Lerato Matheka
The High Court of Lesotho this week ruled in favour of former Board members of the Lesotho National Development Corporation (LNDC) who were fired by former Trade Minister Joshua Setipa, during the seven party rule deposed two years ago.
Lebakeng Tigeli, Makhetha Thaele, Mampho Tjabane, Lehlohonolo Chefa, Ntsiuoa Jaase, Lefulesele Lebesa and Mosito Ntema took to task, the Trade Minister, Attorney General, the LNDC and the Acting Chief Executive of the corporation following their dismissal as board members of the LNDC on April 3 2017.
Justice Semapo Peeto ordered in his Judgement that the purported termination of appointment of each one of the applicants by the then Minister be set aside.
Judge Peete indicated that a glimpse and perusal of correspondence emanating from the Ministers office shows how much the Minister was fully committed to micromanaging the LNDC Boards and was indeed openly going against the statutory provisions which guaranteed the corporate autonomy of the LNDC.
In the long run this caused the cordial relations of the Board with the Minister to sour, and the Minister then resorted to exercise his powers under section 8 (7) (b) of the LNDC Act as amended.
No doubt, in the matter the Minister had all the powers under section 8 (7) (b) to terminate the appointment of any member of the Board but the bare opinion of the Minister is insufficient, the Judge said.
He added that for the Minister to form an opinion, this must not be done arbitrarily, maliciously and without a cogent reason.
Public power, especially where exercised affects the right of other people, must be exercised with full sense of responsibility. In the Lesotho’s Constitutional dispensation, fair treatment and rule of law are all essential in public affairs.
Board members who were appointed by the Minister cannot be just dismissed at a stroke of a pen. He or she must be afforded an opportunity to know what transgression he or she has committed to call for dismissal and his or her responses thereto, the Judge said.
Justice Peete noted that the Court of Appeal has “clearly stated that unless the audi principle is expressly excluded under the statute, the natural justice shall always be applied.
In this case the Minister of Trade and Industry seems to have sealed the fate of the Board Members individually and collectively. The opening words of the Ministers letter dated April 3, 2017 confirms as it read; I the Minister of Trade and Industry have formed the opinion that you are unfit to hold the office of the Director within the Lesotho National Development Corporation- LNDC.
The opinion which had thus been formed by the Minister would naturally not just be reversed or dismantled. Without questioning the direct interest of the government of Lesotho in the critical vitality of the LNDC, it must also be remembered that the LNDC is a pioneer parastatal in Lesotho which must lead the corporate world by example and should be insulated from party politics while carrying aloft the national policy flag in promoting the infrastructural economic development of Lesotho, Judge Peete said.
He added, It is sad that Minister Joshua Setipa is no longer a Minister of the Government of Lesotho and certainly new members of the board have been appointed since.
The Judge noted that in his view, it was not for the Minister of Trade and Industry to micromanage the LNDC in the manner he did. That approach was antithetical to proper cooperate autonomy and its day to day management.
His unceremonious dismissal of the members of the Board demonstrates this serious dilemma. It is not necessary to test the propriety of each acts alleged by the Board Members against the Minister except to clearly state that the Ministers summary decision to terminate the appointment of the Board Directors does not pass the muster of legality. It is hereby declared null and void. Gone are the days when Ministerial Powers are absolute and untrammelled.
Today if such powers still prevail, they are all, to be interpreted very restrictively subject to principles of natural justice and the Court of Appeal has gone to the extent that unless audi
principle is expressly excluded in the statute, the Court will assume that it operates, the judged said.
According to the LNDC Act, the Board of Directors manages and controls the corporate affairs of the LNDC and it can safely be assumed that they function collectively as a board. Six are representatives of the ministries while other directors are appointed by the Minister by Notice in the Gazette.
The duties and powers of the LNDC Board of its Directors are clearly outlined under section 5 of the 1990 Order. It is not for the Minister to exercise those duties or powers of LNDC which has its own separate juristic identity. LNDC is not a Department of Ministry of Trade and Industry. The Corporate governance involves autonomous activity and the Corporation should in carrying out its purpose base itself on commercially oriented principles and purpose.
