Mosehle v Lesotho Bank (CIV/APN 226 of 94) [2000] LSCA 73 (20 June 2000)

1 C I V / A P N / 2 2 6 / 94 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e en S I M ON P H A M O T SE M O S E H LE A P P L I C A NT and L E S O T HO B A NK R E S P O N D E NT R E A S O NS F OR J U D G M E NT For the Applicant : M r . N . M p h a l a ne For the R e s p o n d e n t: M i ss N. G. T h a b a ne Delivered by the Honourable M r. Justice T. M o n a p a t hi on the 20th day of June 2000 T h e se written reasons follow my ex-parte j u d g m e nt of the 24th M ay 2 0 0 0. T he facts in this proceedings w e re a m p ly s h o wn in the affidavits of the parties including the f o u n d i ng o ne attached to the notice of m o t i o n. It w as in an application for review of the dismissal of the Applicant by a domestic disciplinary tribunal, in the f o rm of a c o m m i t t ee of his e m p l o y er the R e s p o n d e nt B a n k. T he panel consisted of the following: M rs T h a k a l e k o a la (Personnel M a n a g e r) M r. S. S e h l a b a ka (Internal Auditor) M r. M. Tsoaeli (Property M a n a g e r) M rs M. ' M e f a ne (Assistant Personnel M a n a g e r) M i ss L. M o t j o pe ( A d v a n ce M a n a g e r ). No attack w as m a de n or w as there a ny point taken against the composition of this C o m m i t t e e. T he c h a r ge w h i ch the Applicant h ad faced before the said disciplinary c o m m i t t ee concerned a disappearance of keys to the F o r ex Section of the b a n k. T he Applicant h ad allegedly k n o wn a b o ut the disappearance of the keys a nd h ad neglected to inform the e m p l o y er a b o ut the p e r s on w ho he k n ew to h a ve h ad possession of the keys. T h is Court's error w as later corrected to say that the a m o u nt of O ne T h o u s a nd a nd T wo H u n d r ed Maloti ( M 1 , 2 0 0 . 0 0) c o n c e r n ed d a m a g es for repair a nd r e p l a c e m e nt of the key a nd did n ot c o n c e rn a disappearance of c h e q ue (in that a m o u n t) as h ad b e en the Court's error. T he circumstances of the m i s c o n d u ct w e re explained before the C o m m i t t ee in the presence of the Applicant w ho w as being asked to explain. T h is followed a charge w h i ch w as c o m m u n i c a t ed to the Applicant a nd w h i ch w as dated the 3rd N o v e m b er 1 9 9 3. It w as followed by a letter d a t ed the 4th N o v e m b er 1 9 93 w h i ch appointed the hearing of the disciplinary m a t t er on the 11th N o v e m b er 1 9 9 3. Before the C o m m i t t ee as said before the circumstances w e re explained as suggested in the charge a nd in the questions w h i ch w e re put to the Applicant in w h i ch he w as asked to explain. T he tribunal c o n c l u d ed that the Applicant's explanation did not m a ke sense having also decided that the Applicant a p p e a r ed to be unreliable a nd untruthful. T he last t wo p a g es of the eight p a g ed proceedings recorded the reasons for the finding a nd the r e c o m m e n d a t i o ns w h i ch included o ne for the Applicant's dismissal. Interestingly the Applicant h ad also stated that he h ad b e en to a diviner h e n ce his discovery a nd k n o w l e d ge that the keys h ad b e en with o ne T a y o b. T he u n a n s w e r ed question h ad b e en w hy the Applicant d e l a y ed to inform his superiors of the facts for close to three (3) m o n t h s. Originally the Applicant's sole explanation a nd the g r o u nd for revision of the proceedings w as that he h ad not b e en allowed to cross e x a m i ne a witness or witnesses. Later w h en it w as s h o wn that no witnesses w e re called a nd the nature of the inquiry, he retorted that he w as not allowed to call witnesses. This w as an additional g r o u nd w h i ch w as not part of the founding papers. It h ad b e en indicated that there h ad not b e en anything in the nature of witnesses eliciting facts such as w h e re o ne w o u ld then have h ad an opportunity to question a witness. Applicant a d d ed that he w as not even granted an opportunity to (himself) call a witness n or to testify on his o wn behalf or m a ke a statement. This b e c a me his attack as his C o u n s el M r. M p h a l a ne argued. In addition M r. M p h a l a ne picked up a point that the tribunal acted as a j u d ge a nd prosecutor in this matter (over the Applicant) at the s a me time contrary to w h at is k n o wn as memo judex in sua causa principle. I h a ve found that there w o u ld h a ve b e en a lot to c o m p l a in a b o ut the w ay these proceedings w e re conducted. This w o u ld be so if lawyers of administrative law w o u ld h a ve h ad their w ay with their legion of attacks as found in the law books. I m ay illustrate w h at the Applicant could have d o ne to h a ve brought this into play. Firstly, he could h a ve asked for an opportunity to get legal representation. Secondly, he could h a ve asked for particulars to the charge. Thirdly, he could h a ve asked for a list of witnesses. Fourthly, he could h a ve asked for a list of d o c u m e n t s. Fifthly, he could h a ve taken that point obliquely raised as to w ho of the persons (of the C o m m i t t e e) present w as a prosecutor. Sixthly, he could h a ve asked w ho of those w as a witness. This he could h a ve asked before or after his explanation. Seventhly, he could h a ve asked for the opportunity to put in his o wn statement. Eighthly, he could have asked to put in his o wn witnesses to testify a nd ninthly, he should h a ve b e en allowed to c o m m e nt on the evidence led. A nd finally, there should h a ve b e en reasons for the decision reached. M o st of these are tests as to whether interests of natural justice has b e en followed, w h e t h er there w as an opportunity for a fair hearing, whether there w as a fair hearing a nd whether or not there w as a miscarriage of justice. T h e re is nothing mythical or axiomatic about them. H ad the Applicant m a de a prior d e m a nd a nd or invoked a nd or adopted of those procedures that w o u ld h a ve been a different thing. B ut then the question w o u ld h a ve still been: " D id fairness require it?" See A D M I N I S T R A T I VE L A W, L a w r e n ce Baxter, 1st edition, pages 5 93 - 5 9 7, particularly at 5 9 7. I w as not prepared to accept that there w as unfairness in the w ay the proceedings were conducted in the total circumstances. To take up o ne issue in isolation w o u ld be a technical approach w h i ch w o u ld w o rk against the n e ed to act simply but fairly. As it is said: "In the application of the concept of fair play there m u st be real flexibility. T h e re m u st also h a ve been s o me real prejudice to the complaint: there is no such thing as a merely technical infringement of natural justice" - A D M I N I S T R A T I VE L A W. H . W . R. W a de & C. F. Forsyth, 7th edition at page 519. In the circumstances of the present case the Applicant w as given a notice of hearing of about seven (7) days. A nd then in the notice a nd the charge the content of the complaint against h im w as stated so clearly a nd abundantly to have enabled h im to explain. A nd furthermore w h e re as herein m o st centrally the approach w as that of asking the Applicant to explain a nd w h e re the result w as that he did explain a nd he having h ad notice of the procedure intended for seven (7) days before. W h e re there w as no sign (nor w as it alleged) that there h ad b e en bias n or b ad faith nor prejudice towards the Applicant. T h en I w o u ld conclude that there w as utmost possible fairness. T h is I do consider also that the n a t u re of the c h a r ge h ad b e en p ut to t he A p p l i c a n t. I decide that this w as d o ne m o st fairly a nd openly. He w as therefore given an opportunity to state his case. As the tribunal h ad b e en acting in w h at a p p e a r ed to be its n o r m al w ay of inquiry into disciplinary c o n d u ct of the R e s p o n d e nt bank's e m p l o y e e s, there w as no reason to suggest that t he p r o c e d u r es a d o p t ed by the tribunal o u g ht to be inflexible or less simpler t h an w h at they w e r e. T h e re is n o r m a l ly no reason for a C o u rt to insist on a judicial a p p r o a ch or an inflexible o ne unless in apparently m o st simple investigations. T h is is b e c a u se the d e m a n ds for fairness vary a nd w h at is called a strict adjudicative p r o c e d u r es a nd evidential r e q u i r e m e n ts are n ot a l w a ys called for. O n ce there h as b e en a fair a nd unbiased hearing t h en there o u g ht to be no complaint. See M O N DI T I M B ER P R O D U C TS v T O PE (1997) 3 B L LR 263 (LAC). It a p p e a r ed that the proceedings w e re c o n d u c t ed with all fairness despite that a p p e a r a n ce of no distinction b e t w e en a prosecutor as o ne h ad a nd a j u d ge on the other. I said I w o u ld n ot insist on s u ch a r e q u i r e m e nt to be a l w a ys built into the rules of every p r o c e d u r e. T h is s e e m ed to h a ve b e en the w ay the tribunal w as prescribed to w o rk unless the opposite w as suggested a nd it w as not. T h e re is certainly no n e ed to i m p o rt a strictly judicial a p p r o a ch into t he s c h e me w h i ch a p p e a r ed to h a ve b e en always accepted as w o r k a b l e. In the circumstances the application fails with costs. J U D GE J u d g e m e nt noted by M r. L. A. Molete T. M O N A P A T HI C R I / A P N / 8 4 / 2 0 00 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e en L E K H O OA N A M A NE A P P L I C A NT and H ER W O R S H IP P I N DA - S E T S A BI D I R E C T OR OF P U B L IC P R O S E C U T I O NS 1ST 2ND R E S P O N D E NT R E S P O N D E NT For the Applicant : M r. R. M. M a s e m e ne For the R e s p o n d e n t: M r. R. M. Rantsane J U D G M E NT Delivered by the Honourable M r. Justice T. Monapathi on t he 12th d ay of J u ne 2 0 00 T he A c c u s ed h ad b e en convicted of assault with intent to do grievous bodily h a rm a nd w as sentenced to three (3) years i m p r i s o n m e nt with an option of a fine of T h r ee T h o u s a nd Maloti (M3,000.00) by the magistrate of M a s e ru (First R e s p o n d e n t ). This application for review w as refused. T he proceedings w e re substantially in a c c o r d a n ce with justice a nd fairness including the sentence w h i ch w as n ot harsh in the circumstances. N or did it require the Court's intervention for a ny reason whatsoever. T he fact of the A c c u s ed n ot being advised of his right to legal representation alone, w h i ch resulted in no prejudice to the A c c u s e d, c a n n ot vitiate the proceedings w h e re as in the instant case, the A c c u s ed understood the proceedings a nd particularly the c h a r ge w h i ch w as a simple o ne a nd w h e re he w as offered an opportunity to defend, reply a nd state his case. N o t h i ng w as reviewable at all. T h at is w hy the application o u g ht to fail- contra M A K H E BE R A M O K O E NA v D PP C R I / A P N / 1 5 2 / 2 0 00 of 3rd M ay 2 0 0 0. In the R A M O K O E NA C A SE w h at the C o u rt w as m a i n ly c o n c e r n ed with w as the r e q u i r e m e nt w h i ch is constant a nd u n a m b i g u o u s, n a m e l y: T h at a magistrate is required to cause proceedings to be interpreted f r om Sesotho l a n g u a ge to English l a n g u a ge a nd vice-versa. It did not a p p e ar that this h ad b e en d o n e. H e n ce the absence in the record of those proceedings of a ny statement to the effect n or indication on the charge sheet that there h ad b e en an interpreter. I also referred in that case to R v T S E L I SO M A F E KA 1991-1996(2) L LR 1 1 19 in that regard. I also felt in R A M O K O E NA case, on the force of section 12(d) of the Constitution of L e s o t h o, that the provision could only be given force, strength a nd efficacy w h en a practice is entrenched w h e r e by magistrates be obligated a nd enjoined to ask accused persons w h e t h er or not they h a ve lawyers of their choice: " T h at w o u ld lead to the issue of w h e t h er a subsidized representation (Legal A i d) w o u ld be sought if events led to that." In that w ay the right of an accused to A fair trial w o u ld be clothed a nd given a p r o p er Constitutional effect a nd n ot a pious p r o n o u n c e m e n t. It r e m a i ns a useful attitude by the C r o w n, t h o u gh n ot frequently a d o p t ed n o w a d a y s, to protest that matters raised in s o me of these c o m p l a i n ts against convictions a nd sentences b e l o ng to appeals p r o c e d u re a nd n ot review p r o c e d u r es strictly speaking. T h is a p p e a r ed to be o ne of t h e m. O ne clearly sees in m o st of these criminal applications for review a manifest a b u se of process of C o u r t. It c a n n ot be said that a ny m i n u s c u le n o n - c o m p l i a n ce with principles of natural justice, unfairness, unreasonableness a nd errors of l aw or fact is a vehicle for these proliferating applications w h i ch conveniently avoid l a u n c h i ng of regular appeals for the least of excuses. T. M O N A P A T HI J U D GE