Acting Commissioner of Lesotho Correctional Services v Senior Assistant Commissioner (K Moeno) & Others (C of A (CIV) 46 of 2018) [2019] LSCA 10 (31 May 2019)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO Held at Maseru C of A (CIV) NO. 46/2018 x (CIV/APN/215/15 In the matter between: ACTING COMMISSIONER OF LESOTHO CORRECTIONAL SERVICES 1st APPELLANT SENOIR ASSISTANT COMMISSIONER (K MOENO) 2ND APPELLANT ACTING ASSISTANT COMMISSIONER (RAPHUTING) 3 rd APPELLANT ASSISTANT COMMISSIONER (T MOTHEPU) 4th APPELLANT SENIOR SUPERINTENDENT (SELAHLA) 5th APPELLANT SUPERINTENDENT (NTASA) 6th APPELLANT ASSISTANT SUPERINTENDENT (BERENG) 7th APPELLANT ASSISTANT SUPERINTENDENT (RAMMASA) 8th APPELLANT ACTING DEPUTY COMMISSIONER (MATINGOE PHAMOTSE) 9th APPELLANT ACCOUNTANT GENERAL ATTORNEY GENERAL And 10th a p p e l l a n t 11th APPELLANT LESOTHO CORRECTIONAL SERVICES STAFF ASSOCIATION RESPONDENT CORAM : MOSITO P CHINHENGO AJA MTSHIYA AJA HEARD : 15 MAY 2019 DELIVERED 31 MAY 2019 SUMMARY Acting head o f Lesotho Correctional Service eight officers to ranks o f Assistant Commissioner and higher all at one time- challenge by Prisons Staff Association, a that promotions irregular and unfair fo r failure to follow internal promotion guidelines and not advertising vacancies - whether Association has locus standi in judicio registered welfare organisation, promoting that association has necessary High Court holding standing, promotion guidelines should have been followed and acting head acted outside powers conferred by Prisons Proclamation 1957 and setting aside promotions and requiring officers concerned to make restitution o f money received pursuant to promotion - decision upheld on appeal CHINHENGO A D ­ JUDGMENT Introduction 1. This is an unusual appeal in that the appellants advanced an argument upfront that this matter is moot, in particular the judgment in the court a quo which set aside the promotions of eight employees of the Lesotho Correctional Services, because certain developments have taken place since the institution of proceedings and the delivery of judgment. Their counsel says so in no uncertain terms at paragraphs 2.7 and 2.8 of the heads of argument: “2.7 It is submitted that no purpose will be served by determining now whether the High Court was right or wrong when it granted the application. The aforesaid promotions rendered the judgment of the court a quo moot when regard is had to the fact that it will be impossible to implement same should the present appeal not be upheld. The said judgment would therefore serve no purpose. 2.8 It is trite that the courts of law are not constituted for the question of academic issues and it is wrong for judicial power to be exercised in answering questions and issues which are merely moot, theoretical, abstract, hypothetical and advisory in nature. This Honourable Court should not be burdened with moot and/or academic questions and practitioners have a responsibility to be alert throughout the legal process of the need to unburden the Court.” 2. One would have thought that where an appellant genuinely believes that his appeal is academic all that he needs to do is simply to withdraw the appeal. Not so with the appellants herein. This leads one to think that, if anything, the contention of mootness is advanced in order to defeat the judgment of the court a quo. In any event, in the appellants counsel’s own words, this Court could, in the circumstances, veiy well follow the reasoning of the South African Constitutional Court Independent Electoral Commission v Langeberg Municipality [2000] ZACC 23:2001 (3) SA 925 (CC) at 932E-933A (para. 11) where the court said: in "This Court has a discretion to decide issues on appeal even if they no longer present existing or live controversies. That discretion must be exercised according to what the interest of justice requires. A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity and the fullness or otherwise of the argument advanced. This does not mean, however, that once this Court has determined one moot issue arising in an appeal it is obliged to determine all other moot issues.” 3. We grappled with this point needlessly at the commencement of the hearing. It seems to me that the appellants either did not genuinely believe that the submission was merited or they merely had not applied their minds to it. They were unable to justify their contention that the matter was moot. In this jurisdiction mootness was defined in Lesotho National Development Corporation v Maseru Business Machines (Pty) Ltd and Others C of A (CIV) 38/2015: in South Africa in National Coalition fo r Gay and Lesbian Equality 8g Others v Minister o f Home Affairs & Others [1999] ZACC 17: 2000 (2) SA 1 (CC). In the latter case the court stated - “A case is moot and therefore not justifiable if it no longer presents an existing or live controversy which should exist if a court is to avoid giving advisory opinion on abstract propositions of law.” 4. If indeed the appellants genuinely believed that the matter was moot all they had to do was withdraw the appeal. That they did not do thus pointing in the direction that mootness does not arise. The basis of the submission that the matter was moot was that changes had taken place in the situation of most, but not all, of the appellants. The 1st appellant was dismissed from service in November 2017. The 3rd appellant reverted to his previous position or rank. The 4th appellant was appointed acting Commissioner from June 2017 and then promoted to Commissioner in July 2018. The 5th appellant retired in March 2019. The 6th appellant was promoted to Senior Superintendent in January 2017 and the 8th respondent was promoted to Deputy Commissioner in January 2016. 5. It will be recalled that the application in the court below was lodged in June 2015 and heard on 31 October 2017. Judgment was handed down nearly seven months later on 14 June 2018. In the meantime the situation regarding the 1st, 3rd, 4th, 5th, 6th, and 8th appellants had irreversibly altered. The appellants submitted that, as alluded to earlier, that no purpose will be served by determining now whether the High Court was right or wrong when it granted the application. 6. In making this submission the appellants knew that the situation of the 2nd, 7th and 9th appellants had not changed and that in respect of these three no issue of mootness could possibly arise and that in respect of all the appellants the other orders of the court below still had to be given effect, if that has not yet been done. The High Court had declared, not only that the promotions were null and void, but also that the appellants were not to assume the duties of the offices to which they had been irregularly promoted; that no salary adjustment could be made pursuant to the purported promotions and if any such adjustment had been done the appellants had to pay back any money received in consequence of the arborted promotions. Having all these issues in mind it should have occurred to the appellants that the matter was not moot. Counsel was constrained to concede that the matter was not moot after fielding questions from the bench. He abandoned the contention that the matter was m oot He advised himself in so doing. Court order, grounds of appeal and condonation 7. This appeal is against a decision of the High Court which set aside the promotion of 2nd to 9th appellants pursuant to the following order that the court made on 31 October 2017: “(a) The promotion of the 2nd to the 9th respondents (now appellants) are declared null and void. (b) The 2nd to the 9th respondents are interdicted from performing the duties of the offices to which they have been promoted to. (c) The 10th respondent is hereby ordered to deduct any payment made, if any, from the 2nd to the 9th respondents pertaining to the promotions in Corrections Internal Circular Notice No. 15 and 16 of 2015. (d) Application succeeds with costs.” 8. The appellants contend that the learned judge, the Late Justice Hlajoane (may her soul rest in peace) erred - in that, (a) in reaching her decision she "totally misconceived the issue of the respondent's locus standi to challenge the 2nd to 9th respondents' promotions regard being had to the respondent's own constitution''; (b) in relying on promotion guidelines which have no force of law; and (c) in making an order of costs against the appellants regard being had to the pleadings filed of record. 9. At the hearing of the appeal we granted the appellants' application for condonation of the late noting of this appeal and the late filing of heads of argument. That was with the consent of the respondent. It seems to me that the failure of this Court to sit during the period initially scheduled for its first session of 2019 presented some challenges with respect to the timelines for filing papers. It was therefore only reasonable that the respondents did not oppose the application and that the parties accommodated each other in that regard. Factual background 10. The facts of underlying this appeal are that the 1st appellant promoted the 2nd to 9th respondents to different senior positions in the Lesotho Correctional Services. There is no clear explanation in the record of proceedings or anywhere else as to how the promotions were conducted or what procedure was followed in making them. 11. After the promotions were done the respondent received two internal notices - Corrections Internal Circular Notices No. 15 and No. 16 of 2015 - which announced that the 2nd to 9th respondents had been promoted to new ranks in the Lesotho Correctional Services with effect from 30 April 2015. By way of an urgent application seeking interim relief, the respondent challenged the 1st appellant’s decision to promote the concerned officers on the ground that the promotions were done irregularly: the positions were not advertised and existing departmental guidelines on promotion were not complied with. Monapathi J properly declined to treat the matter as urgent and ordered that it should proceed as an ordinary court application. This was a refreshing decision because many cases in this jurisdiction are commenced as urgent matters when that is not merited and then, despite that they are so commenced, they are allowed to drag on and on and thus take inordinately long to be finalised thereby belying the urgency originally professed. Analysis of grounds of appeal 12. An appellant normally challenges all the findings of the court from which an appeal lies which have the potential of resulting in the setting aside of the decision appealed. In this case the appellants attack only two of the judge's findings - that on locus standi of the respondent and on the promotion guidelines. In order to highlight the point I wish to make, I quote the grounds of appeal in extenso. They are only three in number: “ 1. The learned judge erred and misdirected herself and totally misconcieved the issue of locus standi of the respondent to challenge the 2nd to 9th appellants’ promotion regard being had to the respondent’s own constitution. 2. The learned judge in the court a quo erred in holding as she did, that the guidelines could be relied upon in effecting promotions of Lesotho Correctional Services. The court ought to have held that the said promotion guidelines were never promulgated and published by an Act of Parliament and as such, they do not have any legislative effect and cannot be sued upon. 3. The learned judge erred and misdirected herself and came to the wrong conclusion by granting the application with costs regard being had to the pleadings that were before her.” 13. These grounds of appeal do not touch on a finding of the judge which on its own disposed of the appeal. The learned judge considered the question whether the 1st respondent had the power to promote persons to the offices implicated in this appeal. She concluded that in terms of s 2 of the Prisons Proclamation 1957 (No. 30 of 1957), as amended by the Prisons (Amendment) Order 1970, the 1st respondent had no power on his own to promote the officers to the new ranks. In this regard she referred to s 2 of the 1957 Proclamation which provides that - "The power to appoint a person to hold or act in the office of (now Commissioner of Prisons), Director of Prisons Superintendent or Assistant Superintendent (including the power to confirm appointments and to appoint by way of promotion), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office, shall be exercised by the Minister after consultation with the Public Service Commission in accordance with the provisions of the Public Service Order 1970.” 14. The learned judge accordingly concluded her consideration of the issue at paragraph 11 of the judgment as follows: "On the question of whether the 2nd to 9th respondents’ promotions to their respective ranks were unlawful, null and void and of no legal force or not, the answer is, yes they were and still are unlawful, null and void and of no legal force as the person who effected those promotions, the 1st respondent, acted ultra vires the powers he possessed, section 2 of the Prisons (Amendment) Order 1970.” 15. Now, if the 1st respondent did not have the power to promote the officers concerned, that should have been the end of the matter. This appeal is bound to fail whether or not the learned judge may have erred on any other findings of fact or conclusions of law. The judge a quo was clearly entitled to dispose of the application on that basis alone. Her reasoning at paragraph 11 of her judgment is impeccable: "It is the respondents’ case that not only has the office of the 1st respondent and members of the Lesotho Correctional Service been expressly excluded by the provisions of the Constitution as the supreme law of the land, but also by the Public Service Act 2005, section 3 thereof. The section is framed as follows: I The Act does not apply to offices specified in section 137(3}{h) o f the Constitution to the extent therein specified." The section above does not say the Act does not apply to offices in section 137(3) (h) of the Constitution and ends there. It goes further to say to the extent specified. This now takes us back to the applicable law in dealing with appointments, promotions and discipling officers of Lesotho Correctional Service. The applicable law, which is the Proclamation as amended [Proclamation 30 of 1957 as amended by Prisons (Amendment) Order 1970] has specified powers entrusted to certain officers in dealing with different ranks in the Lesotho Correctional Service when considering appointments, promotions and discipline. As shown earlier on, section 2 of the Amendment Order 1970 has entrusted the responsibility to appoint, promote and discipline Director of Prisons, Superintendent and Assistant Superintendent to the Minister after consultation with the Public Service Commission in accordance with the provisions of the Public Service Order 1970.” 16. The learned judge a quo summed up her position in the last paragraph of the judgment: "Having come to the conclusion that the applicant has locus standi to have brought this application and that the 1st respondent has acted ultra vires in effecting the promotions of the 2nd to the 9th respondents, and that the applicable law is the Basutoland Prisons Proclamation as amended by the Prisons (Amendment) Order 1970, it follows therefore that such promotions were unlawful, null and void and of no legal force and effect. The application thus succeeds with costs.” 17. The promotion guidelines were considered by the learned judge in paragraph 14 only, which tends to show that she did not really regard them as very important or decisive in the determination of the matter before her. It cannot escape notice that designedly the appellants did not challenge the judge’s finding that the 1st respondent, on his own, did not have the power to promote the 2nd to 9th appellants. The appellants can only succeed in this appeal if this Court is satisfied that the respondent had no standing to institute these proceedings. A finding that the promotion guidelines are not law, as contended by the appellants, and therefore should not have formed the basis of the court a quo's decision, cannot assist the appellants. This is so because as long as the finding that the 1st respondent had no power to promote the appellants remains unchallenged, then the appeal cannot succeed. It is unusual to approach an appeal the way the appellants have done on this score. Standing of respondent 18. The respondent is a staff association established in terms of Rule 150 of the Prisons Rules 1957. In terms of paragraph 4 of its Constitution it is a body corporate with power to sue and to be sued. It is also registered under the Societies Act 1966. Its “object and mandate ... shall be to enable Correctional Officers to meet in order to consider and bring to the attention of the Commissioner matters affecting the welfare and efficiency of the Service.” Paragraph 5(a) of the its constitution provides that - “The Association may consider the general issues and principles governing appointments, promotions, transfers, matters of discipline and salaries within the Service with the view of improving conditions within the Service as a whole, but it shall not-consider individual cases . concerning these matters.” 19. Paragraph 5(b) provides that the Association “may do anything incidental and conducive to any of the objects specified in section 6 below57. Relevant to this appeal is the sixth objective under section 6 which is “To regulate the conditions of employment of its members and their relations with the employing body.” 20. The respondent’s mandate under its constitution is couched in fairly wide terms. This was done in order to enable the respondent, through its National Executive Committee established by section 12, to effectively represent the interests of its members, and as provided by section 14(h) of the constitution, “to institute and or defend legal proceedings in the name of the Association [and] appoint legal representatives to act on behalf of the Association.” 21. The appellants, both in the court below and in this Court, submitted, as the mainstay of their case, that the respondent has no locus standi to sue the appellants in relation to the promotions announced through Corrections Circulars 15 and 16 of 2015 because section 5(a) of the respondent’s constitution prohibits it from concerning itself with individual cases of promotion. In dealing with this issue the learned judge said the following at paragraph 7 of the judgment: “ On locus standi it is the respondent's case that the applicant is a registered entity deriving its powers and functions from its own constitution. It has not been disputed that the applicant is an association duly registered in terms of the Societies Act 1966. Section 4(1) of applicant's constitution provides that the association can sue and be sued in its name, thus giving it a legal status. Section 5 provides for the powers of the association...as follows under 5(a) .... The Societies Act under section 11 provides that once a society is validly registered it can sue and be sued. The respondents are relying on the last part of the applicant's constitution where it says “but the association shall not consider individual cases.” The respondents consider the case by the applicant as an individual case. To that the applicant responded by showing that this case cannot be considered as an individual case as issues of promotions are issues that affect the whole institution. The case of Molefi Leketa v The Acting Director o f Prisons and Another [CIV / APN/486/1999] ... is a clear case of an individual suing on his own as he was challenging his own individual dismissal, but our case is distinguishable from it as this case is dealing with promotions of senior ranks in the institution. The promotions affected the institution itself and not individuals. I would not agree with him more on that in saying the applicant has locus standi to sue as a legally registered entity. My brother Peete J ably said so in a recent decision of Lesotho Police Staff Association v The Commissioner o f Police and Others [VIV/APN/19/2018] that hocus standi of an association in a Public Service Institution must be interpreted purposively within the parameters of rule of law and of access to justice.5” 22. The locus standi of a person or entity does not derive solely from the fact that the person or entity concerned is clothed with the power to sue or to be sued. More relevantly it derives from the fact that, in the particular circumstances at hand, that person or entity not only has the power to sue or to be sued but has an interest in the issues at stake. So whilst the respondent in this case has the power or capacity to sue and to be sued the real question is whether it has the standing to question and sue or challenge the promotion of the appellants. Section 5(a) of the respondent's constitution does not permit the respondent to concern itself with the promotion of an individual. The promotion of each of the officers we are concerned with here is, in one sense, a matter concernig each of them, but in another and more relevat sense, they are not to be viewed as individual cases of promotion contemplated by section 5(a) of the respondent's constitution because of the extent thereof. The promotions were done in one fell swoop, en masse, so to speak. The extent and reach of the 1st appellant’s act of promoting eight officers at the same time created the impression that this was a mass promotions and hence the respondent took up the matter. I consider that in the circumstances the respondent was entitiled to challenge the promotions in exercise of its mandate to act in the interest of its members in matters of promotion in general. The appellants’ submission that the respondent has been expressly excluded from considering individual cases of promotion was properly rejected by the judge a quo. I find no fault with the judge's reasoning and conclusion. This was a proper case in which the respondent was entitled to sue the appellants in defence of its members' interest in fair and the regularly conducted promotions department. in Contention that promotion guidelines not to be used 23. It is not necessary, in my view, to examine the question whether or not the 1st appellant should have had regard to the promotions guidelines in view of the fact that even if he should not have done so, as contended by appellants, that would not have made any difference to the outcome because of the judge's conclusion that the 1st appellant exercised a power or authority he did not have. That was conclusive of the matter, and as I have earlier stated, that conclusion was not challenged on appeal. 24. The learned judge a quo considered the appellants' contention that reliance could not be placed on the promotion guidelines because the guidelines are not law. Her reasoning on this point also cannot be faulted and is worth repeating: “ 14. Regarding whether reliance can be put on the promotion guidelines in effecting promotions the answer is yes, provided their provisions are not in contravention of the applicable legislation. The organisation could not have thought of designing such guidelines for sweet nothing. It was through some effort of its human resources personnel to have devoted time and energy in formulating the guidelines. The idea must have come from the management of the organisation and not just an idea from the applicant’s members. The existence of such guidelines has not been denied and the fact that the guidelines had never before been put into effect is not reason enough to say they have no force of law as they must have been designed for a purpose, besides, it has never been the applicant’s case that the issue of guidelines has been the sole reason relied upon for the purposes of supporting their case. 15. Having come to the conclusion that the applicant has locus standi to have brought this application and that the 1st respondent has acted ultra vires in effecting the promotions oi the 2nd to 9th respondents, and that the applicable law is the Basutoland Prisons Proclamations as amended by the Prisons (Amendment) Order 1970, it follows therefore that such promotions were unlawful, null and void and of no legal effect. The application succeeds with costs.” [underlining is mine] 25. In addition to expressing my agreement with the learned judge's conclusion, I may also say that I find no basis for contending that the guidelines should not have been used. They provide transparent procedures for promotions, which procedures are consonant with good governance principles without which any organisation cannot not be run efficiently. The guidelines are, in any event, part of the policies and procedures of the Correctional Services and should be complied with. Disposition 26. It is clear beyond peradventure that the judge's decision was based on a finding that the applicant had locus standi and, more importantly regarding the merits, that the 1st appellant had no power to promote the officers concerned without following the dictates of the law - s 2 of the 1957 Proclamation. She did not base her conclusion exclusively on whether or not the guidelines should have been used or applied in effecting the promotions. 27. The foregoing exposition leads to no other conclusion than that the appeal must be dismissed with costs. It is so ordered. M. H. CHINHENGO ACTING JUSTICE OF APPEAL _______________ _____________________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: I agree: ( Z N. T. MTSHIYA ACTING JUSTICE OF APPEAL FOR THE APPELLANTS: Adv R D Setlojoane FOR RESPONDENTS: Adv R. G. Makara & Adv Ramohalali 16