Mataeli Makhele-Sekhantso V Minister of Local Government and Chieftainship & Ano. (C of A (CIV) 23/2024) [2025] LSCA 53 (7 October 2025)

# Mataeli Makhele-Sekhantso V Minister of Local Government and Chieftainship & Ano. 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(C of A (CIV) 23/2024) [2025] LSCA 53 (7 October 2025) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Mataeli Makhele-Sekhantso V Minister of Local Government and Chieftainship & Ano. (C of A (CIV) 23/2024) [2025] LSCA 53 (7 October 2025) Copy Media Neutral Citation [2025] LSCA 53 Copy Hearing date 9 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) 23/2024 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA), [Mathaba AJA](/judgments/all/?judges=Mathaba%20AJA) Judgment date 7 October 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary ###### Flynote Court of Appeal — Review of its own judgment — Jurisdiction — Not provided for in Constitution, statute, or Rules — Inherent jurisdiction to review only in exceptional circumstances — Gross miscarriage of justice or patent error required — Review not a disguised appeal — Principle of finality in litigation reaffirmed. Composition of the Court — Objection to reconstituted panel — Argument that review must be heard by the same judges who decided the appeal — No merit — Allocation of judges is an internal management function of the President — No constitutional or statutory requirement that the same panel hear review proceedings. Procedure — Abuse of review jurisdiction — Growing misuse of process — Court introducing new procedural safeguards — Requirement of petition to establish exceptional circumstances before review jurisdiction invoked — Filtering mechanism to prevent abuse. Costs — Discretionary — Each party to bear its own costs — Court cautioning against unnecessary and unmeritorious applications — Dissent on costs: review unmeritorious but objection arguable — Costs of review to be borne by applicant; no order as to costs on composition objection. Read full summary * * * Skip to document content ###### Flynote Court of Appeal — Review of its own judgment — Jurisdiction — Not provided for in Constitution, statute, or Rules — Inherent jurisdiction to review only in exceptional circumstances — Gross miscarriage of justice or patent error required — Review not a disguised appeal — Principle of finality in litigation reaffirmed. Composition of the Court — Objection to reconstituted panel — Argument that review must be heard by the same judges who decided the appeal — No merit — Allocation of judges is an internal management function of the President — No constitutional or statutory requirement that the same panel hear review proceedings. Procedure — Abuse of review jurisdiction — Growing misuse of process — Court introducing new procedural safeguards — Requirement of petition to establish exceptional circumstances before review jurisdiction invoked — Filtering mechanism to prevent abuse. Costs — Discretionary — Each party to bear its own costs — Court cautioning against unnecessary and unmeritorious applications — Dissent on costs: review unmeritorious but objection arguable — Costs of review to be borne by applicant; no order as to costs on composition objection. 1 LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV) NO 23/2024 In the matter between: MATAELI MAKHELE-SEKHANTS’O APPELLANT AND MINISTER OF LOCAL GOVERNMENT AND CHIEFTAINSHIP 1ST RESPONDENT ATTORNEY-GENERAL 2ND RESPONDENT CORAM: MOSITO, P DAMASEB, AJA MUSONDA, AJA VAN DER WESTHUIZEN, AJA MATHABA, AJA HEARD: 9 & 23 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 2 FLYNOTE Court of Appeal — Review of its own judgment — Jurisdiction — Not provided for in Constitution, statute, or Rules — Inherent jurisdiction to review only in exceptional circumstances — Gross miscarriage of justice or patent error required — Review not a disguised appeal — Principle of finality in litigation reaffirmed. Composition of the Court — Objection to reconstituted panel — Argument that review must be heard by the same judges who decided the appeal — No merit — Allocation of judges is an internal management function of the President — No constitutional or statutory requirement that the same panel hear review proceedings. Procedure — Abuse of review jurisdiction — Growing misuse of process — Court introducing new procedural safeguards — Requirement of petition to establish exceptional circumstances before review jurisdiction invoked — Filtering mechanism to prevent abuse. Costs — Discretionary — Each party to bear its own costs — Court cautioning against unnecessary and unmeritorious applications — Dissent on costs: review unmeritorious but objection arguable — Costs of review to be borne by applicant; no order as to costs on composition objection. Held: 1. The Court of Appeal’s review jurisdiction is not constitutionally or statutorily conferred but derives from its inherent power to serve the interests of justice, exercisable only in exceptional cases where a patent error or gross miscarriage of justice has occurred. 2. A review application is not a continuation of the appeal, and there is no rule or constitutional requirement that it be heard by the same judges who decided the appeal. The assignment of judges is an internal administrative function of the President. 3 3. The increasing abuse of the Court’s review power necessitates the introduction of a preliminary filtering procedure: any party seeking review must first petition the Court, setting out grounds justifying the invocation of the extraordinary jurisdiction. 4. The review application and objection to the composition of the Court were both dismissed. The Court warned against the growing misuse of review proceedings and emphasised the need for finality in litigation. 5. Per Mosito P (concurring): Costs are a matter of fairness and discretion; neither side merited a costs order. 6. Per Mathaba AJA (partly dissenting on costs): The review was frivolous and warranted a costs order against the applicant; however, the objection to composition was arguable and properly raised. 7. Per Damaseb AJA (concurring): A new gatekeeping procedure was prescribed to regulate future applications invoking the Court’s review jurisdiction. Order: 1. Review application dismissed. 2. Objection to the composition of the Court dismissed. 3. No order as to costs (majority). 4. Per Mathaba AJA (dissenting on costs): Applicant to pay costs of review; each party to bear own costs on composition objection. JUDGMENT VAN DER WESTHUIZEN, AJA Introduction [1] On 19 February 2024 Makara J in the High Court gave a judgment of 59 paragraphs in the matter of Mataele Makhele-Sekhantso versus The Minister of Local Government and 4 Chieftainship (CIV/APN/0278/2022). The High Court set aside, with costs, the Minister’s refusal to approve the decision of the Board of the Land Administration Authority to appoint Me Makhele-Sekhants’o as the Director General of the Land Administration Authority. [2] The Minister appealed to this Court (C of A (CIV) 23/2024; CIV/APN/0278/2022). The appeal succeeded. The judgment and order of the High Court were set aside. The reasons for this conclusion are provided in a judgment by Damaseb AJA. Sakoane CJ agreed. [3] Mosito P dissented. Together, the two judgments were 105 paragraphs long. The summary occupied three full pages. [4] Me Makhele Sekhants’o (hereafter referred to as the applicant) applied to this Court to review its own judgment. In limine [5] Counsel for the Minister and Attorney General (the respondents) raised a point in limine regarding the composition of this Court. In order to deal with it, the law regarding reviews of this kind is useful. The law [6] Review by this Court of its own decisions is not provided for in the Constitution of Lesotho, legislation, or the Court’s Rules. 5 [7] In Lepule v Lepule1 Mokgoro AJA stated: “… although the Lesotho Court of Appeal does not have direct jurisdiction, whether in the Constitution or in applicable legislation to review its own judgments, the Court may, when appropriate circumstances arise, exercise that jurisdiction, based on its inherent common law duty and obligation to serve the interests of justice.” [8] In this judgment it was also held that exceptional circumstances were required. The question was whether there had been a patent error, or a gross miscarriage of justice. [9] The limits of this power were further described by Mosito P in Hippo Transport (Pty) Ltd v Commissioner of Customs and Excise and Another2 at 196: “… bearing in mind that the review jurisdiction of this Court is a special jurisdiction to be exercised in exceptional circumstances where a fundamental and basic error may have inadvertently been committed by this Court …”. [10] In South Africa Berman AJ stated, with reference to other judgments, in Seattle v Protea Insurance Co (Ltd)3 at 541): “A ‘patent error or omission’ has been described as an error or omission as a result of which the judgment granted does not reflect the intention of the judicial officer pronouncing it … it is irrelevant whether the reasoning of the Court was sound or unsound …” [11] The need for certainty and finality was emphasized in Hippo Transport and other judgments. For example, in Minister of Justice 1 Lepule v Lepule (LAC (2015-2016) 124 at 124). 2 Hippo Transport (Pty) Ltd v Commissioner of Customs and Excise and Another (LAC (2017- 2018) 1784 AT 196). 3 Seattle v Protea Insurance Co (Ltd) (1984(2) SA 537 at 541). 6 v Ntuli4 Chaskalson P stated in the South African Constitutional Court: “The principle of finality in litigation which underlies the common law rules for the variation of judgments is clearly relevant to constitutional matters. There must be an end to litigation and it would be intolerable and could lead to great uncertainty if courts could be approached to reconsider final orders made in judgments declaring the provisions of a particular statute to be invalid.” [12] From the first sentence it is clear that these words are not applicable to constitutional matters only. [13] In paragraph [13] of Hippo Transport it is also stated that the injustice emanating from a judgment must not be remediable through normal court processes. [14] From the “patent error” and other tests set out above, it is clear that the task of a review court is not to rehear or reconsider the correctness and soundness, or otherwise, of the judgment under review. Therefore, in this case this Court is not expected to analyse the majority and minority judgments in order to determine which one is correct and which one wrong, or to choose one above the other. Composition of this Court [15] At the commencement of proceedings on 9 October 2025 counsel for the respondents requested to meet the judges privately 4 Minister of Justice v Ntuli (1997(3) SA 774 (CC)). 7 in chambers. According to him, this was to protect the Court against embarrassment in the public eye. [16] In the office of the President counsel for both sides met with the five judges. Counsel for the respondents stated that he “felt very strongly” that this Court should not be composed of five judges, but of the three judges who gave the judgment under review, namely Mosito P, Sakoane CJ and Damaseb AJA. He proceeded to argue the point he had made. The President invited him to state his point in open court. [17] In court counsel asked for a postponement, in order to prepare written heads of argument, which he undertook to deliver on Tuesday, 14 October 2025. These heads were received by the Registrar’s clerk a day late, on Wednesday, 15 October 2025. Due to a very full roll, the matter was postponed to the last day of this October session, namely 23 October 2025. On 20 October, counsel for the applicant filed heads of argument in response to the respondents’ heads. [18] On 22 October 2025 the respondents formally applied that (as stated in (a) of their Notice of Motion) “the review application, sequel to the main appeal case heard and decided in October 2024 and judgment rendered by the Court of Appeal Justices, namely, their Lordships Mosito P, Sakoane CJ and Damaseb AJA ()DCJ), delivered on the 1st November 2024, be allocated and heard to completion by the same panel”. (I hereafter refer to the parties as 8 “the applicant” and “the respondents” as they are in the main review application.) [19] From the phrase “heard to completion” in the Notice of Motion it is clear that the respondents view the review proceedings as part and parcel and a continuation of the appeal heard by Mosito P, Sakoane CJ and Damaseb AJA. In short, counsel for the respondents argues that the “President as the allocating authority, had exhausted his administrative powers of allocation once the Justices commenced the hearing of the main appeal … (t)he President having been functus officio, cannot reallocate the case afresh in respect of an incidental review to a differently constituted court”. [20] Secondly, “(t)he reallocation of the review proceedings, incidental of (sic) the appeal, to a panel of different judges breaches or threatens to breach judicial comity, in as much as a different panel is constituted to examine, albeit to a limited extent, the proceedings of the panel of their peers that heard and determined the main appeal …”. [21] Thirdly, “…the fact that a different panel of Justices is empanelled to consider and examine the proceedings of their peers would be a violation of the Constitution especially the provisions that stipulate the hierarchy of the court and fair hearing (sic).” [22] In the heads and during the hearing counsel further elaborated on each of the above. Only some submissions are 9 highlighted here. One is that this Court “should decline to proceed with hearing the appeal and defer to the Justices who are seized with this appeal”. [23] However, the appeal is over. The delivery of a judgment necessarily brought an end to the appeal. The review application is not part of the appeal. In view of what follows below about the abuse of review proceedings and the need for finality, it would be dangerous to regard reviews as a continuation of the appeal. [24] The assignment of cases is a matter of “internal management”. No person outside of the Judiciary should be able to allocate cases to Judges, according to counsel for the respondent. The relevance of this undoubtedly correct statement is unclear. Once the allocated panel enters into the adjudication of the appeal, it “ceases to be an issue of internal management of the Court”, so the respondents argue. [25] Counsel furthermore submits that “reasonable litigants would expect that in a review application, like the present one, the panel of Justices who presided in the appeal should continue to preside”. The public perception of courts is also mentioned. The opposite is also arguable, though – perhaps stronger. Litigants and court watchers might be less comfortable with the same three judges who disagreed than with a fresh look by others, especially in view of the narrow task of the review panel. 10 [26] In the discussion of the above-mentioned case of Ntuli, counsel compliments the Constitutional Court by mentioning that it “correctly” stated something. Phrases are used such as that the Court “must have had (something) in mind” and it “is perhaps for this reason” namely that the Court was operating under a new constitutional order, that it was sensitive to the Constitutional implications of a reconstituted court”. The respondents’ vague language is not helpful. [27] As to the constitutional implications regarding the powers and hierarchy of courts, it was pointed out to counsel, from the Bench, that he might be misconstruing the difference between a court and the composition of a panel of the court hearing a matter. [28] Counsel for the respondents referred to several authorities of varying relevance. These include Principle 14 of the “UN Basic Principles on the Independence of the Judiciary”; “Article (1) of the European Convention”; “Article 3 of the Universal Charter of the Judge, adopted by the IAJ Central Council in Taiwan on 17th November 1999 and updated in Santiago Chile on 14th November 2017; and Article 14 of the “Bangalore Principles of Judicial Conduct” . Specific references to these documents are not provided in the heads of argument. On the day before the hearing of the review application the respondents made photocopies of lengthy judgments of three cases before the European Court of Human Rights, involving Hungary, Croatia and Russia. 11 [29] It is noteworthy that - in all 20 pages of the respondents’ heads of argument - not a single judgment, in Lesotho or other comparable domestic jurisdictions, is referred to that directly states that when a judgment by three judges in a court of final appeal is taken on review, it is unconstitutional or otherwise wrong for five judges instead of the original three to hear a review application; and that the review application must be heard by the same three judges and by them only. When counsel for the respondent was put this question from the Bench during the hearing, his short much appreciated answer was “no”. [30] In its opposing heads of argument the applicant responds to most of the submissions of the respondents. The heads state: “The argument of the respondents is self-serving and should be rejected.” [31] In spite of the above argument that for present purposes the averments by the applicant concerning a patent error, etcetera, must be taken as correct, respondents’ counsel seems to lose sight of the narrow task of the review court. This is summarised in [14] above. [32] The request for this Court to be disassembled and reconstituted is not convincing. After an adjournment of this Court to consider and discuss the respondent’s objection, Mosito P announced in open court that – by a unanimous decision – it was dismissed. 12 [33] In the respondents’ heads it is ”stated upfront that the objection is raised purely as a matter of law. The respondents are not suggesting any improper motive or mala fides in the composition of the panel”. It should then be assumed that the respondents invested purely in their quest for justice. The review request [34] In the respondents’ main heads of argument the statement that “(t)he nature of complaint(s) by the applicant is difficult to decipher” is understandable. Both sides then argued about the contents and merits of the long, detailed and well-reasoned majority and minority judgments. [35] The applicant focused on factual issues and referred to specific paragraphs in the judgment under review. [36] In the search for a patent error, the first step is to find an error. Several questions from the Bench revolved around the inaccurate - or downright incorrect - nature of the applicant’s reliance on certain paragraphs in the appeal judgment. [37] Even on the assumption that the applicant correctly pointed out errors, these do not amount to “patent errors”, or to the tests stated in the authorities referred to in [6] to [14] above. No “exceptional circumstances”, “inadvertently committed fundamental and basic error”, or “gross miscarriage of justice” can be detected in the judgment under review. 13 [38] The purpose of litigation is to adjudicate disputes. In the absence of a dispute, no normal person would approach a court of law, especially with the risk of an unwelcome costs order. Human beings often invest strong emotions in litigation. Lawyers provide opposing opinions. Within our adversarial system, litigation mostly end with a “winner” and a “loser”. The last-mentioned is often understandably disappointed and unhappy. Judgments are then regarded as “wrong” – and may even be so. In law, especially as applied to facts of life, there is not always a clear “right” and “wrong”. That is why provision is made for appeals to a court where more than one judge considers a matter. When they differ, as human beings often do, the majority view prevails. Without finality, a society will be chaotic and unruly, subject to self-help and the proverbial “law of the jungle”. Conclusion [39] The request for this Court to be disbanded and reconstituted lacks merit. So does the review application, which consequently has to fail. Abuse [40] A few serious words of caution are called for. As clearly and repeatedly stated above, the jurisdiction of a court to review its own decisions has to be utilised under very special circumstances only. In recent years there seems to be a trend in Lesotho (and, for that matter, in South Africa) to overuse and indeed abuse it. Lawyers may well be tempted to assure clients who are disappointed with the outcome of a matter on appeal that they 14 have another opportunity to present their case, but it holds great danger for the need for finalisation of litigation, stability and respect for the courts. Confidence could hardly be expected in judges, especially for the final courts of appeal, who appear to constantly doubt their own decisions when asked to revisit them. [41] One way to curb the excessive use of the limited jurisdiction to review in matters with little or no merits may well be appropriate punitive cost orders. Costs [42] Both the objection to the composition of this Court and the review application have no merit at all. In view of the second, it would seem the review application could have been finalised in favour of the respondents on 9 October 2025. Much time, energy and money went into the postponement and consideration of the fruitless request for dissolving the panel. Indeed, the applicant asks for a punitive costs order as far as the objection is concerned. According to the respondents’ heads of argument in the review application, this “… application is an abuse of the court process and must fail with costs.” Each party must bear its own costs. [43] In view of the above, it is ordered: (a) The review application is dismissed. (b) The application and objection regarding the composition of this Court is dismissed. (c) There is no order as to costs. 15 __________________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL 16 MOSITO P (concurring) [44] I am in full agreement with the careful reasoning and the dispositive orders proposed by my brothers Van der Westhuizen and Damaseb AJA. I add only a word on costs. [45] The starting point is well-settled: while the ordinary rule is that costs follow the event, it is a rule of practice, not a rule of law. The court’s discretion is at large and must be exercised to do practical justice between the parties, having regard to the whole course of the litigation—its inception, conduct, and outcome. In exercising that discretion, the court properly considers (i) the parties’ relative success; (ii) whether either side’s stance was unreasonable or inflated the dispute; (iii) whether the litigation was necessary; and (iv) the overarching need to avoid disproportionate, punitive, or chilling consequences. [46] Measured against those touchstones, this is not an appropriate case to visit one side with the costs of the other. Two features are decisive. [47] First, neither party advanced a position that merited vindication in costs. The respondent’s objection was without merit; it did not meaningfully assist the court, and it contributed to the multiplication of interlocutory skirmishes. The applicant’s review application was likewise without merit; it failed to identify a reviewable misdirection and pressed grounds that did not survive even modest scrutiny. The net result is that neither side can plausibly claim to have “won” anything of substance. Where 17 success is so evenly negative—where both positions were untenable—the loser-pays default has no principled foothold. [48] Secondly, each party’s conduct materially contributed to the unnecessary expense of the proceedings. The objection should not have been taken; the review should not have been brought. Both choices consumed court time and forced the other into defensive expenditure that ought never to have been required. To shift costs in either direction would be to reward one unmeritorious stance at the expense of another, and to signal that tactical brinkmanship carries no financial risk. The better course—the one that best aligns incentives with the efficient and fair administration of justice—is to leave each party to shoulder the costs it chose to incur. [49] I add this. Costs are not an automatic instrument of punishment; they are an instrument of fairness. Where, as here, the litigation was unnecessary and the parties are equally blameworthy in principle and in effect, the fair outcome is that neither should subsidise the other. A “no order” disposition also accords with proportionality: it avoids a secondary contest about quantum and scale that would further distract from the merits already found wanting. [50] For those reasons, I agree with the substance of the judgments delivered. I would order that there be no order as to costs—each party to bear its own costs on appeal. 18 I concur _________________________________ KE MOSITO PRESIDENT OF THE COURT OF APPEAL Damaseb AJA (concurring): [51] I have had the privilege of reading the judgment by Van der Westhuizen AJA and record that I concur in his reasoning and the order proposed. Like my Brother, I am concerned by the abuse that has regrettably afflicted the Court’s discretionary power to review its own previous decisions in deserving cases. [52] The review power is one that the Court of Appeal has assumed under its inherent jurisdiction (Lepule and Hippo Transport). It is a power the Court assumes on a discretionary basis. It does not bestow any right to a litigant without first inviting the Court to consider if it should assume the extraordinary and exceptional jurisdiction. How it is to be exercised (procedurally) is not governed by either the Constitution of Lesotho or statute. [53] Under the practice that has emerged since Lepule, once a review application is filed it is heard as of right and in open court 19 regardless of whether it is arguable on the test laid down by this Court in Lepule and Hippo Transport. It is not an exaggeration that it is no longer an exception but a norm. As the main judgment recognises, the current practice has led to abuse that is no longer tolerable as it unduly burdens the Court. [54] To stem the burgeoning abuse, the time has come to introduce a filtering process. At common law, this Court has the inherent power to regulate its own procedure.5 That can be done either in a judgment6, practice directions or the Rules of the Court by the President. Until such time that the President issues either a practice directive or a rule of court, in order for a party to request the Court to invoke its review jurisdiction, the procedure set out below will apply. [55] A review application may not be brought as of right to be heard in open court. First, a party must on affidavit (petition) set out fully all facts and circumstances to explain the factual basis and legal contentions why the Court should invoke its extraordinary jurisdiction. All other parties with an interest in the matter must be served with the petition and be afforded sufficient opportunity to answer to the petition; with a right to reply to the petitioner. 5 Universal City Studios Inc. v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 754; and Moulded Components and Ratomoulding SA (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W) at 461F- 462H. See also The Inherent Jurisdiction of the Supreme Court’. Juta & Co. Ltd. (1985) at 54 6 Likanyi v S (2 of 2016) [[2017] NASC 10](/akn/na/judgment/nasc/2017/10) (7 August 2017) at para 58-59. 20 [56] This approach was followed by the Supreme Court of Namibia in similar circumstances7 until the practice was later given statutory recognition in the Chief Justice’s Rules.8 [57] When all the papers have been filed, the President will assign one or more judges or himself to consider the petition. If no case is made out to justify invoking of the Court’s review jurisdiction, the President will issue an order declining the petition, with or without reasons. If the President or the judge or judges assigned to consider the petition is or are satisfied that there is an arguable case made out on the papers, the Court will issue directives regarding: a) the filing of the application on notice of motion supported by affidavit, identifying the patent error complained about, the injustice allegedly suffered and the relief sought from the Court; b) the filing of answering affidavit(s) by all affected parties; c) the filing of heads of argument; d) the date on which the matter will be heard; e) any other matter that the Court considers necessary. [58] I have also read the concurring judgment by Mosito P and his reasoning and proposed order on the appropriate costs order, which I support. 7 Likanyi supra. 8 Rules of the Supreme Court of Namibia, GN 249-2017 (15 November 2017). 21 [59] Mathaba AJA although in agreement with the order I propose, disagrees that the order declining jurisdiction may be without reasons. He cites dicta from cases in which the importance of reasons have been stressed. The cases he cites deal with situations where, after trial or hearing, first instance judges had made orders without reasons. Those cases are not comparable for two reasons: First, they involve situations where a first instance court from which appeals lie to an appellate court were under a duty to give reasons – reasons without which the right to appeal becomes meaningless. Second, when an apex court deals with a petition or a similar procedure where it assumes jurisdiction on a discretionary basis, it seldom gives reasons. [60] The practice is applied routinely by for example the apex courts in South Africa9, Namibia10 and even in the USA11. It also bears mention that the possibility of reasons is not excluded entirely in the proposed order. In the way the order is framed, the Court retains the discretion, on a case by case basis, to give reasons if circumstances justify doing so. It is entirely unwholesome to expect the Court to give reasons in all cases. 9 The Constitutional Court routinely makes orders without reasons where it declines requests for direct access. 10 The Supreme Court of Namibia gives no reasons for refusing to invoke its review jurisdiction (similar to the Lepule review jurisdiction) under Article 81 of the Constitution, similarly it gives no reasons where it either grants or refuses petitions for leave to appeal in situations where a party is required to obtain leave by petition to the Chief Justice. 11 To my knowledge, in the U.S. federal appellate system, courts issue summary affirmances or “dispositions without opinion” when an appeal raises no new point of law or is plainly without merit. The phenomenon is most common with the so-called “shadow docket” of the Supreme Court of the United States (SCOTUS) which routinely issues summary orders, stays and injunctions without full briefing/hearing and little or no reasons. 22 [61] Accordingly, if at least two members of the Court agree with the order I propose on how requests for this Court’s review power must be invoked, such requests and applications will henceforth be regulated by the order I propose hereunder. Order: 1. An application to invoke the Court’s review jurisdiction shall not be heard as of right in open Court; 2. A party desiring to invoke the review jurisdiction of the Court must follow the following procedure: 2.1. A party must on affidavit (petition) set out fully all facts and circumstances explaining the factual basis and legal contentions why the Court must invoke its extraordinary jurisdiction; 2.2. All other parties with an interest in the matter must be cited and served with the petition and be afforded sufficient opportunity to answer to the petition; with a right to reply to the Petitioner; 2.3. When all the papers have been filed, the President will assign one or more judges or himself to consider the petition; 2.4. If no case is made out to justify the Court’s assumption of its review jurisdiction, the Court will issue an order declining the petition, with or without reasons. 2.5. If the President or the judge or judges assigned to consider the matter is or are satisfied that there is an arguable case 23 made out on the papers, the Court will issue directives regarding: (a) the filing of the application on notice of motion supported by affidavit, identifying the patent error complained about, the injustice allegedly suffered and the relief sought from the Court; (b) the filing of answering affidavit(s) by all affected parties; (c) the filing of heads of argument; (d) the date on which the matter will be heard; (e) any other matter that the Court considers necessary. I concur __________________________ P.T. DAMASEB ACTING JUSTICE OF APPEAL MUSONDA AJA (concurring): [62] I have read the main judgment by Van der Westhuizen AJA and the concurring judgments by Mosito P and Damaseb AJA and record that I am in respectful agreement with the reasoning and orders proposed in all three. I concur 24 _____________________________ P MUSONDA ACTING JUSTICE OF APPEAL MATHABA AJA Introduction [63] I have had the benefit of reading the judgments of my Colleagues, Van Der Westhuizen AJA, Mosito P and Damaseb AJA. For convenience I shall refer to Van Der Westhuizen AJA’s judgment as the main judgment, Mosito P’s one as the second judgment and Damaseb AJA’s one as the third judgment. The sequencing of the judgments follows the order in which they were prepared. I agree with the order dismissing both the review application and the application on the objection to the composition of this Court. I am unable to agree with the order of costs in all the judgments. [64] Further, I agree with the order proposed by Damaseb AJA regarding the procedure to be followed in invoking this Court’s review jurisdiction. However, I disagree with paragraph 2.4 of the proposed order to the extent that it proposes that the Court may not give reasons where the case is not made out justifying the Court’s assumption of its review jurisdiction. 25 [65] The main judgment has set out the factual background. Therefore, I need not repeat that exercise. However, I shall set out additional facts where to do so is necessary for a proper understanding of the costs order I arrive at. The procedure to manage applications for this Court to review its decisions [66] I propose to start with this issue as it can quickly be disposed of. I share the concern raised by my Colleagues regarding the unfortunate trend of litigants approaching this Court seeking rehearing of their appeals under the guise of review applications. I align myself with the well-articulated reasons in support of the proposed order to regulate institution and disposal of applications for this Court to review its decisions. The proposed order strikes a sensible balance or compromise between people’s proper access to this Court on the one hand and the pragmatic need of the courts to utilise their limited resources on meritorious cases. [67] The essential basis for the said order is clear and justifiable. The only worrisome feature that I find in the order is paragraph 2.4 in so far as it proposes that the Court may not give reasons where the applicant is considered not to have made out a case justifying the Court’s assumption of its review jurisdiction. In this connection, I respectfully regret that I am unable to agree with Damaseb AJA. Providing reasons underlying judicial decisions is not only inherent in the exercise of judicial power but it is also a defining characteristic of courts. The requirement to give reasons fosters accountability. 26 [68] There is a plethora of judgments in this and other jurisdictions dealing with a need for judicial officers to provide reasons for their decisions. The following penetrating remarks Mosito P made in Ntoli v. Ntoli12 on the subject comes to mind: “[9] The matter was heard by the court a quo and on the 9th day of August 2018, a court order was issued but, to date, there are still no written reasons for judgment in this matter. This is unacceptable. Failure by the High Court judges to provide reasons for their decisions has been a very serious concern for this Court for over two decades now. Decisional accountability is a fundamental aspect of judicial independence. There need to exist a built-in system to ensure that judges are held accountable for their decisions. The duty to provide reasons is an important part of the duty to account.” [69] The learned President went further to quote the decision of this Court in Lesotho Teachers Trade Union (LTTU) v. Director Teaching Service Department and Others13 where the following was said with applaudable clarity: [5] As long ago 1968 Lord Denning MR, in the Court of Appeal in England, held in Padtield v Minister of Agriculture Fisheries and Food 1968 (1) ALL ER694 (also reported in1968 AC 997) that failure to give reasons may justify the court to infer that there are no good reasons. That was admittedly said in the context of an administrative decision but the principle laid down therein is, in my view, equally valid for decisions of courts of law. 12 Ntoli v. Ntoli (C of A (CIV) 45 of 2018) [[2019] LSCA 9](/akn/ls/judgment/lsca/2019/9) (31 May 2019). 13 Lesotho Teachers Trade Union (LTTU) v. Director Teaching Service Department and Others LAC (2000 – 2004) 803 at 804-805. 27 [6] I have had occasion in the past to say something on this subject and it is with regret that I have to return to it. It has come to our attention in the Court of Appeal that there are judges in the High Court, who fail, sometimes even often fail, to produce reasons for their judgments. In such cases appeals in the Court of Appeal are heard without the benefit of reasons. Quite obviously such a practice cannot be deprecated strongly enough as it is not only unethical but it also leads to a perception that judges give arbitrary decisions which are not supported by any reasons. It need hardly be stated that arbitrariness is itself a form of dictatorship which is in turn a foreign concept to the rule of law that we seek to uphold as judges. If allowed to continue, such practice will no doubt bring the whole justice system into disrepute. It undoubtedly leads to loss of public confidence in the ability of courts to resolve disputes. [7] It cannot be emphasized strongly enough that a duty to give reasons inspires public confidence in the courts that their decisions are not arbitrary but rational. It enables the litigants concerned to know why a decision was reached one way or the other. [8] Having said this, however, I should not be understood to convey that the practice of delivering an ex tempore judgment should not fee (sic) resorted to in all cases. Each case must obviously turn on its own particular circumstances. I would lay it down as a general proposition, however, that such practice should be avoided. In this regard it is useful to bear in mind the definition of the term "ex tempore" which is this: "without preparation or premeditation" (see Black's Law Dictionary - Abridged Fifth Edition at page 300). Once that is so, it follows that an ex tempore judgment cannot inspire confidence in the litigants about the correctness of such judgement. Not only does it lead to uncertainty but it also encourages litigation rather than discourage it. Needless to say that to discourage litigation through sound, lucid and well-reasoned judgments is the fundamental function of the courts of law. 28 [9] It is hardly necessary to repeat that failure to give reasons on the other hand is a practice completely foreign to a proper judicial system in an open democratic society. It is in essence a special form of dictatorship and as such may only bring our justice system into disrepute. The learned Chief Justice's urgent attention is now accordingly drawn to this unacceptable practice for appropriate action.” [70] In Transnet Limited v. Goodman Brothers (Pty) Ltd14 Schutz JA endorse the following statement by Lawrence Baxter – Administrative Law (1984) at 228 regarding the value of providing reasons: ‘In the first place, a duty to give reasons entails a duty to rationalise the decision. Reasons therefore help to structure the exercise of discretion, and the necessity of explaining why a decision is reached requires one to address one’s mind to the decisional referents which ought to be taken into account. Secondly, furnishing reasons satisfies an important desire on the part of the affected individual to know why a decision was reached. This is not only fair: it is also conductive to public confidence in the administrative decision-making process. Thirdly – and probably a major reason for the reluctance to give reasons – rational criticism of a decision may only be made when the reasons for it are known. This subjects the administration to public scrutiny and it also provides an important basis for appeal or review. Finally, reasons may serve a genuine educative purpose, for example where an applicant has been refused on grounds which he is able to correct for the purpose of future applications.” [71] What was said in Transnet (supra) may have been in the context of administrative decisions, but it applies with equal force for decisions of courts of law. What emerges from the above 14Transnet Limited v. Goodman Brothers (Pty) Ltd (373/98) [[2000] ZASCA 62](/akn/za/judgment/zasca/2000/62); 2001 (1) SA 853 (SCA) at para 5. 29 judgments is clear that provision of decisions is not only a tool of accountability. It also promotes transparency as well as helping judicial officers to rationalise their decisions. [72] Granted, the order in the third judgment is proposed to operate at a gatekeeping stage, but the decision to decline the application at this stage is not just procedural, it is substantive and terminative in nature. It is therefore only proper and fair that a party is furnished with reasons why its petition is not successful. It is for these reasons that I am unable to agree entirely with paragraph 2.4 of the proposed order in the third judgment. The costs [73] The divergence of views regarding the appropriate costs order, in my respectful view, stems from the manner in which the other judgments perceive the applications. It may also arise from the fact that the award of costs is, unless expressly otherwise enacted, in the discretion of a presiding officer. As Holmes JA correctly pointed out in Ward v Sulzer15 one of the basic relevant principles in regard to costs is that in awarding costs, “the Court has a discretion, to be exercised judicially upon a consideration of all the facts.” [74] In Makeka v. Africa Media Holdings C/O Lesotho Times16 this Court at para 25 of its judgment quoted with approval Herbstein and Van Winsen17 where it is stated that: 15 Ward v. Sulzer 1973 (3) SA 701 (A) p.707. 16 Makeka v. Africa Media Holdings C/O Lesotho Times (C of A (CIV) 14 of 2022) [[2022] LSCA 62](/akn/ls/judgment/lsca/2022/62) (11 November 2022). 17 The Civil Practice of the Supreme Court of South Africa 4th ed, p 703-704. 30 “The award of costs is a matter wholly in the discretion of the court. But this is a judicial discretion and must be exercised on grounds upon which a reasonable man could have come to the conclusion arrived at. In leaving a magistrate (or a judge) a discretion, ‘the law contemplates that he should take into consideration the circumstances of each case, carefully weighing the various issues in the case, the conduct of the parties and any other circumstances which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties. And if he does this and brings his unbiased judgment to bear upon the matter and does not act capriciously or upon any wrong principle, I know of no right on the part of a court of appeal to interfere with the honest exercise of his discretion.’” [75] Obviously, the discretion must be exercised on the basis of facts and circumstances of each individual case. This ensures that award of costs is not arbitrary and that the general rule that costs follow the results is not slavishly followed. Absent legislation to the contrary, the time-honoured basic rule that liability for costs is in the discretion of the court takes precedence and the general rule is subservient thereto. [76] On its own assessment and consideration of both the objection to the composition of the Court and the review application for purposes of costs order, the main judgment concluded that they had “no merit at all”. The second judgment echoes the same sentiments and goes further to say that, “the objection should not have been taken and the review should not 31 have been brought”. And that “[t]o shift costs in either direction would be to reward one unmeritorious stance at the expense of another”. The second judgment concludes that the litigation was unnecessary and “both parties are equally blameworthy”. [77] Regrettably and respectfully, I hold a different view. The two applications cannot be placed on the same footing. Unlike the objection to the composition of the court, the review application was unmeritorious and frivolous. It is one of the cases that actuated the development of the gatekeeping measure proposed in the third judgment. The second judgment articulates with admirable clarity that the review application “failed to identify a reviewable misdirection and pressed grounds that did not survive even modest scrutiny.” This means that the review application was wholly unnecessary and definitely bound to fail. [78] Once it is concluded, as I respectfully suggest it must, that the parties are not equally blameworthy, then, the costs order in the three judgments is difficult to justify. Given that I am in agreement with other judgments that the review application was unmeritorious or did not have merit at all and should not have been brought, I propose not to deal with it any further. Save to indicate that had the respondents sought punitive costs, I would have seriously considered making such an order. Perhaps this would have been discounted by the fact that the applicant was also inconvenienced by the objection to the composition of this Court and expended some costs. The latter aspect does not detract from the conclusion to which I arrive. 32 [79] Turning to the objection to the composition of the Court, in my respectful view, the respondents’ objection had a plausible basis and cannot be classified as unmeritorious. To understand what the respondents’ objection was, so as to determine if it was arguable or totally without merit and should not have been raised, it is convenient to start with the relief the respondents sought in their notice of motion. The respondents asked for the following material order: “(a) That the review application, sequel to the main appeal case heard and decided in October 2024 and judgment rendered by the Court of Appeal Justices, namely, their Lordship Mosito P, Sakoane CJ and Damaseb AJA (DJC), delivered on 1st November 2024, be allocated and heard to completion by the same panel.” [80] At paragraph 19 the main judgment concludes that from the phrase “heard to completion” in paragraph (a) above, it is clear that the respondents view the review proceedings as part and parcel and “a continuation of the appeal”. In my understanding, all that the phrase means is that once the panel is constituted, it must hear the review to the completion. [81] Significantly, Counsel for the respondents was asked during argument if the insistence on the panel that heard the appeal stems from the understanding that the review application was a continuation of the appeal. His answer was a resounding no. According to him the review application was incidental to the appeal. This is exactly the respondents’ case as pleaded in the 33 founding affidavit – that the review application is incidental to the appeal. [82] Consistent with the understanding that the review application was incidental to the appeal, the respondents anchored their objection amongst others on section 124(6) of the Constitution18 which provides as follows: “Any person appointed under subsection (5) to act as a Justice of Appeal shall, subject to the provisions of Section 125(7) of this Constitution continue to act for the period of his appointment or, if no such period is specified, until his appointment is revoked by the King, acting in accordance with the advice of the Judicial Service Commission after consultation with the President: Provided that, notwithstanding the expiration of the period of his appointment or revocation of his appointment, he may thereafter continue to act as a Justice of Appeal for so long as may be necessary to enable him to deliver judgment or to do anything in relation to proceedings that were commenced before him previously thereto.” (Emphasis added). [83] The respondents’ argument was that the words “to do anything in relation to the proceedings that were commenced before him previously thereto” included hearing review applications that are incidental to proceedings that served before him. In my respectful view, the respondents’ case was arguable. The fact that we arrived at a different conclusion does not necessarily mean that 18 Lesotho 1993 Constitution. 34 the objection to the composition of the Court was unmeritorious and therefore did not warrant further thought or consideration. [84] Evidently, the objection was raised purely as a matter of law as the respondents indicated. Indeed the objection raised a novel issue. And I am satisfied not only that it was arguable but that it also raised a matter of genuine constitutional import regarding the composition of the Court given the provisions of section 124(6) of the Constitution. The grounds on which it was based were certainly not frivolous. Indeed, had the objection been successful, it was going to enrich the general body of constitutional jurisprudence in this jurisdiction and be of importance even for this Court. [85] In the light of the foregoing, it certainly appears to me that it cannot be said that the objection was without substance or that it was meritless. Whatever inconvenience the objection may have caused, in my respectful view, it required consideration by this Court and cannot be classified as unnecessary or without having merit at all. [86] Accordingly, I would give the following order: 1. The review application is dismissed. 2. The application and objection regarding the composition of this Court is dismissed. 3. The applicant is ordered to pay costs of the review application. 35 4. Each party to bear its own costs in the application and objection regarding the Composition of this Court. __________________________ A.R. MATHABA ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV N MAFAESA (with ADV. B MOSHOESHOE) FOR THE RESPONDENTS: ADV M TEELE, KC (With ADV P THAKALEKOA) #### __Related documents ▲ To the top >