Nchai and Others v Minister of Local Government and Others (CIV APN/ 283 of 0) [2000] LSCA 104 (27 November 2000)

1 C IV A P N / 2 8 3 / 00 IN T HE H I GH C O U RT OF L E S O T HO In she matter between: T H A B A NG N C H AI T H E L LE N T H E J A NE T H A B I SO M O L I K E NG S E P H O T HA L I E TE 1st 2nd 3rd 4th A P P L I C A NT A P P L I C A NT A P P L I C A NT A P P L I C A NT L E P E K O LA M O K E M A NE 5™ A P P L I C A NT B E R E NG S E K H O N Y A NA 6th T H U SO L E T E LE 7th ' M A M O S I LI M O K O R O SI M O N Y A NE M O K I T I MI ' M A M O P H E T HE T S IU 8th 9th 10th A P P L I C A NT A P P L I C A NT A P P L I C A NT A P P L I C A NT A P P L I C A NT a nd M I N I S T ER OF L O C AL G O V E R N M E NT 1st R E S P O N D E NT T HE A T T O R N EY G E N E R AL 2nd P A UL ' M A T LI Q O BO 3rd R E S P O N D E NT R E S P O N D E NT F or Applicants : A d v. M. M o s ae F or 1st a nd 2nd R e s p o n d e n ts : A d v. T. Putsoane F or 3rd R e s p o n d e n t: A d v. S. Phafane J U D G M E NT Delivered by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 27th day of N o v e m b er 2 0 00 I have already, on the 10th N o v e m b er delivered my decision in this matter. My reasons therefor n ow follow. Applicant in this matter m o v ed C o u rt on urgent basis seeking an order in the following terms: (a) T h at the purported repeal by 1st Respondent of Legal Notice N o. 1 26 of 1 9 99 extending the term of office of the Councillors of the M a s e ru City Council be declared null and void and of no force and effect by reason of its illegality. (b) T h at 3rd R e s p o n d e nt be restrained from exercising the powers conferred by Legal Notice N o. 1 17 of 2 0 00 titled " A p p o i n t m e nt of an Interim T o wn Clerk Notice 2 0 0 0" pending the o u t c o me hereof (c) T h at 1st R e s p o n d e nt be directed to reinstate Applicants to their positions in the M a s e ru City Councillors, or alternatively, (d) T h at 1st R e s p o n d e nt be directed to pay to Applicants their respective allowances for the remaining period of their term of office or for the remaining period until elections are held, whichever occurs sooner. (e) C o s ts of suit. Prayer ( b) w as granted a nd m a de to operate with i m m e d i a te effect a nd w as later discharged as its continued operation w o u ld m e an that the w o rk of the Council w o u ld be extended while virtually it h ad b e en m a de to step d o wn by the said Legal N o t i ce N o. 1 17 of 2 0 00 (the s e c o nd gazette). T h is status q uo o u g ht to be so until variation by O r d er of C o u r t. T he faces w e re that on the 8th J u ne 1 9 96 Applicants w e re elected into office as Councillors. T h e ir t e rm of office w as to run for three years a nd it did end on the 3rd July 1 9 9 9. Elections s h o u ld h a ve b e en held s o me four days before the expiration of the t e rm but that w as n ot d o n e. T he Councillors h ad to vacate office b ut they w e re i n f o r m ed by the Minister t h r o u gh the Principal Secretary that they w o u ld continue in office until their t e rm of office w o u ld h a ve formally b e en extended. T h at formalization or the extension t o ok place in N o v e m b er 1 9 99 w h en the Minister retrospectively published in Legal N o t i ce N o. 1 2 6 / 1 9 99 (the first gazette) the extension of office w i th effect f r om the 1st A u g u st 1 9 9 9. T he first gazette w as a n n e x ed as " TN " I ". It w as a t e rm of the extension that Applicants w o u ld r e m a in in office until a n ew b o dy w as appointed or elections held. T h en on the 28th J u ne 2 0 00 Applicants w e re served with letters f r om she First R e s p o n d e nt informing t h em that he h ad decided to cancel the first gazette since she extension of their t e rm of office h ad b e en a t e m p o r a ry measure. T he said letter to all the Councillors w as in the f o rm of annexure " TN " 2" w h i ch w as copy of letter sent to Councillor Thelle Nthejane the S e c o nd Applicant in this matter. It is important n ow to quote the letter starting f r om the second paragraph of that letter " Y o ur m ay recall that s o m e t i me in A u g u st 1 9 99 your term of office as a Councillor of M CC w as extended in terms of Legal Notice no. 1 26 of 1 9 99 and that this w as stated to be a temporary measure while preparations were being m a de to elect a n ew council. This extension w as d o ne under the provisions of section 7 of the Local G o v e r n m e nt A ct of 1 9 9 7. Since that measure w as temporary I have decided to cancel the Gazette that extended your term of office. By w ay of this letter y ou are being an opportunity to s h ow reasons, if any, w hy the gazette that extended your term of office m ay not be cancelled. Y o ur are h u m b ly requested to present your written representations towards this letter within a period of seven days after receipt thereof" ( My underlining) I have m a de my o wn underlining for emphasis about aspects of a letter w h i ch became important issues later in the judgment. T h is letter w as followed by a response f r om the legal representatives of the Applicants w h i ch letter w as date the 1st July 2 0 00 addressed to the Minister of Local G o v e r n m e n t. T he heading of the letter w as " E nd of E x t e n d ed Lifespan of the Present Council." I quote f r om the s e c o nd p a r a g r a ph of that letter w h i ch w as TN " 3" a nd in it it said: " T he said letter has b e en b r o u g ht to o ur attention a nd we notice, m u ch to o ur a m a z e m e n t, that y ou h a ve taken the decision to cancel the said Gazette for the simple reason that "that m e a s u re w as t e m p o r a r y ". Y ou w o u ld also realise, of course, that y ou h a ve taken y o ur decision w h i ch is prejudicial to o ur clients w i t h o ut h a v i ng afforded t h em a hearing. Consequently, it d o es n ot m a ke m u ch sense to us that y ou are in the s a me vein inviting o ur clients to s h ow reasons w hy the Gazette m ay n ot he cancelled. H o w e v e r, if it w as y o ur intention that u p on g o od cause s h o wn y ou m i g ht reverse y o ur decision, we w i sh to i n f o rm y ou that y o ur cancellation of the said Gazette w as unlawful as it interfered w i th the existing rights of o ur clients p r e m i s ed on their legitimate expectation to stay in their positions as councillors until a n ew b o dy h as b e en elected to replace t h e m. We accordingly request y ou Co reverse that decision a nd continue to co-operate w i th o ur clients in the execution of their public m a n d a t es as y ou h a ve d o ne in the past. Failure to do so w o u ld leave us no option b ut to a p p r o a ch the courts of l aw for relief." ( My e m p h a s i s) 1 have m a de my o wn underlinings in o r d er to e m p h a s i se again s o me of the aspects w h i ch w o u ld f o rm a basis for the issues that w o u ld be later discussed in the j u d g m e n t. On the 20th July 2 0 00 First R e s p o n d e nt issued the s e c o nd gazette. T he Legal N o t i ce w as in the f o rm of A n n e x u re TN " 4" a nd it repealed TN " I ". TN " I" being that a p p o i n t m e nt of the councillors w h i ch w as said to h a ve taken effect f r om the 1st A u g u st 1 9 9 9. It w as c o m m on cause that at the e nd of their t e rm of office no elections of councillors w e re held as s u p p o s ed to in terms of the law. Applicants h o w e v er r e m a i n ed in office w i t h o ut a ny instrument being passed giving t h em m a n d a te to continue as councillors until N o v e m b er 1 9 99 w h en the Minister as aforesaid purported to extend their t e rm of office retrospectively acting in t e r ms of section 7 of the Local N o .6 of 1 9 9 7. It w as n ot disputed that the law governing M u n i c i p al Councils h ad b e en the U r b an G o v e r n m e nt A ct of 1 9 83 a nd further that this section 7 of the Local G o v e r n m e nt A ct N o .6 of 1 9 97 w as the only section p ut into operation w h en the w h o le A ct h ad n ot c o me into effect. A m o n g st others then Applicants' a r g u m e n ts w as that annexure TN " 4" w as unlawful. First R e s p o n d e nt h ad n ot afforded Applicants a hearing as w o u ld otherwise be required by law. T h at the principle of audi alterm partem w as o ne of the f u n d a m e n t al principles of natural justice a nd it m u st be observed w h e n e v er rights of p e r s o ns are affected by the decisions of public authorities. In the instant case the Applicants say they w e re n ot afforded a hearing b ut First R e s p o n d e nt just decided to repeal annexure TN " I" simply because the latter w as a t e m p o r a ry measure. M r. P h a f a ne for she T h i rd R e s p o n d e nt m a de several interesting submissions w h en they referred to provisions of the U r b an G o v e r n m e nt A ct N o .3 of 1 9 83 with regard to the powers of the Minister to appoint Councillors and to order elections every three years (section 8 ( I ). " A nd that Councillors shall retire after elections" w h en the newly elected Councillors shall c o me into office on the day on w h i ch the predecessors retire." A g a in as to the Minister's p o w er to give effect to intent a nd purpose of the U r b an G o v e r n m e nt A ct in terms of w h i ch " T he Minister m ay order all such steps to be taken as in his opinion m ay be necessary to rectify any such error, accident or omission or he m ay validate anything w h i ch m ay have been irregularly d o ne as aforesaid so that the intent and purpose of this A ct shall be given effect to." A g a in the p o w er of the Minister to substitute the T o wn Clerk for a n on performing Council in terms of section 8 1. T h is together with the p o w e rs of the Minister to appoint Councillors and such as those contained in section 7 ( 5) of the U r b an G o v e r n m e nt A ct and others served only to seek to broaden issues into a large discourse ala academia. This w as unnecessary w h en it w as to be understood the Minister has said that acted in terms of section 7 of the Local G o v e r n m e nt A ct 1 9 9 7. This the Applicants did accept without u m b r a g e. T he section reads as follows: " 7. F or the p u r p o se of any preliminary arrangements in connection with the constitution of any Council under this Act, it shall be lawful for the Minister, by N o t i ce in the gazette, to issue all such directive as m ay be necessary or I w o u ld dismiss ail the prayers. I w o u ld e n d o r se M r. Pucsoane's submission w h i ch w as as follows: A T o wn Clerk h ad already b e en appointed to r un the affairs of the City Council, as such, even if it c o u ld be held that repeal of first gazette w as nullity ( w h i ch w as n o t) reinstatement w as o ut of question. T he only r e m e dy c o u ld be o ne of d a m a g es claimed in an action a nd n ot on application. T h at claim for allowances for alleged remaining period of Applicants t e r ms of office w as untenable even v a g ue as it w a s. T he application w as accordingly dismissed with costs. T. M o n a p a t hi J u d ge