Buang Mohau & Ano. V SM Consulting Engineers (CCA/0090/2023) [2025] LSHC 120 (30 May 2025)

# Buang Mohau & Ano. V SM Consulting Engineers (CCA/0090/2023) [2025] LSHC 120 (30 May 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/120/eng@2025-05-30) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/120/eng@2025-05-30) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/120/eng@2025-05-30) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/120/eng@2025-05-30) [ __](mailto:?subject=Take a look at this document from LesLII: Buang Mohau & Ano. V SM Consulting …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/120/eng@2025-05-30) [ Download PDF (309.0 KB) ](/akn/ls/judgment/lshc/2025/120/eng@2025-05-30/source) Report a problem __ * Share * [ Download PDF (309.0 KB) ](/akn/ls/judgment/lshc/2025/120/eng@2025-05-30/source) * * * * * Report a problem __ ##### Buang Mohau & Ano. 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V SM Consulting Engineers (CCA/0090/2023) [2025] LSHC 120 (30 May 2025) Copy Media Neutral Citation [2025] LSHC 120 Copy Hearing date 15 April 2025 Court [High Court](/judgments/LSHC/) Court registry [Commercial Division](/judgments/LSHC/LSHC-commercial-division/) Case number CCA/0090/2023 Judges [Mokhesi J](/judgments/all/?judges=Mokhesi%20J) Judgment date 30 May 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Contract Law](/taxonomy/case-indexes/case-indexes-commercial-contract-law) * [Breach of Contract](/taxonomy/case-indexes/case-indexes-commercial-contract-law-breach-of-contract) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **(COMMERCIAL DIVISION)** **HELD AT MASERU CCA/0090/2023** **IN THE MATTER BETWEEN:** **BUANG MOHAU 1 ST APPLICANT** **MAHOOANA PEETE 2 ND APPLICANT** **AND** **SM CONSULTING ENGINEERS RESPONDENT** **_Neutral Citation:_****** Buang Mohau & Another v SM Consulting Engineers [2025] LSHC 120 Comm. (30 MAY 2025) **CORAM: MOKHESI J** **HEARD: 15 April 2025** **DELIVERED: 30 MAY 2025** **_SUMMARY_** **Law of Contract:** _The applicants are seeking a review of the decision to terminate their contracts - They are challenging termination of their contracts on the basis of public law principles of procedural fairness and unreasonableness- Held, the rules of natural justice are inapplicable when terminating a private arrangement- Application is dismissed with costs._ **_ANNOTATIONS_** **_Legislation_** **_Books_** L. Boulle, B. Harris, and C. Hoexter, _Constitutional and Administrative Law Basic Principles,_ Cape Town, Juta and Co. Ltd (1989) **_Cases_** **_Lesotho_** _Ministry of Public Works and Transport v Lesotho Consolidated Civil Contractors LAC (2013-2014) 245_ **_South Africa_** _Beadica 231 CC and Others v Trustees for the Time Being of the Oregon Trust and Others 2020 (9) BCLR 1098 (CC)_ _Cape Metropolitan Council v Metro Inspection Services CC 2001 (3) SA 1013 (SCA)_ _Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)_ **_JUDGMENT_** [1] **Introduction** On 18 November 2023, the two applicants brought an urgent application seeking the following reliefs: _“1. Dispensing with the ordinary rules pertaining to the modes and periods of service due to the urgency of this application._ _2\. A Rule nisi be and it is hereby issued returnable on the date and time to be determined by this Honourable Court calling upon the respondents to show cause (if any) why:_ 1. _The decision of the respondent to terminate the sub-consultancy agreements with the applicants shall not be put on hold and/or stayed pending the finalization of this matter._ 2. _The decision by the respondent to terminate the sub-consultancy agreement between the respondent and the applicants shall not be set aside as being unfair and unreasonable._ _3\. That the sub-consultancy agreement between the respondent and the applicants be declared as a fixed term contract as opposed to a temporary agreement_ _4\. That the notice of termination of applicant’\s sub-consultancy of agreement dated 02 nd October be declared invalid and unlawful._ _5\. Granting further and/or alternative relief._ _6\. Costs of suit only in the event of opposition.”_ [2] **Background facts** When the application was moved on the 08 November 2023 the court ruled that the matter was not urgent. It was then re-enrolled on the normal roll and was re-set-down for hearing on the 15 April 2025. At the hearing of the matter, Advocate Ntsane represented the applicants while Advocate R. Setlojoane represented the respondent. I do not wish to burden this judgment with unnecessary facts suffice it to state that it is common cause that the applicants had each concluded a sub-consultancy agreement with the respondents as independent contractors. The agreements were terminated by the respondent. Except for consideration, the terms of their agreements were the same. In particular clause 3 provides that: _“3. The agreement of engagement is temporary (until JV Member in the agreement with the client provides permanent candidate for the position) and thus each party wishing to terminate this agreement for one reason or the other, shall give a minimum notice of one (1) month to the other party.”_ [3] On 02 October 2023 the applicants were served with one letter of termination of the sub-consultancy agreements. They were given one-month notice. In it the respondent (in relevant part) said: _“I had a meeting with the Employer wherein I was informed that the budget allocated for the supervision of the project has been reduced and we have to reduce the supervision contingent approximately to come down to the now available reduced budget. While we were still trying to figure out how to work around that, we received a letter from the Employer requesting that the RI Staff (Resident Engineer and Materials Engineer) be released from the project under the trimming of staff initiative._ _In terms of the sub-consultancy agreements we have, we are issuing out this email to serve as notice to terminate the agreement by the end of October 2023.”_ [4]__ **Respective Parties’ Contentions** In a nutshell the applicants acknowledge that in terms of the sub-consultancy agreement each party wishing to terminate the agreement shall give one-month notice to the other party, however despite the fact that the contract has a no-fault-termination clause (clause 3) it may not be terminated for any reason other than material breach or repudiation, and therefore for this reason the court should declare this agreement as a fixed term contract. They further contend that reasons should have been given for termination of their agreements; that the termination of the agreements was unfair and unreasonable as it was done without giving them a fair hearing and without furnishing reasons therefor. [5] On the other hand the respondent, in answer, raised a point in _limine_ before pleading over. The essence of the point in _limine_ is that both the founding affidavit and the supporting affidavit never not signed or commissioned. This point was correctly not pursued when the matter was finally heard. Respondent contends that apart from reasons of budgetary constraints, the employer had appointed suitably qualified personnel to the positions which were occupied by the applicants as the latter knew that they were only engaged on a temporary basis pending appointment of suitably qualified persons. It contends that termination of the agreements was not contingent on the breach but could be terminated for any reason, on the basis on the no-fault-termination clause 3, and that nothing in the agreements required the furnishing of reasons for terminating the agreements. This is essentially what the parties’ cases are all about. [6] **Issues for determination** 1. Whether the termination of the applicants’ contractors should be challenged on the basis of public law principles of procedural fairness and unreasonableness. 2. Whether the court can declare the agreements between the parties as fixed term contracts. [7] **(i) Application of the public law principles to private arrangement between the parties.** **** Evidently, the applicants are seeking a review of the decision to terminate their contracts. Their cases are based on the argument, as already stated above, that they are terminated without being given a hearing and without being given reasons for termination. At this point it is important that a distinction between private and public law is understood and maintained as it will inform the appropriate remedy to be sought by the litigant when need arises. This dichotomy was aptly captured by the learned authors L. Boulle, B. Harris, and C. **_Hoexter _, Constitutional and Administrative Law Basic Principles_ ,_ Cape Town, Juta and Co. Ltd (1989), **p.p. 246-247: _“As a general rule, the doing of private individuals and organisations are not reviewable by courts of law, while those of ‘public bodies are … By contrast, private bodies and individuals acting in terms of their private rights have far more freedom to do as they please.”_**** [8] Public bodies by their nature exercise public power and are subject to exacting standards to act fairly as they exercise their powers in the public interest and public good, which powers are conditioned by the common law and the statutory context and strictures for their exercise. On the other hand, within private arrangement or ordering, the parties only have to source authority for their actions from the terms of their agreement, whether express or implied. The Court of Appeal in the case of **Ministry of Public Works and Transport v Lesotho Consolidated Civil Contractors LAC (2013-2014) 245**at para.8 recognised and reinforced this dichotomy when it stated that the rules of natural justice were inapplicable because: _“… When terminating the contract, the appellants were not performing a public duty or implementing legislation; they were purporting to exercise a contractual right founded on the consensus of the parties in respect of a commercial contract. The principles of natural justice accordingly had no application.”_ See **Cape Metropolitan Council v Metro Inspection Services CC 2001 (3) SA 1013 (SCA)** at 1023 para.18). [9] In that case the High Court had permitted the invocation of public law remedy of review where the appellants had terminated the respondents’ contracts of construction, expelled them from the site and took possession of their equipment and materials. During arguments, in the present matter Advocate Ntsane was referred to this decision, but it became clear that he was not familiar with it as he said upon searching, he could not find it – astonishing, as the case is reported. [10] It will be observed that clause 3 of the agreements provides for two scenarios under which the applicants’ contracts could be terminated; (i) when the employer provides a permanent candidate for the positions which the applicants were holding, or (ii) each party could terminate the agreements for any reasons whatsoever by giving a one-month notice. The latter is no-fault termination scenario. The applicants were not terminated based on the first scenario, but rather on the second one, and the reason which was given for termination was budgetary constraints. In terms of the contracts, that is enough, no question of breach comes into the equation. The applicants freely entered into these contracts and therefore should not cry foul when their terms are invoked. In the off-quoted decision of **Beadica 231 CC and Others v Trustees for the Time Being of the Oregon Trust and Others 2020 (9) BCLR 1098 (CC) at para. 83** it was emphasised that public _policy “demands that contracts freely and consciously entered into must be honoured.”_ This brings me to the next relief which the applicants sought in terms of Prayer 3. [11] (ii) **Can a court declare the agreements between the parties as fixed term contracts as opposed to temporary agreements.** **** It will be observed once again that in terms of the two agreements both applicants agreed that they were engaged as sub-consultants, and under clause 3 they agreed that their engagements were temporary until Joint Venture Member of the respondent in agreement with the employer provided permanent candidates for the positions which were temporarily held by the applicants. For the court to make an order altering this position is to make a contract for the parties, which is not permissible in law. Advocate Ntsane conceded as much. See the views of the court in the matter of **Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)**at para. 18,**** where the court in the context of interpretation of statutes or documents said: _“Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business like for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made.”_ [12] In the result the following order is made: 1. The application is dismissed with costs. **_______________________________** **MOKHESI J** **For the Applicants: Advocate T. Ntsane instructed by T. Maieane & Co. Attorneys** **For the Respondent: Advocate R. Setlojoane instructed by Mota Africa Incorporated C/O Webber Newdigate Attorneys.** #### __Related documents ▲ To the top >