C of A (CIV) No. 14 OF 2003
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
LESOTHO TEACHERS TRADE UNION (L.T.T.U.) APPELLANT
TEACHING SERVICE DEPARTMENT FIRST RESPONDENT
PRINCIPAL SECRETARY - FINANCE SECOND RESPONDENT
ATTORNEY-GENERAL THIRD RESPONDENT
Held at Maseru on 7 October 2003
The main thrust of appellant's case in this matter is that its members arc entitled to the same stop-order facilities which have admittedly been granted to those of its rival association known as Lesotho Association of Teachers (L.A.T.). The case commenced by way of a notice of motion before Nomngcongo A.J. in the court
below. The prayers sought were simply couched in the following terms:-
Directing 1st and 2nd Respondents to extend stop-order facilities to Applicant's members for repayments of loans.
Granting Applicant costs of this application.
Granting Applicant such further and/or alternative relief this Honourable Court shall deem fit."
On 12 June 2003 Nomngcongo A.J. dismissed the application with costs but regrettably gave no reasons for so doing other than a skeletal two-page document styled"Ex Tempore Judgment" consisting of 14 lines only. The appellant has accordingly appealed to this Court but before considering the merits of the appeal it is imperative, in my view, to deal with the learned Judge a quo's failure to give reasons as this is an issue which has perturbed this Court for a long time now. A few examples will suffice.
 In Rex v Tseliso Masike C of A (CRI) No. 7 of 2002 (unreported) this Court had occasion to slate the following remarks at page 3 thereof concerning failure
to give reasons:
"On16 August 2002 the High Court (Peete, J) upheld the appeal against the conviction and accordingly ordered the return of the firearm in question to the
respondent. The appeal fee and the fine in question were also refunded to the respondent. Regrettably the learned Judge a quo advanced no reasons for his order. This, despite several warnings by this Court strongly deprecating the failure by judicial officers to provide reasons, something which can only bring the justice system into disrepute. See for example Mpho Hlalele & Another v DPP- C OF A (CRl) No.12 of 2000 (unreported) where Steyn P (Ramodibedi and Van den Heever JJA concurring) expressed himself in the following terms;
"The failure by both Courts to give reasons for their decisions is particularly reprehensible. See in this regard Molapo Ohobela v B.C.P. - C of A 8 of 2000 (unreported). See also S v Immelman 1978 (3) S.A. 726 at p.729 (A) where Corbett JA says the following:
'The absence of such reasons may operate unfairly, as against both the accused person and the State. One of the various problems which may be occasioned in the Court of Appeal by the absence of reasons is that in a case where there has been a plea of guilty but evidence has been led, there may be no indication as to how the Court resolved issues of fact thrown up by the evidence or on what factual basis the Court approached the question of sentence.'"
 Similarly, in Attorney-General and 5 Others v Mantsane Tsoloane Bolepo and 29 Others C of A (CTV) No. 8 of 2002 (unreported) this Court expressed its concern in the following terms at page 3 thereof:
"On 20 March 2002 this order, with interest and costs, was granted by Monapathi J. The learned judge undertook to amplify his "ruling" with "full reasons/1 One notes, with grave concern, that they have not been furnished."
As long ago 1968 Lord Denning MR, in the Court of Appeal in England,
held in Padtield v Minister of Agriculture. Fisheries and Food 1968 (1) ALL ER694 (also reported in1968 AC 997) that failure to give reasons may justify the court to infer that there are no good reasons. That was admittedly said in the context of an administrative decisions but the principle laid down therein is, in my view, equally valid for decisions of courts of law.
 I have had occasion in the past to say something on this subject and it is with regret that I have to return to it. It has come to our attention in the Court of Appeal that there are judges in the High Court ,who fail, sometimes even often fail, to produce reasons lor their judgments. In such cases appeals in the Court of Appeal are heard without the benefit of reasons. Quite obviously such a practice cannot be deprecated strongly enough as it is not only unethical but it also leads to a perception that judges give arbitrary decisions which are not supported by any reasons. It need hardly be slated that arbitrariness is itself a form of dictatorship which is in turn a foreign concept to the rule of law that we seek to uphold as judges. If allowed to continue, such practice will no doubt bring the whole justice system into disrepute. It undoubtedly leads to loss of public confidence in the ability of courts to resolve disputes.
 It cannot be emphasized strongly enough that a duty to give reasons
inspires public confidence in the courts that their decisions are not arbitrary but rational. It enables the litigants concerned to know why a decision was reached one way or the other.
 Having said this, however, I should not be understood to convey that the practice of delivering an ex tempore judgment should not fee resorted to in all cases. Each case must obviously turn on its own particular circumstances. I would lay it down as a general proposition, however, that such practice should be avoided. In this regard it is useful to bear in mind the definition of the term "ex tempore" which is this: "without preparation or premeditation" (see Black's Law Dictionary - Abridged Fifth Edition at page 300). Once that is so, it follows that an ex tempore judgment cannot inspire confidence in the litigants about the correctness of such judgement. Not only docs it lead to uncertainty but it also encourages litigation rather than discourage it. Needless to say that to discourage litigation through sound, lucid and well reasoned judgments is the fundamental function of the courts of law.
 It is hardly necessary to repeat that failure to give reasons on the other hand is a practice completely foreign to a proper judicial system in an open
democratic society, It is in essence a special form of dictatorship and as such may only briny our justice system into disrepute. The learned Chief Justice's urgent attention in now accordingly drawn to this unacceptable practice for appropriate action.
 As is evident from paragraph  above the appellant's claim was squarely founded upon a stop-order facility which is enjoyed by members of its rival association, L.A.T. I interpose here to point out that the case for the appellant was poorly presented in the Court a quo. For example there are no averments in the founding affidavit of Joachim Malimabe Motopela to show that the appellant is a registered trade union with locus standi to sue on behalf of its members.
 The relevant facts in this case are hardly in dispute and can be shortly summarised as follows:
On 16 May 2001 the Secretary General of the appellant union namely one Joachim Malimabe Motopela wrote a letter annexure "MM3" requesting a stop order facility for the appellant's members in order to enable them to service repayment of loans. That letter received a quick response from the first respondent who replied on
18 May2001 in terms of a letter annexure "MM6" in which he informed the appellant that the Department was currently reviewing a policy concerning the launching of the stop order facility in question. The letter concluded with these remarks:
"It is our utmost promise that as soon as the final conclusion has been reached', you will be informed about the outcome."
On 13 August 2001, the first respondent followed up annexure "MM6" with another letter "MM7" in which it requested for "full detailed information of the loan scheme" in question including its purpose and who the sponsor thereof would be.
Annexure "MM7" was met with an angry response from the appellant's lawyer who wrote a letter annexure "MM8" stating, inter alia :
"Surely your Department should know that the proposed loan scheme is already in existence but for the fact that only L.A.T. members arc its beneficiaries. All (sic) L.T.T.U. is requesting is for the same facility to be extended to its members."
'The appellant's lawyer then disclosed the sponsor for the proposed loan scheme as a certain MAMOTH. He, however, declined to reveal the "modalities of implementation" on the ground that the Department "should know better."
On 27 September 2001 the appellant's General Secretary then-wrote a letter annexture "MM9" to the second respondent in which he "plead[ed] with [the letter's good office to grant or extend to the teachers stop order facility with banks like Lesotho Bank and money lending agencies like MAMOTH". Interestingly, no mention was made of previous correspondence nor was there any reference to the fact that I.A.T. mambers already enjoyed stop order facilities. That completed the correspondence between the parties in the matter.
 The respondents' attitude, through the answering affidavit of Lekula Tsepo Matlejane is basically that they are prepared to assist the appellant in obtaining the stop-order facility in question. They however need to be "clear as to the nature of the stop-order facility sought and what is (sic) relates to" as well as its implication on existing financial regulations.
 Another aspect that requires to be borne in mind is the respondents' version set out in paragraphs 8, 10.2 and 10.3 of the answering affidavit of Letuka Tsepo Matlejane wherein he states in part:
"8. I however wish to state that, if by "same facility" deponent to (sic) founding affidavit refers to stop order facility, even applicants' (sic) members enjoy that facility."
"10.2 My Department does not carry out stop-order remittance, but only negotiate (sic) on behalf of teachers that bodies responsible for such remittance extend them to teachers."
"10.3 Accountant-General's office is the body that carries out stop-order facilities remittance on matters affecting public funds."
All those averments have not been met in point of substance and must therefore be accepted as correct.
In amplification of their version that they needed more information in order to conclude the negotiations in the matter, the respondents wrote to the Accountant-General for guidance in the matter. The latter in turn replied in terms of a letter annexure "LSM1" dated 22 January 2002. That letter reads in part:-
"Salaries Section at TSD is assigned the work of the office of the Accountant General and Salaries of civil servants are answerable to the Treasury and for that reason there is no association or company that has leverage to coerce or through court of law or lawyers demand anything which contravenes the Financial Regulations of the Government of Lesotho.
Experience has shown that government money is eroded by mixing it with the private money. As for TSD more losses of money have been incurred through the nature of the staff in (sic) teaching service who normally move from one place to another within a short period of time while payments of deductions arc remitted to private companies without being stopped. Recovery of overpayments made to private companies is difficult and costly.
The Treasury is not a private bank and for that reason it cannot do the bank's work except under mutual agreement through legal negotiations with the
parties concerned. There are no binding agreements on the Treasury or coercion of some sort.
Please note that the following Financial Regulations 1973 Section 1603 should be observed or remembered at any time:-
FR 1603:- Remittances by public, not to be accepted:-
Person who wish to remit money other than public money from one place to another shall not be allowed to do so though government account:.
Public money" see F.R. 104 Interpretation (a) & (b) I do hope this will suffice to meet any challenge or misunderstanding on the financial operations of the government."
 It follows from the aforegoing correspondence, in my view, that the parties are still in the process of negotiation and that the final word has not yet been spoken. That notwithstanding, however, the appellant launched the present proceedings in December 2001 in which they now sought what may be termed a mandatory interdict or order to extend stop-order facilities to, its members.
 In order to succeed in its claim, the appellant must establish a cause of action namely a clear right, an injury actually committed or reasonably apprehended and the absence of similar protection by any other ordinary remedy. See Setlogelo v Setlogelo1914 AD 221 at 227. Nowhere has the appellant established a cause of action or a clear right in the founding affidavit of Joachim Malimabe Motopela and,
as I have pointed out earlier, the matter was still at the negotiation stage when the application was launched. As matters stand, there is no binding agreement between the appellant and the respondents. It follows in my view therefore that the application was made prematurely and in this regard it is necessary to record that the ball-is no doubt in the appellant's court to reply issuably to the letter annexure "MM7" referred to in paragraph (11) above. Thereafter, this Court can only express the hope that all the parties to the dispute will act sensibly and thus conclude the negotiations in the matter.
 This conclusion renders it unnecessary for me to deal with the so-called constitutional issue, namely the appellant's allegation that it was discriminated against. In any event it is salutary to bear in mind the following remarks of this Court in Khalapa v Compol & Another 1999 - 2000 LLR& LB 350 at 357:-
"It is again an important principle of constitutional litigation that a court will not determine a constitutional question where a matter may properly be adjudicated on another basis. Its African genesis is a single sentence by Kentridge AJ in S v Mhlungu 1995 (3) SA 867 (CC) at 895 E:
"1 would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course that should be followed."
 In the light of the aforegoing considerations the appeal is dismissed
JUDGE OF APPEAL
I agree :
JUDGE OF APPEAL
I agree :
JUDGE OF APPEAL
Delivered at Maseru this 10th day of October 2003.
For Appellant : Adv T. Fosa
For Respondent : Adv T.S. Putsoane