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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.

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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.

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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.

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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

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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.

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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.

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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

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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.

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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.

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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).

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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.

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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.

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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.

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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.”

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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.

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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.

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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”

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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.

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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.