nd respondent, this was not the case and she was being retired in terms of the law. He argued that the letter, MM 3 was simply a reminder of the legal position which would still apply even in its absence.
With regard to the applicable regulation, Mr Putsoane submitted that although Regulation 3 (b) was quoted in MM 1, the wireless message, that message was a general one within which the wrong regulation was quoted. He argued that too much reliance should not be placed on a wireless message which may not have been accurately translated. He argued further that in both MM 2 and MM 3, the latter being the one concerning applicant, there was no mention of a specific regulation.
Before dealing with the issue of legitimate expectation which is the main question to be determined by the court in casu, I decided to first deal with the issue of the regulation according to whose provisions applicant was compulsorily retired.
On the one hand, applicant argues that she was retired under the provisions of Regulation 3(b) as per the two wireless messages and the subsequent letter. It is her case that respondents should not be allowed to plead error in quoting that regulation because as per her argument, when she approached the court her case was based on the provisions of that particular regulation, and that she was granted interim relief on its basis.
On the other hand, respondents are saying that too much reliance should not be placed on that regulation because as they allege, it was wrongly quoted and this was only with regard to the first wireless message. Their case is that the second wireless message and the letter directed to applicant made no mention of any specific regulation.
When applicant first approached this court on an urgent basis, her case was based on the three documents namely, MM1, MM2 and MM3 respectively. The court granted her the interim order on the basis of that regulation, that is, Regulation 3(b). The regulation provides as follows:
“The Commissioner may, having regard to the conditions of the Police Service and after consultation with the Police Authority, retire a member of the Police Service before or after the member concerned-
in the case of a senior officer, attains the age of 55 years; and
in the case of subordinate officer, attains the age of 50 years.”
Regulation 3(a) on the other hand provides as follows:
“by deleting the age “45 years” and “40 Years” in subsection (1) and substituting the ages “55 years” and “50 years” respectively;”
The effect of this above amendment is that it changed the age of retirement as is provided for under Section 11 of the principal Regulations 2003. This regulation does not provide for any conditions under which a police officer might be retired. It simply stipulates the age of retirement.
Mr Phoofolo contended that as per the provisions of Regulation 3 (b), applicant ought to have been given a fair hearing before being compulsorily retired. I agree with this contention. It would not be fair for the court to allow respondents to change their stance at this stage. This is especially so in the light of the fact that as per the Regulations, a police officer can be retired under either of the two. Therefore, to allow a decision maker to wait until after an employee has approached the court and been granted an interdict and only then purport to make a new case would be a grave injustice to such an employee.
Even Mr Putsoane’s argument that the subsequent two documents, to wit, MM 2 and MM 3 respectively did not specifically quote the relevant regulation is not quite correct. It is just a splitting of hairs. This is because the later documents were a follow-up to the earlier one which had specifically quoted Regulation 3(b) and this having been the case, logic dictates that they were written and communicated on the strength of that regulation. This is especially the case when one takes into account the gravity of the effect of the documents. Applicant, inter alia, was being compulsorily retired at an age that she is challenging, a factor which cannot be taken lightly considering its potential
consequences on a person losing a job by allowing the other party to simply change it at this late stage in the course of events.
Things would be different if rectification of the purported error had happened at an earlier stage, either during the communication of one or both of the later documents, or at least before applicant approached the court and obtained an interim order. As matters now stand, I do not think that it would be fair for the court to allow respondents to change their stance at this stage. I am therefore going to deal with this case on the basis of the provisions of Regulation 3 (b) as amended.
It was applicant’s case that on the strength of Regulation 3(b), she ought to have been afforded a hearing before she could be forced to go on compulsory retirement because the principle of natural
justice and fairness so dictate.
In addressing this point, I went through the wording of the regulation, and my understanding of it is that it is a discretionary regulation which empowers the Commissioner to retire a member of the Police Service before or after the member concerned attains the prescribed age of retirement, having regard to the conditions of the Police Service, and after consultation with the Police Authority. In my opinion, this is a classical situation which called for the application of the principle of procedural fairness. Applicant therefore, ought to have been afforded the opportunity to make representations which should have been taken into account before a decision could be made.
In the case of Premier, Mpumalanga v Association of State Aided Schools 1999 (2) SA 91 when considering the issue of procedural fairness, the Constitutional Court stated that the respondents therein had not been given the opportunity to restructure their contractual obligations in the light of the diminished income they would be receiving as a result of the retroactive termination of their bursaries.
In casu, applicant’s counsel also raised the issue of legitimate expectation on the part of applicant that she would remain in the
police service and only go for compulsory retirement upon attaining the age of 55 years.
The concept of legitimate expectation is not a novel one in our courts. Several decisions have already been made wherein this concept was dealt with at length. See the case of Lebohang Monyobi v Minister of Justice and Prisons & Ors 1997-1998 LLR & LB p 155. The concept derives its origins from the English Law and has since its inception been applied in a number of jurisdictions and has as such become part of the rules relating to natural justice. It is usually applied, but not necessarily limited to cases where an administrative decision is likely to negatively affect an individual’s existing rights. It is based on the principle of procedural fairness.
In the case of Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 731 at 748 the concept was considered by Corbett CJ in the appeal against the decision of the Witwatersrand Local Division, wherein the learned
judge stated that the rules of natural justice viz, the audi alteram partem principle dictates that;
“When a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights, the latter has the right to be heard before the decision is taken (or in some instances thereafter...) unless the statute expressly or by implication indicates the contrary.
When applying the tenets of this principle (audi alteram partem) in that case, the learned judge held that the principle did not apply for the reason that respondents’ liberty was not affected nor did the refusal to appoint them affect any existing rights i.e. that they ought not to have been afforded a hearing before the decision whether or not to appoint them could be made. However, the learned judge went on to consider the principle of legitimate expectation which many decisions of the House of Lords in England have accepted as an integral part of the rules relating to natural justice. The judge quoted with approval Prof Robert E Riggs in his 1988 article published in 36 American Journal of Comparative Law wherein the latter stated as follows:
“…As these cases teach, a person whose claim falls short of legal right may nevertheless be entitled to some kind of hearing if the interest at stake rises to the level of a “legitimate expectation”. The emerging doctrine of legitimate expectation is but one aspect of the “duty to act fairly”, but its origin and development reflect many of the concerns and difficulties accompanying the broader judicial effort to promote administrative fairness….”
In applying this principle, it was held that although respondents were not entitled to be heard before the decision not to appoint them could have been taken, the case nevertheless exhibited certain distinctive features which took it out of the general rule. The question of a practice which had existed for decades (my underlining) in terms of which an application for the post of SHO carrying the recommendation of the departmental head had
invariably been granted by the director was held to be an especially significant feature necessitating a fair hearing.
In casu, Mr Phoofolo contended that before the coming into being of the Police Service Regulations 2003 and the subsequent amendment, applicant, (as well as other police officers) had been treated as a public officer as per the provisions
of the Public Service Order 1970. He submitted that all public officers could only retire either voluntarily at the age of 45 or compulsorily upon attainment of 55 years.
He argued further that this long standing practice had created a legitimate expectation on the part of applicant that she would only retire compulsorily when she reached 55 years. As a result, applicant had planned her life on the basis of this expectation.
In response to this submission, Mr Putsoane argued that although the amended Lesotho Mounted Police Regulations are retrospective in character, thereby affecting existing contracts of employment under which the compulsory age of retirement was 55 years, there is no rule of law that prevents the legislature from passing a law that is retrospective if such a law does not prejudicially affect vested rights.
It was Mr Putsoane’s further contention that although he concedes that police officers were compulsorily retired at 55 years as per practice, applicant had not acquired a right either by contract or by statute to remain in employment until the age of 55 years. He argued that the said practice whereby police officers were compulsorily retired at 55 years was not fixed under the Police Order 1971 which was repealed by the Police Service Act 1998 hence why the legislature saw it fit to do away with it. He contended further that the state has a right to pass legislation in
circumstances where no specific law was applicable but only practice was followed.
In his supplementary heads of argument Mr Phoofolo submitted that it is not correct to say the age of retirement was not fixed under any law because as per his contention, up until the 2003 Police Service Regulations were passed, all police officers had been governed by the Public Service Order under whose provisions police officers were retired.
The question therefore which this court has to determine is whether prior to the coming into being of the said regulations and the amendment thereof applicant had acquired any right to be compulsorily retired at the attainment of fifty- five years and if so from where did she derive such a right?
It is common cause that before the promulgation of the Police Service Order and its subsidiary pieces of legislation, police officers used to be treated like other public servants under the Public Service Order 1970 and the Pensions Act of 1964.
This court therefore does not agree with the contention that police officers were retired per practice which was not based on any legal provision. Such a suggestion is in my opinion wrong. This is because I cannot envisage a situation where any contract of employment of a public officer can be based in a vacuum. It has to derive from some law. The fact that there was no such provision in the Police Order 1971 or in the Police Service Act 1998 does not mean that police officers’ retirement was not based on any law. The said practice derived from a law which was in operation at the material time i.e. the Public Service Order 1970. It is my opinion therefore that it was under the provisions of Section 12 (1) of the Public Service Order that police officers (who were then treated as public officers) were retired. This is strengthened by the existence of annexure MM 15, the 1984 communication from the Ministry of Public Service addressed to all public servants, applicant included). The section provides as follows;
“Subject to the provisions of the other subsections of this section, a public officer shall have the right (my underlining) to retire from the public service, and shall be so retired, on attaining the age of fifty-five years.”
As per the above provisions, police officers (who were then public officers) were compulsorily retired at the age of 55 years and this was the case until only sometime in the year 2004 when this position was changed by the amendment to the 2003 Police Service Regulations.
Under the law, applicant, being a public servant has no enforceable right at private law. Yet, her right stems from a legitimate expectation that she would go for compulsory retirement upon attainment of 55 years of age as had been a long established practice. In the Traub case (supra), Corbett J stated that the established practice therein had created legitimate expectation on the part of respondents and that where this has been established, the audi alteram partem principle applied. The learned judge quoted with approval Lord Denning MR in the case of Schmidt and Another v Secretary of State for Home Affairs (1969) 1 All ER 904 (CA) where he referred to the decision of the House of Lords in Ridge v Baldwin and Others (1963) 2 All ER 66 (HL) where it was stated as follows;
“… that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, (my underlining) or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”
On the basis of this statement, it would therefore be incorrect to hold that as per Mr Putsoane’s submission, a legitimate expectation is not a right or cannot be equated to a right. As per the above quotation, the House of Lords
actually declared that legitimate expectation can be equated to a right or interest in certain circumstances.
It is therefore by the same analogy that, in casu, before the amendment could have been made, applicant ought to have been given a hearing because the decision prejudicially affected her right/legitimate expectation. See also the remarks of Honourable Mr Justice Maqutu in the case of Tsolo Makhetha v Ministry of Public Service and Another in CIV/APN/277/96 p538 to wit;
“The employment of public servants can be terminated at will and they have no enforceable rights at private law. Yet like all people in similar situations, their rights as employees like all people who deal with the crown in the realm of public law are equated to a legitimate expectation.”
In addition, in the House of Lords decision in the case of Council of Civil Service Unions and Others v Minister for the Civil Service (1984) 3 All ER 935 it was stated that;
“But where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate
expectation of receiving the benefit or privilege, and, if so, the Courts will protect his expectation by judicial review as a matter of public law…. Legitimate or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue (my underlining)….”
On the basis of the above position, in casu, the established practice had all along been that the age of compulsory retirement was 55 years and applicant had as such planned
her life with this knowledge/expectation in mind.
Mr Putsoane’s contention that the intention of the legislature in enacting these regulations was that police officers holding junior positions should be relatively young and active so that once they get old but are still holding junior positions, they should retire as they are no longer active and cannot meet the demands of such positions, does not in my opinion detract from the duty of 1st respondent to have afforded applicant a fair hearing because of the prejudicial effect of the amended regulations upon her right/interest
(not to mention that even his argument is debatable). See the case of Koatsa v The National University of Lesotho 1991-1992 LLR/LB p163. Might I add that this duty is not limited to administrative bodies but extends to all public authorities. See the Traub Case (supra) p 759 B and 763 G-J .
The issue of the retrospective nature of the amended regulations was also raised by both counsel and I now proceed to deal with it. In my opinion this issue is two-pronged. The one aspect is in relation to the issue of retrospectivity of a principal legislation itself and the other is in relation to the question of retrospectivity of subsidiary/delegated legislation.
With regard to the first one, it has been stated that though not cast in stone, retrospective administrative decisions are inherently unfair hence the need for the courts to intervene on behalf of an individual where the effect of such legislation would prejudicially affect her rights. But because of the need to strike a proper balance between protecting such rights and ensuring that government is not impeded from making and implementing policy effectively, courts have been warned to tread cautiously when dealing with this question so as to avoid undue judicial interference. See the decision of the Constitutional Court in the Premier, Mpumalanga’s Case (Supra) p107 wherein the statement of Corbett J in the Traub’s Case (Supra) was quoted with approval.
In casu, it is common cause that when the amended regulations came into effect, applicant’s contract of employment was already in
existence. Mr Putsoane’s contention was that regardless of this factor, there is no rule of law that prevents the legislature from passing a law that is
retrospective. His submission was that the general rule against retrospective application of a statute is only applicable where the retrospective operation of the law will prejudicially affect vested rights. He contended that applicant in casu, did not have a vested right because a legitimate expectation in not a right and as such is not protected by this general rule.
In response, Mr Phoofolo submitted that the legislature cannot be allowed to pass a law which operates retrospectively because that would be unfair and
unreasonable. I agree with this latter contention on the strength of the Premier, Mpumalanga’s Case (Supra) as already shown above.
With regard to issue of delegated legislation, although there appears to have been some reluctance on the part of the courts to review an administrative decision purely on the ground of its unreasonableness, as per the case of Kruse v Johnson (1898) 2 QB 91, it has been established that unreasonableness is a ground for judicial review as stated in Baxter’s Administrative Law P478-479.
In casu, Mr Phoofolo argued in his supplementary heads that the fixing of applicant’s retirement age was done by delegated legislation. His submission was that Parliament had neither expressly nor impliedly authorized the Minister to make such a regulation.
The relevant provision that empowers the Minister to make regulations is Section 84 of the Police Service Act 1998 which repealed the Police Order 1971. The section provides as follows:
(1) The Police Authority may, after consultation with the Commissioner and, in respect of matters concerning pay, allowances, pensions (my underlining) and compensation for death or injury on duty, the Minister responsible for the Public Service and the Minister of Finance, make
regulations relating to the government, administration and conditions of service of the Police Service.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision with respect to all or any of the following matter-
(a) the ranks to be held by police officers;
(b) the qualifications for appointment and promotions
of police officers;
(c) the definitions of offences against discipline and the
penalties therefore;
(d) pay, allowances and leave entitlement of police officers;
(e) pensions and compensation for death or injury while on duty; and
(f) the issue, use and return of police uniform, equipment and accountrements;
Provided that Regulations in relation to appointments and promotions shall provide that all such appointments and promotions shall be on the basis of merit.
As can be clearly seen, nowhere in the regulations has the Minister either expressly or impliedly, been authorized by Parliament to make regulations relating to the age or retirement of Police Officers. It has been stated in a plethora of authorities that powers under delegated legislation should be
exercised in accordance with the terms of the delegated or derived authority and that Courts of law, as a general rule, will not give effect to the rules, etc., thus made unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. See Sir Charles E. Odgers in Craies on Statute Law 5th Edition p273.
In casu, it was not respondents’ case that the Minister had the express or implied powers to so legislate. Nor is there anywhere in the Police Service Act 1998 that such powers are spelt out. Section 84 specifically provides for those issues for which the Minister(s) can make regulations as I have already quoted above and retirement is not one of them.
It has already been established that the regulations in issue are retrospective in nature. This being the case, should this court then allow them to affect existing rights? The answer has to be in the negative. This is because there is a rebuttable presumption against retrospectivity of laws, unless such was clearly the intention (my underlining) of the legislature. The rationale behind this presumption has been stated as being to ensure that justice is done
to the individual so that such a law does not interfere with his/her existing rights and obligations. See G E Devinish in Interpretation of Statutes p186-187.
See also the South African decision in the case of Pretorious v Minister of Defence 1981 (1) SA p1174.
As I have already stated, legitimate expectation has been equated with rights and/or interests of an affected individual. Applying this trite principle in casu, respondents cannot be allowed to interfere with applicant’s existing rights, to wit, to remain in the police service and not be forced to go on compulsory retirement before she has attained 55 years of age.
Another issue which was raised by Mr Phoofolo was that of the constitutionality of the amended provisions. However, this issue was neither raised in the affidavits, nor was it canvassed during argument. Applicant’s counsel only raised it in his supplementary heads of argument and respondents did not have the opportunity to argue it. For that reason, this court will not deal with it in casu.
In his heads of argument, Mr Putsoane also raised the issue of applicant having applied for the amendment of the citation of parties, by deleting Minister of Public Service. He argued that by so doing, respondents believed applicant to be abandoning the allegation that the Public service Act 1995 is applicable to her.
Indeed in the Notice of Amendment which was filed on the 27th September 2004, applicant had stated as follow:
“KINDLY TAKE NOTICE THAT the applicant intends to amend the citation of the parties as follows:
By deleting the first respondent, Minister of Public Service and substituting him with Minister of Home Affairs as the first respondent.
TAKE (sic) FURTHER THAT if no objection is made in writing within fourteen days after delivery of this notice, the citation of the parties shall be deemed to be so amended.”
At the start of his case, Mr Phoofolo did apply for the amendment of the citation of the parties in his application which this court recorded, to wit, that the Minister of Home Affairs be inserted as 1st respondent and that the rest of the respondents be moved downwards so that the initial 1st respondent became 2nd respondent and so on and so forth down the line. In other word, he applied to amend his initial amendment so that instead of deleting
1st respondent, he was now including the Minister of Home Affairs. Mr Putsoane had no objection to this new amendment and the court granted it as it did not seem to be potentially prejudicial to any of the parties. I do not know if he could have thought the amendment was still as it had appeared in the notice of the 27th and therefore on the strength of that, did not raise any objection. Whatever the case may be, the court granted the amendment as it was moved from the bar and not objected to on the date of hearing. This contention cannot therefore be upheld by the court.
It is for all the above reasons that the application is granted as prayed with costs.
N. MAJARA
Acting Judge
For Applicant : Mr Phoofolo
For Respondents : Mr Putsoane
23
