Seotsanyana v Attorney General and Another (CIV/APN 147 of 2000) [2000] LSCA 64 (13 July 2000)

1 C I V / A P N / 1 4 7 / 2 0 00 IN T HE H I GH C O U RT OIF L E S O T HO In the matter between: M O E K E T SI K U T LO S E O T S A N Y A NA A P P L I C A NT and T HE A T T O R N EY G E N E R AL R E S P O N D E NT T HE M I N I S T ER ( F OR P A S S P O RT C O N T R O L) 2nd R E S P O N D E NT 1st For time Applicant: M r. M . K. Seotsanyana For the Respondents: M r. T. S. Putsoane J U D G M E NT Delivered by the Honourable M r. Justice T. M o n a p a t hi on t he 13th d ay of July 2 0 00 T he Applicant, an advocate of fifty three years of age, w as holder of a Lesotho local passport n o . M 2 5 9 1 70 which would expire on the 23rd August 2003. He sought a replacement passport in terms of section 13 of Lesotho Passports and Travel D o c u m e n ts Act N o . 15 of 1998. T he reason was that all the pages or spaces in the passport h ad b e en filled up with ink s t a mp impressions of the various e n d o r s e m e n ts w h i ch h ad b e en d u ly m a de on entry a nd exit f r om L e s o t h o. As a result it w as used up b ut a still valid passport. T he A p p l i c a nt h ad to a p p ly to a r e p l a c e m e nt d o c u m e n t. In o r d er to be issued with a r e p l a c e m e nt passport a p e r s on h as to apply in a prescribed f o rm to the Director of I m m i g r a t i on (the Director) w h i ch M a n k o p a ne Mathibeli, (the R e s p o n d e n t 's d e p o n e n t) the Principal I m m i g r a t i on Officer said "is currently b e i ng used in respect of all applications for passports." A p p l i c a nt m u st h a ve b e en issued with s u ch a f o r m. T h at is w hy he o b j e c t ed to filling up certain, sections of the f o rm m o re especially the o ne w h i ch s h o u ld be filled by a chief u n d er w h o se jurisdiction an applicant is. A b o ut this sections t he A p p l i c a nt said: " i n a s m u ch as t h ey w e re intended to p r o ve his citizenship they w e re superfluous u n n e c e s s a ry a nd unconstitutional" a nd i n a s m u ch as A p p l i c a nt still held his " g o v e r n m e n t - i s s u ed declaration of citizenship, n a m e ly my o wn passport." I will c o me later a nd briefly to this question of citizenship. T he m o st i m p o r t a nt prayers in the Applicant's notice of m o t i on w e re for the following: "(a) (b) (c) F i n d i ng a nd declaring the oral refusal by the g o v e r n m e nt of L e s o t ho t h r o u gh its civil servants at passport-control at Teja-tejaneng on M o n d ay 10th April, 2 0 00 a nd at M a s e ru on T u e s d ay 11th April, 2 00 to issue a n ew passport-book to cover travel outside Lesotho by applicant for the unexpired period of validity of passport no. M 2 5 9 7 1 0, that is, ending 23rd August, 2 0 03 to be unconstitutional, unlawful a nd an oppressive denial of citizenship a nd its attendant rights a nd privileges. (d) Consequently u p on the declaration in (c) a b o v e, ordering the Attorney-General as chief legal adviser to the g o v e r n m e nt to advise passport-control or office at M a s e ru to issue the said n ew passport- b o ok to applicant forthwith. (e) (f) " I w o u ld h a ve wished to underplay this question of citizenship. B ut section 7(1) of A ct N o . 15 of 1 9 98 refer to persons to w h om passports m ay be issued as "citizens of Lesotho for purposes of travelling in or out of Lesotho." In paragraphs 10 a nd 11 the Applicant puts in s u m m a ry f o rm all that s h o ws a nd proves that he w as a lawful citizen of this k i n g d om a nd added: " that a ny g o v e r n m e nt thereof, h o w e v er incompetent it m ay be, is in that possession of the truth of the matter". Indeed in the preceding paragraphs despite, the R e s p o n d e n t s' response thereto by denial of "personal k n o w l e d g e" a nd applicant being "putt proof thereof", several other facts are put in w h i ch in m o st probabilities indicated that the Applicant w as indeed a citizen of Lesotho. This w as h o w e v er not entirely satisfactory in another respect. T h e se facts a nd statements w e re h o w e v er c o u c h ed in such strong, prolix, verbose a nd at s o me places in plainly insolent language that it b e c o m es inexplicable w hy C o u n s el of the Applicant's seniority a nd of his formidable intelligence should have this tendency at all. (See paragraph 10 of the (bunding affidavit a nd m o st of the paragraphs in the replying affidavit.) (See also R O MA B O YS FC A ND O T H E RS v L E S O T HO F O O T B A LL A S S O C I A T I ON A ND O T H E RS 1995- 1996 L LR 456 at 470. T he Applicant will almost always see no amount of rectitude in people with w h om he disagrees. He says it with no holds barred. I agreed with my brother Ramodibedi J in R O MA B O YS FC case that this is most disrespectful to other people. I w o u ld be kind to the A p p l i c a nt a nd say that he m u st learn to m o d e r a te his l a n g u a g e. Still on the issue of citizenship, it m ay p e r h a ps be that the applicable f o r ms w e re primarily g e a r ed t o w a r ds p r o v i ng citizenship. A nd that there are various w a ys to p r o ve one's citizenship o ne of w h i ch is one's previous passport as the A p p l i c a nt submitted. I am sure that if these historical facts in the life of the A p p l i c a nt w e re p ut before the officials of the Director he w o u ld e v en find that, they o u t w e i gh the supporting evidence of a chief in s h o w i ng that the A p p l i c a nt is actually a citizen of L e s o t h o. H e re o ne w o u ld still speaks of probabilities . B ut m o st importantly the Director h as d e t e r m i n ed that there are w a ys of p r o v i ng certain things (including citizenship) a nd there are w a ys of collecting information w h i ch the Director d e e ms essential. T h is i n f o r m a t i on m ay e v en h a ve n o t h i ng to do with p r o of of citizenship or re-proving that o ne is a M o s o t ho as A p p l i c a nt h as variously styled the r e a s on for the r e q u i r e m e n t. T he Director runs a b u r e a u c r a cy w h i ch m u st h a ve an established routine b e c a u se it a c c o u n ts to the public. He h as prescribed f o r m s. T h en in a b o ve circumstances, is it n ot within the p o w e rs of the Director to prescribe requirements w h i ch he d e e ms necessary to e n a b le h im to properly discharge his p o w e r s? Is it part of the bureaucratic g a me that a citizen m u st a l w a ys h a ve every explanation as to w hy administrative i n s t r u m e n ts s u ch as f o r ms are designed to elicit information f r om the citizen? A nd w hy in a ny or selected incidents should the citizen pick a nd c h o o se suitable r e q u i r e m e n t s? T he questions are n ot too b r o ad b ut are relevant a nd relate to the present situation w h e r e in the A p p l i c a nt takes the v i ew that the r e q u i r e m e nt that his chief m u st fill a portion of an application is unnecessary. Before dwelling further on this question of filling of forms there w as o ne matter that the Applicant pursued m o st vigorously in his a r g u m e nt m u ch against w h at I h ad expected. It h ad to do with the following. T he Applicant sought to persuade the C o u rt that he h ad lost touch with a nd h ad no relationship with a ny chief. This included the chief of Masoeling Ha Patso in the district of Berea w h e re he w as b o m. T he reason as he said w as that he h ad effectively b e en a resident of the t o wn of M a s e ru f r om as early as 1962. He said he w as " to date an urbanite a nd have never h ad to seek a service f r om a chief ( m o r e na ofe k a pa ofe M a s e r u) in the t o wn of M a s e r u, or indeed a n y w h e re else. In consequence I do not h a ve to be k n o wn to a ny chief or to k n ow a ny for my citizenship to subsist " (vide paragraph 4 of founding affidavit). _I f o u nd it strange for the Applicant to say that he h ad no relationship to a ny chief. I w o u ld hesitate to believe so with respect to the Applicant. This w as reinforced by my personal k n o w l e d ge of the Applicant. A nd generally f r om my o wn knowledge of the life of our people in this country. I w o u ld similarly not believe so. This I w o u ld say despite Respondents unhelpful response to the said paragraph 4 that the contents thereof w e re not within the knowledge of the d e p o n e nt a nd they put Applicant "to prove". I w o u ld a dd that whether a ny M o s o t ho has n e e d ed no service of a ny chief at a ny given time does not retract from the fact that a great majority of Basotho have at least a sentimental attachment to a chief in this country. It is m o re so w h en a person has been b om at a place w h i ch he k n ew a nd has merely r e m o v ed therefore by reason of schooling, working a nd stay in M a s e ru w h i ch is not even m o re than o ne h u n d r ed (100) kilometres from his place of birth. S u ch is the Applicant. T h at relationship with one's chief h o w e v er sentimental a nd attenuated it m ay be, it still remains a fact very easy to p r e s u me than not. As such I took the Applicant's denial of relationship with his chief as a red herring if not a stratagem to avoid going a b o ut a task w h i ch the Applicant thought w as inconvenient or onerous. I n d e ed o ne need not be formally k n o wn to his chief. In my view it is an office of chief that s e e ms to be a requirement in that f o rm prescribed by the Director. S o, if it w as not the chief of Masoeling w hy w as the Applicant not able to resort to o ne of the chiefs of M a s e ru if the m e a n i ng of jurisdiction of a chief is inclusive or is to be extended to m e an the chief u n d er w h o se jurisdiction a person resides? I h o w e v er felt that as onerous as the requirement w as that w o u ld not be a reason for dispensing with it. In my m i nd as long as the requirement for filling up the f o rm r e m a i n ed as I decide, it w o u ld be a matter of discretion of the Director w h e t h er the w h o le of the f o rm or s o me other part (including that of the chief) is to be dispensed with. I w o u ld reiterate that for various reasons including those that m ay be given by the Director s o me parts of the application f o rm m ay be dispensed with in deserving cases. As the Principal Immigration Officer has said an application f o rm for a passport has to be a c c o m p a n i ed by inter alia a birth certificate or affidavit of birth. This includes the part that has to be completed by a chief u n d er w h o se jurisdiction an applicant is. I w o u ld n ot say that every such d o c u m e nt m u st a c c o m p a ny an application as a matter of law "without exception." It surely c a n n ot be pitched to level. If so it w o u ld negate that discretion that the Director has. T he reason w hy s o me degree of rigidity is necessary in c o m p l y i ng with all requirements has b e en called for is to be found in w h at the Principal Immigration Officer said w e re compelling reasons. Firstly she said that despite possession of old passport it has still to be proved that an applicant w as actually a citizen of Lesotho. This insistence w as found necessary because it w as discovered that s o me people h ad in the past b e en granted passports w h en they in fact w e re not citizens of Lesotho, n or w o u ld they qualify for possession of a ny Lesotho passports. T he strict requirement for support by chiefs to applicants in the prescribed f o r ms w as g r o u n d ed on this problem. T he second reason w hy emphasis w as put on the earnest filling up of forms w as the following. After political disturbances of 1 9 98 records of passport holders of the old type (such as Applicant's) of passports w e re b u r n ed d o wn at the old immigration offices. This consequently m a de verification of the goodness or lawfulness of passports already held m u ch difficult. T he risk of w r o n g ly issuing passport w o u ld be lessened by meticulous filling up of f o r ms afresh. Also advised against by G o v e r n m e nt w as the previous practice of issuing of n ew passports to persons applying therefor on the basis of production of old passports. T he issuing of a n ew passport on production of an old o ne w as w h at Applicant apparently wanted. This filling up of forms afresh c o n d u c ed to a safer a nd securer compilation of record of passport holders in the w h o le country. This I w o u ld h a ve found to be the m o st persuasive reason. This w o u ld e v en justify encroaching or impinging on the extent of the Director's discretion in selected cases in w h i ch f o rm w o u ld not be filled or w h e re only partial filling of forms w o u ld be allowed. T he Chief I m m i g r a t i on Officer c o n c e d ed that the filling up of forms by individuals w o u ld entail a delay a nd w as "simply not prejudicial". He said it w as prejudicial but it w as to be balanced against the interest of the nation w h i ch w as against issuing passports to people w ho did not qualify. T he n ew records w o u ld facilitate the introduction of m a c h i ne readable passports w h i ch system w as presently in v o g ue a nd w as actually adopted in this country. I did n ot see h ow the n e ed for filling up fresh f o r ms w o u ld be unjustified or e x c u s ed by p r o d u c t i on of a used up passport on the basis of provisions of section 6 of A ct N o . 15 of 1 9 9 8. T he section reads: " 6. A passport shall contain the following i n f o r m a t i on (a) full n a m es a nd s u r n a me of b e a r er (b) date a nd place of birth of b e a r er (c) sex of b e a r er (d) p h o t o g r a ph of bearer (e) signature of bearer (f) d a te a nd p l a ce of issue (g) e x p i ry d a te of t he p a s s p o rt (h) s i g n a t u re of t he p e r s on issuing t he p a s s p o rt (i) passport n u m b er a nd (j) endorsements." I thought the section prescribed as to w h at a regularly c o m p l e t ed a nd executed passport d o c u m e nt should contain as information or m a r k s. T he provision appears to be n o w h e re near a suggestion that an old passport (since it contains m o st of this information) is a substitute for filling up fresh forms. Indeed in the discretion of the Director this w o u ld be a time saving device. B ut he w o u ld normally not be inclined towards this short cut on the g r o u nd of the said compelling reason of the n e ed to compile n ew records f r om the beginning. It should be clear that I w as not overly attracted to a r g u m e n ts like w h e t h er the chiefs statement in the required form w as the only w ay of proving one's citizenship or not. B ut I e n d ed up deciding that a ny portion of the application f o rm r e m a i n ed as important as other parts of the f o rm unless in the discretion of the Director of I m m i g r a t i on that (of the chiefs statement) part or other could be dispensed with. I thought in the final analysis, as M r. Putsoane for R e s p o n d e n ts correctly submitted, the question w h i ch b e c a me u p p e r m o st w as only o n e. It w as w h e t h er or not there w as anything w r o ng with the requirement to fill up fresh forms, w h i ch requirement the Director h ad determined a nd d e e m ed necessary to enable the D e p a r t m e nt to properly discharge its powers. I agreed that in law: " w h e re an A ct confers u p on a person p o w er to do or enforce the doing of an act or thing, all such p o w e rs shall be d e e m ed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing." (Section 32(1) I N T E R P R E T A T I ON A CT 19 of 1977) S ee also C E N T R AL T E N D ER B O A RD A ND O T H E RS v M O S I A NE B U I L D I NG C O N S T R U C T I ON (C of A (CIV) No.23/1999. It trenchantly meant that unless s o m e t h i ng unlawful or irregular w as pointed o ut as h a v i ng b e en d o ne by the Director the presentation of f o r ms could n ot be faulted, as a r e q u i r e m e nt for all applicants. N or could it be criticized as a w r o n g f ul exercise of p o w er by the Director. I accepted R e s p o n d e n ts submission that a l t h o u gh A p p l i c a nt w as intending to a p p ly for a n ew passport to replace the old o n e, he w as for all intents a nd purposes applying for a different type of a d o c u m e nt i.e. a m a c h i ne readable passport. He still h ad to apply in t e r ms of section 9 of A ct N o . 15 of 1 9 9 8. T he section requires p r o d u c t i on of a birth certificate, affidavit of birth a nd several other items. S o me of these could be dispensed w i th by the D i r e c t or in his discretion. E v en if the Director c an do that he c an in no w ay be i m p e a c h ed for insisting on a p r o c e d u re of filling up of f o r ms w h i ch is k ey to granting of passport d o c u m e n t s. In no w ay therefore c an it be c o n t e n d ed that p r o d u c t i on of old passport automatically qualifies an applicant for a n ew passport. Possession of a valid used passport w o u ld m e r e ly suggest a reasonable likelihood or expectation that the holder will be issued with a n ew d o c u m e n t. T he Principal I m m i g r a t i on Officer stated that p e n d i ng the issuance of a n ew passport, an applicant could be issued (as it is the practice) w i th a t e m p o r a ry travel d o c u m e nt in order to enable an applicant to travel. In that w ay the A p p l i c a nt w o u ld not suffer a ny prejudice by following the p r o c e d u re w h i ch h as b e en p ut in place by the Director p e n d i ng Applicant's application for a r e p l a c e m e nt passports. I respectfully agreed. It w as a r g u ed correctly in my v i ew that in urging the R e s p o n d e n ts to dispense with theirs p r o c e d u r e, w i t h o ut indication of likely prejudice, to the A p p l i c a nt w as e n g a g ed in misuse of C o u rt process. In no w ay h ad it b e en d e m o n s t r a t ed that there w e re a ny actions by the R e s p o n d e n ts w h i ch w e re contrary to the l aw in discharge of their duties. It w as submitted that in the circumstances the C o u rt c o u ld n ot interfere with administrative action of the R e s p o n d e n ts w h en they w e re acting in t e r ms of the l aw a nd acting regularly. It could n ot e v en be said that there w as a refusal to grant A p p l i c a nt with a passport. In t e r ms of set p r o c e d u r es Applicant h ad n ot applied for o n e. I agreed. In the circumstances of this case n o ne of the prayers w e re tenable. T h ey h ad to be dismissed with costs. It w as so ordered. T . M O N A P A T HI J U D GE