C of A (CIV) No 3 of 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
ATTORNEY GENERAL 1st Appellant
MINISTER OF JUSTICE 2nd Appellant
MINISTER OF FINANCE 3rd Appellant
MINISTER OF PUBLIC SERVICE 4th Appellant
M.S. MAKESI & 85 ORS Respondents
Held at Maseru
11,13 April 2000
Coram: FRIEDMAN, JA
On 1 June 1995 the Minister of Justice delivered a speech in the Senate in which he stated that after consultation with the Chief Justice and the Cabinet, he had decided to enhance the jurisdiction of the Central and Local Basotho courts. He explained that both the civil and criminal jurisdiction of these-courts were to be substantially increased. He went on to state that the salaries of Local Court
Presidents was to be upgraded from the grade of 6 to 7 to the grade of 8 to 9 and that Central Court Presidents who were being paid at grade 8 would be upgraded to grade 10 to 11. These upgradings were to take place in April 1996.
By 5 May 1998 the salary increases foreshadowed in the Minister's speech had not been implemented. On that date 86 Local and Central Court Presidents launched an application in the High Court, citing the Attorney General, the Minister of Justice, the Minister of Finance and the Minister of Public Service as first, second, third and fourth respondents respectively. The applicants claimed an order directing respondents to upgrade them in accordance with the Minister's speech and to pay their arrears of salary commencing from April 1996.
The application was opposed and answering and opposing affidavits were filed. On 26 November 1999 the court (Maqutu J) made the following order:
"It is ordered:
That Respondents implement the Cabinet Order of 9th May, 1995 as they are obliged to do.
It is further ordered that the budgetary machinery for putting that order of Cabinet into effect be put in operation.
Respondents are directed to pay costs".
Respondents noted an appeal to this Court on a number of grounds against the orders made by the court a quo.
For convenience the parties will be referred to as in the court a quo or by their respective titles.
t is common cause that on 9 May 1995 the Cabinet approved the upgrading of the salaries of Local and Central Court Presidents as subsequently announced by the Minister of Justice in his speech to the Senate on 1 June 1995. The Cabinet approval appears from a savingram dated 12 May 1995 from the Acting Government Secretary to the Permanent Secretaries for Justice, Finance and the Public Service. The savingram reads as follows:
"REGRADING OF LOCAL AND CENTRAL COURT PRESIDENTS
Memorandum C3 (95) 41 by the honourable Minister of Justice and Human
At its meeting on Tuesday 9th May, 1995 under "Memoranda"
Cabinet approved the review of salary grading of Local and Central Court Presidents so as to attract candidates with suitable qualifications and retain capable officers.. The grading as scheduled below, to be effective April, 1996.
Grade 6-7 Grade 8-9
Grade 8 Grade 10-12".
On 23 May 1995 following the decision of the Cabinet, the Minister of Justice, acting in terms of the powers vested in him by section 2(1) of the Central and Local Courts Proclamation, No.62 of 1938, issued a warrant increasing the jurisdiction of the Local and Central Courts with effect from 1 July 1995.
On 20 August 1996 a savingram was sent from the Department of Justice to the Principal Secretary, Public Service, stating that -
"With the concurrence of the Honourable the Chief Justice, the Minister of Justice and Human Rights conferred powers [on] the Local and Central Courts as follows".
The increases in the jurisdiction of these courts, as described above, were then set out. The savingram proceeded as follows:
"With the increased powers of the Courts Presidents, it was further decided that the position of Local Court President be upgraded from 6-7 to Scale 8-9 and that the position of Central Court President be upgraded from Grade 8 to Grade 10-12. It was intended that the upgrading be with effect from 1st April, 1996.
You are requested to formally authorise the intended changes of Grades. The variation forms are attached".
The Variation Form attached, which was signed by the Principal Secretary, Head of Department, contains a request that the Local and Central Court Presidents be upgraded in accordance with the savingram. Under the heading: "Any other Relevant Remarks", the following statement appears:
"There is need to upgrade these positions as the jurisdiction of Central and Local Courts Presidents is enhanced".
The request contained in the savingram of 20 August 1996 was not implemented. Nor has implementation occurred since that date.
The main opposing affidavit was deposed to by one Malefetsane Nkhahle, the Principal Secretary of the Ministry of Public Service who stated that he deposed to the affidavit on behalf of the respondents, duly authorised thereto.
In the opposing affidavit the following defences are raised:
The Cabinet decision of May 1995 was not immutable and has been changed.
The upgradings were matters of government policy in respect of which the jurisdiction of the courts is excluded.
As the basis of the application is a promise which has not been established, applicants cannot rely on the doctrine of legitimate expectation.
In argument before this court Mr. Makhethe, who appeared for respondents,
raised an additional defence, namely that the application had been brought as a matter of urgency and that as urgency had not been established, the application should have been dismissed.
Different consideration apply in this case depending on whether or not the Cabinet decision of 9 May 1995 was changed. Nowhere in the opposing papers is there a categorical statement that the Cabinet has changed that decision. Mr Nkhahle stated in paragraph 5 of his opposing affidavit that it was correct that the Cabinet had decided as alleged and that the Minister had made the speech in the Senate, but -
"Nevertheless, it is my respectful contention that the decision was mutable and I aver that there is evidence that it was changed by way of instituting a task force/commission that would review the whole public service employment structure, conditions of work and salary gradings".
The deponent annexed a number of documents as evidence of the general upgrading that was taking place in the civil service and went on to state that -
"The 1995 endeavour regarding applicants had to give way to a more broader concerted effort to improve the whole public service of Lesotho".
The earliest document annexed to Mr Nkhahle's affidavit dealing with this matter is dated 2 September 1996. It indicates that a firm of consultants selected and funded by the British Government was due to arrive in Maseru on 15 September 1996 in order to commence a review of salaries in the civil service. The exercise was expected to be completed by December 1997. According to Mr Nkhahle's affidavit which was deposed to on 3 June 1998, the final report of the consultants was "very recently" submitted to the Cabinet for its consideration.
These documents are relied on by Mr Nkhahle as "evidence" that the Cabinet decision of 9 May 1995 was changed. In the absence of an explicit statement that the Cabinet has changed its decision, respondents were obliged to rely on an implication to that effect, based on the documents annexed to the opposing affidavit. In my judgment this is not a necessary implication. The establishment of a task force to review civil servants' salaries is not inconsistent with the earlier Cabinet decision to upgrade the salaries of applicants. Had effect been given to the Cabinet decision of 9 May 1995 applicants would, by the time
the general salary review started, have been in the higher grades provided for in the Cabinet decision and their salaries would then, like those of all civil servants, have been subject to review by the commission.
In any event the documents and correspondence annexed to applicants' founding affidavit show that this was in fact the attitude of the government.
In a letter dated 28 September 1997 addressed by the Senior Resident Magistrate of Maseru to the Permanent Secretary, Justice, reference is made to a discussion concerning applicants' upgrading at a meeting held on 24 September 1997 at which "D.P.S. (Deputy Principal Secretary) Mr Ralitsie" stated that he did not know anything about the matter. However, the letter continues:
"Mr Ralitsie re-visited the matter again on 25-09-97 at 2:15p.m. His findings were as follows:
He found a copy of the speech by the Hon. Minister of Justice Mr. Maope, where the question of up-grading of scale appears/is reflected, and where the commencement date of the upgrading is shown as 01-04-96, and whereupon Hon. Mr. Maope confirmed that
the matter has been passed by Cabinet
He had just met the Hon. Minister of Justice and the Principal Secretary who had told him that the decision on upgrading still stands".
On 11 November 1997 the Chief Justice wrote to the Principal Secretary, Justice, reiterating the dissatisfaction of the Court Presidents at the Government's failure to implement their upgradings. The Chief Justice stated:
".............in July, 1996 at C.T.C. you informed them that their salaries were being processed. Again in November, 1996 you made the same promise that the salaries were being processed".
These statements are not denied. The answer in the opposing affidavit is simply that the correspondent shows that this is a Government policy decision for the Government to deal with as it deems fit.
Although the date on which the decision to undertake a general review of civil servants' posts and salaries was taken, does not appear from the papers, the
uncontradicted statements in the correspondence referred to above were made subsequent to that decision which was taken on an unspecified date but at any rate prior to 2 September 1996.
In the circumstances the statement in the opposing affidavit that "there is evidence that (the decision) was changed" is not supported by the evidence. It is also not without significance in this regard that none of the three ministers who were cited as respondents has gone on oath as stating that the Cabinet has changed its decision.
This appeal must accordingly be approached on the basis that the Cabinet decision remained unchanged. I interpose here to point out that had that not been the case i.e. had the Cabinet reversed its decision, applicants would have been entitled to contend that they had a legitimate expectation that the decision would not be altered without affording them a hearing. They were not given a hearing. Consequently, had the decision been changed, applicants would have been entitled to have the decision to reverse the earlier decision set aside and an order that it be reconsidered after having given applicants a fair hearing on an issue which clearly adversely affected their rights. See Attorney General of Hong Kong v. Ng Yuen Shiu  2 All ER 346 (PC).
I pass on to deal with the next defence raised by respondents, namely that this is a matter of government policy in respect of which the court's jurisdiction is excluded.
Respondents' counsel submitted that the power to make a decision or to declare a policy includes the power to cancel it or to withhold its implementation. There can be no dispute that a policy-maker is entitled to change policy decisions. The importance of an unfettered power to change policy has been stressed. See Hughes v. Dept. of Health and Social Security  AC 776 at 788. But this does not mean that the power of the courts to intervene in appropriate circumstances has been removed. As Sedley J stated in R v. Ministry of Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd.  2 All ER714 at 731 c-d:
"While policy is for the policy-maker alone, the fairness of his or her decision not to accommodate reasonable expectations which the policy will thwart remains the court's concern (as of course does the lawfulness of the policy)".
The learned judge continued at 731 d-e:
"..........it is the court's task to recognise the constitutional importance of ministerial freedom to formulate and to reformulate policy; but it is equally the court's duty to' protect the interests of those individuals whose expectation of different treatment has a legitimacy which in fairness outtops the policy choice which threatens to frustrate it".
Although these statements were made in the context of a legitimate expectation situation, they serve to illustrate the point that there are limitations on the power of a policy maker to change policies. This was emphasised by Lord Denning MR in Reg, v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators Association  2 All ER 589 (CA) at 594 where he stated that a person or public body entrusted with powers for public purposes, cannot divest themselves of those powers e.g. by contract.
However, Lord Denning went on to point out that -
".........that principle does not mean that a [public] corporation can give an undertaking and break it as they please. So long as the performance of the undertaking is compatible with their public duty, they must honour it".
See also Craig: Administrative Law, 3rd ed 672-675.
14 In the present case there has not been a mere expression of policy, for example that the government intended to increase the jurisdiction of certain courts and to upgrade judicial salaries. A decision was taken by the Cabinet to increase the jurisdiction of certain specified courts and to upgrade in a specified manner the salaries of the judicial officers who function in those courts . But the matter does not rest there. On 20 August 1996, pursuant to the Cabinet decision, a specific request was directed by the Department of Justice to the Principal Secretary, Public Service, to give effect to the decision which was to come into operation on 1 April 1996. Save for the contention that the Cabinet decision was changed, which, for the reasons stated above, I have found to be devoid of substance, there is no explanation from the respondents as to why this direction was not carried out.
In these circumstances there is no reason why the aid of the court should not be invoked in order to ensure that effect is given to the Cabinet's decision and to the direction for its implementation contained in the savingram dated 20 August 1996, provided, of course, that implementation would be intra vires the person responsible therefor. It is to that question that I now turn.
Section 154 (3) of the Constitution provides as follows:
"(3) In this Constitution, unless the context otherwise requires, reference to an office in the public service shall be construed as including references to the office of a Judge of Court of Appeal, of a Judge of the High Court and the office of a member of any subordinate court or tribunal (being an office the emoluments attaching to which, or any part of the emoluments attaching to which, are paid directly out of the monies provided by Parliament) but shall not be construed as including references to the office of assessor in any court".
In section 154 (1) "subordinate court" is defined as meaning -
"Any court of law established for Lesotho other than -
The Court of Appeal;
The High Court;
A Court Martial; and
A tribunal exercising a judicial function".
"Public office" is defined in section 154 (1) as "any office of emolument in the public service" and "public officer" is defined as "a person holding or acting in any public officer".
Local and Central courts are therefore subordinate courts. Moreover, the judicial
officers who preside in those courts, which include the present applicants, in accordance with section 154 (3) of the Constitution, hold offices in the public service, i.e. they are public officers as defined in section 154 (1).
In terms of the Public Service Order 1970, Order No.21 of 1970, a "public officer" means a person holding any public office and "public office" means any office in the public service. These definitions are the same as those in the Constitution.
Section 4 of the Public Service Order 1970 gives the Minister responsible for the public service the power to -
"make, alter or revoke provision for all or any of the following matters by means of rules or regulations published in the Gazette, or by other means:-
(viii) Scales of salaries, wages and allowances .... of classes and grades of public officers".
By section 40 of the Public Service Act 1995, Act No 13 of 1995, the Public
Service Order 1970 was repealed but the regulations made under the repealed
Order remain in force until repealed by regulations made under the Act.
The provisions of the 1995 Act in so far as the powers of the Minister are concerned, do not differ from those of the 1970 Public Service Order. Thus in terms of 9 (2) the Minister responsible for the Public Service is empowered to make provision for, inter alia:
"(iii) the number and grading of public officers; and (iv) scales of salaries of all classes and grades of public officers".
"Public office" and "public officer" have the same meaning as in the Constitution.
It is clear from the legislation referred to above, including the Constitution, that the power to implement the Cabinet's decision is intra vires the Minister responsible for the Public Service. It follows, for the reasons set out in this judgment, that his failure to carry out that decision is unlawful and that the court has the power to enforce compliance by means of a mandamus. See Wade & Forsyth: Administrative Law, 7th ed. 657; De Smith, Woolf & Jowell: Judicial
Review of Administrative Action, 5th ed. Paras 4-002; 4-031.
That disposes of the defences raised in the opposing papers. To sum up, my findings on those defences are as follows:
Respondents have not established that the Cabinet decision was changed.
As the Cabinet decision has not been changed, questions of legitimate expectation do not arise.
The Court's jurisdiction to enforce compliance with the Cabinet decision and the direction that it be carried out, has not been excluded.
I pass on now to deal with the submission by respondents' counsel that the application should not have been brought as a matter of urgency. It is correct that the application should not have been launched as a matter of urgency. However, it was not dealt with on that basis in the court a quo. Ample opportunity was given to respondents to file opposing affidavits. Moreover no one was projudiced by the
fact that the application was wrongly brought as one of urgency. In the circumstances this is not a ground on which this Court should set the application aside.
For the these reasons the appeal is dismissed with costs.
JUDGE OF APPEAL
I agree :
JUDGE OF APPEAL
JUDGE OF APPEAL
For Appellants - Mr. Makhethe
For Respondents -Mr Mosae