Putsoane v Lesotho Highlands and Others (CIV/APN/401/04 )

Case No: 
CIV/APN/401/04
Media Neutral Citation: 
[2004] LSHC 117
Judgment Date: 
29 September, 2004

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CIV/APN/401/04

IN THE HIGH COURT OF LESOTHO


In the matter between:


TOPOLLO PUTSOANE APPLICANT

And

LESOTHO HIGHLANDS

DEVELOPMENT AUTHORITY 1st RESPONDENT

LIPHAPANG POTLOANE 2nd RESPONDENT

BOARD OF DIRECTORS 3rd RESPONDENT

LESOTHO HIGHLANDS COMMISSION 4th RESPONDENT


JUDGEMENT


Delivered by the Honourable Ms Acting Justice N. Majara on 29th September 2004


  1. Applicant brought an urgent application before this court seeking relief as follows:-


    1. That normal modes of service be dispensed with, due to the urgency of this matter.

    2. That 1st and 2nd respondent be ordered to give applicant access to 1st respondents premises, especially his office and Library so that he can prepare for the coming selection and recruitment process.


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    1. That 2nd and 3rd respondent be interdicted from participating in any manner in consideration of applicant's application.


    1. That 4th respondent be ordered to appoint an independent selection panel which does not include 2nd & 3rd respondent to consider applicant's application.


    1. That respondent be ordered to pay costs in the event of opposition.


    1. That applicant be granted further and/or alternative relief.


    1. That prayer 1 a) and b) operate with immediate effect as an interim interdict.


  1. On 13th September, 2004, Mr Matoone, counsel for applicant and Mr. Mathe, counsel for respondents appeared before me. Before counsel for applicant could move his application, counsel for respondents informed the court that even though he had all along been the attorney of record for respondents, he was unable to proceed with the matter since respondents had decided that they wanted to brief a more senior counsel to argue the matter on their behalf. He therefore sought a postponement from the court.

  2. Counsel for applicant opposed the application and I ruled in his favour for the simple reason that there were really no special circumstances warranting such postponement


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especially when taking into account the fact that the matter was urgent. Secondly, respondents knew all along that the matter was due to proceed on that day but failed to act timely in addressing their concern. As a result I found that there was no justifiable ground to allow a postponement.


  1. Mr Mathe, counsel for respondents was however granted the indulgence to quickly go and inform respondents that the court was proceeding with the matter with or without them and fortunately he came back having been given the go-ahead to proceed as had been the initial arrangement.


  1. The case before the court can be summarized briefly as follows; It is common cause that 2nd respondent are preparing to undertake a recruitment and selection process for new contracts of employment before the end of this year.


  1. It is also common cause that applicant is an employee of 1st respondent and his contract, as well as those of other employees of 1st respondent is about to expire.


  1. It is also common cause that 2nd and 3rd respondents are going to form part of the selection panel that will be considering candidates' applications including those of the


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outgoing employees for the new contracts. It is against this background that applicant approached the court.


  1. . Mr Matooane, counsel for applicant raised some issues for


the court's determination and they are as follows :-


  1. Firstly, whether applicant came before the right forum in bringing his application for relief, which question is tied to the question whether this court has jurisdiction to entertain the application and grant the relief sought.


  1. Secondly, whether the court can scrutinize the recruitment and selection process. This question was premised on applicant's contention that if 2nd & 3rd respondents were to be included in the panel that should consider his application, he does not stand a chance because of the existence of bias on their part. I will elaborate more fully on this point at later stage.


    1. It was Mr Matooane's contention that this court does have jurisdiction to hear the matter because applicant was before the court with regard to a possible new contract between himself and 1st respondent which contract is not yet in existence. He submitted further that, things would be


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different if the issue at hand was a result of or arose out of the current contract of employment between applicant and 1st respondent. In that case the applicant would have to seek recourse either before the Directorate of Dispute Prevention and Reconciliation (DDPR) and/or the Labour Court.


    1. Mr Mathe, Counsel for respondents conceded this point, and for this reason, the court felt no need to waste time dwelling on it, save to add that, indeed the issue at hand should be distinguished from ordinary labour issues because it involves processing of a contract of employment that is not yet in existence, and for which there is no certainty that applicant will succeed in getting. As has rightly been agreed by both counsel, the preparation process is indeed a condition precedent to an employer and employee relationship and therefore not a matter for the Labour Court and or the DDPR.


    1. However, Mr Mathe raised the question of the existence of a dispute of fact on the basis of which he asked the court to dismiss the application. His contention was that applicant in casu ought not to have proceeded by way of motion proceedings because of the said dispute of fact. The basis of his contention was that applicant had approached the court on an urgent basis because he was alleging that the recruitment process was to start earlier than it was


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supposed to start. Secondly, that applicant had wrongfully claimed that his contract started in 1989 and was due to end on the 30th September without informing the court that there had been a series of contracts agreed between him and 1st respondent. Thirdly, that the claim by applicant that 1st respondent had advised 2nd respondent to make a blanket extension of all employees' contracts was challengeable.


    1. When dealing with the issue of a dispute of fact in motion proceedings it has been stated as follows as per Isaacs in Becks Theory and Principles of Pleading in Civil Actions 4th Edition p302 :-


"The general rule may be stated that when there is likely to be a dispute on the facts proceedings by way of application should not be instituted except in those matters where application procedure is laid down by law."


    1. It has also been stated however that the dispute of fact has to be a real one before applicant's case may be dismissed. In Room Hire Co. (Pty) Ltd v. Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1150 at p 1162-3 it was stated by Murray J (as he then was) that:-


"The crucial question is always whether there is a real dispute of fact. That being so, and the applicant


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being entitled in the absence of such dispute to secure relief by means of affidavit evidence, it does not appear that a respondent is entitled to defeat the applicant merely by bare denials such as he might employ in the pleadings of a trial action for the sole purpose of forcing his opponent in the witness box to undergo cross-examination. Nor is the respondent's mere allegation of the existence of the dispute of fact conclusive of such existence."


    1. In casu, the alleged dispute of fact is in a nutshell, in relation to the actual time that the contract of employment is due to expire and secondly, the time that the selection process is due to take place. Both sides are not in agreement with regard to these two issues. However, it is common cause that the contracts are due to expire before the end of this calendar year and that the selection process is also due to take place this year. This is not disputed. This being the case, in my opinion, the dispute is not a real one in that it does not go to the root of the question at hand as will become more apparent later on. See also Frank v Ohlsson's Cape Breweries Ltd 1924 Ad 289 at 294.


Having said this, I now come to the questions at hand the first one being whether lst respondent falls under bodies over which courts have jurisdiction to decide administrative issues. In addressing this question I found it worth while to visit our Constitution being the Supreme law as a starting point.


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Section 119 (1) of the Constitution of Lesotho provides:-


"There shall be a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings (my underlining) and the power to review the decisions or proceedings of any subordinate or inferior court, court martial, tribunal, board or officer exercising judicial, quasi-judicial or public administrative functions under any law ... "(my underlining)


    1. In addition to this provision, Section 2(1) of the High Court Act 1978 provides:-


"The High court of Lesotho shall continue to exist and shall, as heretofore, be a superior court of record, and shall have,


  1. unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law (my underlining) in force in Lesotho."


    1. It is on the basis of the above provision that the court found that it does indeed have the jurisdiction to decide administrative issues such as the one at hand. Administrative issues are dealt with by various jurists and authors. In Baxter's Administrative Law p71, an explanation of administrative function and/or process as adapted from a Canadian Law Reform Commission Working Paper is described viz;


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"The way in which public authorities perform their tasks, reach decisions and implement them is what constitutes administrative process."


    1. This in turn begs the question, what is or who axe public authorities? Although there is no single definition because of the peculiar and complex nature of administrative law, the general view is that every authority or organ that is constituted by statute is a public authority. This is but one of the many criteria. However, for purposes of the issue at hand, this criterion includes 1st respondent herein, for the simple reason that not only is he is a creature of statute but also because he reaches and implements decisions as envisaged by the above quote as well as other authorities.


    1. This in my opinion also adequately addresses the question whether the court can scrutinize the selection and recruitment process. The court does have the power to do so in the light of the above. This is strengthened by the fact it is a trite principle of natural justice that every public body is compelled to act fairly in the execution of its administrative functions. Public authorities further have the duty to act impartially and honestly and as I have already found, 1st respondent does fall under this category.


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    1. This therefore brings me to the issue of whether applicant has made out a case of bias or a real likelihood of bias. Mr Matooane submitted on behalf of applicant that if 2nd and 3rd respondents should be allowed to form part of the panel that determines his application, there is a likelihood of bias, given the history between him and them especially with 2nd respondent. He contended that over time relations between applicant and 2nd respondent have soured resulting in an exchange of a series of letters between the two of them whereupon on one occasion 2nd respondent went as far as purporting to terminate applicant's contract of employment.


    1. Before addressing this question, let me start first by pointing out that ordinarily, the issue whether 2nd and 3rd respondents should be part of the selection panel would not arise because there would not be any existing relationship between applicant and them necessitating the court's intervention, nor according applicant the locus standi to bring this application against them.



    1. However, applicant in casu, is currently an employee of 1st respondent and a subordinate of 2nd and 3rd respondents


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respectively. This therefore establishes an existing relationship between him and them. Having said this, the next question to decide is whether this existing relationship per se necessitates intervention by the court prior to the recruitment and selection process for the establishment of new employment contracts, especially with respect to the processing of applicant's application. It is not disputed that the employer/employee relationship that exist between applicant and respondents, is about to come to an end, and that a recruitment and selection process is due to start before the end of this year.


    1. In advancing his case, applicant has inter alia, attached several documents being letters that have allegedly exchanged hands between him and 2nd respondent as well as between him and 3rd respondent respectively. It is therefore imperative to give a brief summary of what these letters entail.


    1. Annexure B is a letter wherein applicant wrote to 3rd respondent and copied to 4th respondent, complaining about a letter which had alleged been written to him by 2nd respondent whereby he was given a final warning because of his alleged non-performance. Annexure C and D respectively are follow-up letters addressed to 3rd respondents whereby applicant was pleading with them to


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speed up the intervention process, between applicant and 2nd respondent whereas Annexure E in turn, is a letter written by 4th respondent to 3rd respondent, addressed to its chairman wherein 3rd respondent is instructed to intervene as per applicant's appeal, and Annexure F is a letter written by applicant and addressed to 3rd respondent in which applicant was acknowledging 3rd respondent's efforts to deal with the conflict between 2nd respondent and applicant.


    1. There is also in the courts file amongst the bulky correspondence that exchanged hands between the parties, a report addressed to 3rd respondent and signed by the Board Chairman and two other people, namely one Mr L Theko and Mr Lekhesa respectively. The report details the findings of its authors and without quoting the entire contents therein word for word, suffice it to say that inter alia, an acknowledgement is made under the sub-heading -Conclusion and Recommendations - that:-


"- relations between the Chief Executive (2nd respondent herein) and ACE (applicant herein) have deteriorated significantly, and it would not be in the best interests of the organization and their own interests to insist on keeping them together in the same office. There is clearly a major lack of trust and mutual respect between them, and that in itself speaks evil of a unitary offjce" (my underlining)


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    1. In my opinion, the above quote is without doubt, proof of the existence of a turbulent relationship between applicant and 2nd respondent. This being the case, the next question for determination therefore is whether, this status quo necessarily warrants applicant's apprehension that, there is a likelihood of bias on 2nd respondent and 3rd respondent which would result in his application not being decided fairly.


    1. When dealing with the question of bias, Baxter (supra) P56


has this to say:


"The circumstances which tend to create a conflict of interest, and therefore an impression to the average layman that there is a real likelihood that the decision maker will be biased are usually classified for the purpose of convenience, into three broad groups: pecuniary interest, personal interest and prejudice ..."


He goes further at P 564 to say:


"Real or apparent prejudgment of the issues to be decided by the decision-maker give rise to disqualification on grounds of bias. Prejudice usually arises as a result of the decision-maker's past activities, past relationship with the affected individual (my underlining) ...... Related to this is plain prejudice - manifested in the form of a previous attitude expressed towards the affected individual by the agency or its members; (my underlining) this also gives rise to a disqualifying apprehension of bias."


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    1. By the same analogy, as I have already pointed out, 2nd respondent in casu, does have a past relationship with applicant which relationship has been established to be an unhealthy one. This fact is not disputed therefore the court finds that it justifies applicant's apprehension that if 2nd respondent was to form part of the selection panel for his application, he might not remain impartial. Let me hasten to add that the court is not concerned with the question of fault on the part of either applicant or 2nd respondent. In other words, it is immaterial who is in the wrong and/or whether 2nd respondent's attitude towards applicant is due to applicant's wrongfulness. Suffice it to say that a past relationship has been established which on the basis of its ugly nature, gives rise to the likelihood of bias.


    1. With regard to 3rd respondent, the Board, the same argument applies albeit at a less intense level. This is because it is common cause that 3rd respondent have been called upon on numerous occasions by applicant to takes measures by way of intervention between him and 2nd respondent, culminating in 4th respondent eventually ordering 3rd respondent to do so. True enough, the Board members cannot be said to have the same kind of relationship with applicant as does 2nd respondent. However, for the simple reason that there was an apparent display of reluctance to act on their part it is enough for the


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court to find that their impartiality would also not be without question. See the case of Pietersburg Club Ltd v Pietersburg Licensing Board 1931 217. There could very well be genuine reasons why they delayed in taking steps to intervene until 4th respondent ordered them to do so, but the delay itself raises doubts in the eyes of a reasonable man.


    1. In addition, the court does not find the existence of any factor that would give rise to a likelihood of respondents suffering any prejudice if they do not form part of the selection panel to consider applicant's application. Furthermore, even Mr Mathe himself submitted that 2nd and 3rd respondents will not be the only members of the selection panel, not to mention the fact that they will only play a minimal role. Moreover, it is not disputed that even 4th respondent, has no problem with both 2nd and 3rd respondents being excluded from that particular panel.


    1. This is especially the case when account is taken of the fact that 2nd respondent has clearly expressed his dissatisfaction with applicant's aptitude as his subordinate. In all fairness, there is a possibility that 2nd respondent being applicant's superior could have legitimate reasons in his assessment of applicant's performance, but that in itself does not warrant applicant being denied a fair, just and bona fide determination of his application.


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It is for these reasons that the application is granted as prayed with costs awarded to applicant.


N MAJARA

ACTING JUDGE


For Applicant : Mr Matooane

For Respondent: Mr Mathe


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