Nkuebe v Attorney General (CIV/APN 360 of 99) [2000] LSCA 119 (13 November 2000)

1 C I V / A P N / 3 6 0 / 99 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: C H I EF T S E PO N K U E BE A P P L I C A NT and A T T O R N EY G E N E R AL F or Applicant : Messers K. M o s i to a nd S. Phafane For R e s p o n d e n t: M r. M. Mapetla J U D G M E NT R E S P O N D E NT Delivered by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 13th d ay of N o v e m b er 2 0 00 I have already given my ruling in this matter on the 13th O c t o b er 2 0 0 0. T he reasons therefore n ow follow. T h is w as an application for review ( a m o n g st others) following a disciplinary case against Applicant concerning charges of m i s c o n d u ct (in six counts) that w e re b r o u g ht before Chiefs' Disciplinary C o m m i t t ee appointed for chiefs in t e r ms of the laws administering chiefs in this country n a m e ly the Chieftainship A ct N o . 22 of 1 9 68 at Part V I. T he Applicant is Principal C h i ef of Q u t h i n g. T he chiefs as it w as c o m m on cause, w as s u m m o n ed to appear before the said C o m m i t t ee on the 1st July 1 9 9 9. It w as c o m m on cause that there w e re s u m m o n s, there w e re annexures s h o w i ng that the said date w as appointed for that hearing. T h e re w as correspondence b e t w e en C h i ef N k u e b e 's Attorneys a nd the C o m m i t t e e, central of w h i ch w as asking for p o s t p o n e m e nt because the chief w a n t ed to be prepared. ( S ee annexure " E ") He w a n t ed to be represented by Counsel. He also w a n t ed to organize his papers a nd witnesses although it transpired (as he c o n c e d e d) that the representation by C o u n s el w as n ot permitted. It did transpire that negotiations for a p o s t p o n e m e nt w e re d o ne by correspondence. It e n d ed up in a hearing w h i ch w as in default of appearance by the Applicant w h e r e at he w as s u s p e n d ed for a period of fourteen years. In the circumstances the R e s p o n d e nt c o n t e n d ed that the Applicant, despite clear evidence that he received the said notices a nd w as a w a re of the date of hearing, nonetheless elected to stay a w ay f r om s u ch hearing a nd did n ot attend as deliberate act of c o n t e m p t. C o n s e q u e n t ly a nd d ue to Applicant's dissatisfaction there w as this application for review of the proceedings seeking to set aside the said proceedings w h i ch h ad s u s p e n d ed she A p p l i c a nt f r om his position as Chief! In addition he s o u g ht to declare the suspension as null a nd void. A nd finally he s o u g ht to declare n o m i n a t i on of sixth R e s p o n d e nt as A c t i ng Principal C h i ef of Q u t h i ng as null a nd void. A p p l i c a nt c o m p l a i n ed of irregularity centering a r o u nd the fact chat the C o m m i t t ee p r o c e e d ed in his absence despite a request for p o s t p o n e m e nt t h r o u gh his attorneys a nd because he said he w as n ot given an opportunity to be heard fairly. He said: "I aver chat by failing to do so the c o m m i t t ee denied me the benefit of audi principle." A p p l i c a nc said there w as irregularity on a c c o u nt of the fact that he w as n ot allowed to be represented, the requested p o s t p o n e m e nt w as n ot d o n e, there w as a ruling, a nd there w as a decision against h im in his absence. He applied chat the s u s p e n s i on a nd other directives w h i ch followed it be declared null a nd void. T h at he o u g ht to h a ve b e en given a hearing or an adequate opportunity to state his case a nd an a d e q u a te c h a n ce to collect information a nd prepare. T h is he said he w as denied. M o st of the fact are c o m m on cause as c an be seen f r om she papers filed of record. T h is case before Disciplinary C o m m i t t ee involved a serious right of this Applicant. T he proceedings f r om p a ge 27 to 45 a m p ly s h o w. T h at he is a chief it is his right. T h at she m a t t er w as a serious matter c an even be seen f r om she period of suspension a nd the she charges before the Disciplinary C o m m i t t ee w h i ch m u st h a ve b e en of a serious kind. T h is has influenced my chinking a nd given me a lot of worries as to w h at the proper attitude of the C o m m i t t ee should have been in response to the request for p o s t p o n e m e nt by the Applicant. I found that the Applicant m ay have been confident that he h ad g o od reason for the p o s t p o n e m e nt and that m ay have been a genuine confidence that the C o m m i t t ee w o u ld be granting a p o s t p o n e m e nt (by seven days) based on the ground that he h ad to prepare for his case a nd organise his witnesses. In the said annexure " E" w h i ch w as a letter to the C h a i r m an of the C o m m i t t ee f r om Applicant attorneys it is said f r om the second paragraph thereto: " We are informed and realize that client w as served with s u m m o ns only on 25 J u ne 1 9 99 at 18 hours and that the matter is d ue for hearing on the I" July 1 9 9 9. We further observe that there are a n u m b er of charges and w o u ld need time to prepare defence. We request that the matter be kindly set for 8th July 1 9 99 w h en we w o u ld h ad h ad adequate time to prepare defence and possible witnesses." Applicant's C o u n s el contended that as long as the C o m m i t t ee did not respond to the request for a p o s t p o n e m e nt contained in annexure " E" it mattered not whether the Applicant did not attend because it appeared that the C o m m i t t ee h ad m a de up its m i nd and w as bent on proceedings whether Applicant appeared before it or not. W h at m a de a fully i n f o r m ed a p p r o a ch on this aspect ( of [he letter) difficult w as that the R e s p o n d e n ts did n ot a c k n o w l e d ge receipt of the letter a nd consequently they did n ot fairly respond. O ne has to speculate. W h at m a de the matter even m o re complicated w as a letter written by the Applicant's attorneys, a little later after, the hearing, that is on the 5th A u g u st 1 9 9 9. S ee a n n e x u re " F ". T he second p a r a g r a ph of the letter is m o re relevant b ut the first p a r a g r a ph will give a useful b a c k g r o u n d. T he letter said: " O ur office w o u ld like to p ut on record that we did on the 26th J u ne 1 9 99 issue to yourself a letter referenced D M / I M / T Q SN - 2 7 33 in w h i ch we s o u g ht p o s t p o n e m e nt that the matter should proceed on the 8th July 1 9 99 to enable client to prepare on subsequent follow u p, we m et M r. L e p o ta w ho i n f o r m ed o ur M r. M e t l ae telephonically that the letter h ad b e en ignored a nd the proceedings ( w o u l d) continue as scheduled. O ur said M r. M e t l ae paid a physical call at the premises a nd M r. L e p o ta c o n f i r m ed his telephone message." ( My underlining) A p a rt f r om the fact that the letter w as self serving it m a de it even m o re difficult w h en in the o p p o s i ng affidavit R e s p o n d e n t s' d e p o n e n ts m a de no a t t e m pt to gainsay anything contained in the letter. Aspects of the letter annexure " F" m ay have b e en v a g ue e.g. as to w h en the follow up m a d e. B ut it w o u ld h a ve been useful if a response h ad c o me o ut f r om the R e s p o n d e n ts in a m u ch m o re specific w a y. T h is w o u ld h a ve helped to restrict the n u m b er of all possible m e a n i n g s, interpretation or inferences to the letter. O ne of the inferences being that the C o m m i t t ee w o u ld have been u n m o v e d, on a ny account, to grant a p o s t p o n e m e nt whether the Applicant attended or not. A response, if it h ad c o me out, w o u ld possibly indicate w hy a favourable a nd liberal interpretation w as not deserved by the Applicant in this case where a serious right and status of the Applicant w as concerned. T he other possible m e a n i ng w o u ld be that the expectation by the Applicant of fair play and a c o m m on sense approach w o u ld be misplaced a nd there w as no denial of a fair hearing or opportunity as such. If the letter w as responded to it w o u ld have advised of the C o m m i t t e es attitude on the alleged request for an opportunity to prepare, and for s u m m o n i ng of witnesses by the Applicant, w h i ch reason is in m o st circumstances normally a weighty reason. Applicant h ad already conceded that the reason of seeking legal representation w as misplaced. I h o w e v er f o u nd that he h ad no reason to anticipate that the requested p o s t p o n e m e nt w o u ld automatically be granted without his appearing before the C o m m i t t ee a nd without that C o u n s el of his m a k i ng a better attempt than writing to the C o m m i t t ee a nd abandoning the negotiations along the way. T h is case m ay be o ne of the classical cases where Counsel will go a long w ay to convince a litigant that he has certain rights (for instance to a p o s t p o n e m e n t) that he does not have on the m e re asking and actually thereby lead a litigant to contempt. A nd this is an everyday occurrence in this country that ordinary p e o p le are misled into believing chat they h a ve rights that they do n ot have. T he A p p l i c a nt m ay h a ve b e en led into believing that it w as n ot necessary for h im to attend o n ce his attorney got into that c o r r e s p o n d e n ce w i th the secretary of the C o m m i t t e e. A nd I definitely f o u nd that the absence of the A p p l i c a nt before she C o m m i t t ee w o u ld ordinarily a m o u nt to c o n t e m pt w h e t h er or n ot he m ay h a ve h ad the confidence that his case w o u ld be p o s t p o n ed because there w e re those threatening letterheads f r om his attorney. Because of the seriousness of the case itself I h o w e v er also f o u nd that the C o m m i t t ee w as t oo strict a nd inflexible in refusing a p o s t p o n e m e nt a nd again t oo impatient. D e s p i te that the A p p l i c a nt m ay h a ve appeared to be in c o n t e m pt I c o n c l u d ed that the C o m m i t t ee a d o p t ed a rigidly judicial attitude. I say this is the light of firstly the seriousness of the charges against the A p p l i c a nt a nd notwithstanding that the C o m m i t t ee m ay h a ve felt that the attitude of the A p p l i c a nt w as negative. T he first factor w as the o ne w h i ch s h o u ld h a ve exercised the C o m m i t t e e 's m i nd t o w a r ds a less rigorous stance. T h is case of S E K AI H O L L A ND A ND E L E V EN O T H E RS v M I N I S T ER OF P U B L IC S E R V I CE L A B O UR A ND S O C I AL W E L F A RE SC IS/97, Z L R ( 8) of Z i m b a b we ( q u o t ed to me by M r. M o s i t o) G u b b ay CJ says at p a ge 5: " N e xt to consider is w h at constitutes a "fair hearing" procedural fairness is of course an a m b i g u o us concept. It varies according to context. Its breath m u st be d e t e r m i n ed f r om the specific nature of the proceedings or inquiry in question. T h is emerges clearly f r om the oft q u o t ed remarks of T u c k er LJ in R U S S EL v D U KE OF N O R F O LK ( 1 9 4 9 )I All ER 1 09 ( C A) at 118E " T he requirements of natural justice m u st d e p e nd on the circumstances of the case, the nature of the inquiry, the rules u n d er w h i ch the tribunal is acting, the subject matter that is being dealt with, a nd so forth." ( My underlining) All the issues in the a b o ve quotation are pertinent I w as h o w e v er particularly interested in the quotation f r om R U S S EL v D U KE OF N O R F O LK w h e re it speaks about the subject matter of the dispute. C o m i ng to the instant matter the subject of the disciplinary case concerned a. serious question of the right a nd status of the Applicant. H e n ce a m u ch m o re careful a p p r o a ch should h a ve been adopted t o w a r ds first resolving w h e t h er the case o u g ht to proceed or not. T h is i m m e n s e ly informative Z i m b a b w e an case of S E K AI H O L L A ND continued to state in its j u d g m e nt at page 5: " At the very least there are three f u n d a m e n t al requirements of natural justice to w h i ch a person directly affected by an i m p e n d i ng inquiry is entitled: T he first is the right to have notice of the charge or complaint. T he second is the right to be heard - to be given the opportunity to adequately state a case to answer that charge. A nd the third m e n t i o n ed expressingly in S. 1 8 ( a) is the right to impartial hearing " ( My underlining) T h en that is w hy o ne w o u ld be concerned a b o ut the facility with w h i ch the C o m m i t t ee resolved to p r o c e ed by default. T h e re w as another reason w hy she C o m m i t t ee s h o u ld h a ve b e en patient. It w as this b a c k g r o u nd of the overtures f r om Applicant's attorneys. L i ke a ny other attorneys they write in that u p p i sh style that m ay p e r h a ps be perceived as arrogance. B ut that w as n ot the reason for the C o m m i t t ee to h a ve b e en impatient a nd to h a ve b e en t oo strict a b o ut the p o s t p o n e m e n t. T h is u se of language a nd jargon by lawyers is merely a question of style a nd habit. I w o u ld h a ve (as I suspected the C o m m i t t ee also d i d) felt that t he attitude of the Applicant w as c o n t e m p t u o u s. B ut I should nevertheless h a ve b e en reluctant to proceed by default in the circumstances. I am saying despite the attitude of the Applicant w h i ch w as apparently interpreted as unwilling a nd unco-operative. T he C o m m i t t ee s h o u ld h a ve a p p o i n t ed yet another convenient date, a nd a reasonable date despite the absence of the Applicant. A nd indeed the Applicant has s p o k en of a n u m b er of days for w h i ch he asked for a grace period. If s u ch p o s t p o n e m e nt w as granted there s h o u ld n ot only h a ve b e en justice being seen to be d o ne b ut there w o u ld h a ve b e en a grant of an opportunity to Applicant to adequately state a case in a n s w er to those charge or complaints. T he latter is o ne of the three f u n d a m e n t al requirements of natural justice. In the circumstances the Applicant speaks of a n e ed to be given an opportunity to be heard. I allowed she application because I m a de a finding that the Applicant w as denied s u ch an opportunity. I said that the case m u st be reinstated a nd a convenient date be appointed. I do not see that there w o u ld be any prejudice. I understand that the Applicant remains on a holding suspension until the case is tried. T h is m e a ns that in the m e a n t i me the Sixth R e s p o n d e nt remains as Acting C h i ef as his appointment has fairly been m a de against the back r o u nd pending trial of the Applicant. I considered it wasteful to investigate and discuss whether the appointment of the Sixth R e s p o n d e nt w as irregular. T h e re h ad to be such an appointment in the meantime. As I have said my suspicion w as that Applicant w as led into this contempt. He w as led into c o n t e m pt not to attend because he should himself and in person have c o me before the C o m m i t t ee a nd sought p o s t p o n e m e nt before the C o m m i t t e e. He has to p ay the costs of the application on an attorney and client scale. His inability to attend the C o m m i t t ee says all about the kind of costs that I award because I say this w as in the nature of contempt. He m u st consider himself lucky. T. M O N A P A T HI J U D GE