Monate Catering & 5 Others V Ministry of Health-Tender Panel & 13 Other s (C of A (CIV) 84/2023) [2025] LSCA 39 (2 May 2025)

Lesotho IN THE COURT OF APPEAL OF LESOTHO C OF A (CIV) NO.84/2023 CCA/0077/2023 CCA/0082/2023 HELD AT MASERU In the matter between:- MONATE CATERING EATMORE CATERING HA RONA CATERING (PTY) TWIN ONE CATERING STAR CATERING ERICS CATERING AND 1ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT 5TH APPELLANT 6TH APPELLANT MINISTRY OF HEALTH-TENDER PANEL 1ST RESPONDENT THE PRINCIPAL SECRETARY- MINISTRY OF HEALTH LUNAR CATERING 2ND RESPONDENT 3RD RESPONDENT MAKHOARANE EVENTS AND CATERING 4TH RESPONDENT FRIENDLY CATERING BIG TREE CATERING ADELS CATERING ELSIE CATERING MOBILE CATERING 5TH RESPONDENT 6TH RESPONDENT 7TH RESPONDENT 8TH RESPONDENT 9TH RESPONDENT MOBILE CATERING MAMAS CATERING THE ATTORNEY GENERAL AND PEPPER CATERING SERVICES NEW BEVERAGES CATERING EATMORE CATERING HA RONA CATERING (PTY) LTD STAR CATERING AND 10TH RESPONDENT 11TH RESPONDENT 12TH RESPONDENT 1ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT 5TH APPELLANT MOLIEHI MANEO NTENE THE PRINCIPAL SECRETARY OF MINISTRY OF HEALTH 1ST RESPONDENT DIRECTOR-GENERAL, DIRECTORATE ON CORRUPTION & ECONOMIC OFFENCES 2ND RESPONDENT MONATE CATERING TWIN ONE CATERING ERICS CATERING LUNAR CATERING 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 5TH RESPONDENT MAKHOARANE EVENTS AND CATERING 6TH RESPONDENT FRIENDLY CATERING BIG TREE CATERING ADELS CATERING ELSIE CATERING MOBILE CATERING MAMAS CATERING THE ATTORNEY GENERAL 7TH RESPONDENT 8TH RESPONDENT 9TH RESPONDENT 10TH RESPONDENT 11TH RESPONDENT 12TH RESPONDENT 13TH RESPONDENT CORAM: K. E. MOSITO P P. T. DAMASEB AJA R. MATHABA AJA HEARD: 9 APRIL 2025 DELIVERED: 2 MAY 2025 FLYNOTE Review application – Failure to annex judgment sought to be impugned – Application procedurally defective and legally unintelligible – Right to fair hearing under section 12 of the Constitution – Motion proceedings require intelligibility and coherence – Affidavit must disclose cause of action and impugned decision – Withdrawal of defective attach application – No order as to costs. Held: An application brought to review, correct or set aside a prior judgment must annex the very judgment it seeks to impugn. The failure to do so renders the application legally unintelligible, deprives the respondents of a fair opportunity to answer the case, and impairs the Court’s capacity to adjudicate meaningfully. This defect is fatal in motion proceedings and cannot be cured absent exceptional circumstances. Where counsel properly withdraws such a fundamentally flawed application, and where no bad faith is shown, it is appropriate that the withdrawal be allowed without an order for costs. The application was accordingly withdrawn, with no order as to costs. JUDGMENT K E MOSITO P Background [1] On 30 August 2024, an application was lodged with the registry of this Court on behalf of Star Catering. The applicant sought a range of reliefs directed at challenging certain decisions of this Court and the purported legal framework underpinning them. Specifically, Star Catering invited the Court, first, to review, correct or set aside a judgment previously issued between the parties, along with any associated or related decisions, the full particulars of which were, at the time of filing, unknown to the applicant but were anticipated to emerge from the affidavits or the record. [2] Secondly, the applicant sought a declaratory order that the Public Procurement Act 2023 does not form part of the law of this jurisdiction and that decisions taken pursuant to its enforcement have no legal force or effect. [3] Thirdly, the applicant challenged the validity of a directive purportedly issued under the assumption that a Procurement Tribunal existed. It was contended that such a directive was issued without lawful authority, constituted a nullity, and had no force or effect. Consequently, any reference to the tribunal was equally null and void of legal consequence. [4] The application also included a prayer for such further or alternative relief as the Court might deem fit and sought an order for costs in the event that it was opposed. The respondents, in due course, opposed the application. [5] Most strikingly—and of particular concern—the application was brought without annexing the judgment the applicant sought to have reviewed, corrected, or set aside. No explanation was offered for this omission, nor was any cogent attempt made to identify the judgment precisely. The absence of the impugned decision from the application inevitably raised serious questions as to the propriety and intelligibility of the relief sought. [6] This omission further raised a fundamental concern about whether the application, in its present form, could guarantee a fair hearing. In the absence of the judgment sought to be impugned, it was unclear—both to the respondents and to the Court—what precisely fell to be reviewed. This lack of specificity risked undermining the procedural fairness of the proceedings, as it deprived the parties and the Court of a clear and reliable foundation upon which the application could be properly assessed. [7] Confronted with this insurmountable difficulty—and in particular the fact that he did not himself have a copy of the judgment sought to be impugned—Advocate Lephuthing, appearing on behalf of the applicant, sought an indulgence from the Court to postpone the matter. The purpose of the postponement was to allow time to obtain and annex the judgment to the application, thereby remedying the foundational deficiency in the papers. It was, however, readily apparent that such an indulgence would necessitate a return to the pleadings, with the parties having to prepare and respond to an amplified application. In the circumstances and after due reflection, Advocate Lephuthing withdrew the application. The withdrawal was effected without objection, and with the consent of both the respondents and the Court, it was submitted that there be no order regarding costs. Factual matrix [8] As this Court has previously adjudicated the matter in Monate Catering & Five Others v Ministry of Health–Tender Panel & Others1, and given that the issues presently before us do not call for a redetermination of the factual findings made therein, it is neither necessary nor appropriate to rehearse the facts of that earlier case. They are fully traversed in the prior judgment and need not be restated for this decision. Issues for Determination [9] The issues for determination are as follows: First, whether the application is competent in law and procedurally sound in the absence of the very judgment it sought to impugn. Second, whether the failure to annex the impugned judgment deprived the respondents and the Court of a fair and intelligible opportunity to respond, thereby undermining the integrity of the proceedings. Third, whether the procedural failings in the application justified its withdrawal and whether such withdrawal warranted an order as to costs in the context of consensual non-opposition. The law [10] In constitutional and appellate justice matters, there is a close and important relationship between section 12 of the Constitution of Lesotho, which guarantees a fair hearing, and the common law principle that court procedures must promote justice. This relationship is not accidental. It lies at the heart of how courts are expected to work—ensuring that every case is handled fairly, 1 Monate Catering & 5 Others v Ministry of Health-Tender Panel & Others, C of A (CIV) No. 84/2023. clearly, and consistently and that all parties are given a proper chance to be heard and to respond. [11] Section 12 clearly states that everyone is entitled to a fair and public hearing within a reasonable time before an independent and impartial court. This is not simply a hope or ideal—it places real responsibilities on the courts and on those who appear before them. It reflects the basic idea that justice must not only be done but must also be seen to be done and that all parties must have a fair opportunity to present their side. [12] This becomes especially important in applications to the Court of Appeal, particularly when the court is asked to review a matter or exercise special powers. The issues in such cases are often serious. The court cannot decide these issues without proper evidence. They must be carefully considered based on presented facts that give both sides a fair chance to respond. [13] That is why the notice of motion procedure, supported by affidavit, is so important. It is not just a technical requirement. It is a key part of ensuring fairness. It ensures that the court sees the evidence clearly and that the other side knows exactly what is being claimed so that they can reply adequately. This is especially important when the court is reviewing a decision already made. Courts are not meant to ignore rules of procedure but to apply them in a way that helps achieve justice. Rules are not meant to trap people; they help the court work fairly and effectively. When section 12 of the Constitution is read alongside the requirement for an affidavit-based motion procedure, we see a clear and practical system for ensuring justice. It ensures that decisions are not made based on surprise claims but on proper evidence and full arguments. It respects the rights of all involved. [14] To sum up, the constitutional right to a fair hearing and the legal requirement that procedure serve justice go hand in hand. They both support the view that special applications—especially for review—should be brought by notice of motion, with supporting affidavits. This is not only a sound legal approach but one that helps to protect fairness, order, and justice in practice. [15] The failure by an applicant in motion proceedings to annex to the founding affidavit the judgment sought to be impugned is a matter of considerable legal significance. The omission is not treated as a mere procedural lapse but as striking at the root of the application’s intelligibility, legality, and fairness. [16] In motion proceedings, which are initiated by a notice of motion supported by affidavit, the affidavit serves not merely as an evidentiary record but as the cornerstone of the entire case. On its own terms, the affidavit must disclose a cause of action and furnish the factual substratum upon which the relief is founded. Where the application's object is to review, set aside, or otherwise impugn a judgment, the judgment itself is the sine qua non of the cause of action. Its absence is not merely conspicuous; it is fatal. [17] An applicant must place before the court, and indeed before the respondent, the full and precise basis upon which the impugned decision is to be challenged. This imperative arises from procedural rules governing affidavits and annexures and from deeper principles of fairness, natural justice, and judicial economy. Motion proceedings are adjudicated on the strength of what is set out in the affidavits. A court cannot be expected to determine an indeterminate or incoherent case. [18] An application that fails to annex or adequately identify the judgment under review does not merely suffer from incompleteness; it renders the relief sought legally unintelligible. The rationale is simple: neither the Court nor the respondents should be left to speculate about the content or effect of a decision being challenged. The failure to do so may result in the application being struck from the roll or dismissed for want of compliance with foundational procedural norms. [19] An application stands or falls on the founding affidavit, and annexures essential to the claim must be properly attached. Likewise, the Supreme Court of Zimbabwe has underscored that a litigant who seeks to set aside a judgment must, at the very least, present that judgment as part of the application; otherwise, there is no justiciable issue before the court. [20] Absent exceptional circumstances, an application to set aside a judgment that is neither annexed nor adequately identified would not be entertained. This rule is not merely technical—it serves the constitutional imperative of ensuring that justice is dispensed based on full and fair disclosure. [21] Therefore, the failure to annex a judgment is not a curable defect in the ordinary course. It deprives the proceedings of their legal coherence and procedural fairness. It undermines the respondent’s right to answer the case fully and prejudices the Court’s ability to adjudicate meaningfully. It is, in sum, a dereliction that strikes at the procedural and substantive integrity of motion proceedings and is ordinarily fatal to the application. Application of the legal principles to the case [22] It is now settled law in Lesotho that motion proceedings stand or fall on the founding affidavit. The affidavits in motion proceedings not only serve to place evidence before the court but also define the parameters of the dispute. The respondent is entitled to know the case it is called upon to answer; the court must be presented with an intelligible record to adjudicate. The applicant must make out the case in the founding affidavit and annex all documents related to the claim. Failure to do so is fatal. [23] The reason is that, in application proceedings, the founding affidavit is the aetiological nucleus of the case. Where a document forms the very basis of the cause of action—as a judgment to be impugned in review proceedings undoubtedly does—it must be placed before the Court. Without such disclosure, the application is neither coherent nor justiciable. [24] The failure to annex the judgment in this case must also be analysed in light of section 12 of the Constitution of Lesotho, which entrenches the right to a fair hearing. That right includes the right of all parties to be heard on a basis that is both procedurally regular and substantively intelligible. It is well understood that fairness cannot be realised in a vacuum of clarity. [25] In this case, the relief sought was extraordinary: to reopen and undo a final judgment of this Court, yet no copy of the judgment was annexed, nor were its operative provisions described. This defect cannot be trivialised. Furthermore, an applicant who seeks to impugn a decision must present the Court with the precise factual and legal basis of the relief sought. The omission of foundational documents in motion proceedings renders the application legally unintelligible. This principle is not a pedantic technicality; it is a constitutional imperative. If courts were to entertain review proceedings on amorphous or incomplete records, the guarantee of a fair hearing would be rendered hollow, and the integrity of the judicial process would be compromised. [26] Faced with this foundational defect, counsel for the applicant—rightly and responsibly—sought an indulgence to withdraw the application. Recognising that the defect was not merely formal but one that impaired the intelligibility and fairness of the proceedings, counsel did not persist in pressing the matter. Instead, and quite properly, he sought the Court’s indulgence to withdraw the application altogether. This course was not only procedurally prudent but also ethically sound, as it spared both the Court and the respondents the burden of engaging with a defective record incapable of sustaining judicial review. As to Costs [27] The Court was invited to consider the question of costs. When tendered, the withdrawal was conceded and not opposed. There is no evidence that the application was pursued in bad faith. Rather, it appears to have been born of ill-preparation or inadvertence. When a litigant acknowledges its error before burdening the court and the opposing parties with further process, allowing the withdrawal without costs is appropriate. The judicial discretion with respect to costs must be exercised judicially and in a manner that advances the interests of justice. Disposal [28] For the foregoing reasons, this Court is satisfied that the application was procedurally defective and incapable of sustaining adjudication. The applicant’s decision to withdraw the application was made correctly. In the interest of fairness and judicial economy, and given the consensual nature of the withdrawal, it is just and equitable to accede to it with no order regarding costs. Order (a) The application filed by the applicant, Star Catering, on 30 August 2024 is hereby withdrawn. (b) There shall be no order as to costs. ____________________________________ K E MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: __________________________________ P. T. DAMASEB ACTING JUSTICE OF APPEAL I agree: _________________________________ R. MATHABA ACTING JUSTICE OF APPEAL For the Applicant: Adv C J Lephuthing For the 1st, 2nd 12th Respondent: Adv L P Moshoeshoe For the 1st , 2nd to 11th Respondent: Adv L. Sehapi (Instructed by Attorney M Rasekoai) 13