C OF A (CIV) NO. 28/2002
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:-
VICE-CHANCELLOR OF THE NATIONAL
UNIVERSITY OF LESOTHO 1st APPELLANT
NATIONAL UNIVERSITY OF LESOTHO 2nd APPELLANT
MATSOBANE PUTSOA RESPONDENT
Practice - hearing confined to in limine issues - judge nevertheless proceeding to deal with merits - unfair, and judgment set aside-matter not remitted; judge wrong to interdict appellants in effect from remedying earlier procedural irregularities - status of Court of Appeal directions regarding ex parte applications, urgency and certificates of urgency.
CORAM: Steyn, P
 The appellants are the Vice-Chancellor of the National University of Lesotho, and the University itself. The respondent is its bursar, and
the successful applicant in motion proceedings instituted by him against the appellants in the court a quo. That court (Hlajoane A.J.) granted a final order interdicting the appellant from excluding the respondent from his office "pending the determination of proceedings in CIV/APN/305/2001 and this application". In addition, the court granted an interdict restraining the appellants.
"from excluding the (respondent) from office, on the grounds that the intended exclusion is aimed at circumventing and rendering nugatory and of no force and effect the judgment.....in CIV/APN/248/2000"
and directed the appellants to pay the respondent's costs.
The appellants appeal against these orders on a number of grounds. Two concern issues relating to the urgency of the proceedings in the court below. The third is that the respondent failed to exhaust what are contended to be domestic remedies in terms of the National University-Order 19 of 1992 ("the Order"). Two more relate to the finding that exclusion of the respondent from his position by the appellants would be "presumptuous and pre-emptive" in relation to an audit inquiry not yet completed. The last contends that the court erred in dismissing the application after only the appellant's points in limine had been determined, and before the merits had been canvassed.
The application in the court below had been preceded by two earlier applications (CIV/APN/248/2001and CIV/APN/305/2001), both before Mofolo J. The first application - also brought on an urgent basis - sought and obtained an order setting aside a decision of the appellant "excluding" the respondent (in terms of s.16 (8) (b), read with s.16 (7) of the Order) from his office. This was in response to a written notice by the appellants to the respondent on 8 January 2001 informing him that he was being temporarily barred from entering university premises since the university had authorized a forensic audit of the bursary to be carried out. The temporary exclusion was expressly limited to completion of the forensic audit.
Immediately after the judgment in the first application was delivered, the appellants issued a fresh notice to the respondent inviting him to present reasons as to why he considered the forensic audit could reasonably proceed with him still in his office. This precipitated the second application. Evidently the appellants conceded the defectiveness of the second notice, and on 24 September 2001 Mofolo J. granted a final order setting it aside. (As the matter had become unopposed, no judgment was handed down in the second application).
On the same date the court a quo heard the present matter (the third application by the respondent against the appellants). It had been
instituted on 23 August 2001 for the relief already summarized in paragraph  above.
In her judgment in the court below, the learned acting judge echoed a finding by Mofolo J. in his judgment in the first application in the following terms:
".........under a Bursar are several mini bursars accountable to the Bursar engaged in daily transactions. Although he is responsible for overall management, he is not immediately accountable until an audit enquiry has revealed otherwise. I find the exercise by [the appellants] to have been presumptuous and pre-emptive, something this court cannot allow".
The learned acting judge continued:
"This judgment constitutes a bar to future administrative action on the part of the University to a certain extent, until an audit enquiry has revealed otherwise."
In my respectful view, the judgment and orders made by the learned acting judge are insupportable for several reasons.
In the first place, it is apparent - and counsel before us confirmed -that the hearing which preceded her judgment was confined in its ambit to the appellants' in limine defences. In effect, there was a separation of issues: full argument was heard on the preliminary issues, and none on the merits. Yet the learned acting judge purported
not merely to dismiss the in limine defences, but to deal with the merits too. She made a finding on these without hearing full argument, and issued an order dismissing the entire application, with costs.
In the circumstances she had no entitlement to do so. If the learned acting judge did not wish to be confined in her ruling to the in limine points, she should have said so in terms to counsel, and given them a proper opportunity to address the merits. In similar circumstances, CorbettC.J. said this:
"It was undoubtedly procedurally incorrect for the trial judge to have thus telescoped the proceedings and this irregularity held potential prejudice [for the parties)".
(Marsay vs Dilley 1992 (3) SA 944 (A) at 963 C-D). As a consequence, the appeal in that matter was allowed and the matter remitted for hearing before another judge.
What the court a quo did in this matter was not only in breach of basic procedural principles. It was also materially unfair. Not only at common law but as an entrenched right under the constitution (s.12 (8)), litigants are entitled to a fair hearing. In this case they were not given one in relation to the merits of the matter.
On this basis alone the judgment and orders must be set aside.
The judgment in my view cannot stand for a further reason, and one very relevant as to the order we should make on appeal.
For the reasons which follow, we (with the consent of counsel) shall not remit the matter, but deal with it further ourselves. Mofolo J. set aside the first notice because (as I understand his judgment) the audi alteram partem principle fell to be applied, but the appellants had failed to do so. Mofolo J. unfortunately does not refer to the decision of this court dealing with the scope and application of the audi principle -more particularly in the sphere of employment in the Public Service of Lesotho - in Matebesi vs Director of Immigration 1997-1998 LLR & LB 455 (LAC). Nor does he refer to this court's further judgment (applying the principles laid down in Matebesi. supra) in Selikane vs LTC 1999-2000 LLR & LB 127 (LAC). It is unnecessary to say anything further about his judgment other than that its correctness may require in due course to be considered. Whether or in what circumstances a person who is the subject of a contemplated suspension or exclusion from University premises in terms of s.16 (8) (b) of the Order is entitled first to a hearing, is a matter which I expressly leave open.
Mofolo J.'s judgment in the first application constituted in reality no "bar to future administrative action on the part of the University to a certain extent, until an audit enquiry has rewarded otherwise" as the court a quo put it. Mofolo J had identified what he considered to be a
procedural irregularity; nothing in law prevented the appellants from taking a fresh decision (and issuing another notice) premised upon the correctness of the first or for that matter, second order by Mofolo J. If, as Mofolo J considered, the first two notices were issued in breach of the audi rule or were otherwise procedurally defective, they were nullities. Orders to this effect were no bar to a new notice giving the respondent a proper opportunity to be heard.
The strategy employed by the respondent in fact was (as the appellants contended) an abuse. It resulted in a paralyzing of the appellants' ability to give effect to the two orders by Mofolo J. This appears not to have occurred to the learned acting judge.
In these circumstances, it is not necessary to deal with the further grounds of appeal, other than to note this. The discretion to allow an application to be heard on an urgent basis requires, this court has repeatedly emphasized, a discriminating exercise of judicial discretion. Important in that regard is insistence by the court of first instance on a proper case for urgency being made out in the founding papers, and that the certificate of urgency states the grounds. It is not apparent from her judgment that the learned acting judge gave a sufficiently rigorous consideration to the requirements laid down in this regard in the judgments of this court in Commander, Lesotho Defence Force vs Matela 1999 -2000 LLR & LB 13 (LAC), Molapo Qhobela vs BCP 1999 - 2000 LLR & LB 243 (LAC) and Sea Lake (Pty) Ltd
Rules. The purpose of the judgments cited in paragraph , and this one, is to make that clear. The passages in question in these judgments constitute practice directions by this Court, which are to be appropriately enforced by the High Court and this court, and which are binding on litigants and their legal representatives.
The appeal is accordingly upheld, with costs. The orders made by the court a quo are set aside and substituted by this order
"The application is dismissed with costs."
I agree. I would add, in relation to paragraphs  to , that I have consulted the Chief Justice in relation to the importance to the High Court of these matters. It is also the Chief Justice's view that our directions regarding bringing applications ex parte, urgency and certificates of urgency are important to the administration of justice in the High Court, and enjoy his full support.
Counsel for the appellants: Adv. M. Mosae
Attorney for the respondent: T. Mahlakeng & Co.