Maseribane v Right Honourable the Prime Minister and Another (CIV/APN 142 of 2000) [2000] LSCA 99 (27 April 2000)

I C I V / A P N / 1 4 2 / 2 0 00 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: T H E S E LE M A S E R I B A NE A P P L I C A NT a nd T HE R I G HT H O N O U R A B LE T HE P R I ME M I N I S T ER T HE A T T O R N EY G E N E R AL 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. K. Mosito For the Respondents : M r. K. T a m pi J U D G M E NT EX T E M P O RE 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 27th d ay of April 2 0 00 T h is application w as filed as of urgency. It w as filed on the 20th of April, 2 0 0 0. I n d e ed on the s a me date R e s p o n d e n ts w e re served with the papers. It is clear that it m u st h a ve b e en that T h u r s d ay preceding the Easter w e e k e n d. T he application is about a declaration, interdict a nd other relief as s h o wn in the notice of motion. A nd it concerns a C o m m i s s i on of inquiry appointed by the First R e s p o n d e nt by Legal Notice n u m b er 33 of 2 0 0 0. T h at legal notice shows appointment of three (3) Commissioners, n a m e ly M r. Justice R . N. L e on (Chairman), M r. Justice J. B r o w de a nd M r. Justice B. L. Shearer. It s h o ws other appointed people as s h o wn in section 10 w ho are styled "Secretariat." T he application seeks to declare the appointment of that C o m m i s s i on of Inquiry as null a nd void. It sought to declare the appointment of that secretariat are null a nd void as well. It also sought to interdict the C o m m i s s i on of Inquiry f r om carrying out its functions as directed in the terms of reference as s h o wn in that legal notice. T he terms of reference of that C o m m i s s i on are contained in section 3 of the legal notice. T he terms run up to ten or thereabout a nd they are very extensive in their nature. T h ey cover a large area over a period described as the 1st July 1 9 98 up to N o v e m b er 1998. T he notice contains appointments of certain C o m m i s s i o n e rs all of w h om can be described as judges a nd coincidentally they are retired judges of the Republic of South Africa. All h a ve served in the C o u rt of A p p e al of this country a nd it w as not disputed that at least o ne of t h em w as still serving at present. A point w as not taken about the extent on the inconsistency of the terms of reference or otherwise. T h e re w as a dispute about the appointment of the learned judges a nd also about the secretariat. A nd also about the w ay the H o n o u r a b le P r i me Minister has g o ne about in m a k i ng the appointments. O ne of the points being that he has exceeded his powers. Applicant is a citizen of this country. T h e re w as no dispute that he w o u ld a nd did h a ve the capacity to institute these proceedings. T he reason being that he says there is a p e n d i ng m u r d er c h a r ge against h im w h i ch c o n c e r ns the d e a th of o ne Kelly M a h a se w ho reputedly died during the t i me of w h at o ne c an call disturbances occurring d u r i ng the period of the t i me covered by the t e r ms of reference w h i ch matter (about the period of the death) w as c o m m on cause. After s o me t i me it b e c a me clear that the c o m p l a i nt of the A p p l i c a nt w as a simple o n e. Briefly state it w as that this C o m m i s s i on will be investigating circumstances in the t e r ms of reference over that period. T h at the C o m m i s s i on will p r o b a b ly t o u ch on the facts c o n n e c t ed with the death of the deceased w i th w h i ch Applicant is c h a r g ed in the indictment the A p p l i c a nt stood facing. He says the potential for unfair trial therefore exists, that the trial against h im will be unfair. T h at t i me w h en the c h a r ge against h im is tried there m ay h a ve b e en c o m m e n t s, discussions or unearthing of facts that c o n c e rn the very c h a r ge against h im directly. He will suffer s o me jeopardy of s o me kind if those facts are released. T h at therefore this C o u rt o u g ht to protect h im by stopping (interdict) the operation of this C o m m i s s i o n. If it d o es n ot do so it m u st declare the w o rk of the C o m m i s s i on as null a nd void. T h is fact of the application h a v i ng b e en filed on the 20th April 2 0 00 h as h ad the effect that at the time w h en the hearing of this application w as to be p r o c e e d ed with the C o m m i s s i on w as already proceeding. T he A p p l i c a nt therefore m o st wisely decided that he w o u ld n ot insist on the operation of the C o m m i s s i on being interdicted b ut if it continued to r un it did so at the risk of its w o rk being declared to be invalid. So that w h at r e m a i n ed before this C o u rt for a r g u m e nt w as primarily that r e m e dy n o r m a l ly called a declaration or declarator. T h at is, the C o u rt will p r o n o u n ce that the w o rk of the C o m m i s s i on w as null a nd void. A declaration h as a certain i m p o r t a n ce to lawyers. If is that it is a discretionary r e m e d y. It is n ot a legal r e m e dy strictly speaking. It is b e c a u se the C o u rt has to look at all the circumstances a nd decide w h e t h er relief claim is a fitting O r d er that it m ay m a k e. It h as to use a judicial discretion. It looks at imperative a nd o v e r w h e l m i ng reasons e v en if the A p p l i c a nt m ay h a ve b e en right in p r o m o t i ng the issues of rights, the substance of his claim. T he C o u rt d o es n ot only consider w h e t h er the rights are is valid b ut looks at the effect of w h at m ay be ordered. Is the r e m e dy p r o p er in the circumstances? T h at is w hy it is called a discretionary r e m e d y. I start off by c o m m e n t i ng a b o ut the learned j u d g es a p p o i n t ed by the H o n o u r a b le P r i me Minister. T he j u d g es are experienced lawyers. All of t h em w e re j u d g es of standing. O ne of t h em h as participated in n ot less t h an five C o m m i s s i o ns of Inquiry instituted by the g o v e r n m e nt of the R e p u b l ic of S o u th Africa or other institutions in the R e p u b l ic of S o u th Africa. I f o u nd it difficult to u n d e r s t a nd the kind of prejudice feared by the A p p l i c a nt by a p p o i n t m e nt of this learned judges. T h ey are a fact finding b o d y. Theirs is n ot to c o n d u ct judicial proceedings. H ow their finding will affect j u d g es or judicial officers of this c o u n t ry is difficult to f a t h o m. To say their findings will influence the w o rk of a presiding officer in the intended m u r d er trial against the A p p l i c a nt is nonsensical if n ot far fetched. T h at is w hy I did n ot u n d e r s t a nd w hy the learned A t t o r n ey G e n e r al w a n t ed to e v a de the issue that those learned j u d g es could still be judges w o r k i ng in the A p p e al C o u rt of this C o u n t r y. E v en if it w as true with that all the j u d g es w e re occupied as j u d g es of that C o u rt there w o u l d, in my view, be absolutely n o t h i ng w r o ng w i th regard to the attack levelled against their positions. It is b e c a u se C o m m i s s i o n e rs are a p p o i n t ed f r om j u d g es of the C o u r ts of almost every country a nd b e c a u se of their expertise. A g o v e r n m e nt w i s h i ng to appoint a C o m m i s s i o n er f r om b o dy of j u d g es n e ed n ot wait for that j u d ge to retire, n or to be disabled n or n e ed the j u d ge be an old m an as long as he is a j u d ge a nd is able to do fact finding. So that I find n o t h i ng w r o ng with the a p p o i n t m e nt of learned justices. A nd the fear that their a p p o i n t m e nt will influence the w o r k i ng of this C o u rt a nd that it will influence that c h a r ge the Applicant is facing is nonsensical. So is the perception. O ne finds it difficult to u n d e r s t a nd w hy j u d g es of this C o u rt will all be after this case that the g e n t l e m an faces. It d o es n ot m a ke sense. L e a r n ed j u d g es are n ot busybodies. It is not convincing that j u d g es of this C o u rt including learned justices will all of t h em be after this p e n d i ng case that the g e n d e m an faces. A nd that this that finding w h i ch the C o m m i s s i on will be a b o ut will influence the w o r k i ng of this C o u rt beats everything. So that that o ne is s o m e t h i ng that o ne should dismiss instantly. I am n ot suggesting that the facts c o n n e c t ed with the circumstances of the c h a r ge against the A p p l i c a nt will not be touched. T he probability is there. B ut w h at is important is that a n y t h i ng a b o ut those facts or circumstances will be a then slice of the activity of the C o m m i s s i on judging f r om its t e r ms of reference. B e c a u se the C o m m i s s i on is not a b o ut the Applicant n or the case that the A p p l i c a nt faces. It will o c c u py a very small piece of activity. T h at is w hy C o u n s el for the Applicant fount it difficult to s h ow a ny precedent before this C o u rt a b o ut an objection of this kind. A nd indeed there w as no precedent for this kind of objection. It could be true that, as M r. M o s i to pointed out, o n ce p e o p le w ho w e re appointing C o m m i s s i o n 's w e re faced with a situation like this o ne they o p t ed o ut n ot to issue a C o m m i s s i o n. B ut he did not s h ow us a precedent. I n d e ed it w as h a rd to find. In the Section 3 of the Public Inquiries A c t, the reading of subsection goes as follows: "3(1) If the P r i me Minister considers that it is in the public interest to do so, he m ay by notice published in the gazette a p p o i nt a c o m m i s s i on of inquiry consisting of o ne or m o re C o m m i s s i o n e rs to inquire into a ny m a t t er that is c o n n e c t ed with the g o od g o v e r n m e nt of L e s o t ho or is a m a t t er of public c o n c e r n ." (required e m p h a s i s) M r. M o s i to submitted that in t e r ms of this subsection there w e re m a ny objectionable w a ys in w h i ch the H o n o u r a b le P r i me Minister w e nt a b o ut the opportunity of the C o m m i s s i o n. T h at while the P r i me Minister w as entitled in the public interest to a p p o i nt a C o m m i s s i o n er of a C o m m i s s i on of Inquiry. It w as fair if he considered that he o u g ht to do so a nd this he could do following on his o wn g o od j u d g m e n t. A nd that he could do it subjectively that is c o n c e r n i ng things that he himself considers p r o p er or deserving in the circumstances. B ut M r. M o s i to c o m p l a i ns that it d o es n ot s h ow in the legal notice that the P r i me Minister in fact considered it to be a m a t t er in the public interest. C o u n s el w as suggesting that if it w as so it should h a ve s h o wn in the w o r d i ng contained in the legal notice. T h at nothing by w ay of w o r ds s h ow that he did in fact consider things in the public interest. M r. M o s i to uses the lawyers' w o r ds that it is a subjective w ay in w h i ch the P r i me Minister g o es a b o ut considering that a matter is of public interest a nd that is, to repeat the j u d g m e nt is his alone. B ut t h en as he did argue a matter h as either to be c o n n e c t ed with g o od g o v e r n m e nt or be a matter of public c o n c e r n. B ut then the test is objective that is w h e t h er the P r i me Minister did in fact consider a matter of public c o n c e rn or w h e t h er a m a t t er w as c o n n e c t ed with g o od g o v e r n m e n t. He said certain things m u st s h ow if a m a t t er w as c o n c e r n ed with g o od g o v e r n m e nt of L e s o t ho or w as a m a t t er of public c o n c e r n. I h a ve f o u nd it difficult to interpret public interest a nd public concern as different concepts. A nd in (act o ne of the S o u th African cases that M r. M o s i to quoted G O V E R N M E NT W O R K E RS U N I ON vs S C H O E M AN 1949(2) 4 63 w h i ch actually dealt with the treatment of the m e a n i ng of the t wo w o r ds or phrases/expressions. It actually declared that the m e a n i ng a nd effect w e re m u t u al a nd translatable. T h at they m e a nt the s a me thing. If a matter is a matter of public interest is also a matter of public concern as it w as reasoned. A nd this w as corroborated in o ne of the decision spoken a b o ut yesterday I suspected it w as this o ne of C O N E L LY v D I R E C T OR OF P U B L IC P R O S E C U T I O NS or C H A N D L ER v D PP AC 7 63 (which I h ad n ot read). It says this is no h ow a matter of public interest c a n n ot be matter of g o od g o v e r n m e nt if that matter is investigated by g o v e r n m e n t. A g o v e r n m e nt w o r k i ng for g o od g o v e r n m e nt will investigate matters of public interest a nd public concern. So that to speak of g o od g o v e r n m e nt in this context a nd that of public concern is redundancy. T h ey s e em to h a ve o ne m e a n i ng a nd effect. If the P r i me Minister did not spell out g o od g o v e r n m e nt separately or public concern separately he w as not doing w h at is unusual in this circumstances w h e re there is mutuality of the t wo concepts. I n ow speak a b o ut this matter of staff that is to be found in section 10 of the Legal Notice. It appears m o st clearly in terms of the Public Inquiries A ct that the P r i me Minister o u g ht to do nothing m o re than to appoint a C o m m i s s i o n. He does not appoint other people. A suggestion w as being m a d e, a suggestion, that he appointed the Secretariat in section 10. I agreed that the w ay section 10 is d r a w n, as I found, there w as no other interpretation that he did that the P r i me Minister did so appoint. T he question is whether it w as within his p o w e r. It w as not. It is because there are other people w ho are supposed to do that. T he Attorney G e n e r al does the other things (appointments). T he appointed C o m m i s s i o n e rs do the other appointments. B ut o ne cannot speak of this exercise of the P r i me Minister w h i ch appears flawed or irregular as vitiating the operation of the C o m m i s s i o n. Obviously the P r i me Minister did m o re than w h at he should h a ve d o ne because this interpretation of section 30(b) of the Interpretation A ct 1977 contemplates situations such as this. T h en the H o n o u r a b le P r i me Minster should h a ve explained w hy a nd h ow the Secretariat has to exist as it does. M ay be he should h a ve referred to another Minister having m a de the appointments or the Attorney General having d o ne so by appointing a person like M r. M a k h e t h e. So there is no d o u bt that only if the appointments w e re not d o ne by h im this does not s h ow on the face of the legal notice. This is m e re surplusage. T he P r i me Minister has d o ne m o re than w h at he should h a ve d o n e. I need not even declare that the appointments w e re incorrect. I will later s h ow the reasons w hy I should not. T he c o m m e n ts by Counsel about the so called origins of the C o m m i s s i on of Inquiry are correct. Originally the appointment of C o m m i s s i o ns w as a C r o wn prerogative. It w as w h at is sometimes called a ceremonial privilege, Executive prerogative, whatever o ne m ay or w o u ld call it according to the jurisdiction a nd circumstances. M e a n i ng that the C r o wn or the Executive President w o u ld be using this so called prerogative. Prerogative is a residue of all p o w e rs a nd acts of government. This m e a ns that w h en all h a ve b e en e m p o w e r ed to do certain things either by Acts of Parliament or other sources the remainder of the p o w er w h i ch are unallocated belongs to the C r o wn for purposes of functionality completeness a nd effective government. A nd this w as the powers through w h i ch C o m m i s s i o ns w e re appointed. In this country all w as d o ne w as to give C o m m i s s i o ns certain powers by proclamation. So that they c o me to deal with certain p o w e rs dealing with witnesses a nd punishing people for disobedience of certain orders w as o ne of the powers. As it h as b e en explained in a r g u m e nt of C o u n s el all the exercises a nd p o w e rs of prerogative w e re consolidated in the Public Inquiries A ct N o . 24 of 1 9 9 4. M e a n i ng that all these experiences that belonged to the period of the prerogative w e re n ow concretized or codified in an act of p a r l i a m e nt w h i ch h as n ow b e c o me a c o m p l e te law. T h e re w e re certain experiences a nd precedents built into that A ct of 1 9 9 4. It is also called an administrative act, m e a n i ng that everything that h as to do with the m e a n i ng the p o w e rs a nd regulation of every C o m m i s s i on of Inquiry is to be f o u nd in this A c t. It actually m e a ns m o re t h an that. It m e a ns that if there are protections or remedies they should be f o u nd in that A c t. If a n y b o dy c o m p l a i ns against a ny functions of a C o m m i s s i on then we m u st investigate as to w h at is contained in the A ct itself. H ow far it protects o n e? H ow far it prohibits certain things to be d o ne a nd h ow far it allows certain things to be d o n e. H e n ce the question w o u ld be: D o es this Applicant h a ve a ny r e m e dy in the A ct itself as on the alternative of scuttling the w h o le C o m m i s s i o n. My belief is that this w as n ot h a rd to find. L o o k i ng at section 12 of the A ct of 1 9 94 o ne is allowed Legal Counsel. It is provided that a C o u n s el will be allowed to be called w h en a person's interest is at risk before a C o m m i s s i o n. In the A ct in a ny m a t t er of c o n c e rn to a p e r s on the C o m m i s s i on is enjoined to call that person. A nd then o ne c an m a ke his submissions or representations. T h is is m o re so if a person such as the Applicant initially h as an a d v a n ce w a r n i ng that his m a t t er will be t o u c h ed by the investigations. T he Applicant therefore h as an initial notice that his m a t t er m ay feature. T h en o ne should speak of section 8 of the A ct as follows. A report of a C o m m i s s i on m ay be excised. A portion c an be taken out of the report. T h e re are various reasons w hy a portion of a report c an be taken out. V i de section 8(3). O ne of t h em is national security. O ne of these is privacy of an individual a nd m o st important "the right of a person to a fair trial." I am not even suggesting that I w o u ld k n ow h ow the P r i me Minister w o u ld c o me a b o ut t he exercise of taking out a portion as provided in the A c t. B ut my suspicion is that an Applicant w o u ld h a ve to m o ve before the C o u rt h a v i ng h e a rd w h at the C o m m i s s i on w as a b o ut concerning his interest. S o m e o ne w o u l d, a m o n g st others, h a ve to c o me to C o u rt a nd say that a certain portion of the report o u g ht to be taken out h a v i ng h e a rd w h at the c o m m i s s i on w as a b o ut c o n c e r n i ng his interest. I suspect that s o m e o ne w o u ld h a ve to do so on his o wn initiative. I n d e ed we e v en h a ve instances in S o u th Africa w h e re people h a ve m o v ed for taking o ut certain contents or portions of a C o m m i s s i o n 's report. T h e se we read a b o ut so m a ny times in the papers. An e x a m p le w as a report by the T R C w h e re the A NC party h ad asked for r e m o v al of a certain portion w h i ch worried the party. If I recall well H o n o u r a b le M a n g o s u tu Buthelezi or s o me other l u m i n a ry h ad h ad such a m o t i on or a c o m p l a i nt (not necessarily similar to the present) m a d e. It m e a ns that this c an be d o n e. A nd this s e e ms to be the protection provided for u n d er section 8 of the Act. I w a nt to re-visit the matter of public interest a nd public c o n c e rn that C o u n s el h as s p o k en a b o ut yesterday. W hy this matter a s s u m ed interest w as that things such as the sport of r u g by h ad to be put u n d er C o m m i s s i o ns for Inquiry. T he administration of the sport s u ch as r u g by w e re b e i ng inquired into. A nd in that S o u th African case that M r. M o s i to has s p o k en a b o ut it w as a C o m m i s s i on into the administration of rugby. A nd then a g o od a nd legitimate question w a s: Is this matter a m a t t er of public interest? A m a n a g e m e nt or m i s m a n a g e m e nt of a sport by s p o r t s m en a nd administrators. S h o u ld the President actually institute a C o m m i s s i on for that marginal a nd sectional sport that s o me people took r u g by to be. T h at is w hy it w as important to investigate w h e t h er it w as a matter of public c o n c e rn or a m a t t er of public interest. B e c a u se the sport w as perceived to be a m a r g i n al or sectional o ne by s o me people. T he interpretation of the t wo phrases a nd the decision on their interpretation w e re m a de in that context of that debate. H e re we are to haggle a b o ut a m a t t er of public i m p o r t a n ce as to w h e t h er it w as a m a t t er of public c o n c e rn or interest w h e re virtually to w h o le t o wn centre w as burnt d o wn after a visible public c o m m o t i o n. W h e re there w as disturbance spreading o v er three m o n t h s. A nd a question is n ow being asked w h e t h er this is matter of public c o n c e rn a nd public interest. A nd indeed the P r i me Minister m ay h a ve n ot spelled it in so m a ny w o r ds s u ch as: "I h a ve considered that because of this a nd that a C o m m i s s i on should be appointed." B ut looking at the terms of reference themselves, e v en m an in the street c an see that this is a m a t t er of public concern. A nd as a C o u rt w o u ld take judicial notice of the fact that there w as disturbance of that kind w h i ch w o u ld h a ve to be inquired into. A nd I do take judicial notice. A nd I therefore do n ot u n d e r s t a nd w h at m o re explanation w o u ld be n e e d ed f r om the P r i me Minister. T he introduction to the legal notice tells us m a ny things. T h at he acted in t e r ms of section 3 w h i ch speak a b o ut public interest a nd public concern. I w o u ld further speak a b o ut the m e a n i ng of those t wo w o r ds to say that. To h a ve a c o n c e rn in a matter is to h a ve an interest in the matter a nd to h a ve an interest is to h a ve a c o n c e rn as every student's dictionary will s h o w. I c o me to w h at I suspect will be my last c o m m e n t. A nd a very i m p o r t a nt o ne c o m i ng to the issue that I earlier on spoke about. It is a b o ut the discredonary r e m e d y. A nd w h at declaration m e a ns w h e re a C o u rt is being asked to declare s o me action invalid. W h at is called for f r om the C o u rt a nd the aspect of delay. T h is aspect of delay has b e en discussed in so m a ny cases the C o u rt of A p p e a l. T he last o ne w h i ch I recalled w as that o ne of L E S O T HO B A NK v S T A N L EY M O L O I. T h at in litigation whether s o m e o ne has c o me to C o u rt on time or w h e t h er not is very important. W h en the C o u rt is being asked to give a discretionary r e m e dy lawyers always pretend not to understand this. Because they forget that litigation is a serious thing. It is a serious thing in w h i ch o ne m u st s h ow bona fides (good faith). If o ne does not demonstrate serious interest or if o ne does is very important. D e l ay is very important. T he Court having to speak about delay because litigation is a serious activity. It is costly a nd it is expensive to run. T he C o u rt is this claim for a discretionary r e m e dy does not look at the claimant alone. It does not look at one's o wn interest only. It also looks at the interests of other people. T h at is w hy in an extreme a C o u rt can d e ny o ne his rights if the interests of other people are affected. A nd if w h en o ne is to be given the relief it adversely affects the other people. M o st of the time innocent people could be inconvenienced. This is m o re so w h en a matter is said to be urgent (as the present one) w h en it should not h a ve b e en so.. T h at is w hy lawyers can cleverly create urgency. T h ey do so because it gives t h em certain advantages mostly s o me clients of theirs w o u ld be interested in merely embarrassing other people (by getting u n d ue orders) to their o wn ends. T h at is w hy y ou will hear a litigant say " E v en if I do not ultimately get w h at I claim " A k 'u mo tsoare m a t s o h o" (Just interdict h im in the m e a n t i me or for a while"). " E v en if I do not get w h at I w a nt tie his hands". T h at is the trick about seeking interdicts w h en they are not being genuinely sought. T h at is w h at lawyers do. A nd the Applicant herein did say the matter is urgent. It w as not. He h ad created the urgency himself. H ow has he d o ne it? T he C o m m i s s i on w as appointed on the 9th of M a r ch 2000. He waited a nd waited a nd c a me to C o u rt on the 20th of April 2 0 0 0. At the time g o v e r n m e nt m u st have g o ne into costs a nd expenses of bringing up/setting up the C o m m i s s i o n. A nd it w as during Easter vacation. It is against this background, the inconvenience of other people, the costs a nd expenses w h i ch things are important a nd matter to a Court. If the Applicant c a me to Court at the time that he did h ow does he demonstrate that he has g o od interest a nd bona fides in this litigation? He does not. We hear references to the D e p u ty P r i me Minister having said something in parliament about the existence of the C o m m i s s i on or intention to set up on a certain d ay in April. T h o se things do not interest us as a Court. W h at is interesting or of concern is the time that the Legal Notice appoints as the o ne of the establishment of the C o m m i s s i on w h i ch w as the 9th of M a r ch 2 0 00 appointing the date of the 25th April 2 0 00 as date of c o m m e n c e m e nt of the w o rk of the C o m m i s s i o n. T h e se other matters found in the answering affidavit including of course that the P r i me Minister has said that it is intended that the w h o le report will be publicized to the w h o le world a nd international institutions, this primarily (as it w as alleged) to prejudice or aggravating the potential for unfair trial do not concern us. T h ey are threats of a merely potential nature a nd as such do not concern us here. We are concerned that everybody including the P r i me Minister should c o m p ly with the law a nd the procedure set out in the Act. A nd section 8 tells us w h at the P r i me Minister should do. If he goes about publicizing the C o m m i s s i on at the United Nations a nd such like that w o u ld not be our business. O ur business is that he m u st c o m p ly with the law. W h e re certain provisions of the law are not complied with that we m u st deal with. This includes of course the disputed Secretariat. A b o ut that if the Applicant c o me to C o u rt on the 20th April 2 0 00 o ne w o u ld surely find fault as I have with the contents of section 10 as I h a v e. B ut h ow c an it be rectified in the circumstances of the C o m m i s s i on h a v i ng e v en c o m m e n c ed before the hearing of this application that is on T u e s d ay the 25th April 2 0 0 0. W o u ld it be judicial discretion a nd w o u ld it m a ke sense if I w e re to order for e x p u n c t i on of section 1 0? A nd say all that the six people h a ve b e en d o i ng h ad a m o u n t ed to nothing? If I am expected to apply judicial discretion is this w h at I m ay d o. W h e re o ne w as seeking for assistance of this C o u rt at that h o ur of the 20th April 2 0 0 0. My finding is that this Applicant h as got remedies in the Public Inquiries A ct itself. He h as got a protection of his rights in that A c t. He m u st exercise t h em accordingly. T he A ct prescribes r e m e d i es to people s u ch as Applicant to w h i ch he m u st resort. He c a n n ot expect the scuttling of the C o m m i s s i o n. So this application fails with costs. M e a n i ng that the C o m m i s s i on m i g ht as well p r o c e ed in its w o r k. T . M O N A P A T HI J U D GE 27th April 2 0 00