Seeiso v Hon. Minister of Home Affairs and Others (CIV/APN 85 of 94) [1994] LSCA 89 (29 April 1994)

CIV/APN/85/94 IN THE HIGH COURT OF LESOTHO In the application of : CHIEF SEEISO BERENG SEEISO Applicant vs THE HON. MINISTER OF HOME AFFAIRS THE ATTORNEY-GENERAL THE COMMISSIONER OF POLICE 1st Respondent 2nd Respondent 3rd Respondent JUDGMENT D e l i v e r ed by t he H o n o u r a b le M r. J u s t i ce T. M o n a p a t hi A c t i ng J u d ge on t he 2 9 th d ay of A p r i l, 1 9 94 T he A p p l i c a nt a p p r o a c h ed t h is C o u rt on u r g e nt b a s is on N o t i ce of M o t i on for t he f o l l o w i ng o r d e r s: " 1. T he p e r i o ds of n o t i ce as r e q u i r ed by t he R u l es of C o u rt s h o u ld be d i s p e n s ed w i th on a c c o u nt of u r g e n c y. 2. T h at a R u le N i si be a nd it is h e r e by i s s u ed r e t u r n a b le on the 3 1 st M a r ch 1 9 9 4, c a l l i ng u p on t he r e s p o n d e n ts to s h ow c a u se if a n y, w h y :- ( a) T he l e t t er w r i t t en by t he f i r st r e s p o n d e nt d a t ed 1 1 th M a r ch 1 9 9 4, and a d d r e s s ed to the a p p l i c a n t, s h o u ld n ot be d e c l a r ed null and v o i d. (b) T he lawful g a t h e r i ng at M a t s i e ng c a l l ed by the A p p l i c a nt and a n o t h er p r i n c i p al c h i ef in a l e t t er d a t ed 2 5 th F e b r u a ry 1 9 9 4, and a d d r e s s ed to all p r i n c i p al c h i e fs s h o u ld not be a l l o w ed to be c o n v e n ed on a d a te and time that shall be later f i x e d. ( c) T he p o l i ce of the first r e s p o n d e nt s h o u ld not be o r d e r ed not to i n t e r f e re w i th the l a w f ul c o n d u ct of the a p p l i c a n t 's g a t h e r i ng at M a t s i e n g, s a ve by d ue p r o c e ss of l a w, and the f i r st r e s p o n d e nt to r e f r a in from i s s u i ng t h r e a t e n i ng l e t t e r s, or t h r e a ts of w h a t e v er n a t u re to the a p p l i c a nt in r e g a r ds to the c o n v e n i ng by a p p l i c a nt of a l a w f ul g a t h e r i n g. (d) G r a n t i ng a p p l i c a nt f u r t h er a n d / or a l t e r n a t i ve r e l i e f. ( e) R e s p o n d e n ts s h o u ld not be o r d e r ed to pay for the c o s ts h e r e o f. 3. P r a y er 1 to o p e r a te w i th i m m e d i a te e f f e c t. T he p r a y er 3 w as g r a n t ed by the c h i ef J u s t i ce J. L. K h e o la on t he 2 4 th M a r c h, 1 9 9 4, T he r u le w as e x t e n d ed to t he 8 th A p r i l, 1 9 94 w h en the m a t t er w as a r g u e d. M r. P h o o f o lo r e p r e s e n t ed t he A p p l i c a nt a nd M r. L e t s ie r e p r e s e n t ed t he R e s p o n d e n t s. T he m a t t er w as u l t i m a t e ly p o s t p o n ed to the 2 6 th A p r i l, 1 9 9 4. T he R u le w as e x t e n d ed a c c o r d i n g ly j u d g m e nt h a v i ng b e en r e s e r v e d. T h is a p p l i c a t i on h as a c e r t a in n o v e l ty a b o ut it b ut I b e l i e ve t h at it is n ot as c o m p l i c a t ed as I had f i r st had s i g ht of i t. T he A p p l i c a nt s ay t h at f o l l o w i ng a m e e t i ng at M a t s i e ng in F e b r u a ry 1 9 94 C h i ef K h o a b a ne T h e ko of T h a ba B o s i u, C h i ef L e r o t h o li S e e i s o, s e v e r al o t h er w a rd c h i e fs and h e a d m en m et at M a t s i e n g. At t he m e e t i ng p e o p le p r e s e nt w e re b r i e f ed on H is M a j e s t y 's N ew Y e a r 's m e s s a ge as w e ll as a G o v e r n m e nt p r e ss r e l e a s e. H is M a j e s t y 's N ew Y e a r 's m e s s a ge w as a n n e x ed to the A p p l i c a n t 's p a p e rs as a n n e x u re S B 2. T he m e s s a ge ( t he e x t r a ct f r om t he o r i g i n al s p e e c h) r e a d s: "I o n ce m o re a g a in a p p e al to y ou my c o u n t ry m e n, t h at my f a t h e r, my p a r e n t, H is M a j e s ty M o s h o e s h oe II w as f o r c e f u l ly e x i l ed to E n g l a nd by the M i l i t a ry C o u n c i l, w h i ch e n d ed up by d e c l a r i ng t h at he h as b e en d e p r i v ed of h is r i g h t s, u n f o r t u n a t e ly and s p i t e f u l l y. If o ur p o l i cy is r e a l ly to d e f e nd t he r i g h ts of e v e ry p e r s o n, w i t h o ut d i s c r i m i n a t i o n, I h u m b ly r e q u e st y ou my c o u n t ry m en t h at as q u i c k ly as c an be a f f o r d e d, my f a t h er H is M a j e s ty M o s h o e s h oe I I 's m a t t er should be e x a m i n e d, and be resolved as it is his right as a p e r s on to be granted u s e f u l n e ss j u s t l y, and that he be given true p r o t e c t i o n ." It was r e s o l v ed that a g a t h e r i ng of all B a s o t ho be convened for the sole p u r p o se of e x c h a n g i ng ideas and o p i n i o ns on the K i n g 's New Year a d d r e ss and to f o r m u l a te c e r t a in r e s o l u t i o ns as may be decided upon by the g a t h e r i ng for p r e s e n t a t i on to the g o v e r n m e nt on the m a t t er of King M o s h o e s h oe II's r e i n s t a t e m e n t. A p p l i c a nt goes on further to say that it was d e c i d ed by t h o se p r e s e nt at the m e e t i ng that a formal letter of i n v i t a t i on be w r i t t en to all the P r i n c i p al Chief in the c o u n t r y, i n v i t i ng them, their s u b o r d i n a t es chief and s u b j e c ts to attend a g a t h e r i ng at to d i s c u ss the m a t t er a l r e a dy m e n t i o n e d. A c i r c u l ar letter was duly w r i t t en and a t r a n s l a t ed copy has b e en annexed to the p a p e rs marked S B4 " to i n v i te you and your s u b j e c ts to be in M a t s i e ng on the special day in B a s o t ho H i s t o ry of the 12th M a r c h, 1 9 9 4, this year k n o wn as M O S H O E S H O E 'S D A Y, to come and give o p i n i o ns on the issue of the m o n a r c hy in L e s o t h o ." " His M a j e s ty L e t s ie III m a de a special r e q u e st to the w h o le B a s o t ho N a t i o n, to r e m e m b er his usual cry of w o r k i ng about the action of the R u l e r s, who h a ve placed him in His M a j e s t y 's seat c o n t r a ry to B a s o t ho c u s t o m, and the r e m o v al of his seat of his p a r e n t, His M a j e s ty M o s h o e s h oe II f o r c e f u l ly and contrary to the j u s t i c e ." Two Principal Chiefs signed on to this letter of i n v i t a t i on namely Chief K H O A B A NE THEKO and the A p p l i c a n t. It is significant that the Applicant admits that the Chief Khoabane and him did the invitation in their capacity as chiefs. The Applicant concedes further that for that reason the Minister has interest in the duties and the function of each chief by virtue of the provisions of the C h i e f t a i n s h ip Act No. 22 of 1 9 6 8. Section 6(1) of the said C h i e f t a i n s h ip Act provides as f o l l o w s; "It is the duty of every chief to s u p p o r t, aid and m a i n t a in the Kins in His Government of Lesotho according to the constitution and other laws of L e s o t h o, and subject to the authority and d i r e c t i o n, to serve the people in the area of his a u t h o r i t y. to promote their welfare and lawful i n t e r e s t s, to m a i n t a in public safety, public order among them, and to exercise all lawful power and perform all lawful duties of his office i m p a r t i a l l y, efficiently and quickly according to law." The Minister after having had information of the intended meeting wrote a letter dated the 11th March 1994 in which he said ''It is u n f o r t u n a te that while Government is attending to the matter of the erstwhile M o s h o e s h oe II, the chiefs chose to follow the channels which may be in collision with peace and stability in the c o u n t r y. It was the i n t e n t i on of the G o v e r n m e nt that at this present session of p a r l i a m e nt that this m a t t er be d i s c u s s e d. It is r e g r e t t a b le that chiefs are taking d i f f e r e nt c h a n n e l ," The M i n i s t er then in the letter i n s t r u c t ed the A p p l i c a nt to s l op and not proceed with the g a t h e r i n g. In his O p p o s i ng A f f i d a v it the M i n i s t er p r o c e e d ed in p a r a g r a ph 5 thereof to state the p e r c e i v ed fact of A p p l i c a nt and other chiefs being u n m i n d f ul of the d u t i es under the said s e c t i on 6 of the C h i e f t a i n s h ip Act and their duty "to m a i n t a in p u b l ic s a f e ty and public o r d e r ." The M i n i s t er adds f u r t h er "In terms of S e c t i on 1 5 7 ( i) of the C o n s t i t u t i o n, the person h o l d i ng the O f f i ce of King under the K i n g 's Order 1990 i m m e d i a t e ly b e f o re coming into o p e r a t i on of the C o n s t i t u t i on shall c o n t i n ue to hold that O f f i ce and shall s u b s c r i be to the Oath for due e x e c u t i on of his O f f i c e. It is common k n o w l e d ge that King L e t s ie III took and s u b s c r i b ed to the Oath set out in S c h e d u le I of the c o n s t i t u t i o n: In the light of what has b e en stated in the p r e c e d i ng p a r a g r a ph the a c t i on of the A p p l i c a nt and o t h e rs named in the p a r a g r a ph 8, to c o n v e ne a m e e t i ng for the p u r p o se set out t h e r e o n, was u n w a r r a n t ed and against their d u t i es as c h i e f ." The M i n i s t er c o n t i n u es in his A f f i d a v it t h a t; The timing of the p u r p o r t ed m e e t i ng of the 12th M a r ch 1994 at M a t s i e ng was o m i n o u s. The e n t i re n a t i on knows that 12th M a r ch being M o s h o e s h o e 's day is a s i g n i f i c a nt day in the n a t i o n al c a l e n d a r. The A p p l i c a nt and his associates should have known that a number of public functions had been organized under the auspices of the Government to celebrate the said day in a spirit of unity and dedication to the nation. It was the duty of the Applicant and his associates to assist Government in their efforts rather than using their official position to their own agenda." The Applicant's attitude is that while not denying what their duties are or what is to be expected of them but do not admit that in convening the meeting they were not acting against their duties as chiefs. He continued to state that the meeting was to be convened in his official capacity (together with his associate chiefs) in order to give orders to their subjects within his jurisdiction. This now leads to the provision of section 8(2) of the said Chieftainship Act part of which I need to quote as follows: "If a chief has exercised a power or performed a duty, a Minister of the Government of Lesotho or immediately supervise chief may direct that chief to revoke, w i t h d r a w, and or otherwise deal with whatever has been done or committed not that power or duty as may lawfully be specified in that directive ' ". At this stage we have to learn and accept that the Minister is immediately superior to the Applicant and that he is empowered in the manner suggested in relation to the Applicant and on his fellow principal chiefs. It is important to note that the other main question - besides whether the Minister ought to have intervened in what was alleged to be matter of legitimate public interest - was how the Minister exercised his powers under the last mentioned provision of the said Chieftainship A c t. The other provisions of the said Chieftainship Act which I take to have relevance in this proceedings were the last two subsection of the Act which read "(3) The power to give directions under this section includes the power to give directions in respect of anything done or omitted to be done in pursuance of the provision of this section. (4) No provision of this Section shall be applied or construed in a way contrary to the provisions of the Constitution ". The said sub section (3) is clear enough as being supplementary, in effect, to the provisions of the preceeding section. 1 have appreciated that it was only very fair but unhelpful in the Applicant's argument to have submitted that the Minister's action was contrary to the provisions of clauses 14, 15 and 16 under chapter II of the Constitution of this country which are the freedoms of e x p r e s s i o n, peaceful assembly and association. I would hold that interpreted again the above cited provisions of the Chieftainship Act and granted that again the Minister is given certain powers which cannot but be constitutional and under a prerogative of G o v e r n m e n t, I would not accept this test in favour of the A p p l i c a n t. To do so would amount to pronouncing the power of the Minister as under the Act as unconstitutional thus denying him control over the chiefs. This I would not do. I am prepared to accept that a previous Internal Security Act tested against the present Constitution was found to be wanting and irregular and then gave birth to the new Internal Security (Amendment) Act of 1993. That the Applicant says he complied with the requirement of the said Act I would not quarrel with. I would find that the other policy of the Chieftainship Act is to prevent the smooth running of Government becoming impossible if chiefs regard themselves as a State within a State. When the Chieftainship Act is carefully considered it becomes crystal clear that not only do chiefs have a distinct role to play, they must be seen to support the government in certain functions in which the hands of the government cannot reach the populace except through the support of the chiefs. I would regard that the support that the government expects during Moshoeshoe's Day is not strange or out of the usual The chiefs at all times, have to follow the directives of the Minister in regard to the administration of the country. To say that the chiefs' role is supportive of the government is not an understatement. This issue of the present King's statement in highlighting the plight of the former King Moshoeshoe II in his having been brought down from his former status is not merely sentimental as other people would want to believe. I agree that it is a serious national issue. It is of national i n t e r e s t. It is surely not important whether it is of majority or minority i n t e r e s t, In the democratic milieu it is such issues that must be debated and frankly so. The Government should be seen to be carving out a monopoly in how the matter should be debated or dealt w i t h, 1 do not however want to u n d e r e s t i m a te the feeling of the Minister that the attitude the present King, King Letsie II I, amounts to an act in conflict with the King's Office and his Oath of office under Section 1 5 7 ( 1) of the Constitution and as such is in bad taste when tested against the Constitution and what is expected in Constitutional c o n v e n t i o n, I use the word bad taste for absence of a better word I avoid even surmising whether the act would be judged to be illegal or u n c o n s t i t u t i o n a l. But what remains important is that it is the King's s t a t e m e n t, containing his attitude that has influenced the Applicant and his fellow chiefs in wanting to convene a m e e t i n g. It is not any of the things taken in isolation that is i m p o r t a n t. It is the cumulative effect of all of them in the p e r c e p t i on of the M i n i s t e r. I observe that the factors are, a previous meeting in Matsieng (of February 1 9 9 4 ), the issue of the X i n g, that the intended meeting would be held on the 12th March 1994 and finally as in the paragraph 6 of the M i n i s t e r 's Answering Affidavit that "It is well w i t h in the knowledge that as a result of traumatic events which took place in Maseru at the end of January, 1 9 9 4, the law and order situation was generally tense. As a Minister in charge of police. I had a duty to prevent within the confines of the law any excercebation of an already fragile situation. Based on all available information from a variety of sources I came to a conclusion that in the interest of national security, the proposed meeting should not take p l a c e ." Counsels have persuaded me that the matter should I would observe that the be objectively looked at. I agree. and Minister's action was administrative or quasi-judicial is to be evaluated as against the inquiry as to whether the use of his powers in terms of the said Chieftainship Act. This based. What remains is the validity of the Minister's action in his to supply sufficient information on which the conclusion is 2 7 / 8 8. There was sufficient information with regard to the need case of JOHNY WA KA MASEKO vs A. G. and ANOTHER ( C of A (CIV) required action without consultation. I am not unmindful of the to issue his letter justified his belief that national security The Minister argued that the events leading up to the decision overcautious or mala fide in his estimation of the s i t u a t i o n, timid was urged me to find that the Minister was unduly Minister was right in his perception or to say the least nothing whether there was a need to give the Applicant a bearing before finally taking the step of writing the letter interdicting the intended meeting. It is to investigate the procedural requirements of the principles which our law does recognize. It is to be reiterated that this is mainly towards finding out if the Minister exercised his powers properly as against whether he had such p o w e r s, The Applicant urges upon me to find that the main question for determination by this Court is whether a Statutory Official such as the Minister is carrying out his under section 8 of the Chieftainship A c t, was being purely administrative or was exercising a quasi-judicial function. This test is being urged in order to answer the obvious question whether the Applicant ought to have been given a hearing, in accordance with the principle of audi alteram partem, before the Applicant's decision was withdrawn, revoked, struck off or cancelled and to answer the further inquiry whether the Minister's action was r e v i e w a b l e. This is so because if a public authority was acting judicially, its conduct was subject to control by the Court by way of review. But if it was acting administratively, its decisions are virtually exempt from the control by the courts. It means if the Minister was not acting administratively duty or quasi judicial duty imposed on him. Assuming for the moment that this quasi judicial as against administrative test is applicable I would say that this text of whether the use of the power is administrative or quesi-judicial would depend upon the scope and object of the statute under which the Official uses its power or carries out his duties as Mr. Phoofolo for the Applicant has submitted. "In some cases the intention of the legislative is clear that the line of policy is to be followed which may necessarily involve disregard of elementary human rights or rights of property, for example, statute governing expropriation of land for public purposes, or preservation of public order and security" quoted from JM MAKEPE v MINISTRY OF FINANCE & ANOTHER 1971-73 LLR 24 at 27 per Jacobs CJ (I have underlined public order and security.) I have already commented on the view 1 take of the fact that the Constitution does not seem to fetter the powers of the Minister. Generally speaking in interdicting certain actions of chiefs for reasons of public order and security. I do not see that there is any interpretation which can be remedial fair large and liberal in its construction and interpretation as best insures the attainment of it objectives (see Section 15 Interpretation Act 1 9 7 8 ). I agree that in interpreting a statute where security of State is involved "the Court should accord preference neither to the strand construction in favour of individual indicated in DADOO LTD AND OTHERS vs KRUGERSDORP MUNICIPAL COUNCIL 1920 AD 530 nor the "straind construction" in favour of executive referred to by Lord Atkin in LEVERSIDAE vs ANDERSON, but it should determine the meaning of its wording in the light of the circumstances wherunder it was exteted and of its g e n e r al p o l i cy and object." The prexample to the Chieftainship Act is enlightening, that as "to make provision determining the nature And duties of the office of chief, status, and relationship of the various offices of chief. One to another and the government " I did not seem to be persuaded that the authority and status that the chiefs have necessary colours by way of influence, the Minister's action under section 8 of the Chieftainship Act Because the Acts affects the existing right, liberty or privilege of them as individuals such exercise of such power over the chief's actionis clearly quasi-judicial. I thought the understanding was that the Minister is given such powers deliberately so and precisely because his is dealing with people who have authority and status. One should not be unmindful of the facts that such authority and status is given such chiefs by the Minister himself or rather the Chieftainship Act which the Minister administers. Is it not this existing rights test that is discredited and is seen as being unsound? (See ADMINISTRATIVE LAW - L. BAXTER pages 577-588) : "The problem has been met in England by the adoption of a flexible 'reasonable' or legitimate expectation test which does away with the rights as a criterion by which natural justice will be enforced" Baxter page 589-80. I would add also the statement of Lord Denning in SCHMIDT vs SECRETARY OF STATE FOR HOME AFFAIRS 1969 2R 149 "some of those judgment in those cases were based on the fact that the Home Secretary was exercising an administrative power and not doing a judicial act. But that distinction is no longer valid. The speeches in Ridge vs Baldwin 1964 AC 40 show that an administrative body may in a proper case, be bound to give a person who is affected by the decision an opportunity of making representations. It depends on whether he has some right or interest, or I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say" Lord Denning went on to say in R v Gaming Board ex parte Benaim 1970 20B 417 It is not possible to lay down rigid rules as to when the principles of natural justice are to apply nor as to the scope and extent. Everything depends on the subject matter" (my u n d e r l i n i n g ). I would agree that there is ample authority to say that the statute must expressly provide for denial of natural justice or fair hearing. This it can also do by necessary implication. I believe that the other consideration would be depending on a subject matter one is to investigate, whether it would not be fair to deprive the person concerned without hearing what he has to say, I can see no other way in the circumstances that the Minister would reasonably exercise his powers. I do not observe that it was necessary to give Applicant a hearing in the c i r c u m s t a n c e s. I repeal in the c i r c u m s t a n c e s. I have already found that there "existed facts on state of affairs which objectively speaking must have existed before the statutory power could have been validly exercised. If this court could find that objectively, the facts or state of affairs did not exist, it may declare invalid the purported exercise of power" (see M E T A L- ALLIED WORKERS UNION vs CASTELL NO 1958(2) SA 281 at 284 per" Wilson J ). As said hereinbefore the right to a fair hearing may have to yield to overriding consideration of public order and security (see J. M. MAKEPE vs MINISTER OF FINANCE & ANOTHER ( S U P R A ). The right may be excluded by the nature of the power for example when urgent application has to be taken (as in the instant m a t t e r) to safeguard a potentially exposure situation. This would override a finding that there was legitimate expectation. That would be more so when balanced against the dictates of public order or state security. The issue of existence of legitimate exception (even if it exists) would fall to the rear as being of no significance. The requirements of national security outweigh the right, (See Council for Civil Service Union v Minister of Civil Service (1985) AC 3 7 4 ). I cannot see that the Applicant would, as a chief, derive or be possessed of any basis for a legitimate expectation more than what is contained in the policy and intentment of Chieftainship Act No.22 of 1968 which administers the O f f i ce of t he C h i e fs t h r o u gh t he p o w e rs of t he M i n i s t e r. In t he c i r c u m s t a n ce I w o u ld d i s m i ss t he a p p l i c a t i on w i th c o s t s. T. M O N A P A T HI Acting Judge 29th April, 1994 For the Applicant : Mr. H. E. Phoofolo For the Respondents : Mr. L. V. Letsie