Likhapha Seliane V The Principal Secretary- Ministry of Foreign Affairs and International Relations & 2 Others (C of A (CIV) No 18/2025) [2025] LSCA 49 (7 November 2025)

# Likhapha Seliane V The Principal Secretary- Ministry of Foreign Affairs and International Relations & 2 Others (C of A (CIV) No 18/2025) [2025] LSCA 49 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/49/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/49/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/49/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/49/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Likhapha Seliane V The Principal Secretary- Ministry …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/49/eng@2025-11-07) [ Download PDF (329.8 KB) ](/akn/ls/judgment/lsca/2025/49/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (329.8 KB) ](/akn/ls/judgment/lsca/2025/49/eng@2025-11-07/source) * * * * * Report a problem __ ##### Likhapha Seliane V The Principal Secretary- Ministry of Foreign Affairs and International Relations & 2 Others (C of A (CIV) No 18/2025) [2025] LSCA 49 (7 November 2025) Copy citation * __Document detail * __Related documents Citation Likhapha Seliane V The Principal Secretary- Ministry of Foreign Affairs and International Relations & 2 Others (C of A (CIV) No 18/2025) [2025] LSCA 49 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 49 Copy Hearing date 10 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No 18/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ), [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Administrative Law](/taxonomy/case-indexes/case-indexes-commercial-administrative-law) * [Public Service](/taxonomy/case-indexes/case-indexes-commercial-administrative-law-public-service) * [Public Officer](/taxonomy/case-indexes/case-indexes-commercial-administrative-law-public-service-public-officer) Summary ###### Flynote Public Service — Diplomacy — Recall of Consul General — Absence of Exequatur — Whether renders appointment void — Legitimate expectation — Termination clause — Administrative fairness — Rationality — Government’s 2 omission — International and domestic law interface — Vienna Convention on Consular Relations (1963) — Articles 12, 22, and 36 — Contractual and administrative legality. Read full summary * * * Skip to document content ###### Flynote Public Service — Diplomacy — Recall of Consul General — Absence of Exequatur — Whether renders appointment void — Legitimate expectation — Termination clause — Administrative fairness — Rationality — Government’s 2 omission — International and domestic law interface — Vienna Convention on Consular Relations (1963) — Articles 12, 22, and 36 — Contractual and administrative legality. 1 LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 18/2025 CIV/APN/0173/2023 In the matter between: LIKHAPHA SELIANE APPELLANT AND THE PRINCIPAL SECRETARY – MINISTRY OF FOREIGN AFFAIRS AND INTERNATION RELATIONS 1ST RESPONDENT THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL RELATIONS 2ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT CORAM: MOSITO P SAKOANE CJ DAMASEB AJA HEARD: 10 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 FLYNOTE Public Service — Diplomacy — Recall of Consul General — Absence of Exequatur — Whether renders appointment void — Legitimate expectation — Termination clause — Administrative fairness — Rationality — Government’s 2 omission — International and domestic law interface — Vienna Convention on Consular Relations (1963) — Articles 12, 22, and 36 — Contractual and administrative legality. The appellant, a career diplomat, was appointed by the Government of Lesotho as Consul General to Johannesburg under a valid written contract. After assuming duty and performing her functions, she was summarily recalled on the ground that no exequatur had been issued by South Africa. The High Court held that the Government was entitled to terminate her engagement under a contractual clause permitting termination on notice, notwithstanding its own failure to pursue the exequatur. On appeal— Held: (1) The appointment of a Consul General by Lesotho is valid in domestic law; the exequatur is an international instrument recognising capacity to perform consular acts, not a condition precedent to the validity of the internal employment contract. (2) The duty to seek the exequatur rests upon the sending State; its omission cannot lawfully be invoked to defeat the rights of an appointee or to justify termination. (3) A contractual termination clause in a public-service appointment must be exercised consistently with constitutional and administrative-law principles of fairness, rationality, and proper purpose. (4) The Government’s reliance on clause 6(2) to cure its own administrative omission was irrational and an abuse of discretion. (5) The High Court erred in accepting, without evidence, that South Africa had refused the exequatur, and further erred in failing to determine the appellant’s pleaded alternative relief. 3 Result: Appeal allowed. Recall declared unlawful, irrational, and procedurally unfair. The government was ordered to compensate the appellant for the unexpired portion of her contractual term, with costs in both courts. JUDGMENT MOSITO P INTRODUCTION [1] The appellant, a career diplomat, was appointed by the Government of Lesotho as Consul General to the Johannesburg Consulate under a written and subsisting contract of employment. The contract was explicit as to its validity, commencement, duties, and remuneration. It stipulated that she would perform the functions of Consul General in the public service of Lesotho, at a fixed salary, subject to the usual conditions of service and termination provisions. The appointment took effect upon her assumption of office, and she did in fact assume and perform her functions in South Africa. [2] In October 2023, however, she was summarily recalled from her posting by the Principal Secretary and Minister of Foreign Affairs. The sole ground advanced for her recall was the absence of an exequatur—a diplomatic recognition document issued by the receiving state under Article 12 of the Vienna Convention on Consular Relations (1963). The record shows that this exequatur had never been applied for or pursued by the Lesotho authorities themselves, whose duty it was to do so. There was no written 4 communication from the South African Government indicating that it had declined to issue such an instrument. [3] The appellant contended that the recall was unlawful, irrational, and procedurally unfair: she had been formally appointed, had entered upon her duties, had been remunerated as Consul General, and had a legitimate expectation that the Government would regularise the diplomatic formalities. She maintained that the Government could not lawfully invoke the termination clause in her contract to cure its own administrative omission, and that the absence of an exequatur—a matter wholly within the respondents’ control—did not invalidate her contract of service. [4] The High Court, while acknowledging that she had a legitimate expectation to serve as Consul General, nonetheless dismissed her application for review. It held that the Government was entitled, under clause 6(2) of the contract, to terminate her engagement on three months’ notice or payment in lieu, irrespective of the reasons. It accepted, without documentary proof, that the South African Government had declined to issue an exequatur. It also failed to decide the appellant’s alternative claim for consequential relief in the event the main review was refused. [5] On appeal, these facts coalesce into a case that the court below erred both in law and principle. The Government’s failure to secure the exequatur was its own dereliction; yet the learned judge placed the burden of that omission upon the appellant. The 5 invocation of clause 6(2) to justify recall in these circumstances was, it is said, an abuse of discretion and contrary to the rationality requirement articulated by the Court of Appeal in Lebohang Ntsinyi v Principal Secretary, Ministry of Foreign Affairs C of A (CIV) No. 14 of 2018. Furthermore, by disregarding the admitted legitimate expectation and the absence of any formal refusal by the receiving state, the High Court effectively endorsed arbitrary administrative action. [6] In essence, the crucial facts disclose that a duly appointed and performing Consul General was recalled on grounds unsupported by evidence and arising from the Government’s own procedural lapse, and that the court a quo misdirected itself in treating a broad termination clause as a shield for administrative illegality. These are the factual foundations upon which the appeal properly rests. [7] The appellant, dissatisfied with the judgment of the High Court, appealed to this Court, contending that the learned judge a quo had fallen into a series of material errors and misdirections in dismissing her application for review. [8] First, it was submitted that the learned judge erred in law and in principle in holding that the appellant had failed to make out a case for review, notwithstanding her own finding that the appellant possessed a legitimate expectation to serve in the diplomatic mission of Lesotho in the Republic of South Africa for the duration of three years. It was argued that having recognised 6 the existence of such an expectation, the court below was bound to give effect to it by examining whether the administrative act of recall was consistent with fairness, rationality, and due process. [9] Secondly, the appellant contended that the learned judge wrongly concluded that the Government was entitled to terminate its contract with her without consequence. The contract, it was emphasised, was a valid and enforceable agreement between the parties, and its subsistence was not contingent upon the issuance of an exequatur by the Republic of South Africa. The absence of that diplomatic instrument could not, in law or in logic, invalidate an appointment lawfully made and acted upon. [10] Thirdly, the appellant maintained that the court below erred in upholding the Government’s right to terminate the engagement and to recall her from South Africa in circumstances where there was no evidence or formal communication from the South African authorities indicating that an application for an exequatur had been refused. The judgment was said to rest on an assumption unsupported by the record and thus to offend the principles of rationality and evidential sufficiency. [11] Finally, it was submitted that the learned judge misdirected herself by failing to pronounce upon the alternative relief sought in the notice of motion. The appellant had advanced a well-founded claim for such relief in the event that the main prayer for review were to be declined, yet the court made no determination thereon. The omission to address a pleaded and substantiated alternative 7 claim, it was argued, amounted to a material irregularity warranting appellate intervention. [12] When the hearing of this appeal commenced, it soon became apparent that its proper determination hinged upon an appreciation of the State practice governing the deployment of diplomatic and consular officers by the Kingdom of Lesotho to foreign jurisdictions, notably the Republic of South Africa. The record before us was, at the outset, bereft of any documentation elucidating that practice. However, with commendable assistance from counsel for the respondent, certain relevant materials were subsequently placed before the Court, thereby enabling a fuller understanding of the applicable principles of diplomatic law. In essence, the appeal thus asserts that the judgment a quo was marred by internal inconsistency, a misapprehension of the governing legal principles, and a failure to determine all material issues raised before the court. Issues for determination [13] The appeal turns on narrowly framed questions. First, whether the appellant’s recall was lawful where no exequatur had issued and, critically, where the Government had not itself pursued one. Secondly, whether the absence of an exequatur rendered the domestic contract of appointment void or merely affected the appellant’s capacity to perform external consular acts, and whether, in that setting, the State bore the duty to seek the exequatur. Thirdly, whether the respondents could rely on a broad 8 termination clause to defeat the appellant’s admitted legitimate expectation and to cure their own administrative omission, bearing in mind the public-law constraints of rationality, fairness and proper purpose. Fourthly, whether there was any evidential foundation—by Note Verbale or otherwise—for the assertion that South Africa refused an exequatur. Fifthly, whether the High Court erred by failing to decide the pleaded alternative relief if review were refused. Finally, subject to the answers to those questions, what the appropriate remedy should be. The law [14] The appointment of a Head of Consular Mission by the Kingdom of Lesotho to the Republic of South Africa is governed by both international law and domestic administrative practice. The principal international instrument is the Vienna Convention on Consular Relations (1963), which delineates the rights, privileges, and obligations of consular posts and consular officers. Lesotho has both ratified and domesticated the Convention. Under Article 22 of the Convention, the sending State is required to obtain the consent—commonly referred to as the agrément—of the receiving State prior to appointing any consular officer. Article 22(1) of the Vienna Convention on Consular Relations (1963) provides that the head of a consular post is admitted to the exercise of his functions by an authorisation from the receiving State termed an exequatur. Article 23 further provides that the receiving State may, at any time and without having to explain its decision, withdraw the exequatur. These provisions are cast in terms of absolute 9 discretion and recognition by the receiving State. Until the exequatur is granted, the nominee has no standing in international or local law to act as consul, nor may the sending State purport to clothe him with such authority in the receiving State’s territory. [15] Before the exequatur is issued, the nominee’s position is one of designate or consul-designate. The contractual relationship between Lesotho and the nominee may properly cover: (a), the terms of service (salary, benefits, tenure, etc.); (b), obligations of confidentiality and representation; and (c), preparations for eventual posting. But such an agreement remains executory and conditional upon the granting of the exequatur by South Africa. The legal analogy is that of a conditional appointment or a contract subject to a suspensive condition—the condition being recognition by the receiving State. Were the proposed consul to perform consular acts before being granted the exequatur, such acts would be legally ineffective and potentially contrary to the sovereignty of the receiving State. The individual would be treated merely as a private person, without inviolability, privilege, or immunity. Any attempt by Lesotho to assert consular authority through an unrecognised officer could therefore be regarded as a breach of international comity and the Vienna Convention itself. [16] This ensures that no person may lawfully act in a consular capacity without the express concurrence of the receiving State. Further, Article 36 provides for the issuance of an exequatur, being the formal recognition by the receiving State of the consular officer’s authority to perform consular functions. The exequatur 10 may be withheld, restricted, or revoked by the receiving State, and no consular duties may lawfully be undertaken in its absence. Accordingly, the process of appointment must observe a dual compliance requirement: first, adherence to the sending State’s internal nomination and vetting procedures; and secondly, observance of the receiving State’s acceptance through the grant of an agrément and, subsequently, an exequatur. [17] In accordance with established diplomatic and consular practice, the following instruments and steps are typically undertaken when the Kingdom of Lesotho seeks to accredit a head of a consular mission to the Republic of South Africa: The Ministry of Foreign Affairs of the Kingdom of Lesotho issues a Note Verbale to the Department of International Relations and Cooperation (DIRCO) of the Republic of South Africa. This formal diplomatic communication requests the agrément of the proposed candidate. It ordinarily sets out the nominee’s full name, nationality, rank, personal particulars, proposed station, and, where relevant, the identity of the officer to be succeeded. [18] Upon receipt and approval of the nomination, DIRCO communicates its consent by granting agrément. The Government of Lesotho then transmits a further Note Verbale seeking the issuance of the exequatur—the formal document by which the South African Government recognises the appointee’s capacity to exercise consular functions. 11 [19] The nomination dossier is supported by full biographical data: name, date and place of birth, nationality, educational and professional background, and relevant diplomatic or consular experience. Certified copies of national identity documents, passports, and recent passport-sized photographs are enclosed for verification. A formal Instrument of Appointment—such as a letter of commission or appointment under the seal or signature of the Minister of Foreign Affairs—is issued by the Government of Lesotho. This serves as the official evidence of the nominee’s designation as head of the consular post. [20] The appointee must be a citizen of the Kingdom of Lesotho or otherwise qualified under Lesotho law. Appropriate proof of nationality, such as a birth certificate or certificate of citizenship, accompanies the nomination. Before nomination, the Government of Lesotho conducts requisite internal vetting, including background and security checks, to ensure suitability for diplomatic representation. In some instances, a certificate of non-objection or security clearance is appended. The nominee provides a written Letter of Acceptance, confirming readiness to assume the duties and obligations of the office, and acknowledging adherence to the privileges and responsibilities attendant to consular service. [21] Once satisfied, the South African Government issues the exequatur, being the formal instrument of recognition enabling the consul to discharge official functions within South African territory. The exequatur may stipulate the effective date of commencement and any specific conditions applicable to the 12 office. Following receipt of the exequatur, the head of the consular post may be required to present credentials in person to an authorised official of DIRCO or to the appropriate provincial or local authority where the consulate is established. Upon such presentation, the officer is deemed duly recognised and may enter upon the performance of consular duties. [22] The Ministry of Foreign Affairs in Maseru notifies all relevant departments, missions, and the consular post itself of the new appointment. Details of the consular premises, staff, and official contact particulars are communicated to South African authorities through the appropriate diplomatic channels. If the appointed officer is not already resident in South Africa, arrangements for entry and status are made through diplomatic correspondence. Holders of diplomatic or official passports from Lesotho are generally exempt from visa formalities. Instead, DIRCO is notified by a Note Verbale in advance of arrival to ensure that immigration authorities accord the appropriate diplomatic status at the port of entry. Consideration of the appeal [23] The central question for determination in this appeal is whether the Government of Lesotho lawfully terminated the appellant’s appointment as Consul General to Johannesburg on the ground that no exequatur had been issued by the Republic of South Africa. The issue engages both international law—chiefly the 13 Vienna Convention on Consular Relations (1963)—and the domestic principles of administrative and contractual legality. [24] The appellant’s appointment was made through a formal contract of employment duly executed by the Government of Lesotho. It was not a mere promise of future engagement; it was a binding agreement conferring rights and obligations upon both parties. The appellant assumed duty and performed the functions of Consul General, was remunerated accordingly, and represented Lesotho’s interests in South Africa. It is, therefore, beyond dispute that a subsisting employment relationship existed between the parties. [25] The Government’s contention that the appointment was null or void ab initio for want of an exequatur cannot be sustained. The exequatur, as the Convention makes plain, is an instrument by which the receiving State authorises the exercise of consular functions within its territory. It does not purport to regulate or invalidate the sending State’s internal decision to appoint. The absence of an exequatur may restrain the officer from performing external acts of consular authority, but it does not efface the underlying contract of employment between the officer and her own Government. That contract remains a domestic matter governed by Lesotho law. [26] Indeed, to hold otherwise would be to confuse the plane of international recognition with that of domestic employment. The Government cannot rely upon its own omission to secure the 14 exequatur to defeat obligations it freely undertook in a valid contract. As was emphasised by the Court of Appeal in Lebohang Ntsinyi v Principal Secretary, Ministry of Foreign Affairs1, public authorities must act fairly, rationally, and consistently with their representations. Administrative convenience or neglect affords no licence to disregard lawful expectations. [27] The High Court expressly found that the appellant had a legitimate expectation to serve for three years. That finding, correctly made, should have been dispositive. Having recognised the expectation, the court below was obliged to inquire whether the subsequent recall conformed to the requirements of procedural fairness and rational justification. Instead, it treated the broad termination clause as an unfettered discretion permitting recall at will. [28] That reasoning cannot stand. A termination clause in a public-service contract must be read subject to the constitutional and administrative-law constraints that govern all exercises of public power. Where the law confers a contractual power, its exercise must be consistent with fairness and reasonableness. The respondents’ reliance on clause 6(2) to justify a recall precipitated by their own administrative lapse was neither fair nor rational. [29] The principle is elementary: no one should benefit from his own wrong. The Government’s failure to request and secure the 1 Lebohang Ntsinyi v Principal Secretary, Ministry of Foreign Affairs C of A (CIV) No. 14 of 2018. 15 exequatur—a duty which fell squarely upon it—cannot lawfully be converted into a ground for terminating the officer’s appointment. The learned judge a quo, in accepting such reasoning, inverted the logic of administrative accountability. [30] Equally troubling is the court a quo’s reliance upon an asserted refusal of the exequatur by the Republic of South Africa, unsupported by any documentary evidence. There was no Note Verbale, no communication from the South African authorities, and no affidavit from any official asserting such refusal. Findings of fact must rest upon evidence, not assumption. Rationality in administrative decision-making demands that there be a factual and logical connection between the material before the decision-maker and the conclusion reached. None existed here. [31] By contrast, the record demonstrates that the exequatur was never applied for. The cause of the impasse thus lay wholly with the respondents. The High Court’s endorsement of a decision taken in the absence of a factual foundation was a misdirection warranting appellate correction. [32] The appellant’s notice of motion contained a clearly pleaded claim for alternative relief—presumably compensation or declaratory redress—if the main prayer for review failed. The High Court made no pronouncement thereon. The failure to determine a material issue properly raised and supported constitutes a serious irregularity. As the Privy Council stated in Anisminic Ltd v 16 Foreign Compensation Commission2, a tribunal which misconstrues its duty or fails to determine an issue before it commits an error of law. That principle applies mutatis mutandis to a superior court sitting in review. [33] Properly analysed, the legal position is this. The appellant’s appointment was valid in domestic law; its performance was, in international law, conditional upon the issuance of the exequatur. The Government’s obligation was to seek that exequatur; its failure to do so cannot retroactively invalidate the appointment or justify the appellant’s recall. A lawful termination required a rational and procedurally fair basis, supported by evidence. None was demonstrated. [34] Furthermore, while the Vienna Convention grants South Africa absolute discretion to withhold or withdraw an exequatur, no such decision was shown to have been made. Lesotho’s internal act of recall was therefore unilateral and unsupported by any international impediment. It was thus an act of administrative caprice, contrary to Article 2 of the Constitution, which binds all organs of State to act within the law. Disposal [35] In the circumstances, the appeal must succeed. The decision to recall the appellant was unlawful and falls to be set aside. Given that her contractual term has long expired, reinstatement would 2 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. 17 serve little practical purpose. The appropriate remedy is a declaratory order that the recall was unlawful and an order directing the Government to compensate the appellant for the unexpired portion of her contractual term, together with such ancillary benefits as may have accrued thereunder. Order [36] For these reasons, (a) The appeal is allowed. (b) The judgment of the High Court is set aside. (c) It is declared that the appellant’s recall from her post as Consul General to Johannesburg was unlawful, irrational, and procedurally unfair. (d) The respondents are ordered, jointly and severally, to pay to the appellant compensation equivalent to her salary and benefits for the remainder of her contractual term, together with costs in this Court and in the court below. ______________________________ K.E. MOSITO PRESIDENT OF THE COURT OF APPEAL 18 P.T. Damaseb AJA (concurring): Background [37] I have had the benefit of reading the main judgment by Mosito P. The main judgment helpfully sets out the factual background of the matter and I need not traverse it in much detail. I am also indebted to the learned President for his exposition of the consular practice that governs relations between sovereign states and what ought properly to have been done in the case of the appellant. [38] Given the appellant's concession at the hearing of the appeal, which I am satisfied was properly made, this is a matter where a remedy must not be located in public law but rather in contract law, based on the employment contract. [39] The parties concluded an employment contract for the appellant to render services to the GoL, the due performance of which the Government wants to escape because of alleged impossibility of performance. But can it? The Appeal Concession [40] At the hearing of the appeal, Mr Lebakeng on behalf of the appellant conceded that the review relief was no longer practical. The concession was properly made. Giving effect to the appellant’s status as Consul General is not a unilateral act on the part of 19 Lesotho. It required the cooperation and consent of the receiving state. Reviewing and setting aside the recall is a brutum fulmen if the object is not to install the appellant as Consul General. Therefore, given that review and declaratory relief are discretionary remedies, the facts of the case are not suited to the grant of such relief. [41] Appellant’s counsel made clear however that the appellant persists with the alternative relief which claims ‘all the emoluments he would have earned for the remaining period of the contract’. He also sought costs. Misdirection: Failure to deal with alternative relief [42] As the Supreme Court of Namibia observed in Hashagen v Public Accountants’ and Auditors’ Board3 (footnotes omitted): ‘[32] Where a court is faced with competing legal objections, either of which has the potential to dispose of the case without the need for consideration of the merits or the legal objections raised by the other side, it must be sure that the objection it chooses to accept makes it unnecessary for it to consider the other objections as those ‘other objections’ cannot override the one issue it resolves in favour of one of the parties. A good example of that is where the first instance court is faced with main and alternative relief …such as was the case in Village Hotel (Pty) Ltd v Chairperson of the Council for the Municipality of Swakopmund & others.(Village Hotel (Pty) Ltd v Chairperson of the Council for the Municipality of Swakopmund & others 2015 (3) NR 643 (SC) paras [38] and [39].) 3 Hashagen v Public Accountants’ and Auditors’ Board 2021 (3) NR 711(SC). 20 [33] In that case, this court made clear that where a party seeks main and alternative relief and fails in the former, it is a misdirection for a first instance court to fail to consider the alternative relief which is independent from and does not depend for its success on a decision on the main issue.’ [43] The learned judge a quo did not deal with the alternative claim, and it is not apparent from the written reasons why she did not. That failure is a misdirection leaving this Court at large to deal with the alternative relief claimed by the appellant. Respondent [44] On behalf of the Crown, Mr Moshoeshoe submitted that, even in relation to the alternative relief, the GoL was entitled to terminate the contract as it did in terms of Clause 6(2) of the written employment contract. I will deal with this submission presently. Was a case made out for the alternative relief? [45] The main judgment holds that the exequatur did not regulate the GoL’s ‘internal decision to appoint’ the appellant. In other words, as the learned President writes, it did not ‘efface the underlying contract of employment between [the appellant] and her own Government. That contract remains a domestic matter governed by Lesotho law’. I agree with that approach. On that approach, the alternative relief becomes relevant and engages the law of contract. [46] The appellant’s letter of appointment incorporated a ‘Schedule’ wherein the terms of his employment are spelled out. 21 The terms of employment include a termination clause for misconduct: if for example, without good cause he neglected or refused to perform any of his duties or to comply with any order4. In terms of clause 6(2), the parties had agreed that the GoL may at any time terminate the appellant’s engagement by giving him three months’ notice in writing or on paying him three months’ salary in lieu of notice. [47] It is not without significance that the High Court had found that the absence of the exequatur was due to the failure of the Government to apply for it. That finding remains unchallenged and must be presumed on appeal to be correct. The appellant was therefore not guilty of any misconduct. [48] In addition, the Government’s reliance on Clause 6(2) is unconvincing and seems to be an afterthought. It is of concern that it is not clear what exactly is the GoL’s reason for recalling the appellant. On the one hand, it is suggested that it was acting in terms of clause 6(2) which gave it the right to cancel without showing cause; yet no reference is made in the show cause letter to clause 6(2). On the other hand, the Government attributes the recall to the absence of an exequatur and suggests that the primary reason for its absence is the South African Government’s refusal to grant the same. Yet in the same breath it is suggested that the GoL failed to ‘follow the procedure’ which resulted in South Africa ‘declining’ to ‘recognise applicant’. 4 Vide employment contract clause 6(1). 22 [49] What is even more worrying is the suggestion that the appellant was at fault by assuming office as Consul General ‘without first receiving the exequatur’. The latter being the reason for the serious allegation that the appellant was ‘unduly enriched’ at the expense of the GoL. How this proposition could be made when the appellant was under obligation under clause 6(1) to perform his contracted duties defies reason. [50] Properly construed, the true reason for the cancellation of the appellant’s employment contract is that which was stated in the recall letter: absence of an exequatur rendered the appellant’s employment contract impossible of performance and that the contract was a nullity for that reason. That explains why the first respondent purported in the answering affidavit, without pursuing it, to ‘cancel’ the contract and to suggest that the appellant was (in serving as Consul General), being ‘unduly enriched …until 2 May 2024’. [51] It is common cause that the appellant assumed office in terms of the written contract of employment and relocated to South Africa with her family. She served in the position as Consul General for 16 months when she was recalled. The recall was effectively a termination of her employment contract. [52] I agree with the main judgment that the GoL's failure to apply for an exequatur prevented the appellant from being recognised as Consul General by South Africa. That the appellant could not 23 assume the office of Consul General was therefore entirely the fault of the GoL. Disposition [53] On the GoL’s own version, the appellant could not become Consul General given the fact that the South African Government had not accepted his credentials. That situation existed when she travelled to South Africa and rendered services to the GoL for over 16 months in terms of the contract. She did so, relying on the written contract concluded with the GoL which makes no mention of an exequatur as a condition precedent. [54] If parties conclude a contract dependent on a future event, no obligations exist between them until that condition is met.5 Much as it is true that a party wishing to enforce a contract because it had complied with a suspensive condition has to allege and prove the fulfilment of the suspensive condition to enforce the contract6, the converse is also true. That is, if a party wishes to avoid a contract because a suspensive condition was not met, it must allege that fact and prove it. The appellant’s employment contract was not conditional upon the obtaining of an exequatur: no such term is contained in the written contract between the parties. [55] The appellant performed what she considered were her duties under the contract and was remunerated accordingly. Therefore, 5 Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A). 6 Resisto dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963(1) SA 632(A). 24 since the Government raised the defence of impossibility, it bore the onus in respect of that defence. [56] The principle is entrenched that: “If performance has become objectively impossible by reason of events for which the party seeking to rely on the impossibility is not responsible (vis major/ casus fortuitus), the obligation may be extinguished; but the rule will not apply where the impossibility is self-created or due to the party’s own fault.7” [57] As Christie opines: ‘Self-created impossibility, that is, impossibility resulting from the act of one of the parties, does not discharge the contract, but leaves the party whose act created the impossibility liable for the consequences. This will be so whether the impossibility is complete or partial, and whether or not the act that causes the impossibility is wrongful.’8 [58] The Government has not shown that it had applied for an exequatur to sustain the defence of impossibility. On the probabilities, it never applied for an exequatur. It does not even make the bald allegation that it did. South Africa could not refuse an exequatur that had not been applied for. The impossibility relied upon was therefore self-created. [59] Because of the cancellation of his contract of employment through recall, the appellant is unable to render services to the 7 Peters, Flamman & Co v Kokstad Municipality7 1919 AD 427; Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal 2008 (4) SA 111 (SCA) [2008] 3 ALL SA 255 (SCA) para 28; MacDuff & Co. Ltd (In Liquidation) v Johannesburg Consolidated Investment Co Ltd 1924 AD 573 at 601. 8 RH Christie (1996) The Law of Contract, 3rd ed, p.528. 25 GoL through no fault of his own. The GoL had, fully aware of the absence of an exequatur, contracted the appellant as Consul General and caused her to relocate to South Africa. [60] In Wireohms SA (Pty) Ltd v Greenblatt9 Van Wyk J held: ‘Where a contracting party is as a result of his own fault unable to perform any terms of the contract, but substantial performance is nonetheless possible, the other party is entitled to demand such substantial compliance.’ [61] I cannot find any reason either in logic or legal principle why the GoL should not be obligated to compensate the appellant for the unexpired term of his contract. That would, in my view, constitute substantial performance by the Government as the party at fault. The appellant’s loss of income from her inability to carry out her contracted job is one that was reasonably foreseeable. [62] I am satisfied that there is no viable defence to the appellant’s alternative claim for compensation for the GoL’s breach of its obligation towards the appellant to obtain the requisite consent of the South African Government. [63] As Innes CJ stated in Steenkamp v Du Toit10: 9 Wireohms SA (Pty) LTD v Greenblatt and Another 1959 (3) SA 909 (C) at 912, See also Quinella Trading (Pty) Ltd and Others v Minister of Rural Development and Land Reform and Others (LCC 03/2010) [[2010] ZALCC 14](/akn/za/judgment/zalcc/2010/14); 2010 (4) SA 308 (LCC). 10 Steenkamp v Du Toit 1910 TS 171 at 175. 26 ‘A man, therefore, who has failed to carry out his contractual obligation, is liable for such damages as he must reasonably have known would naturally and probably result from the breach; such damages, in other words, as, given his knowledge of the circumstances, might naturally be expected to follow the breach.’ [64] But for the GoL’s breach of its obligation to secure an exequatur and to make it possible for the appellant to serve out her term as Consul General, she would have served in that position and received all the benefits which were agreed in the written letter of employment. [65] Wessels JA observed in Katzenellenbogen Ltd v Mullin11: ‘The fundamental rule in regard to the award of damages for breach of contract is that the sufferer should be placed in the position he would have occupied had the contract been properly performed, so far as this can be done by the payment of money and without undue hardship to the defaulting party . . . ’ Order [66] In the result, I make the following order: 1. The appeal succeeds, and the judgment and order of the High Court are set aside in part only and replaced with the following: ‘(a). The alternative relief is granted. (b) The first respondent and second respondent are ordered, jointly and severally, the one paying the other to be absolved, to pay the applicant 11 Katzenellenbogen Ltd v Mullin 1977 (4) SA 855 (A) at 875B-C. 27 all the emoluments he would have earned for the remainder of the contract. (c) The first and second respondents are ordered to pay the applicants costs, jointly and severally, the one paying the other to be absolved’. 2. The appellant is granted costs of the appeal against the first and second respondents, jointly and severally, the one paying the other to be absolved. ______________________________ P T DAMASEB ACTING JUSTICE OF APPEAL I agree: _____________________________ S P SAKOANE CHIEF JUSTICE FOR APPELLANTS: MR T. LEBAKENG FOR FIRST RESPONDENTS: ADV.L. P. MOSHOESHOE #### __Related documents ▲ To the top >