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IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV)/5/2016
In the matter between:
TEFO HASHATSI Appellant
and
THE PRIME MINISTER First Respondent
JUSTICE PHUMAPHI NO
(CHAIRMAN OF COMMISSION OF INQUIRY) Second Respondent
PHUMAPHI COMMISSION OF INQUIRY Third Respondent
THE ATTORNEY GENERAL Fourth Respondent
MAMPHANYA MAHAO Fifth Respondent
FIFTH RESPONDENT’S HEADS OF ARGUMENT
INTRODUCTION
1. This is an appeal from a judgment that was delivered ex tempore on 8 February
2016 in which the Court a quo dismissed the application. It should be noted that
the judgment was handed down in the morning of 8 February 2016. That same
afternoon the Prime Minister handed the report of the Commission of Inquiry to
parliament in terms of the provisions of section 8 of the Public Inquiries Act, with
the appellant’s name having been expunged from the report on the basis that his
matter was sub judice.1 The appellant filed his Notice of Appeal on the same date.
2. The appellant’s grounds of appeal includes that the learned judged misdirected
1 Annexure to the Commission of Inquiry Report in terms of Section 8(3) and (4) of the Public Inquiries Act, signed by the Prime Minister on 4 February 2016. At para 1: “There is a matter which is sub-judice affecting the individual and the Commission, in respect of the Commission’s work, findings and recommendations. It would be disrespectful to the dignity and independence of the courts of law to publish this portion of the report.”
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himself in not granting the relief sought and in holding that the proceedings were
brought prematurely; that the second and third respondents were entitled to sit and
hear evidence in the Republic of South Africa; failing to set aside the proceedings
and declaring that they were impartial and in violation of the requirements of the
Public Inquiries Act; and failing to grant an interdict restraining the second and third
respondents from making any findings against him.
3. It is indeed unfortunate that the case has proceeded in the absence of a written
judgment.
4. The fifth respondent has been specifically challenged in drafting its heads of
argument in the absence of a written judgment. For example, the fifth respondent
has raised a number of preliminary issues in the High Court and does not know the
extent to which any of these submissions have been accepted or rejected, making
it impossible to verify the correctness of the appellants’ argument that the only
preliminary issue accepted by the Court a quo was that the matter was brought
prematurely, and whether there is a need to in fact cross-appeal.
5. This Court has acknowledged the prejudice suffered by parties where there is no
written judgment:
“Parties expend anxious time and hard-earned money in taking a matter to the High Court. They are entitled to know the reasons for reaching the conclusion to which the Judge has come. In addition, where there is an appeal against the judgment or order the parties cannot fully prepare their cases in the absence of the reasons and this Court requires to know the reasons in order properly to bring a fully informed mind to bear on the question whether the Judge was right.”2
6. The fifth respondent was surprised when the matter was enrolled for hearing in the
High Court in the absence of a written judgment.
7. In the absence of a written judgment, the record of proceedings is incomplete.
Despite this, no condonation application has been filed and the matter was enrolled
2 Hlabathe Makibi and Another v ‘Mamoorose Makibi C of A (CIV) 18/2014, October 2014, at para 3.
3
for hearing contrary to the normal practice.3
BACKGROUND TO THIS APPLICATION
8. This is an appeal against the decision made by the Court a quo which dismissed
the appellant’s challenge to the legality of the conduct of and report released by
the SADC Commission of Inquiry.
9. On 3 July 2015, a SADC Extraordinary Double Troika Summit, convened to discuss
the political and security situation in Lesotho. The Summit noted that “the security
situation in the country is tense as evidenced by the flight of the opposition leaders,
the alleged ‘mutiny plot’ and subsequent investigations and the death of Brigadier
Mahao”.4 Other concerns noted included that “the arrests and investigations within
the LDF have reignited the tension among the security services and fear within the
population”; “general concern about the role of the army” and “the King’s serious
concern on the deteriorating security situation in the country, especially the role of
the army”.
10. In the light of these concerns, the SADC Summit decided “as a matter of urgency,
to establish an independent commission of inquiry”.5 The Summit adopted the
Terms of Reference of the Commission of Inquiry which included reviewing the
investigations into the alleged mutiny plot; investigating the circumstances
surrounding the death of Brigadier Mahao; investigating the appointment and
removal of Lt. Gen. Kamoli and Brigadier Mahao as heads of the LDF in 2014 and
2015 respectively; and investigating “allegations that Lt. Gen. Kamoli’s
reappointment has resulted in divisions in the LDF, and has led to political and
security instability”.6
11. The SADC Summit requested the full support of the government of Lesotho in
3 Leribe Poultry Co-Operative Society v Minister of Agriculture and Others C of A (CIV) 13 of 1991. 4 Minutes of the SADC Double Troika Summit, held on 3 July 2015, at para 3.7, page 126 of Record. 5 Minutes of the SADC Double Troika Summit, held on 3 July 2015, at para 3.9(ii), page 127 of Record. 6 Minutes of the SADC Double Troika Summit, held on 3 July 2015, at para 3.9(iii), page 127-128 of Record.
4
facilitating the work of the Commission of Inquiry7 and the Summit approved a
budget of $400 000 to support the operations of the Commission of Inquiry.8
12. At the Summit of the SADC Heads of State on 17 and 18 August 2015, the Summit
raised the concern that the Legal Notice9 published by the government of Lesotho
to establish the Commission of Inquiry fundamentally deviated from the Terms of
Reference approved by the Double Troika Summit of 3 July 2015.10 The Summit
urged the government to adhere to the original Terms of Reference of the
Commission of Inquiry as approved by the Double Troika Summit in July 2015.11
13. The Summit of the SADC Heads of State also discussed the report of the
Commission of Inquiry which indicated that it would have to conduct public
hearings outside of the country.12 The Summit accordingly increased the budget of
the Commission of Inquiry with an additional $201 773.13
14. The Lesotho government subsequently gazetted a revised Legal Notice, 88 of
201514 which states at section 3 that the Commission of Inquiry was appointed to:
a. “Review the investigations into the alleged mutiny plot. The review should also cover the alleged kidnapping of former members of the LDF and alleged killings of members of the opposition;
b. Investigate the immediate circumstances that led to the shooting of Brigadier Mahao;
c. Investigate allegations that Brigadier Mahao resisted arrest in a manner that merited his fatal shooting;
d. Investigate whether the Security forces used excessive force when apprehending Brigadier Mahao;
e. Investigate the immediate circumstances that led to death of Brigadier
7 Minutes of the SADC Double Troika Summit, held on 3 July 2015, at para 3.9(x), page 128 of Record. 8 Minutes of the SADC Double Troika Summit, held on 3 July 2015, at para 3.9(ix), page 128 of Record. 9 Page 22 of Record. 10 Record of the Summit of SADC Heads of State, Gaborone, 17-18 August 2015, at para 4.1.3.3, page 120 of Record. 11 Record of the Summit of SADC Heads of State, Gaborone, 17-18 August 2015, at para 4.1.3.8(iii), page 121 of Record. 12 Record of the Summit of SADC Heads of State, Gaborone, 17-18 August 2015, at para 4.1.3.4, page 120 of Record. 13 Record of the Summit of SADC Heads of State, Gaborone, 17-18 August 2015, at para 4.1.3.8(viii), page 121 of Record. 14 Page 29 of Record.
5
Mahao; f. Investigate the circumstances surrounding Brigadier Mahao’s admission to
hospital; g. Investigate the alleged mutiny plot and the alleged involvement of Brigadier
Mahao; h. In its investigations, incorporate the report of the pathologist; i. Investigate the legality and the manner of the appointment of Lt. General
Mahao in 2014 and his demotion and removal as head of LDF in 2015; j. Investigate the legality and manner of the removal of Lt. General Kamoli as
head of LDF in 2014 and his reappointment in 2015; k. Investigate the allegations by opposition Parties and Civil Society
stakeholders that Lt. General Kamoli’s reappointment has resulted in divisions in the LDF and has led to political and security instability;
l. Investigate the authorisation and execution of the LDF operations to arrest Brigadier Mahao;
m. Investigate the termination of appointment as the LDF Commander and demotion of Brigadier Mahao;
n. Assist in the identification of any perpetrators with a view to ensuring accountability for those responsible for the death of Brigadier Mahao; and
o. Investigate any other matters relevant to the inquiry.”
15. The Legal Notice was signed by Prime Minister Pakalitha Mosisili. The Legal Notice
specifically did not exclude the convening of proceedings outside of Lesotho,
despite being aware of the discussion at the August SADC Summit of Heads of
State on the need to conduct hearings outside Lesotho.
16. The fifth respondent submits that the purpose of establishing a SADC Commission
of Inquiry was to bring peace and security to Lesotho. It was evident that it would
be impossible to heal the rifts within Lesotho without an independent Commission
of Inquiry which examines the role that the LDF has played in the security crisis.
This appeal should be heard with this context in mind.
17. Since the Court a quo’s decision, the SADC Commission report has been released.
The report was handed to the Prime Minister who published it after removing the
name of the appellant. Considering that the appellant’s name has been removed
from the Commission’s report, it is submitted that his motives for continuing this
action are questionable.
18. It is apparent from the appellant’s founding affidavit, that he is bringing this
application to ensure that any allegations surrounding the death of Brigadier Mahao
6
are not disclosed.15 The fifth respondent submits that principles of equity guard
against a court being used for ill purposes. One cannot come to court with dirty
hands.
19. In Manitoba and Others v AG of Canada and Manitoba16 the Supreme Court of
Canada addressed the issue of the proper characterization of declaratory relief in
the case of Hong Kong Bank. In that case, Sopinka J held that “even if the remedy
is seen to be sui generis, equitable principles such as clean hands can play a role
in the exercise of the court’s discretion whether or not to grant the remedy”17: He
concluded that, at p. 192:
“While it may be that certain equitable restrictions such as the requirement that legal remedies be insufficient and that there be a probability of irreparable or at least very serious damage should not be applied to declaratory remedies, I would conclude that in the exercise of the discretion whether or not to grant a declaration, the court may take into account certain equitable principles such as the conduct of the party seeking the relief.”18
20. At the core of the application is a misunderstanding of the role of a Commission of
Inquiry. It can and must investigate controversial issues which may indeed impugn
on the reputation of the appellant.
21. In Maseribane v Right Honourable the Prime Minister and Another19 it was held
that the commission should proceed where only a part of its terms of reference
would investigate a murder which the applicant was accused of committing. As in
that case, this Court’s decision is discretionary and it is entitled to consider not only
the interests alleged by the appellant, but also the broader context and purpose of
the Commission of Inquiry and the public interest which necessitated the
establishment of the Commission.
22. The fifth respondent takes issue with the appellant’s characterisation of her
15 In paragraph 19 of his Founding Affidavit, the appellant states that “I had specifically indicated that I would not answer any questions relating to the death of Mahao as the answers might tend to incriminate me.” 16 [2011] 216 CRR (2d) 144 [340]. 17 At page 191. 18 At page 192. 19 [2000] LSHC 53.
7
standing.20 The fifth respondent’s interest in the proceedings and outcome of the
Commission of Inquiry is substantial, proximate and material. The Terms of
Reference of the Commission itself indicates the controversy that surrounded the
death of the fifth respondent’s husband, and the likelihood that the report of the
Commission might provide the fifth respondent with information to inform a civil
claim against the LDF. It is further within the fifth respondent’s right to obtain clarity
and closure on the circumstances surrounding her husband’s death. It is
accordingly of great interest to the fifth respondent that the proceedings of the
Commission of Inquiry not be set aside in totality.
PROCEDURAL CONCERNS
23. The appellant’s heads of argument deal with two procedural issues raised by the
fifth respondent in the Court a quo – the appellant’s locus standi and the
prematurity of the proceedings. The fifth respondent has raised additional
procedural concerns in the Court a quo relating to non-joinder, failure to meet the
requirements for an interdict, lack of urgency and abuse of the ex parte procedure.
Since these procedural concerns were not raised as an issue by the appellant, and
in the absence of a written judgment explaining the extent to which the Court a quo
accepted or rejected the fifth respondent’s procedural arguments, these issues will
not be dealt with here but if necessary will be dealt with during oral argument.
Mootness
24. On 19 January 2016, during the hearing in the Court a quo, the lawyers were
alerted to a communique from the Double Troika Summit of SADC Heads of State
released on the 18th of January 2016, in which it stated that the report of the
Commission of Inquiry had been received by SADC and handed over to the
government of Lesotho.21
25. At this point, the amicus curiae in the Court a quo formally raised the point that the
20 Para 1.3 of the appellant’s heads of argument. 21 Pages 179-180 of Record.
8
relief sought by the appellant was moot. The Court a quo in its oral judgment
specifically indicated that the mootness argument was rejected.
26. Be that as it may, the report of the SADC Commission of Inquiry was tabled in
parliament immediately following the judgment by the Court a quo. The fifth
respondent submits that this has rendered much of the relief sought in these
proceedings moot.
27. The appellant initially brought these proceedings so that the report of the
Commission would be released to and censored by the Prime Minister, rather than
presented to SADC for public release in its entirety. The original version of the
report provided by the Commission to SADC has not been released and only the
expunged version of the report handed by the Prime Minister to parliament has
been published. Thus the version of the report which has been released does not
contain the appellant’s name, thus this issue is moot.
28. The appellant sough an order preventing him from having to testify before the
Commission for a second time. A temporary interdict was granted by the Court a
quo and the Commission concluded its proceedings without the additional
testimony of the appellant. As a result it is submitted that this element of the appeal
is moot.
29. The appellant sought to compel the Commission to work within the parameters of
the Public Inquiries Act. The Commission has since finalised its work and submitted
its report. Its report states at page 22 that the Commission considered the Public
Inquiries Act applicable law. Be that as it may, the appellant may study the report
of the Commission, determine from the report whether the Commission followed
the provisions of the Public Inquiries Act and seek appropriate relief (if any) in the
circumstances. This, however, is not the purpose of the present proceedings.
30. The same can be said for the appellant’s attempt to obtain an interdict to prevent
the Commission from making a finding against him. This issue is moot as a result
of the Commission’s report having been published without reference to the
appellant’s name. If from the anonymised descriptors used in the Commission’s
9
report, the appellant has identified allegations made against him which he wishes
to challenge he is within his rights to initiate separate review proceedings before
the High Court.
31. For the reasons set out above, it is submitted that the relief sought by the appellant
will no longer have a practical effect.22
32. If the appellant pursues the appeal in the context of its lack of practical effect, it
substantiates a conclusion that the appellant’s motive in pursuing the appeal is to
delay the implementation of the recommendations of the Commission more
broadly.
Lack of Locus Standi in Judicio
33. The appellant prays that paragraph 4 of Legal Notice 75 of 2015 be declared ultra
vires the provisions of the Public Inquiries Act 1 of 1994;23 and that paragraph 4 be
declared null and void.24
34. The fifth respondent submits that the appellant lacks locus standi to challenge
paragraph 4 of the Notice. He has neither a vested interest in the relief, nor has he
asserted any prejudice, harm or adverse effect to himself from paragraph 4.
22 JT Publishing and another v Minister of Safety and Security and another 1997 (3) SA 514 dealt with a case in which the applicant sought to declare certain provisions of the Publications Act 42 of 1974 (Publications Act) and the Indecent or Obscene Photographic Matter Act 37 of 1964 constitutionally invalid. The Constitutional Court of South Africa refused make a declaration in this matter because the Films and Publications Act (65 of 1996) had, in the interim, repealed both of the above acts.22 The court stated that the they were obligated to hear matters which fell within their jurisdiction but further states that: “The requirement does not mean that we are compelled to determine the anterior issue of inconsistency when, owing to its wholly abstract, academic or hypothetical nature should it have such in a given case, our going into it can produce no concrete or tangible result, indeed none whatsoever beyond the bare declaration” (para 15). The Court clarified that their decision not to make an order was based on the fact that: “Neither of the applicants, nor for that matter anyone else, stands to gain the slightest advantage today from an order dealing with their (the Publications Act and the Indecent or Obscene Photographic Matter Act’s) moribund and futureless provisions. No wrong which we can still right was done to either applicant on the strength of them” (para 16). Premier, Provinsie Mpumalanga en 'n Ander v Groblerdalse Stadsraad 1998 (2) SA 1136 confirmed that an appeal or review must pass the positive test of whether the court’s order will have a practical effect or result (at para 114D–F). 23 Prayer 1(b). 24 Prayer 1(c).
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No vested interest or right
35. The appellant submits that a report of a Commission established under [the Public
Inquiries Act] must be submitted to the Prime Minister and Parliament imposes this
as a matter of obligation and not choice. The Prime Minister indeed submitted the
report to Parliament as required.
36. The Prime Minister is the only party who is entitled to assert a right to receive the
report, as per the appellant’s own interpretation of the Public Inquiries Act.
However it is the Prime Minister himself who promulgated the Notice and, despite
being cited as a respondent, he has not participated in these proceedings. The
appellant has no standing to assert a right or interest that he himself argues to vest
in another.
37. In Nkuebe v Minister of Interior and Others25 the High Court held that “a general
member of the public has no locus standi to complain to the Court that another
person has contravened a statute unless he can show a personal interest in the
matter.”
38. In the case of Sekhonyana v Prime Minister of Lesotho and Two Others26 the High
Court dealt with the issue where the Prime Minister delayed tabling a report from
the Commission of Inquiry before the National Assembly and Senate. The Court
held that “the fact that the report speaks of the applicant, does not entitle the
applicant to make internal parliamentary affairs and those of the Defence
Commission his concern.”27 The Court continued that “the fact that his name
appears in the report does not give him a blank cheque to claim whatever he
wishes”.28
25 [1981] LSHC 31. 26 CIV/APN/207/95. 27 At page 18. 28 At page 23.
11
No demonstrable prejudice
39. In seeking to motivate his standing the appellant stated in his founding affidavit:
“As will be evident from the facts that will follow, I have been adversely affected by the proceedings of [the Commission] and in consequence I have a direct and substantial interest entitling me to seek the reviewing and setting aside of paragraph 4.”29
40. It is later stated:
“Where the report is made to the Prime Minister, and he places even the illegal (sic) obtained facts I would have recourse against the Government of Lesotho but not so with SADC. I thus have a direct and substantial interest in declaring paragraph 4 … null and void.”
41. Thus while the appellant avers that the proceedings of the Commission affect him
adversely, nowhere does he demonstrate any actual harm, prejudice, or adverse
effect to him as a result of paragraph 4 of the Terms of Reference but for an
unsubstantiated speculation that he would have no recourse to defend his rights if
paragraph 4 is permitted to stand.
42. In Mars Inc v Candy World (Pty) Ltd Nestadt JA the court held:
“In accordance with the general rule that it is for the party instituting proceedings to allege and prove that he has locus standi, the onus of establishing that issue rests upon the Applicant. It is an onus in the true sense; the overall onus.”30
43. We submit that the appellant has failed to discharge this onus through failing to
establish that he has a sufficient interest in the question of the legality of paragraph
4 or that the provision has caused him or will cause him any demonstrable harm.
Premature Application
44. At the time the appellant brought proceedings before the Court a quo they were
29 HASHATSI Founding Affidavit at para 13. 30 1991 (1) SA 567(A) at 575. Citing: South Cape Corporation (Pty) Ltd. V Engineering Management Services (Pty) Ltd. 1977 (3) S.A. (A) at 548 B.
12
premature in that the Commission’s report had not been published. In that context,
and without knowing the contents of the Commission’s report, it would have been
premature for the Court to review those proceedings, to assess the compliance of
the proceedings with the Public Inquiries Act and other legal principles, or to
evaluate its impartiality.
45. In Bhugwan v JSC Limited,31 it was held in a case for the review of an
administrative “decision” that the impugned letter in which the “decision” was
articulated “does not purport to close the door after a final and determinative
decision had been made.”
46. In Director of Public Prosecutions v Her Worship Ms Taole and Others32 the High
Court held that it is “trite that under normal circumstances proceedings have to run
their course to finality before a party that is not satisfied therewith can seek
review”.33 This general rule is premised, inter alia, on the reluctance of courts to
engage in piecemeal litigation. Extraordinary circumstances are required to deviate
from this general rule.
47. The fairness of the proceedings cannot be determined in a vacuum. The fifth
respondent submits that it would have been premature for the Court a quo to
attempt to measure the fairness of the proceedings in the absence of a final
decision reflecting the weight or import the Commission attached to any particular
evidence or process.
INTERPRETATION OF PARAGRAPH 4 OF LEGAL NOTICE 75 OF 2015
48. Paragraph 4 of the Legal Notice, 75 of 2015, provides that “the Commission of
Inquiry shall make a written report and submit the same to the Chairman of
Southern Africa Development Community (SADC) Organ on Politics, Defence and
Security Cooperation within sixty (60) days of the commencement of the work of
the Commission, or such other extended date as the Prime Minister may agree to,
31 Bhugwan v JSE Ltd 2010 3 SA 335 (GSJ). 32 [2010] LSHC 109. 33 Citing McIntyre en Andere v Pietersen NO en Ander (1997) 4 All SA 401 (T).
13
upon written request to the Prime Minister by the Chairman.”34
49. Section 8 of the Public Inquiries Act 1 of 1994 provides:
1) A Commission’s report to the Prime Minister must be in writing. 2) Subject to subsection (3), the Prime Minister shall table a copy of the
Commission’s report in the National Assembly and Senate within 15 sitting days of receiving that report.
3) The Prime Minister need not table any portion of a report where, in his opinion, the public interest in disclosure of that part of the report is outweighed by other considerations such as national security, privacy of an individual or the right of a person to a fair trial.
4) Where a portion of a report has been deleted under subsection (3), the extent of the deletion and the reasons for that deletion shall be indicated on the copy of the report that is tabled under subsection (2).
50. The appellant submits that paragraph 4 of the Legal Notice is ultra vires the
provisions of section 8 of the Public Inquiries Act.
51. The fifth respondent submits that this interpretation is incorrect and that section 8
of the Act and paragraph 4 of the Legal Notice need not be mutually exclusive and
should not be read as such.
52. The Commission of Inquiry was established to pursue the objectives of the SADC
Treaty and Protocol as outlined in their preambles respectively. The objective of
the Protocol as stated in Article 2 is that the organ shall “protect the people of the
region and safeguard the development of the region against instability arising from
the breakdown of the law and order and, intra-state conflict, inter-state conflict and
aggression”.35
53. The Commission, as it has been established, is not an ordinary Commission, but
a mechanism through which SADC operates in order to enhance the objectives of
the Protocol.
34 At page 27 of Record. 35 Protocol on Politics, Defense and Security Co-Operation signed by the Kingdom of Lesotho on 14 August 2001.
14
54. Domestic legislation must be interpreted in compliance with international legal
obligations insofar as is reasonably possible. The High Court in Sechele v Public
Officers’ Defined Contribution Pension Fund and Others held that “there exists a
presumption that a statute will not be interpreted so as to violate a rule of
international law or an international obligation”.36
55. In a matter pertaining to the same Commission of Inquiry that is the subject of this
application, the Court of Appeal recently emphasised that “Lesotho is a member of
SADC and is bound by its decisions. SADC set up a Commission of Inquiry to
“make recommendations as may bring everlasting reconciliation, peace and
stability to the Kingdom”.37
56. When determining whether paragraph 4 of the Legal Notice is ultra vires the Public
Inquiries Act, it is important to look at the Act holistically. Section 3(1) of the Public
Inquiries Act provides that the Prime Minister may appoint a Commission of Inquiry
to inquire into any matter that is in the public interest. In terms of section 3(2), the
notice appointing the Commission “shall specify the subject, nature and extent of
the inquiry concerned and may contain directions generally for carrying out the
inquiry” including directions on “the date for termination of the inquiry and delivery
of the report”. Clearly in a matter such as the one before the current Commission
of Inquiry, which concerns the peace and stability of Lesotho, the Prime Minister is
entitled by virtue of section 3 to determine how the Commission of Inquiry will
function to best serve the country’s interests.
57. Section 3 does not say that the Commission’s report should be handed only to the
Prime Minister, and there is nothing inherently wrong with paragraph 4 of Legal
Notice 75 of 2015 requiring a report to be delivered to SADC. Paragraph 4 further
does not preclude the Prime Minister from tabling the same report in Parliament
and he has indeed done so.
36 [2010] LSHC 94, at para 56. 37 Jobo v Commander of the Defence Force and Three Others, C of A (CIV) 29/2015, at para 79.
15
58. The manner in which the Legal Notice is structured clearly indicates that it should
be read as incorporating the provisions of the Public Inquiries Act. See for example,
section 5 of the Legal Notice which refers to the powers vested in the Commission
by virtue of the Public Inquiries Act.
59. The ambit of section 8 of the Public Inquiries Act was previously discussed by the
High Court in the case of Sekhonyana v Prime Minister of Lesotho and Two
Others.38 The case related to a delay by the Prime Minister to table the report of
the Commission of Inquiry before the National Assembly, and his failure to table to
report before the Senate. The court followed the interpretation of the fifth
respondent, that section 8(3) is indicative of the wide powers of the Prime Minister
to determine the extent to which a report is tabled before parliament in terms of
section 8(2), making section 8(2) a mere formality. There is accordingly no problem
with paragraph 4 of the Legal Notice that the report be tabled before SADC, and
section 3 of the Public Inquiries Act allows the Prime Minister to make such a
determination in the Legal Notice.
QUESTIONING OF THE APPLICANT DURING THE COMMISSION OF INQUIRY
PROCEEDINGS
60. At the core of the application is a misunderstanding of the role of a Commission of
Inquiry. It can and must investigate controversial issues which may indeed impugn
on the reputation of the appellant.
61. The appellant made various assertions in his founding affidavit relating to the
manner in which he was questioned by the Commission. Notably, no record of
proceedings was placed before this Court to substantiate the allegations of
unfairness. In the absence of a record of proceedings, the Court is not in a position
to review the proceedings of the Commission of Inquiry.
62. The procedure followed by the Commission was inquisitorial in nature. Inquisitorial
techniques have been used more and more frequently in states which employ the
38 CIV/APN/207/95.
16
adversarial legal system in order to investigate matters such as the commission of
large-scale fraud. The judge in these cases act as both the investigator and
adjudicator and as such, it has become commonplace to recognise the need to
balance the duty of the judge to perform his function with the accused’s right
against self-incrimination.
63. Witnesses are not required to answer questions which they feel will lead to them
incriminating themselves but judges are required to put the allegations levelled
against the person to him during the course of proceedings.
64. The appellant’s allegations regarding the fairness of proceedings are questionable.
In his heads of argument he refers to section 13 of the Public Inquiries Act, which
requires that the Commission must inform a person of allegations made against
them, and provide them with an opportunity to respond.
65. As an inquisitorial inquiry the Commission has a clear duty to put any allegations
of misconduct to its witnesses. Whilst it is unusual for judges to ask witnesses
accusatory questions, it is a requirement that accusations be put to witnesses not
just through section 13 but also under the common law.
66. Long-standing common law jurisprudence is clear on the need for allegations of
misconduct or untruthfulness to be put to an alleged perpetrator before a finding of
misconduct can be made against them. In Browne v Dunn Lord Herschell stated
that:
“I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.39
39 (1893) 6 R. 67, H.L. See also The Bar Standards Board (UK), The Bar Standards Board handbook, (https://www.barstandardsboard.org.uk/media/1553795/bsb_handbook_jan_2014.pdf rC7 p25: “Where you are acting as an advocate, your duty not to abuse your role includes the following obligations… you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross examination.”
17
67. This rule has been affirmed more recently in the English Court of Appeal case of
Markem Corp v Zipher Ltd40 and the Australian case of Allied Pastoral Holdings v
Federal Commissioner of Taxation.41
68. The appellant was asked to shed light on statements put to him by the
commissioners and he refused to do so when he first appeared before the
Commission. Section 13 does not say that evidence cannot be put to the witness,
it simply says no finding can be made without notice.
69. The fact that the Commission called the appellant back can be interpreted as
evidence of it further providing the appellant with sufficient opportunity to make
representations and therefore providing him with a fair opportunity to rebut any
allegations put to him.42
70. Indeed, section 13(4) of the Public Inquiries Act states that: “A commission may
comply with this section at any time or times after it is appointed and before it
delivers its report.” The summons of the Commission to the appellant dated 16
October 2016 clearly indicated such compliance.43 The summons was not attached
in these proceedings. In fact, section 13 does not indicate that a person should be
informed in writing of the allegations against him, it just requires that the witness
has an opportunity to respond.
71. The Commission of Inquiry is further entitled to question witnesses and the
procedures allowing it to do so are flexible:
a. Section 11(1) of the Public Inquiries Act provides that “a Commission is not
bound by the rules of evidence or by the rules of procedure of any court or
40 [2005] EWCA Civ 267 41 (1983) 44 A.L.R. per Hunt J “It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matter, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the inference sought to be drawn.” 42 SADC Commission of Inquiry to Lesotho Summons, dated 16 October 2016, page 136 of Record. 43 Page 136 of Record.
18
tribunal and may conduct its proceedings as it thinks proper”.
b. Section 8(2) of the Legal Notice which established the Commission provides
that it “may conduct its proceedings as it may determine”.
72. Further and in the alternative, the appellant is able to demonstrate no loss as a
result of the Commission’s questioning and in fact his identity has not been
revealed in the version of the report which has been published. Given the broad
nature of the relief sought by the appellant, it is further curious that he offered the
Court a quo no explanation for why he waited to file the application when the
following central events under contention occurred significantly in advance of his
filing on 16 October 2015:44
a. The Commission’s Terms of Reference came into force in July 2015;
b. The functions that Mr Waly performs in relation to the Commission have
occurred since the Commission’s commencement on 31 August 2015;
c. The Commission heard evidence in South Africa in September 2015;
d. The questioning of which the appellant complains occurred on 17
September 2015.
73. As stated above, the appellant has failed to understand the purpose of the
Commission and the framework within which it was to function. The appellant
submits that the Court a quo was wrong to hold that the Commission was entitled
to summon him to testify in circumstances where they accused him of misconduct.
On the contrary, the Commission was in fact duty bound to do so under section 13
of the Public Inquiries Act. Section 16(3) provides that no person shall be “bound”
to incriminate himself or herself. This is not inconsistent with section 13 as the
witness in question has a right not to answer the questions put to him. What is
imperative is that he or she has a chance to respond to accusations.
74. The mere fact that reputational harm could result does not give the appellant the
right to apply for the relief sought, he should show that the harm to reputation is
unlawful. In this regard the Commission’s procedures were not unfair and there
44 MAHAO Affidavit at para 5(e).
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has been no injury requiring the Court to interfere.
THE COMMISSION’S PROCEEDINGS OUTSIDE OF LESOTHO
75. The appellant submits that the Legal Notice establishing the Commission of Inquiry
and the Public Inquiries Act do not confer power on the Commission to sit outside
of Lesotho. This argument is incorrect. There is nothing in either the Legal Notice
or the Public Inquiries Act which prohibit the Commission from hearing evidence
outside of Lesotho. To interpret the Commission’s mandate in such a narrow
manner as the appellant purports to do, subverts the purpose of the Commission,
which is to determine the truth about the alleged mutiny plot and the circumstances
surrounding the death of Brigadier Mahao.
76. The fact that both the Public Inquiries Act and the Legal Notice provide the
Commission with wide powers to determine its own procedures, requires that the
Commission also be allowed to conduct investigations and hearings outside of
Lesotho if such proceedings will enable it to fulfil its mandate.
77. The Public Inquiries Act allows the Commission to collect evidence in any manner
it deems necessary. Section 11 of the Act provides that the Commission is not
bound by the rules of evidence or procedure and “may conduct its proceedings as
it thinks proper”. The Commission may further admit evidence that would not
otherwise be admissible in court proceedings and may receive evidence without a
hearing.
a. Section 11(2) of the Public Inquiries Act provides that “a Commission may
admit evidence, written or oral, whether or not that evidence would be
admissible in civil or criminal proceedings and may refuse to receive
evidence”.
b. Section 11(3) specifically provides that “a Commission may receive
evidence without a hearing”.
78. In the absence of any explicit provision to the contrary, it is consonant with the
rules of interpretation to attribute to the Commission the ability to determine where
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proceedings will be held, especially when there are any concerns relating to the
safety and security of witnesses which would deter them from participating in the
commission.
79. The above sections of the Public Inquiries Act make is clear that the Commission
was not required to follow the standard criminal and civil evidentiary rules
applicable in Lesotho. The Court rules regulating the adducing of evidence allow
for testimony to be taken from witnesses beyond Lesotho’s borders.
80. Section 211 of the Criminal Procedure and Evidence Act states that:
“(1) Whenever in the course of a trial, preparatory examination or any other criminal proceeding it appears to a court that the examination of a witness is necessary for the ends of justice and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience, which under the circumstances of the case would be unreasonable, the court may: a) dispense with such attendance, and b) issue a commission to any magistrate or, where the witness is resident outside Lesotho, to any person authorised by the court to take evidence on commission in civil cases outside Lesotho, within the local limits of whose jurisdiction the witness resides.”
81. Moreover, the Criminal Procedure and Evidence Act, states in section 211(3) that:
“The magistrate or other person to whom the commission is issued shall proceed to the place where the witness is or summon the witness before him and take down his evidence in the same manner as in the case of an ordinary preparatory examination taken before him or, where the commission is executed outside Lesotho, in the same manner as a commission to take evidence in civil cases is executed.”
82. It seems from this section that the Act only requires that persons taking evidence
on commission do so in terms of the ordinary rules of evidence collection. The
hearing of evidence in South Africa by the SADC Commission was done
according to the same procedure as all other witness statements and so would
meet this requirement. It would be nonsensical to allow ordinary courts of law to
admit such evidence but argue that similarly procured evidence should not be
admissible before the Commission – a body with substantially wider evidentiary
discretion than the courts.
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83. Paragraph 3(1)(o) of the Legal Notice specifically entitles the Commission to
“investigate any other matters relevant to the inquiry”. Paragraph 3(2) of the Legal
Notice requires that the Commission makes recommendations “as may bring
everlasting reconciliation, peace and stability to the Kingdom, for posterity”. The
Commission’s mandate accordingly allows it to pursue avenues of inquiry that will
assist it in its recommendations.
84. The circumstances surrounding the Commission are significant in determining the
case before this Court. It cannot be disputed that there are persons who no longer
reside in Lesotho who would have been able to provide pertinent evidence on the
issues before the Commission. Had the Commission insisted that such persons
testify in Lesotho it could have risked their safety and increased instability in the
country. Had the Commission ignored the evidence of persons outside of Lesotho,
it would have neglected its fact-finding duties as per the Terms of Reference. An
interpretation of the Act which supposes that the Commission cannot hear
evidence outside of Lesotho, even though there is no such explicit provision in the
Act, would be counter-productive to the purpose for which the Commission was
established.
85. In fact, it is not uncommon for commissions of inquiry to allow evidence to be heard
abroad.
86. The commissioners of Liberia’s Truth and Reconciliation Commission, established
in 2008, held open hearings in the United States in the course of their
investigations.45 This was also done by the commissioners of the Commission of
Inquiry on Human Rights in the Democratic People’s Republic of Korea,
established in 2013, who held public hearings in Seoul, Washington DC, London
and Tokyo.46 The South African Commission on the Gaza War (Goldstone
Commission), established in 2009, was refused entry into Israel by the Israeli
45 Truth and Reconciliation Commission of Liberia Press Release (2008) available at http://trcofliberia.org/press_releases/139. 46 United National Human Rights, Office of the High Commissioner Public Hearing announcement available at http://www.ohchr.org/EN/HRBodies/HRC/CoIDPRK/Pages/PublicHearings.aspx.
22
government.47 As a result of this, the Commission sat outside of Israel but was still
able to make findings.
87. With the global trend firmly directed towards the inclusion of evidence heard
outside of the state which established the Commission, and the broad terms with
which the Commission’s powers are described, it is submitted that the Commission
acted within the legal bounds of its duty in hearing evidence in South Africa and as
such, did not act ultra vires the Public Inquiries Act.
88. Essential to interpreting the mandate of the Commission is to determine its
temporal and territorial scope whilst taking into account the nature, gravity and
scale of incidents.
89. Whilst the notice appointing the Commission sets out in broad strokes the extent
of the inquiry, it is entirely within the prerogative of the commission to interpret this
mandate so as the ensure that its practical implementation takes into account the
timeframe of the commission, the resources available, and the context so as to
ensure that the overall aim of the commission, to address a serious issue of public
concern, is met.
90. The Commission’s decision to convene hearings outside of Lesotho was essential
to ensuring that the Commission’s proceedings are perceived to be impartial.
Interpreting its mandate in a manner that excludes hearing evidence from one side
to a conflict could lead to a perception that the investigation is one sided.
91. The Commission recognised that convening hearings outside of Lesotho was
essential to address perceptions of bias. It accordingly reported this need to the
mandating authority, the SADC Summit held on 17 and 18 August 2015, which
increased the budget allocated to the Commission to allow it to convene hearings
outside of Lesotho. The subsequent Legal Notice 88 of 2015 which amended the
47 United Nations Human Rights Council “Report of the United Nations Fact-finding mission on the Gaza Conflict”
23
Terms of Reference had the opportunity counter the SADC Summit discussion
regarding the conduct of hearings outside Lesotho but failed to do so.
92. This approach conforms with the flexibility afforded to the Commission to determine
its mandate and does not contravene the Legal Notice or Public Inquiries Act which
are both silent on the issue of where the hearings can be convened. In essence, it
was in the public interest that the issues before the Commission were canvassed
extensively, which included hearing the testimonies of witnesses outside of
Lesotho who were central to the incidents under investigation by the Commission.
CONCLUSION
93. It is trite law that in an application for a final interdict, an applicant must prove: (a)
a clear right; (b) an injury actually committed or reasonably apprehended; and (c)
the absence of similar protection by any other ordinary remedy.48 On the present
facts the appellant cannot meet these tests. He has suffered no injury as his name
has not been disclosed in the Commission’s report. In addition, and related to the
premature nature of the proceedings brought by the appellant, he has available to
him the alternative remedy of reviewing the completed report.
94. The fifth respondent submits that the public interest in the outcome of the
Commission’s proceedings should be a consideration in determining the suitability
of the relief sought by an individual applicant who brought the application in his
own interest, prematurely and despite the existence of a range of remedies
available to him subsequent to the release of the Commission’s report.
95. The Prime Minister testified before the commission and it would accordingly
interfere with perceptions of independence of the Commission if the report was
handed to the Prime Minister instead of SADC, especially since the Prime Minister
has the power in terms of the Public Inquiries Act to excise sections of the report.
The fifth respondent submits that paragraph 4 of the Legal Notice and section 8 of
48 Phooko v J & M Properties [2015] LSCA 39 at para 13 citing Setlogelo v Setlogelo 1914 AD 221 at 227. In Setlogelo, it was held that an interdict being an extraordinary remedy should not be available to a litigant who has another or alternative remedy.
24
the Public Inquiries Act are complementary and handing the report to both SADC
and the Prime Minister addressed any perceptions of bias and lack of
accountability and protected the citizens’ right to receive ideas and information
without interference as entrenched in section 14(1) of Lesotho’s Constitution.
Recommended