Malebo v Minister of Information and Broadcasting and Another (CIV/T 89 of 96) [2000] LSCA 7 (31 March 2000)

CIV/T/89/96 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 e n: V I N C E NT M O E K E T SE M A L E BO P L A I N T I FF and T HE M I N I S T ER OF I N F O R M A T I ON A ND B R O A D C A S T I NG T HE A T T O R N E Y - G E N E R AL 1 ST D E F E N D A NT 2 ND D E F E N D A NT R U L I NG Delivered by the Honourable M r. Justice G . N Mofolo on the 31st d ay of M a r c h. 2 0 0 0. T he plaintiff h as issued s u m m o ns against the 1st a nd 2 nd d e f e n d a nt claiming: 1. P a y m e nt of M 1 0 0 , 0 0 0 - 00 d a m a g e s. 2. 3. C o s ts of suit a nd Further a n d / or alternative relief. T he reason for the d a m a g es is that plaintiff c l a i ms 1 st d e f e n d a nt h as d e f a m ed h i m. D e f e n d a n ts after m a k i ng an a p p e a r a n ce to d e f e nd h ad e x c e p t ed to t he declaration in t e r ms of R u le 2 9 ( 1) of the R u l es of C o u rt on the g r o u nd that 'it w as m a n d a t o ry for plaintiff to h a ve alleged that he g a ve the defendants the required statutory notice of the a b o ve action pursuant to the G o v e r n m e nt P r o c e e d i n gs a nd Contracts A ct N o .4 of 1 9 6 5 .' M r. Ntlhoki for the plaintiff h ad o p p o s ed the exception. W h e n, on 9 M a r c h, 2 0 00 the trial w as to p r o c e ed M r. M a k h e t he for d e f e n d a n ts h ad p r o c e e d ed w i th the exception alleging, a m o n g st other things, that the A ct he h ad referred to w as m a n d a t o ry particularly b e c a u se according to section 4 of the A ct it w as said. no action shall be instituted by w ay of s u m m o ns by virtue of the provisions of section t wo of this A ct until the expiration of o ne m o n th next after notice in writing h as b e en delivered to or left at the office of the Principal L e g al A d v i s e r, stating the c a u se of action, the n a m e, description a nd place of residence of the plaintiff a nd the relief w h i ch he claims; a nd the delivery of s u ch notice shall be a necessary allegation in the plaintiff's s u m m o ns or declaration.' M r. M a k h e t he has said the 'shall in w h i ch it is e m p l o y ed is imperative a nd that no notice in writing of plaintiff's intended action w as delivered or left at the office of the Principal Legal A d v i s er as in l aw required. M o r e o v e r, that plaintiff c o u ld only h a ve c o m m e n c ed action after the expiry of o ne m o n th after delivering the notice as aforesaid. M r. M a k h e t he t h o u gh h as said he is not insisting on dismissal but rectification, M r. Ntlhoki h as said in t e r ms of the R u l es of C o u rt the exception w as hopelessly out of time a nd c a n n ot be entertained. E v en should the plaintiff not succeed on this, the exception w as not well taken b e c a u se a c c o r d i ng to R u le 2 9 ( 1 ), the claim w as to be such that c a n n ot sustain action a nd a b s e n ce of an a v e r m e nt did not imply that the action cannot be sustained. He says a ny o m i s s i on c an be rectified by evidence He says the section d o es not stipulate penalty in the event of n o n- compliance. He says the w o rd shall in the context in w h i ch it is u s ed d o es not i m p ly obligation bin it is permissive a nd c an only be implied as imperative if there is an a c c o m p a n y i ng penalty otherwise it is to be construed as permissive. He says w h e t h er notice w as given c an be cured by e v i d e n ce or an a m e n d m e n t. A c c o r d i ng to the p a p e rs before me the s u m m o ns w as lodged with the Registrar of this Court on 23 February, 1 9 96 a nd served on defendants on 8 M a r c h, 1 9 9 6. A p p e a r a n ce to d e f e nd w as entered on 12 M a r c h, 1 9 96 a nd an exception signed by defendant's attorney on 25 M a r c h, 1 9 9 6. It is not clear w h en the exception w as filed with the Registrar t h o u gh M r. Ntlhoki a p p e a rs to h a ve b e en served with the s a me on 22 April, 1 9 9 6. plaintiff's c o py d o es not reflect that plaintiff w as served after the exception w as l o d g ed with the Registrar as is the n o r m al practice. I h a ve said that M r. Ntlhoki h as said that the exception w as hopelessly out of time though, as I h a ve said, it is not clear w h en the exception w as filed with the Registrar of the Court. Be this as it m a y, the exception w as served on M r. Ntlhoki on 22 April, 1 9 96 a nd after this service the incredible h a p p e n e d. A l t h o u gh M r. Ntlhoki w as served with Notice of Exception on 22 April, 1 9 9 6, he a p p e a rs to h a ve lodged his intention to o p p o se with the Civil Registry of the H i gh C o u rt on 12 N o v e m b e r, 1 9 9 6, m o re than six (6) m o n t hs after the notice h ad b e en served on h i m. There is no rule w h i ch allows such belated opposition to a pleading properly taken a nd on this g r o u nd alone the court is entitled to grant the exception. H o w e v e r, as 1 h a ve s h o w n, M r. M a k h e t he h as b e en g e n e r o us saying he w o u ld rather the action w as not dismissed but rectified. A ct N o .4 of the G o v e r n m e nt P r o c e e d i n gs a nd Contracts A c t, 1 9 65 is m o re extinctive than acquisitive prescriptive as it is in its nature. In m a ny cases the legislation expressly stipulates that certain formalities must be complied with and certain procedures followed when power is exercised - see Braude v. Pretoria City Council, 1981 (1) S. A. 680 (T) 683 (i-H. Where timeous notice of impending action was not given, courts have held administrative action to be ultra vires, see Fredericks v. Stellenhosch Divisional Council, 1977 (3) S. A. 113 (C), Roberts v. Chairman, Local Road Transportation Board (1) 1980 (2) S. A. 472 (C). Non- compliance need not be attributed to public authority alone since private individuals may be obliged to observe formalities and procedures as well. Question is whether a defect of procedure or form will be fatal. Mandatory/Directory Dichotomy: According to the decision in Marai.v v. Mclntosh, 1978 (2) S. A. 414 (N), 421, administrative action based on formal or procedural defects is not always invalid for technically the law is not and end in itself in view of the fact that legal validity is concerned not merely with technical but also with substantial correctness. According to the decision in Essack v. Pietermaritzburg City Council, 1971 (3) S. A. 946 (A) 962 F - G, Stadsraad van Vendcrhylpark v. Administrator, Transvaal, 1982(3) S. A. 166 (T), substance should not be sacrificed to form for in special circumstances greater good might be achieved by overlooking technical defects - see Voet 1.3.16 (iv) and Flemix v. Taljaard, No, 1982 (2) S. A. 450 (W). Also, according to Grotius Inleiding 1.2.2, it has long been recognised that in certain circumstances a failure to comply with particular legal requirements will not constitute a fatal defect in the act concerned. By preferring to refer the matter to rectification, there can be no doubt that Mr. Makhethe was aware of this requirement. It would seem, though, that in South African law a distinction has been drawn between so-called 'mandatory', 'imperative' or 'peremptory' rules on the one hand and 'directory' rules on the other. A distinction is described by Lord Penzance thus: 'Now the distinction between matters that are directory and matters that are imperative is well known to us all in the common language of the courts at Westminster, I am not sure that it is the most fortunate language that would have been adopted to express the idea; but still that is the recognized language and I propose to adhere to it. The real question in all these cases is this: A thing has been ordered by the legislature to be done - what is the consequence if it is not done? In the case of statutes that are said to be imperative, the courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are void. On the other hand, when the courts hold a provision to be — directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still, whatever the language, the idea is a perfectly distinct one.' {sec Howard v. Bodington (1877) 2 PD 203). But apparently the distinction is not that clear in practice though it may be in the realm of ideas as was recognised by Lord Penzance quoting an earlier dictum of Lord Campbell which expresses the true nature of the inquiry whenever it arises, namely that: 'No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be construed directory only or obligatory-, with an in plied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. (see Liverpool Borough Bank v. Turner (1861) 36 LI ((CL) 379, 380- I.) The exercise apparently entails that in each case one 'must look to the subject- matter, consider the importance of the provision that has been disregarded, and the relation of the provision to the general object intended to be secured by the Act. Indeed the history of the legislation might be of assistance. Accordingly, if injustice would result from strict compliance with the requirement, this might indicate that it is only directory; conversely, if injustice or prejudice might result, from non- observance, it is likely that the requirement is mandatory - see Howard v. Bodington (1877) LVD 203, 211 c f Leibhrandt v. South African Railways, 1941, A. D. 9, 13; Charlestown Town Board v. Vilakazi, 1951 (3) S. A. 361 (A) 370; Maharaj v. Rampersad, 1964 (4) S. A. 638 (A) 643; Sutter v. Scheepers, 1932 A. D. 165, 174 and cases therein quoted at p. 447 and footnotes 386 -389 of Baxter Administrative Law. ' Also, the legislative terminology adopted whether imperative or not, or whether couched in negative or positive terms might also provide an indication as to how strictly the requirement should be observed - see also Sutter '.s & Messenger of Courts cases above and Mathope v. Soweto Council, 1983 (4) S. A. 287 (W) 290 B-D. It would also appear the existence of sanctions for failure to comply provides a relevant though somewhat unreliable guide and perhaps as Mr. Ntlhoki has submitted absence of sanction is a clear pointer that the statute is permissive. See in this respect McLanglin NO v. Turner, 1921 A. D. 537, 544, 550. According to Evans 'Mandatory and Directory Rules' (1981) ILS 227 it would seem greater clarity may be obtained if three different situations are taken into account: (i) when the requirement is an enabling one; (ii) when it is an essential pre-requisite of validity; and {in) where it is not an essential prerequisite of validity. Of course herewith are dealing with (ii) above. According to Baxter p.449, peremptory words such as 'shall' or 'must' indicate that the authority has no choice but to obey the provision while 'may' or 'can' is treated as permissive. Nevertheless, whether a decision has been taken to be violation of a particular provision, the question to be asked is whether, according to the decision in Essack v. Pietermaritzburg City Council, 1971 (3) S. A. 946 (A) and cases quoted at p.449 of footnote 402 of Baxter above, 'the legislature intended non-compliance to be visited with nullity' for it could well be that the intention of the legislature was for non-observance to attract some sanction other than invalidity. It has been held much as permissive language is an unreliable guide in determining whether a discretionary power exists, so too is imperative' language such as 'shall' or 'must' for these constitute prima facie guides though they have been held within specific contexts to be directory in nature. The degree of observance is also of importance for when a requirement is mandatory it has to be rigidly or exactly observed. The courts though adopt a flexible approach as was the case in Maharaj v. Rampersad above, c/f E. M Motors Ltd v. Boutle, 1961 (2) S. A. 320 (N) 327-8, Shalala v. Klerksdorp Town Council, 1969 (1) S. A. 582 414 (N), 418. The question is invariably whether the injunction postulated by the legislature has been observed. For example, failure to publish a translated version of certain regulations h as b e en held not to invalidate regulations. A l so failure to publish a notice advertising certain conditions i m p o s ed u p on a t o wn planning s c h e me w as held insufficiently defective to u n d e r m i ne the validity of the s c h e m e. A nd yet these rulings do not p r e c l u de orders directing c o m p l i a n ce with the directory requirements. Be this as it m a y, it w o u ld s e em organisations are to p r o c e ed in a fair m a n n e r. D e f e n d a n ts are u n d o u b t e d ly organisations of s o me sort e x p e c t ed to p r o c e ed in a fair m a n n er notwithstanding legislation in their favour. M r. M a k h e t he on their behalf h as b e en fair for instead of asking for the invalidity of the s u m m o ns he h as offered that there be rectification of the s u m m o n s. A c c o r d i n g l y, this court orders that s u m m o ns be rectified a n d / o r / a m e n d ed within fourteen ( 1 4) d a ys of this ruling. C o s ts will be costs in the trial. G. N. MOFOLO J U D GE 29th M a r c h, 2000. F or the Applicant/defendants: M r. M a k h e t he F or the Respondent/plaintiff: M r. Ntlhoki