Moitheri Mohapi V PS, Ministry of Public Service (CIV/APN/0007/2023) [2024] LSHC 179 (24 September 2024)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/0007/23 In the matter between: MOITHERI MOHAPI 1st APPLICANT LEBOHANG LENONO 2nd APPLICANT NTEBOHELENG MAQALIKE 3rd APPLICANT and PRINCIPAL SECRETARY - MINISTRY 1st RESPONDENT OF PUBLIC SERVICE ATTORNEY GENERAL 2nd RESPONDENT Page | 1 Neutral citation : Moitheri Mohapi and 2 Others v Principal Secretary - Ministry of Public Service and Another [2023] LSHC 179 (24 September 2024) CORAM : KHABO J., HEARD : 23 SEPTEMBER 2024 DELIVERED : 24 SEPTEMBER 2024 SUMMARY Practice and procedure - Contempt of court proceedings - Following the failure by the 1st Respondent, Principal Secretary, Ministry of Public Service (the Ministry) to honour an order of court flowing from a settlement agreement reached between the parties which was made an order of court by their consent - In an application in which some members of the Lesotho Correctional Services (LCS) sought the intervention of this court to direct the Ministry to implement a Cabinet Circular dated 08th August 2019 in terms of which remuneration and benefits of all national security services/agencies, namely, Lesotho Defence Force (LDF), National Security Services (NSS), Lesotho Mounted Police Services (LMPS) and the Lesotho Correctional Services (LCS) are to be equated - Faced with the contempt application, 1st Respondent asked for time to purge the contempt culminating in another order against the Ministry to comply with the order - On the Page | 2 return date, 1st Respondent instead filing an answering affidavit in which she opposed the contempt application and raised impossibility of performance - Court finds this to be an abuse of the court process and feels compelled to order her to show cause why an order of committal to prison may not be issued against her for contempt. ANNOTATIONS Cases cited Lesotho Blandina Lisene LAC/CIV/05/2009 v Lerotholi Polytechnic and Another `Mampeli Marabe v The Magistrate Court (Presided by Her Worship M. G. P McPherson) and 7 Others Constitutional Case No. 18/2020 `Mantepase Lifoloane v Moahloli Ntsooa and 4 Others C of A (CIV) 77/2019 Registrar, Lesotho Medical, Dental and Pharmacy Council and Another v Michael Ilunga Yangindu C of A (CIV) No. 22/2022 Other jurisdictions Namibia Aegums Data (Pty) Ltd and Others v Sebata Municipal Solutions (Pty) Ltd Case No: A 224/2009 Page | 3 South Africa Coetzee v Government of the Republic of South Africa (CCT 19/94, CCT 22/94) [1995] ZACC 7 Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) Fakie N. O v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) Pheko and Others v Ekurhuleni Metropolitan Municipality (No.2) 2015 (5) SA 600 (CC) S v Mamabolo [2001] ZACC 17 2001 (3) SA 409 Secretary of the Judicial Commission of Enquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT521/21) [2021] ZACC 18 Sienaert Prop CC v City of Johannesburg and Another (31566/2021[2021] ZAGPJHC 717 Literature The Concise Oxford English Dictionary, 10th ed., Oxford, 2002 Black’s Law Dictionary - accessed online on 24th September 2024 Page | 4 JUDGMENT KHABO J., Introduction [1] Applicants are members of the Lesotho Correctional Services (LCS) and have approached this court to seek the implementation of a Cabinet Circular1 dated 09th August 2019 by virtue of which the Government of Lesotho directed that remuneration and benefits of all national security services be harmonised. This decision was arrived at a Cabinet meeting held on 08th August 2019 and read: (a) That salaries of the Lesotho Defence Force (LDF), National Security Services (NSS), Lesotho Mounted Police Services (LMPS) and the Correctional Services (LCS) he harmonised; 1 Annexure ‘A7’ attached to 1st Applicant’s founding affidavit Page | 5 (b) The salaries of these security establish[ments] be the same and equated; [and that] (c) The effective date of this proposal be the 01st September 2019. A synopsis of events leading to the current application [2] The matter was set - down for hearing on 02nd May 2023 whereat both parties presented the court with a settlement agreement which they wished to have turned into an order of court. Respondents made an undertaking therein to comply with the Cabinet decision, despite having filed an intention to oppose. They further agreed to an addendum which had initially not been incorporated in the settlement agreement to the effect that the order will only be executable after three months from the date on which it was granted. Also included in the agreement was that there be no order as to costs. The court turned this agreement into an order of court. Page | 6 [3] The 1st Respondent, however, failed to comply with this order within the stipulated time frame. It emerges from papers filed of record that there was an exchange of correspondence between the parties with Applicants trying to persuade the 1st Respondent to comply with the order of court. [4] Applicants, disgruntled by the failure of these efforts to yield fruits, launched a contempt application in which they sought an order to have the 1st Respondent found guilty of contempt and directed to comply with the order of this court of 02nd May 2023 failing which to show cause why she may not be committed to prison. This application was moved on 11th December 2023. In technical terms, Applicants were seeking an order directing the 1st Respondent to ‘purge’ the contempt by complying with the said order. [5] Respondents’ Counsel did not oppose this application and renewed 1st Respondent’s commitment to comply with the order and further intimated to the court that there is already partial compliance with the order in that the Principal Page | 7 Secretary, Ministry of Public Service has written a ‘Savingram’ dated 07th December 20232 to her counterpart at the Ministry of Justice in which she informed him that an order has been made which they needed to comply with and further directing him to effect payment to the Applicants, tabulating the amounts due. [6] The said ‘Savingram’ read (quoted verbatim save for the concealed information): SAVINGRAM FROM : PS PUBLIC SERVICE TO : PS JUSTICE REF NO : MPS /REV/SAL/1 SIGNED : (full signature) NAME : M. LEDIMO (MRS) FILE No … (typed) (Receiving Min/Dpt) 2 Annexure ‘PS 1’ to 1st Respondent’s answering affidavit Page | 8 DATE : 07 DECEMBER 2023 _______________________________________________________________ RE : MOITHERI AND OTHERS VS MINISTRY OF THE PUBLIC SERVICE Please be informed that the Ministry has to comply with court order CIV/APN/0007/2023, whereby the applicants have prayed that they be harmonised and paid like other security agencies effective from 1st September 2019. Further, they be paid salary arears as per the Court Order. It is important to note that the new salaries fall outside the LCS salary structure and as a result cannot be accommodated in the HRMS. This means that their salaries cannot be paid through the system, but rather outside the system through payment vouchers. This will persist until when the Ministry has engaged a consultant who will undertake a thorough analysis and harmonisation of the security sectors which will necessitate review of the salary structures. Your good office is, therefore, requested to pay applicants as per the table below which indicates their new salaries to be paid with immediate effect. Page | 9 Officer Emp. No. New Salary Moitheri Mohapi Witheld by the court Witheld by the court Lebohang Lenono _ Nteboheleng Maqalike _ _ _ [7] Respondents’ Counsel asked for more time to ‘purge’ the contempt, a request that was granted by the court. In terms of this order the 1st Respondent was directed to comply with the order of 02nd May 2024, namely, the harmonisation of positions between the four security services failing which to show cause why she may not be committed to prison. The order was based on Prayer 2.1 of Applicants notice of motion on contempt coupled with Respondents’ Counsel’s undertaking to ‘purge’ the contempt. Both Counsel were ordered to come for mention on 07th February 2024. [8] On the return date, 07th February 2024, the court was confronted with an answering affidavit filed on the same day wherein the 1st Respondent opposed the contempt application Page | 10 pleading impossibility of performance and citing, among others, that the Cabinet Circular relied on was revoked on 10th September 2019. This was in circumstances where she had already sought to ‘purge’ the contempt by asking for more time to facilitate compliance that culminated in a second court order ordering compliance. [9] Applicants’ Counsel indicated that he was taken aback by this development and asked the court not to entertain this answering affidavit but to finalise the contempt proceedings. The court ordered the parties to address it on the propriety of this answer at this stage. The matter was postponed to 06th May 2024 for addresses on the issue. [10] The matter could, unfortunately, not proceed on the said date due to Advocate Mohloki’s commitment at Mathaba J’s., Commission of Enquiry at LCS. Advocate Moshoeshoe (LP) attended on his behalf and sought a postponement which was granted in the circumstances. The matter was postponed to 23rd September 2024. Page | 11 [11] On the day, Advocate Mohloki wanted to get into the merits of the contempt application, now opposed. The court insisted on being addressed on whether this was proper in light of the fact that the 1st Respondent did not initially oppose the application for contempt. Applicants’ Counsel was opposed to the admission of this answering affidavit at this stage. [12] This was against a backdrop of Respondents’ Counsel acknowledging or admitting the default (contempt) and undertaking to have it ‘purged’ on 11th December 2023, only to come back on the return date, 07th February 2024 to oppose it. To ‘purge’ is a legal concept meaning to erase or “to atone for or wipe out contempt of court,”3 “to cleanse; to clear or exonerate from some charge or imputation of guilt, or from contempt.”4 It is an action taken by the contemnor that satisfies a court order the contemnor violated. 3 The Concise Oxford English Dictionary, 10th ed., Oxford, 2002 4 Black’s Law Dictionary - accessed online on 24th September 2024 Page | 12 [12] According to the oft cited case on contempt of Fakie N. O v CCII Systems (Pty) Ltd5 per Cameron JA., civil contempt proceedings - permit a private litigant who has obtained a court order requiring an opponent to do or not to something (ad factum praestandum order), to approach the court again, in the event of non - compliance, for a further order declaring the non-compliant party in contempt of court and imposing a sanction. The sanction usually, though not invariably, has the object of inducing the non - complier to fulfil the terms of the previous order. Contempt of court proceedings protect courts against the violation of its dignity, repute or authority. The importance of observing court orders [13] Orders of court must be complied with until set aside. As far as this court is concerned, the court order of 02nd May 2023 5 2006 (4) SA 326 (SCA) at para 7 Page | 13 remains alive. The sanctity of court orders was also captured in the Namibian case of Aegums Data (Pty) Ltd and Others v Sebata Municipal Solutions (Pty) Ltd6 where the court stated that “our law is clear that a litigant cannot act against an existing court order or an Act.” This case was cited with approval in the Registrar, Lesotho Medical, Dental and Pharmacy Council and Another v Michael Ilunga Yangindu.7 [14] The importance of observing court orders cannot be overemphasised. “The legal position is clear that all orders of court, whether correctly or incorrectly granted have to be obeyed until set aside.”8 This principle has been reiterated over and over by courts in and outside this jurisdiction including in the Registrar, Lesotho Medical, Dental and Pharmacy Council and Another (supra)9 “that an order by a competent court, with jurisdiction, may not be simply ignored, even if it is perceived to be wrong in law.” The court went further to state that options 6 Case No: A 224/2009 at para. 34 7 C of A (CIV) No. 22/2022 at para. 24, p.9 8 Blandina Lisene v Lerotholi Polytechnic and Another LAC/CIV/05/2009 para. 24 at p. 15 9Supra at footnote 10 Page | 14 such as an appeal and rescission, depending on the circumstances under which the order was issued, are available to a party dissatisfied with the order. [15] The court held in line with this principle in Secretary of the Judicial Commission of Enquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others 10 that “… orders of court bind all to whom they apply. In fact, all orders of court, whether correctly or incorrectly granted, have to be obeyed unless they are properly set aside … the reason being that ensuring the effectiveness of the judiciary is an imperative. [16] The court went further to refer in the above case to its decision in the Department of Transport v Tasima (Pty) Ltd11 to the effect that: 10(CCT521/21) [2021] ZACC 18 at paras 31 - 34 112017 (2) SA 622 (CC) at para 186 Page | 15 the obligation to obey court orders has at its heart the very effectiveness and legitimacy of the judicial system … and is the stanchion around which a State founded on the supremacy of the Constitution and the rule of law is built. It is perspicuous that the constitutional right of access to courts will be rendered an illusion unless orders made by courts are capable of being enforced by those in whose favour the orders are made. In SALC, it was said that if the State, an organ of State or State or State official does not abide by court orders, the democratic edifice will crumble stone by stone until it collapses and chaos ensues. A complete denial of judicial mechanisms would render meaningless the whole process of taking disputes to courts for adjudication and that is a recipe for chaos and disorder, Accordingly, it is necessary for this court to send, by virtue of a punitive sanction, an unequivocal message that its orders must be obeyed. These two cases were cited with approval in Sienaert Prop CC v City of Johannesburg and Another.12 [17] Orders of court have to be respected in order to maintain the rule of law and order. According to Coetzee v Government of 12 (31566/2021[2021] ZAGPJHC 717 (22 November 2021) at para. 20 Page | 16 the Republic of South Africa13 contempt proceedings comply with “principles of constitutionalism notably the rule of law in that it maintains the dignity and authority of the courts, as well as their capacity to carry out their functions…” This principle was restated in S v Mamabolo.14 [18] Applicants implored the court in their prayer 2.2 of the notice of motion on contempt that if the 1st Respondent fails to purge the order of court she should show cause why she may not be committed to prison for contempt. The 1st Respondent having failed to comply with the order to purge the contempt to date, the order as prayed in 2.2. was granted. Conclusion [19] It is this court’s considered opinion that it would have been in a position to entertain the answering affidavit if the 1st Respondent had raised the defence of impossibility of 13 (CCT 19/94, CCT 22/94) [1995] ZACC 7 para. 61 14 [2001] ZACC 17 2001 (3) SA 409 at para. 14 Page | 17 performance or unenforceability of the court order on 11th December 2023 when Applicants moved their contempt application. The court would have been able at the time to determine whether Applicants met the essential elements of contempt as enunciated in Pheko and Others v Ekurhuleni Metropolitan Municipality (No. 2)15 were it not for 1st Respondents’ Counsel to seek an indulgence to purge the contempt. [20] The requisites as stated in this case are that: (a) the court order must exist; (b) the order must have been duly served on, or brought to the notice of the alleged contemnor; (c) there must have been non - compliance with the order; and 15 [2015] ZACC 10 at p. para. 32 at p. 21 Page | 18 (d) the non -compliance must have been wilful or mala fide. These essential elements have been summarised in Fakie supra16 as the order; service or notice; non - compliance; and wilfulness and mala fides. [21] These common law principles on contempt have been quoted with approval in a plethora of cases in our courts including `Mantepase Lifoloane v Moahloli Ntsooa and 4 Others17 and `Mampeli Marabe v The Magistrate Court (Presided by Her Worship M. G. P McPherson) and 7 Others.18 [22] This court cannot allow the 1st Respondent to blow hot and cold. The court feels what is outstanding is for the 1st Respondent to show cause why she cannot be committed to prison for contempt. If the 1st Respondent had issues with the order, she could have had it set aside on appeal. The court 16 Para 42 (3) 17 C of A (CIV) 77/2019 at para 11 pp. 9 - 10 18 Constitutional Case No. 18/2020 at para. 32 quoting from Pheko and Others v Ekurhuleni Metropolitan Municipality (No. 2 Page | 19 underscores that the order of 11th December, 2023 was a consent order. ORDER [23] In the result, the following order is made: (a) The 1st Respondent having failed to comply with the orders of this court, is thus ordered to appear before it on 16th October 2024 at 0930 hours to show cause why she may not be committed to prison for contempt of court; and (b) Costs shall be costs in the cause. _____________ F. M. KHABO JUDGE Page | 20 For the Applicants : Mr Q. Letsika KC For the Respondents : Adv., T. E. Mohloki Page | 21