Minister of Local Government and Another v Moshoeshoe (C of A (CIV) 15 of 9) [2009] LSCA 29 (23 October 2009)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between :- C of A CIV N ( ) 0.15/09 FIRST APPELLANT SECOND APPELLANT MINISTER OF LOCAL GOVERNMENT ATTORNEY GENERAL And ‘MAMUALLE MOSHOESHOE RESPONDENT CORAM : RAMODIBEDI P , MELUNSKY JA , SCOTT JA , HEARD DELIVERED : : OCTOBER 2009 OCTOBER 2009 SUMMARY Chieftainship Sections and of the Chieftainship Act – – – 5, 11 13 1968 considered Distinctiondrawnbetweensuccessiontoavacantoffice of Chief and anactingappointmentintheabsence of theincumbent Purported nomination of the respondent as acting Chief Chieftainessoutsidethelineofsuccession Therespondentclaiming payment of salary on the ground that she was not given an opportunity of being heard before termination of her salary Held that the audi alteram partem rule has no application in the matter – Accordinglyappealupheldwithcosts . – – JUDGMENT RAMODIBEDI P , [1] This appeal sadly illustrates the extent to which the provisions of the Chieftainship Act 1968 ( “the Act” are often misunderstood ) both by some judges and litigants respectively Very often the . fundamental distinction between s 11 ( on succession to the office of Chief and s ) 13 ( on acting appointments is either blurred or ) lost sight of as has happened here , . [2] The respondent as applicant launched an application on notice , , of motion against the appellants in the High Court seeking relief to the following effect :- (1) Directing and ordering the first appellant to release or cause to be released to the respondent her salary with effect from February 2007 to date . (2) Restraining the first appellant from withholding and or / interfering in any manner whatsoever with the respondent’s salary without due process of law . (3) Declaring the respondent’s removal by the first appellant as Acting Chieftainess of Likueneng unlawful null and void , and of no legal force and effect . (4) Directing the appellants to pay costs . [3] The High Court Chaka Makhooane J granted the application as ) ( - prayed . The appellants have appealed to this Court , challenging the correctness of the learned Judge a quo’s judgment . [4] The relevant background facts lie in a narrow compass . The respondent is the widow of the late Chief Moshoeshoe who was the Principal Chief of Likueneng in Mohale’s Hoek district Chief . Moshoeshoe was succeeded by his son ‘Mualle Moshoesoe “Chief ‘Mualle” ). ( In 1998 Chief ‘Mualle was appointed as a member of Senate . He then nominated his mother , the respondent as Acting Chieftainess of Likueneng in his absence , while attending Senate It is not disputed that the respondent . acted as Chieftainess for nine (9) years . [5] It is convenient at the outset to address a glaring flaw in the respondent’s case In paragraph . of her founding affidavit she 6 alleged that when Chief ‘Mualle was appointed as a member of Senate the office of the Principal Chief of Likueneng became , “vacant ” . Hence it was argued on her behalf that she succeeded to the office in terms of s of the Act Regrettably , 11 . the learned Judge a quo upheld this submission and thus fell into error . In paragraph [4] of her judgment she held in so many words that “clearly this is a case that should correctly be governed by section ” 11. In a nutshell , she held that the respondent had succeeded Chief ‘Mualle and that therefore , , she could only be “removed” from office in terms of s 11. Now in relevant parts s of the Act provides as follows [6] , , 11 :- “ 11. (1) Theperson orpersons inorderofpriorright ) , entitledtosucceedtoanofficeofChiefmayat ( anytimebenominatedbythatChiefduringhis lifetime orbyhisfamilyifheisdeceasedorifhe ( isunable byreasonofinfirmityofbodyormental , incapacityorothergravecause tomakesucha , nomination bymeansofapublicannouncement ) ofthenominationofthatperson orthosepersons , ( inorderofpriorright bythatChieforbyasenior ) memberofhisfamilyifheisunableasaforesaid tomakethatnomination Thepublicannouncement . shallbemadeatapitsorepresentativeofallChiefs andotherpersonsinrespectofwhomtheperson oranyoneofthepersons nominatedwould ifhe ( ) succeededtotheofficeofChief exercisethepowers , , andperformthedutiesofthatoffice . (2) Ifthenominationofapersonhasbeendulyannounced inpursuanceoftheprovisionsofsubsection andany (1), otherpersonclaimsthatthepersonnominatedisincapable ofsucceeding orthatsomeotherpersonwhoiscapable , ofsucceedingshouldhavebeensonominatedinstead ofthepersonwhowasnominated thepersonsoclaiming , mayapplytoacourtofcompetentjurisdictiontohavethe nominationsetasideorvariedaccordingly” . [7] Subsection 11(1) makes it plain that the section applies to a person who is entitled to succeed to an office of Chief Indeed , . this section falls under Part III of the Act which is on “SUCCESSION TO THE OFFICE OF CHIEF ” . [8] The present matter on the contrary falls squarely under part , , IV subsection 13 (2) ( ) c of the Act This part of the Act is on . “TENURE OF OFFICE OF CHIEF AND EXERCISE OF FUNCTIONS DURING MINORITY INCAPACITY ETC ” , . Subsection c reads as follows 13 (2) ( ) :- “ Subjecttotheprovisionsofsection thepersonwho (2) 5, hasthefirstrighttosucceedtoanofficeofChief or ( failinghim oneofthepersons inorderofpriorright , whohavetherighttosucceedtothatoffice exercises , , ) thepowersandperformsthedutiesofthatofficeinthe followingcircumstances — ( )a … ( )b … ( )c whentheholderofthatoffice andanypersonwho ( hasbeendesignatedashavingapriorrighttosucceed tothatoffice isunablebyreasonofabsencefromthe ) placetowhichthatofficerelates orbyreasonofin - firmityofbodyorofmentalincapacity [ orbyreason ofhisbeingdetainedinprison] andperformthedutiesofthatoffice” toexercisethepowers , , , . [9] Section 5 as amended by s of the Chieftainship Amendment ) 3 ( Act 1984 in turn provides as follows in relevant parts :- “ NopersonisaChiefunless — (1) ( )a heholdsanofficeofChiefacknowledgedbythe officesofChiefOrder 1970; ( )b hissuccessiontoanofficeofaChiefhasbeenapproved bytheKingactinginaccordancewiththeadviceofthe Minister or ; ( )c hehasahereditaryrighttotheofficeofChiefunder customarylaw andhissuccessiontoanofficeofChief , hasbeenapprovedbytheKingactinginaccordance withtheadviceoftheMinister” . . . . WheneveraPrincipalorWardChiefleaveshisarea (7) ofauthorityforwhateverpurposeitishisdutytoinform the Ministerofthenameofthepersonwhoisauthorised inaccordancewiththeprovisionsofsection toexercise 13 thepowersandperformthedutiesofhisofficeduringhis absence Forsolongasanauthorisationisinforceunder . thissubsection thepersonsoauthorisedmayexercisethe , powersandperformthefunctionsoftheofficeofthePrincipal orWardChiefwhileheisabsent” . It is plain as it seems to me that the Legislature in its wisdom , , separated succession to a vacant office of Chief from an acting position in the absence of the incumbent Chief With respect , . the learned Judge a quo failed to make this fundamental distinction which is clearly highlighted by sections 11 and 13 of the Act in plain and unambiguous language . Similarly she , wrongly relied on Mathealira v Molapo 1995 – 1999 LAC 340 . The dispute in that case concerned succession to a vacant office of Chief the office holder having died Hence the case . , fell squarely within s 11(2) of the Act A similar situation arose in . Rakhoboso v Rakhoboso 1995 – 1999 LAC 331. As can be seen these two cases are clearly distinguishable from the , instant matter Here the office of Chief is not vacant . It is , . therefore not a case of succession . , [11] The correct starting point in resolving the present dispute is no doubt a letter annexure “AG ” written by Chief ‘Mualle on 2 , , 27 April 2007. The letter was addressed to the District Administrator Mohale’s Hoek It reads as follows , . :- “DistrictAdministrator 1BOX MOHALE’SHOEK ,SIR REGENT TO THE CHIEF OF LIKOENENG CHIEFTAINESS ‘MAMUALLE MOSHOESHOE – – I hereby present ‘MAMUALLE SG MOSHOESHOE as the acting Chief in the Office of Chief of Likoeneng whilst I am in Maseru in the House of Senate . . . Chieftainess ‘MAMUALLE SG MOSHOESHOE began acting in my office . . whentheParliamentopenedatthebeginningofMarch 2007 todate . As a result Sir I request that Chieftainess MAMUALLE be given her monthlysalaryfromMarch , 2007. Iwillappreciateyouractioninthisissue . Peace Me MualleMoshoeshoe ; CHIEFOFLIKOENENG Copy PSMinistryofLocalGovernmentMASERU” : . [12] There cannot be the slightest doubt in my mind that annexure “AG ” represented a clear attempt by Chief ‘Mualle to grant a fresh mandate to the respondent to act as Chieftainess in his absence . Such mandate was expressly to begin “when the Parliament opened at the beginning of March 2007 to date ” . If proof be needed that the respondent was not “removed” from office as she erroneously claimed , annexure “AG ” provides the clearest proof in that regard The correct position . is that she was not removed On the contrary she needed a . , fresh mandate when Chief ‘Mualle attended the new Parliament in March 2007. This is especially the case when one has regard to the uncontroverted averment of Molai Lepota in paragraph 9 of his opposing affidavit that Chief ‘Mualle resumed his duties as Chief of Likueneng in November 2007 when Parliament “closed ” . It remains then to determine whether the proposed nomination succeeded . [13] By letter annexure “MM ” dated 2 , 11 May 2007, the District , Administrator Mohale’s Hoek minced no words in rejecting the , proposed nomination of the respondent out of hand The letter . reads as follows :- “ChiefofLikueneng Likueneng ,Chief IgreetyouChief RE REGENTTOTHECHIEFTAINSHIPOFLIKUENENG :- In accordance with the above reference this office has received your which introduces Chieftainess letter dated 27/04/2007 LIK CH / /2 , ‘MamualleS G Moshoeshoe . . Senate - March re opensandthatsheshouldbepaidfromthattime . astheregentstartingfromthe1 when[ ] st , Mychief withduerespectthisofficeadvisesyouthatitwillnotbeableto ’s name since her pass ActN introduction astheregentisagainsttheChieftainship Chieftainess ‘Mamualle SG Moshoeshoe . . of 0. 22 1968, section 13 (1) (2). This section is clear my chief that when the office of chief becomes vacanteitherbecausethechiefisaminor orheisunableduetoillhealth or other reasons appointment of regent should be done based on who isentitledtosucceedwhenthechiefdies Underthesereasonschief this . Chieftainess ‘Mamualle SG office advises you that the presence of . . in your office is against the law as such she will not be , [ ] , , , Moshoeshoe .paid ,I . . ST MASIA DISTRICTADMINISTRATOR MOHALE’SHOEK :CC DIRECTOROFCHIEFTAINESS CHIEFTAINESS‘MAMUALLESG MOSHOESHOE” . . . [14] It is crucial to observe that annexure “MM ” was actually copied to the respondent herself As can be seen from this annexure , . not only did the District Administrator reject the respondent’s nomination but he also specifically drew her attention to s 13 (1) (2) of the Act . She was thus sufficiently forewarned . It is , therefore incomprehensible to me why she persisted in relying , on the wrong section namely s of the Act . , , 11 [15] There is in my view a further insurmountable hurdle to the , , respondent’s case . As this Court held in The Principal Secretary For The Ministry of Local Government and Another v Nkuebe And Others 2005 – 2006 LAC 392 s , 5(7) of the Act does not empower a Principal Chief to designate any person outside the line of succession to act as Chief in his absence On the contrary he is obliged under this subsection . , to designate a person “who is authorised in accordance with the provisions of section 13 to exercise the powers and to perform the duties of his office during his absence ” Quite . clearly the respondent is not such a person , She does not . have the first right to succeed Chief ‘Mualle as laid down in s 13 (2) of the Act . In fairness to him Adv Shale who led the , , . submissions on the respondent’s behalf very fairly and properly , conceded the point . [16] Furthermore it is self , – evident from the provisions of s 13 (5) of the Act that the purported nomination of the respondent fell short of entitling her to exercise the powers or perform the duties of an office of Chief This is so because the nomination . in question had admittedly not been approved by the King . This subsection provides as follows :- “ Nopersonshallexercisethepowersorperformtheduties (5) ofanofficeofChiefintermsofthissectionunlessanduntil theKingactinginaccordancewiththeadviceoftheMinister hasapprovedofsuchperson” . [17] Faced with these difficulties Adv Shale argued that . the respondent was not treated fairly in that she was not given an opportunity of being heard before her salary was terminated . The short answer to this submission is that the audi alteram partem rule has no application in this case This is so because . the functionary has no discretion to act contrary to the law . The appellants cannot be forced to pay out illegally It has long . been the law that as a matter of fundamental principle the , , court cannot compel a party to do that which a statute prohibits or does not permit See for example . , , Hoisain v Town Clerk , Wynberg 1916 AD 236 ; Schierhout v Minister of Justice 1926 AD 99. [18] In casu, the prohibition laid down in s 13 (5) is couched in peremptory terms . It is absolute prohibition . Similarly this , consideration disposes of Adv Shale’s . further submission that the respondent had a legitimate expectation to be heard This . submission was predicated on the fact that the respondent had enjoyed payment of salary for nine (9) years previously As was . pointed out to counsel during the course of the submissions , however , this was an illegitimate expectation in the circumstances . An illegality committed in the past cannot , in my view be taken as a basis for continuing it in the future . , With respect Innes CJ put the point succinctly in , Schierhout v Minister of Justice ( supra at P ) 109 in these terms :- “ whatisdonecontrarytotheprohibitionofthelawisnotonlyof …. noeffect butmustberegardedasneverhavingbeendone — and that whether the law giver has expressly so decreed or not the mereprohibitionoperatestonullifytheact” ; , . [19] It follows from these considerations that the point on legitimate expectation must also fail in the circumstances . [20] Having regard to the foregoing considerations I have come to , the inescapable conclusion that the appeal should succeed It . is accordingly upheld with costs . __________________________ . M M RAMODIBEDI PRESIDENT OF THE COURT OF APPEAL . I agree : _________________________ L S MELUNSKY . . JUSTICE OF APPEAL I agree : __________________________ . D G SCOTT JUSTICE OF APPEAL . For Appellants For Respondent : : Adv L Mokhehle . . Adv S Phafane KC . . ( with him Adv S Shale ) . .