Basotho Patriotic Party & 3 Others V Lejone Puseletso & 6 others (C of A (CIV) No 13/2024) [2024] LSCA 17 (1 November 2024)

LESOTHO

 

IN THE COURT OF APPEAL OF LESOTHO

HELD AT MASERU                           C OF A (CIV) NO. 13/2024

CONS CASE NO. 0020/2023

In the matter between:

 

BASOTHO PATRIOTIC PARTY                                     1^STAPPELLANT

DEMOCRATIC CONGRESS                                            2^nd APPELLANT

BASOTHO NATIONAL PARTY                                       3^rd APPELLANT

POPULAR FRONT FOR DEMOCRACY                                   4^th APPELLANT

 

AND

 

LEJONE PUSELETSO                                                 1^ST RESPONDENT

SPEAKER OF THE NATIONAL ASSEMBLY                2^ND RESPONDENT

CLERK OF THE NATIONAL ASSEMBLY                    3^RD RESPONDENT

THE PRIME MINISTER                                               4^TH RESPONDENT

MINISTER OF LAW AND CONSTITUTIONAL

AFFAIRS                                                                      5^TH RESPONDENT

ATTORNEY GENERAL                                                6^TH RESPONDENT

INDEPENDENT ELECTORAL COMMISSION              7^TH RESPONDENT

 

CORAM:           MOSITO, P

DAMASEB, AJA

MUSONDA, AJA

CHINHENGO, AJA

VAN DER WESTHUIZEN, AJA

 

HEARD:           18 OCTOBER 2024

DELIVERED:   1 NOVEMBER 2024

 

SUMMARY

Constitutional Law – Constitutional Amendment – Basic Structure Doctrine – Objective Invalidity – Suspension of Invalidity –Application dismissed with costs.

 

The Court of Appeal, by majority, dismissed the appeal challenging the invalidation of the 9^th Amendment to the Constitution of Lesotho. The Court affirmed that the Amendment violated the basic structure of the Constitution by diminishing the Prime Minister’s discretion and altering the role of the King in dissolution of Parliament. The Court invoked the doctrine of objective invalidity, with the invalidation operating prospectively (ex nunc). The appellants sought a suspension of invalidity to allow for legislative correction, but the Court found no justification for such a suspension, especially as the 11^th Amendment Bill was not before the Court at the time of its decision. The appellants' grounds for review, including allegations of hardship, uncertainty in Parliament, and misapplication of local precedent, were rejected. The Court emphasized that the judiciary’s role in reviewing legislation for constitutional compliance does not infringe upon Parliament's legislative function. The application for review was dismissed, and the appellants were ordered to bear costs, including the costs of two counsel for the first respondent and one counsel for the fifth respondent.

 

Held:

 

The 9^th Amendment was constitutionally invalid for violating the basic structure of the Constitution, as it altered foundational principles.

 

The declaration of invalidity shall have prospective effect, and the Court refused to suspend its order to allow for legislative amendments.

 

The Court rejected claims of uncertainty and hardship as grounds for review.

 

The concept of a basic structure in the Lesotho Constitution is now established, and the judiciary's review powers do not encroach on legislative functions.

 

Application dismissed with costs.

 

JUDGMENT

P.T. DAMASEB AJA

Introduction

1. On 14 June 2024, this Court, in C of A CIV No.: 13/2024, on appeal from a judgment and order of the High Court sitting as a Constitutional Court, determined by majority, that the 9^th Amendment to the Constitution of Lesotho (the Constitution) violated the basic structure of the Constitution and accordingly set it aside.

 

2. The majority (Mosito P, Damaseb et Musonda AJJA) held that the 9^th Amendment impermissibly altered foundational principles of the Constitution (charachterised as the basic structure), while the minority (van der Westhuizen et Chinhengo AJJA) found that the Amendment, although significant, did not breach any basic structure of the Constitution.

 

3. The majority made the following order:

 

“(a) the appeal is dismissed with no order as to costs.

 

(b) For the avoidance of doubt, it is declared that the declaration of constitutional invalidity of the Ninth Amendment to the Constitution of Lesotho shall have prospective effect only (ex nunc). Any actions taken, decisions made, or appointments effected under the now-invalidated amendment prior to the date of this order shall remain valid and enforceable. However, going forward, the relevant constitutional provisions shall revert to their pre-amendment state, and all future actions by the government and other constitutional bodies must conform to this Court's interpretation, upholding the principles of responsible government and parliamentary democracy as elucidated in this judgment.”

 

4. Writing for the majority, Mosito P said:

“The exclusion of the Prime Minister’s ability to advise the King on dissolving parliament, coupled with the King being obligated to appoint as prime Minister the member chosen solely by the National Assembly without input from the voting public, unquestionably diminishes the constitutional role of the sovereign. This apparent reduction of the King’s powers undermines a foundational tenet enshrined in Section 1 of our Constitution – that Lesotho shall be a sovereign democratic kingdom”.

 

Context and background

5. Prior to the enactment of the 9th Amendment, the Prime Minister of Lesotho held significant discretion in dealing with a vote of no confidence against his government. Under the original constitutional scheme, the Prime Minister, upon facing such a vote, could either resign or advise the King to dissolve Parliament. The King was bound by this advice, save for a key exception: if the King, on the advice of the Council of State, believed it would not be in the country’s best interest to dissolve Parliament, or that another person could muster enough support in Parliament to form a government without dissolution, the King could refuse the Prime Minister’s advice.

 

6. The 9^th Amendment introduced a drastic shift in this balance of power. It removed the Prime Minister’s ability to unilaterally advise the King to dissolve Parliament in response to a no-confidence vote. Instead, the amendment required that the Prime Minister resign upon such a vote unless supported by a two-thirds majority of the National Assembly to dissolve Parliament. The King was removed from having any discretionary role in the dissolution process.
7. The 9^th Amendment was then challenged by the first respondent on the basis that it violated Lesotho's basic constitutional structure and this Court ultimately sustained the challenge.

 

Present review proceedings

8. Subsequently, on 30 August 2024, the applicants lodged an urgent application in the Court of Appeal seeking a review of its judgement and order that sustained the invalidation of the 9^th Amendment.

 

9. They urge this Court to invoke its exceptional jurisdiction[1] to reconsider its order, alleging that the judgment had caused substantial hardship and injustice. Specifically, they allege that the Court erred by not suspending the invalidity of the 9^th Amendment to allow Parliament to enact compliant provisions.

 

10. The applicants cite several grounds which will be addressed in turn.

 

Grounds for review

11. Mr. Tefo Mapesela, a member of Parliament and leader of the first applicant, deposed to a founding affidavit in support of the application. He was supported by several other members of Parliament who also deposed to supporting affidavits. Collectively, they advanced several complaints, which may be summarized as follows.

 

Failure to suspend invalidity

 

12. According to the applicants, once the Court declared the 9th Amendment invalid, it should have suspended the order of invalidity ‘for a period of one year and allow’ Parliament to enact constitutionally compliant legislation in the form of what they refer to as the ‘11^th Amendment Bill’, which they claim was already serving before Parliament when this Court was considering the appeal.

 

Resurrection of repealed law

 

13. They contend that the Court erred in reinstating the pre-amendment provisions of the Constitution, asserting that once repealed, those provisions could not have been revived except by Parliament. To support their contention that a law that has been repealed or amended ‘is no longer in force’ and is ‘replaced by the new’ law they rely on s 19 of the Interpretation Act 19 of 1977 which states:

 

“19. Repealed Act not revived

Where an Act repealing in whole or in part a former Act is itself repealed, such last repeal shall not revive the Act or provision previously repealed, unless words be added reviving the same.”

 

Violation of separation of powers

 

14. The applicants allege that by ‘reinstating’ the pre-9^th Amendment provisions, the Court overstepped its judicial role and encroached on the legislative domain, effectively usurping Parliament’s authority to determine the constitutional framework for Lesotho.

 

Disregard of local precedents

 

15. It is further asserted that the Court failed to follow local jurisprudence, which, according to the applicants, does not recognize the concept of testing a constitutional amendment against the Constitution itself. They criticize the Court for relying on foreign precedents, which they claim were inapplicable in the Lesotho context.

 

Uncertainty and hardship to law-making process

 

16. According to the applicants, this Court’s judgment caused confusion in Parliament regarding how to proceed with motions of no confidence, and as a result, important legislative processes have been hindered.

 

17. It is apparent from the founding papers that in light of this Court’s judgment, the Attorney-General’s advice was sought on a draft law referred to as the 11^th Amendment which in relevant part contains the following:

 

“Vote of No Confidence

 

83C. (1) The National Assembly may at any time pass a vote of no confidence in the Government of Lesotho.

 

(2) The motion of no confidence in the Government of Lesotho passed pursuant to subsection (1) shall-

 

1. be supported by a resolution of two-thirds majority of the members of the National Assembly;

 

2. propose a name of a member of the National Assembly, who shall be appointed by the King to take the place of the Prime Minister.

 

(3) Where the motion of no confidence is passed, the Prime Minister shall immediately cease to hold office.

 

(4) A motion of no confidence shall not be introduced more than once in the same session.”

 

18. The A-G advised:

 

“5. As I read the Eleventh Amendment, it is clear that it also deprives the Prime Minister of the ability to advise the King to dissolve Parliament. The Amendment seems to leave that power to the members of the National Assembly, which according to the judgement, offends the basic structure of the Constitution. I would therefore advise that the power to advise the King on dissolution be left to the Prime Minster as the head of Executive and not to the members of the National Assembly.

 

This will leave "the principle of responsible government and the delicate balance of powers between the Executive and Legislative branches" intact.

6. I would further advise that the pre-Ninth Amendment Section 83(4) (a) be included in the Eleventh Amendment in order to leave the King with the power to refuse the recommendation of a dissolution in the circumstances where the King considers that the government of Lesotho can be carried on without a dissolution and that a dissolution would not be in the interest of Lesotho, acting on the advice of the Council of State.

 

7. Secondly, want to discuss the clause on vote of no confidence. Clause 83C says the following;

 

1) The National Assembly may at any time pass a vote of no confidence in the Government of Lesotho.

 

2) The motion of no confidence in the government of Lesotho passed pursuant to subsection (1) shall  . . .

 

a) . . .

b) . . .

 

3) Where the motion of no confidence is passed, the Prime Minister shall immediately cease to hold office.

 

8. On this one, I would once again, based on the Judgement of the Court of Appeal, advice that the Prime Minister retain an opinion to advice dissolution. That would be in line with the judgement of the Court of Appeal.

 

9. Thirdly, and finally, on the Clause for floor crossing, I do not find anything that can be impacted by the Judgement of the Court of Appeal.”

 

19. The applicants assert that the Attorney-General’s advice to Parliament did not fully resolve the confusion caused by the Court's judgment.
20. It is also apparent from the founding and the supporting affidavits, that Parliament’s Standing Committee on Law and Constitutional affairs debated the proposed 11^th Amendment after having received stakeholder comment. The minutes of the Committee deliberations show that a minority on the Committee expressed dissatisfaction with this Court’s judgment and proposed that ‘Parliament should legislate against the basic structure in the Constitution’.

 

21. The dissatisfaction is even more apparent from the following further comments attributed to the minority on the Committee:

 

“The courts are depriving the people the powers to change the Constitution through a referendum’ and that ‘The basic structure if allowed will entirely be abused to frustrate changes and reforms”.

 

Basic structure

 

22. The applicants also challenge the very notion of a basic structure doctrine in Lesotho, asserting that the Constitution does not contain any principles or provisions that are immune from amendment. According to them, such a doctrine has no place in Lesotho’s constitutional framework and that the Court’s reliance on it was an error of law.

 

23. Lastly, the applicants contend that this Court failed to recognise that, unlike other constitutions such as India’s which are ‘amended’, the Constitution of Lesotho is not ‘amended but altered’ and that in terms of section 2 read with 83(4)(a) ‘alteration’ provisions are not amenable to being tested against the Constitutional text.

 

The relief sought

24. The applicants sought a whole raft of reliefs, both main and alternative but during oral argument abandoned most of it and relied only on the following.

 

“. . .

2. A review that part of the decision of the Court of Appeal in C of A CIV No: 13/2024 be reviewed, corrected and set aside in terms of the Court's inherent powers and sections 118 and 123 (4) of the Lesotho Constitution, 1993, in that:

…

(b) The Court must declare sections 83 (4) and 87 (5) (a) of the Ninth Amendment to the Constitution invalid, suspend

the declaration of invalidity for the period of a year to allow Parliament to promulgate section 83C (2) (a) and (b) of the 11th Amendment [Alteration] Bill in a manner compliant with the Constitution;

 

3. An interdict that the passage into law of the 11th Amendment to the Constitution Bill and/or section 83C 92) (a) and (b) of the Alteration be permanently stayed to the extent that it is constitutionally noncompliant.”

 

25. The alternative relief which was persisted with reads:

 

“(f)     A mandamus that the Court of Appeal (which made the judgment subject of review) be directed by the Court of Appeal (sitting as a review Court) to provide sufficient guidance as to the exact meaning and scope of the concepts of basic structure and responsible Government and the extent to which the rights of the voter and his representative in Parliament are equal to enable and simplify the law making process:

 

1. That the said definition and guidance be attached to the judgment to be made herein, and/or;

 

2. that sections 1, 2 and 20 of the Constitution be Altered by Parliament with the direct participation of the voter in terms of section 85 of the Constitution to expressly and/or impliedly incorporate the novel concepts of basic structure and responsible Government”.

 

Respondents’ opposition

26. The first respondent who had successfully challenged the 9^th Amendment, opposes the application for review. According to him, the applicants are, in reality, seeking to appeal this Court’s decision under the guise of a review application, which is impermissible. The first respondent maintains that the applicants have failed to demonstrate any ‘gross injustice’ or ‘patent error’ that would warrant a review of the judgment.

 

27. According to the first respondent, the Court’s decision to invalidate the 9th Amendment prospectively mitigated any potential hardship caused by the ruling. He further contends that the applicants are introducing new information, specifically the 11th Amendment Bill, which was not before the Court during the original proceedings, and which had not yet been enacted into law. As such, the Court could not have suspended its invalidation to accommodate a future legislative process.

 

28. The first respondent also rejects the notion that the Court had overstepped its authority, maintaining that it is within the judiciary’s mandate to declare laws unconstitutional and that this does not infringe on Parliament’s law-making powers.

 

29. The 5^th respondent also opposes the application and advances contentions broadly similar to the first respondent’s.

 

Submissions

 

The applicants

 

30. The applicants’ case was argued by Ramaili SC and Adv. Sehapi. The principal submissions made on behalf of the applicants are the following. First, that it was a ‘material error of law’ to revive the provisions of the Constitution that were repealed by the 9^th Amendment. The argument goes that when a provision has been repealed, it ceases to have any effect. Reliance was placed for this proposition on the Interpretation Act. Only Parliament could have revived a repealed law, counsel submitted.

 

31. Secondly, that the Court erred in testing the constitutional amendments against the Constitution and that an alteration of the Constitution is not the same as an amendment and that the former is immune from being tested against the Constitution.

 

32. Counsel also submitted that because of the judgment of the Court there is uncertainty in Parliament over what should happen with motions of no confidence.

 

33. The other argument advanced was that the Court ‘ran into the terrain of Parliament’. Counsel added that the Court ‘erred as a matter of law and fact in its approach to the basic structure’. And that, for good measure, the majority failed to say what the basic structure of the Lesotho Constitution is.

 

First respondent

 

34. Teele KC submitted in limine on behalf of the first respondent that the applicant political parties have no locus standi and that they, as political parties, cannot demonstrate any gross injustice to them from the judgment now being impugned. On this approach, only individual members of Parliament would have locus standi to challenge this Court’s judgment. For that reason alone, according to counsel, the application should be dismissed.

 

35. Next, Adv Teele submitted that the applicants failed to meet the test for reviewability: gross injustice or a patent error. According to him, mere dissatisfaction with the Court’s decision (which the present application demonstrates) does not rise to the high threshold of gross injustice or a patent error.

 

36. As regards the complaint that Parliament is not able to enact laws as a result of the Court’s judgment, counsel submitted that if there was any merit to the complaint, one would have expected the Speaker of Parliament to say as much. Counsel for the first respondent submitted that there is no ambiguity whatsoever about the impugned judgment and that the real grievance of the applicants is that they consider that the majority got it wrong.

 

37. In any event, any misunderstanding the members of Parliament might have had was put to bed by the advice of the learned Attorney-General who explained what in the judgment of the majority was found to be the basic structure that was violated by the 9^th Amendment.

 

38. In so far as the alleged injustice is concerned, Teele KC submitted that the Court’s prospective invalidation of the 9^th Amendment was intended to ameliorate the declaration of invalidity as the default position is that a declaration of invalidity operates retrospectively.

 

39. Turning his attention to the proposed main reliefs, counsel submitted that granting such relief would violate the separation of powers as the task of initiating and passing laws is a legislative and not judicial function.

 

Fifth respondent 

 

40. Adv. Moshoeshoe for the Government reiterated that the applicants failed to satisfy the test for reviewability and that the complaints raised in the application are nothing short of dissatisfaction with the outcome of a court decision.

 

Discussion

 

41. This Court has the inherent jurisdiction to review its own decisions in exceptional circumstances where a patent error or gross injustice is evident. The applicants bear the onus to demonstrate that the impugned judgment was a patent error or caused a gross injustice. As Mosito P put it in Hippo Transport (Pty) Ltd and another v The Commissioner of Customs and Excise and another^:1

 

“This court can only exercise its review power in exceptional circumstances. This court will view circumstances as exceptional only when gross injustice and or a patent error has occurred in the prior judgment. The power of this court to review its own decisions should therefore not be a disguised rehearing of the prior appeal. It is therefore not a disguised rehearing of the prior appeal, going over it with a fine comb for the re-determination of aspects of that judgment. It is therefore not done for purposes other than to correct a patent error and or grave injustice, realised only after the judgment had been handed down.”

 

42. As Mokgoro AJA said in Lepule v Lepule ³

 

“[83] Based on its jurisdiction as the apex court, in the context of the principle of stare decisis and in view of the jurisprudential need for finality, certainty and the rule of law in any hierarchical court system, any matter dealt with and decided by an apex court, is of necessity final”.

 

43. This Court recently stated as follows in Mohale v Minister of Law and Constitutional Affairs:[2]

 

“An application to review and correct a judgment and order of this Court is not had for the asking. A proper basis must be laid for it and this Court has a discretion in the matter, to be exercised judicially.”

44. I have set out the salient complaints raised by the applicants. The question is whether they meet the threshold for reviewability as established by the jurisprudence of this Court.

 

45. The legal and interpretation theories advanced by the applicants display a fundamental misunderstanding of the law. The first theory is that the Court resurrected a repealed law. Secondly, that the Court disregarded local precedent. Thirdly, that the Lesotho Constitution does not have a basic structure. Fourthly, that the Court usurped the legislative function reserved for Parliament.

 

46. I discuss each one of these propositions and the related ones before I deal with the tenability of the specific reliefs sought. That discussion is intended to reject the various legal theories put forward by the applicants.

 

47. When Lesotho’s courts declare a law inconsistent with the Constitution the invalidity takes effect from the date the offensive law was passed. That is the doctrine of objective unconstitutionality. In other words, the declaration of invalidity creates the legal fiction that the law was not passed in the first place. What then remains is the law that predated the invalidated law.

 

48. The applicants’ reliance on s 19 of the Interpretation Act does not assist them. A judgment of Lesotho’s courts invalidating a law for constitutional inconsistency, is not an Act of repeal as contemplated in section 19 of the Interpretation Act. What the section addresses is a law passed by Parliament. The 9^th Amendment was not repealed by Parliament but was declared invalid by a court of law exercising judicial power given to the courts under the Constitution.

 

49. Although there is no specific provision in the Lesotho Constitution which gives the superior courts the discretion to prospectively invalidate legislation, as the apex court this Court assumed such jurisdiction in the judgment now being challenged. The courts of Canada[3], Namibia[4], and India[5], for example did the same.[6] Thus, the superior courts of Lesotho enjoy the discretion to make the order of invalidity take prospective effect. That is what the Court did in the now-impugned judgment and that represents the law of Lesotho. The Court’s decision to make the invalidity of the 9th Amendment prospective was a discretionary exercise of judicial power aimed at preventing disruption, not a resurrection of repealed provisions.

 

50. The applicants’ contention that the Court should have suspended the invalidity of the 9^th Amendment to allow Parliament to enact new legislation is without merit. The 11th Amendment Bill, which the applicants referenced, was not before the Court at the time of the original proceedings and had not been passed by Parliament. The Court cannot suspend its declaration of invalidity based on a future hypothetical legislative process.

 

51. The argument about the disregard of local precedent is the least convincing. The concept of a basic structure of the Lesotho Constitution was never the subject of decision by Lesotho’s superior courts of record. I have looked at all the cases cited and am satisfied that they do not support the applicants’ stance. To avoid burdening the judgment I will not discuss them in this judgment.

 

52. What is clear is that as far as this Court was concerned, the issue of a basic structure was one of first impression. Even assuming that there was a decision of the High Court, it would not and did not bind this Court as the apex court.

 

53. As for the alleged usurpation of the legislative function, under the Constitution, judicial power vests in the courts. Making laws for the good governance of the Kingdom is the function of the legislative branch. The law-making function is not without limits though. Laws made by Parliament must comply with the procedural requirements prescribed under the Constitution and other safeguards such as the Bill of Rights and the basic structure.
54. The Basic Structure judgment has now laid down that the Lesotho Constitution recognises that there are certain principles which are so foundational to the Constitution that they may not be abridged by constitutional amendment. That is now the law in Lesotho and it is the duty of the superior courts to guard against the destruction of the basic structure where, upon construction, it is discernable.

 

55. This Court, in its previous judgment, recognized that certain fundamental principles underpinning the Constitution, such as parliamentary democracy and responsible government, are so foundational that they cannot be altered through constitutional amendment.

 

56. Judicial power involves authoritatively interpreting the Constitution and statute law and to declare legislation passed by Parliament to be unconstitutional and to set it aside. The applicants’ claim that the Court usurped Parliament’s legislative function is without foundation. The judiciary’s role includes reviewing legislation for constitutional compliance and invalidating laws that contravene the Constitution. That is not an infringement on Parliament’s powers but a necessary function of constitutional adjudication.

 

Hardship and uncertainty

 

57. The applicants have not demonstrated any concrete hardship, gross injustice or confusion resulting from the judgment. The Attorney-General’s advice to Parliament, following the judgment, clarified the implications of the ruling, and Parliament remains free to legislate within the bounds of the Constitution.

 

Consideration of the reliefs sought

 

58. I now proceed to consider the individual prayers. The first prayer sought reads:

 

‘(b) The Court must declare sections 83(4) and 87 (5) (a) of the Ninth Amendment to the Constitution invalid, suspend the declaration of invalidity for the period of a year to allow Parliament to promulgate section 83C (2) (a) of the 11^th Amendment [Alteration] Bill in a manner complaint with the Constitution’.

 

59. As I understand this para (b) of the varied notice of motion, that is the order this court should have made. And the reason for seeking suspension is to ‘allow Parliament’ to pass certain legislation. The choice of the words ‘must declare’ in para (b) of the notice of motion is unfortunate. In the sense that it is asking the Court to do what it had already done by declaring the 9^th Amendment unconstitutional.

 

60. I suspect that what was probably intended was to say:

 

“The Court having declared s 83(4) and s 87(5)(a) of the Ninth amendment to the Constitution invalid ought to have suspended the declaration of invalidity for a period of one year to allow Parliament to promulgate s 83c (2)(a) and (b) of the 11^th amendment [Alteration] Bill in a manner compliant with the Constitution”.

 

61. The applicants’ prayer seeking confirmation of the invalidation order is destructive of the basis on which they came to court challenging the Court’s finding of a basic structure. The two are inconsistent with each other because confirming the invalidation order is an acceptance that there is a basic structure that was violated: the basic structure was the predicate for the invalidation order.

 

62. It follows that because of the applicants’ acceptance in prayer (b) of this Court’s invalidation of the 9^th Amendment, we need not strictly concern ourselves with the correctness of the Court’s (a) acceptance (both majority and minority) of a basic structure in the Lesotho Constitution, and (b) the majority’s conclusion that the 9^th Amendment violated the basic structure as expatiated by it. In fact, to do so would be to revisit the merits which is not permissible.

 

63. The only questions that now remains are: did the Court (a) commit a renewable error, (b) that resulted in a grave injustice on the applicants by not suspending the order of invalidity?

 

64. It is not possible to answer the two questions without regard to the legal tenability of that which it is complained the Court should have done together with the order of invalidation: ‘allow Parliament to promulgate s 83(2)(a) and (b) of the 11^th Amendment [Alteration] Bill in a manner compliant with the Constitution’.

 

65. The insurmountable hurdle in the applicants’ way to the relief they seek under para (b) of their notice of motion is that the so-called 11^th Amendment is not justiciable. It has not been passed by Parliament. More importantly, the 11^th Amendment was not an issue either in the High Court or before this Court when it determined the appeal.

 

66. What is even more problematic is that the Court is being asked ‘to allow Parliament’ to pass a certain law. Now, is the Court to issue a mandamus against Parliament to perform its legislative function? At all events, it is Parliament’s prerogative to determine its own legislative program within its constitutional competence. It needs no permission or approval from the courts to pass laws for the good governance of the Kingdom of Lesotho.

 

67. For all of the above reasons, the relief sought in para (b) of the varied notice of motion should fail.

 

68. The next is para 3 of the varied notice of motion. It reads:

 

“An interdict that the passage into law of the 11^th Amendment to the Constitution Bill and/or section 83C (2) (a) and (b) of the Alteration be permanently stayed to the extent that it is constitutionally non-compliant.”

 

69. This relief need not detain us. With the greatest respect to the applicants, what the prayer seeks makes no sense at all, even on the most generous interpretation. To be justiciable a dispute must be amenable to adjudication such that it is possible for the adjudicator to decide the case on the basis of some rule or principle that is capable of generalization and being made applicable to like cases in the future.[7] This prayer does not meet that test.

 

70. In the first place, the so-called 11^th Amendment has no status in law as I have already explained. Secondly, the Court is being asked to positively direct Parliament under prayer para 2. What if Parliament does not wish to act further on the proposed 11^th Amendment? A court of law cannot make an order that is meaningless and which will create uncertainty and confusion. Para 2 of the varied notice of motion should also fail.

 

71. What remains is the surviving ‘alternative relief’ which reads:

 

“(f)     A mandamus that the Court of Appeal (which made the judgment subject of review) be directed by the Court of Appeal (sitting as a review Court) to provide sufficient guidance as to the exact meaning and scope of the concepts of basic structure and responsible Government and the extent to which the rights of the voter and his representative in Parliament are equal to enable and simplify the law making process:

 

3. That the said definition and guidance be attached to the judgment to be made herein, and/or;

 

4. that sections 1, 2 and 20 of the Constitution be Altered by Parliament with the direct participation of the voter in terms of section 85 of the Constitution to expressly and/or impliedly incorporate the novel concepts of basic structure and responsible Government.”

 

72. We do not have before us an application seeking an interpretation of the majority judgment to be able ‘to provide sufficient guidance’ – assuming such relief was competent.

 

73. An important point to be made is that courts do not provide advisory opinions and deal only with live controversies. But perhaps more fundamentally, that sort of relief does not fall within the exceptional jurisdiction of ‘patent error or gross injustice’ as established by this Court.

 

74. The notion of mandamus imports a legal duty resting on an administrative functionary to do something which he or she is refusing or neglecting to perform. If this Court considers that the test for reviewing its own decision has been met, it invokes its  exceptional review jurisdiction and sets it aside. The notion that a court can issue a mandamus against itself is so alien to our jurisprudence that perhaps the less said, the better.

 

75. Lastly, the applicants lay no basis at all from where this Court derives the jurisdiction to direct Parliament to alter sections 1, 2 and 20 of the Constitution including ordering direct participation of the voter to ‘expressly and or impliedly incorporate the novel concepts of basic structure and responsible Government’.

 

76. What is sought under prayer para (f) of the alternative relief is equally incompetent and must be dismissed.

 

The complaint about amendment versus alteration

77. The 9^th Amendment was introduced in Parliament by its movers not in terms of any other provision of the Constitution dealing specifically with amendments, but in terms of section 85 which is titled ‘Alteration of Constitution’. It is that legislation that served before the Court.

 

78. The legislature, not the Court, termed the provision in question as an ‘amendment’. It is worthy of comment that even the so-called 11^th Amendment purports to be a measure in terms of section 85 of the Constitution.

 

79. On the applicant’s own logic, if only an amendment is susceptible to scrutiny by a court and not an alteration, the 9^th Amendment was referred to as an ‘amendment’ and not an ‘alteration’ and was therefore capable of being invalidated. But nothing really turns on that issue as this Court dealt with the matter on the basis that it implicated section 85 of the Constitution.

 

Conclusion

 

80. A patent error occurs where the order pronounced by the Court does not reflect its true intention. It matters not that the reasoning of the Court was sound or unsound: First Consolidated Leasing Corporation Ltd v McMullin 1975 (3) SA 606 (T) at 608F. A perceived unsound reasoning is not a patent error. The applicants’ contention that the Court based its conclusions on foreign jurisprudence that is inconsistent with Lesotho’s – is an attack on the soundness of the majority’s reasoning. Therefore, the applicants did not lay a foundation for a patent error committed by this Court’s judgment.

 

81. The alleged gross injustice lies in the proposition that the majority’s judgment is not comprehensible and that, as a result, Parliament’s legislative function is being frustrated. Both propositions are gainsaid on applicants’ own prayers.

 

82. First, the Attorney General explained the ratio of the majority to Parliament using the proposed 11^th Amendment as a concrete example. Secondly, the Standing Committee clearly understood the Attorney General’s advice and some of its members expressed frustration that this Court’s judgment prevents them from doing what they want to do: to achieve through the 11^th Amendment that which the invalidated 9^th Amendment did.

 

Locus standi objection

 

83. On behalf of the 1^st respondent, Teele KC raised a point in limine that as political parties the applicants do not have standing to bring the present review. On that approach, the only persons that could have standing are individual members of Parliament in their capacity as legislators. It is not in dispute that all applicants are registered political parties who are represented in Parliament by individual members of Parliament. Counsel submitted that this Court should find that the applicants have no locus standi but should proceed to determine the merits of the matter.

 

84. The approach contended for by Adv. Teele will set an indefensible and a dangerous precedent. How are the lower courts to apply it? As a matter of law and principle, once a party has no locus standi it would not be entitled to pursue a cause of action before court. Proceeding in the manner suggested by Adv. Teele would be in conflict with established principle and create confusion for lower courts.

 

85. I will accordingly assume, for present purposes, that the applicants have locus standi, and decide the matter on the merits as I have done, especially in the view that I have taken that the application is demonstrably without merit.

 

Disposition

86. The applicants have failed to meet the threshold for review. They have not shown any patent error or gross injustice in the original judgment, nor have they established that the Court’s decision caused any confusion or gross injustice  to the legislative process. The application is an impermissible attempt to reargue the merits of the original case under the guise of a review application.

 

87. The applicants are clearly unhappy with this Court’s decision and preferred that the outcome was different - but their complaints do not translate into a legally cognizable grievance.

Costs

 

88. As far as costs are concerned, given the clear lack of merit in the application, this is not a proper case for the applicants to be shielded from an adverse costs order. Had the respondents sought a special costs order, I would have seriously considered making such an order. At the hearing, the first respondent was represented by two counsel while the 5^th respondent was represented by one counsel. They are entitled to those costs.

 

Order

 

89. In the result, the following order is made:

 

1. The application for review is dismissed.

 

2. The applicants shall bear the costs of this application, including the costs of two counsel for the first respondent and one counsel for the fifth respondent.

 

––––––––––––––––––––––––––––––––––––––

P.T DAMASEB

ACTING JUSTICE OF APPEAL

I agree

 

––––––––––––––––––––––––––––––––––––––

K. E MOSITO

PRESIDENT OF THE COURT OF APPEAL

I agree

 

_____________________________________

P. MUSONDA

ACTING JUSTICE OF APPEAL

 

 

I agree

 

_______________________________________

M.H CHINHENGO

ACTING JUSTICE OF APPEAL

 

I agree

 

____________________________________

J. VAN DER WESTHUIZEN

ACTING JUSTICE OF APPEAL

 

 

FOR APPELLANTS:                 ADV. M RAMAILI SC

MR F. SEHAPI

ADV M MOSIA

 

FOR 1^st RESPONDENT:           ADV M.E TEELE KC with

ADV L.A. MOLATI

 

FOR 2^ND  – 6^TH RESPONDENTS:      ADV M.MOSHOESHOE