C. of A.
(CIV) No. 6 of 1983

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

'MAMOKHELE
MOHATLA Appellant

v.

COMMISSIONER
OF POLICE AND 2 OTHERS Respondents

HELD AT
MASERU

Coram:

Mahomed,
J.A.

Aaron,
J.A.

Wentzel,
J.A,

JUDGMENT

MAHOMED
J.A.

The
appellant in this matter brought an application in the High Court for
an order directing the respondents to release THAKANE
MOHAPI ("the
detainee") who it was alleged had been arrested by the Police
and detained by the police. The notice of
motion also prayed for
other ancillary relief.

A rule
nisi was granted by Cotran C.J. on the first of June 1983 calling
upon the respondents inter alia to produce the body of
the detainee
on the 6th June, and to show cause why they should not release the
detainee forthwith.

It is
common cause that the detainee was in fact released on the 1st of
June, 1983. For that reason the respondents filed a short
affidavit
on the return day from Colonel Mabote to the effect that the detainee
had been released on the first of June 1983, and
that the respondents
were unable to produce the body of the detainee in compliance with
the Court Order.

2

The sole
issue before Cotran C.J. on the return day was, therefore, the issue
of costs, and the learned Chief Justice ordered that
each party was
"to bear his or her costs". The appellant appeals against
this decision and contends that the respondents
should have been
ordered to pay the costs of the proceedings in the High Court.

It was
common cause in the Court a quo that the rule nisi was served on the
offices of the Solicitor General at about 4 p.m. on
1st June in
accordance with normal practice where the respondent is a Government
department. The detaine says that she was released
at about 2.59 p.m.
on that day. The respondents were, therefore, not in a position to
comply with the Court Order at the time when
it was served on the
Solicitor General.

This
circumstance is not per se a ground on which the Court would be
precluded from ordering costs against the respondents. The
correct
approach is to ask:

1. Was
   the application for the release of the detainee reasonably necessary
   when it was made? (See Thoahlane v. Commissioner of Police
   and
   Solicitor General, CIV/APN/9/82 in the High Court of Lesotho 15th
   February 1982 - unreported)

   
   

2. Was
   the applicant entitled to succeed in the application if the detainee
   had not been released?

   
   

As to the
first question, I am of the view that on the papers before us the
application was clearly necessary at the time when it
was made. The
detainee had been in custody for some 48 days and there was
absolutely nothing to indicate that the respondents were
about to
release her, or that they would have done so if the application had
not been launched by the filing of the notice of motion
and the
supporting affidavits of the 31st of May 1983.

3

The main
question which must, therefore, be examined is the merits of the
application. In this regard, the Judge a quo held that
it would not
be justifiable "on the papers as they stand to jump to the
conclusion that the detention was illegal", and
he drew
attention to the paucity of re­levant and admissible evidence
before him and the possibility of further litigation
in the matter.

It is
necessary to examine the merits of the applica­tion more closely.
The appellant had contended that :

1. The
   detainee was arrested and detained on the 13th April, 1983. (This
   was admitted by Colonel Mabote and was, therefore, clearly
   correct)

   
   

2. The
   detainee was in detention for a period of some 57 days when the
   application was brought. (This computation is incorrect because
   only
   48 days had elapsed since the 13th of April, 1983).

   
   

3. This
   constituted a contravention of the Internal Security Act which
   provided a maximum period of 42 days during which person could
   be
   detained.

   
   

4. The
   detention of the detainee was unlawful "as no provisions of any
   law have been observed."

   
   

The last
two contentions were also raised before the Judge a. quo who dealt
with these contentions in his judgment as follows :-

"Mr.Gwentshe says they have been detained for 57 days, but in
fact it was 48 days from 13th April 1983 to 1st June. I see
no
express limit of 42 maximum in any section of the Act but the
submis­sion was that the days counted arose by implication
of
other Sections of the Act, notably sections 32 to 35. It was pointed
out that advisors had not been appointed until 19th April,
1983, and
in the absence of a further temporary detention in terms of section
33 the term has expired so the applica­tions
were justified on
this ground, I am not able with respect to follow that argument. In
this ap­plication it is not possible
to get into the merits
......." (He then goes on to refer to the paucity

of the averments in the affidavits)

In order
to appreciate this problem it is necessary to deal more fully with
the relevant provisions of the Internal Security Act
No.6 of 1982
which were of application.

4

1. Section
   32 provides that a member of the police force may, without warrant,
   arrest a person whom he reasonably suspects to be
   person concerned
   in subversive activity.

   
   

2. A
   person so arrested in terms of section 32 by a member of the police
   force shall not be detained for more than 14 days, but he
   may
   further temporarily be detained by an Interim Custody Order of the
   Commissioner under Section 33 (Section 32(2))

   
   

3. The
   further interim custody order made by a Commissioner in terms of
   Section 33 must be reported by him to the Minister (Supra
   33(2))

   
   

1. The
   Minister has a period of 14 days after the Commissioner has made
   his order to refer the case to an adviser if he so wishes.
   If he
   does not do so, the order of the Commissioner ceases to have effect
   (Section 35(1))

   
   

2. If
   the Minister does refer the matter to an adviser, the machinery of
   Sections 36 and 37 comes into operation to enable the
   adviser to
   make a report to the Minister, after giving the detainee a proper
   opportunity to make representations in terms of
   Section 36.

   
   

4. Upon receipt of the adviser's report, the Minister must consider
the case of the detainee in order to satisfy himself that the

detainee has been concerned in subversive activities, and that his
detention is necessary for the investigation of those activities
with
a view to criminal proceed­ings before a Court

(a) If he is not so satisfied he shall sign a written order releasing
the detainee (Section 38(1)).

(b) If he is so satisfied, he may make a further detention order :-

(i) The Minister must make such a detention order, within 14 days
following the date of the Com­missioner's interim custody
order
(Section 38(2)

(ii) The Ministerial detention order itself can only be effective for
a maximum period of 14 days from the date of the Order. (Section

38(3)).

5. It follows from the aforegoing (subject to a

5

qualification
in Section 38(2) which is dealt with in paragraph 6 hereunder) that
the maximum period for which a person can be de­tained
in terms
of Part IV is 42 days, being

1. the
   initial 14 days persuant to a police arrest under Section 32;

   
   

2. the
   succeedure of 14 days of the commis­sioner interim custody order
   made under section 33; and

   
   

3. the
   further period of 14 days persuant to a Ministerial order under
   Section 38(3), which must be made within 14 days following
   upon the
   date of the Commissioner's interim custody order.

   
   

6. Within
a maximum period of 42 days after his first detention, the detainee
must, therefore, be released from detention unless
he falls under the
qualification set out in Section 38(2), that is

"unless he is in custody under some other provision of this or
any other law, or is arrested under the provi­sions of
this Part
on information other than, or for reasons other than, those stated
under Section 36(1) in respect of that interim order".

Clearly a
detainee, cannot make a lawful claim to be released if,

1. "he
   is in custody under some other pro­vision of this or any other
   law". He may for example, have appeared in Court
   on a criminal
   charge and have been refused bail, or may have been actually
   convicted and sen­tenced to imprisonment,

   
   

2. he
   is arrested under the provisions of Part (IV) of the Act "on
   information other than, or for reasons other than, those
   stated
   under Section 36(1) in respect of that interim custody order"
   when the detainee is informed about the case alleged
   against him in
   order to enable him to make represen­tations.

   
   

The
phrase "reasons other than those stated under Section 36(1) in
respect of that interim custody order" requires some

consideration. The "reasons" referred to must mean "the
statement in writing of the activities of which he is suspected".

That would refer back to the sub

6

versive
activities on suspicion of which he was arrested by the member of the
police force, or on suspicion of which he was made
subject to an
interim custody order for temporary detention.

It
follows that the qualification in Section 38(2) contemplates new
information or new reasons justifying a detention having come
to
light after the Commissioner has made his interim custody order and
after the detainee has in terms of Section 36(1) been informed
about
the activities of which he is suspected, for the purposes of enabling
him to make representations. It is clear, however,
that a new
"arrest" would then have had to be made on this basis.

In the
present case, the appellant alleged in her founding affidavit that
the detainee had been detained for more than 42 days since
her arrest
and further alleged that the detention was unlawful. The respondents
did not file any affidavit, setting out reasons
why the detention was
unlawful. The respondents did not file any affidavit, setting out
reasons why the detention was lawful, or
that notwithstanding the
lapse of the period of 42 days, the detainee had been in lawful
custody thereafter because of a fresh
"arrest" under the
Act. There is no suggestion that such further custody followed upon a
charge in a Criminal Court,
before whom the detainee might have
appeared, and which refused bail or sentenced her to imprisonment. In
the circumstances, the
applicant had established in my view a prima
facie case of unlawful detention which the respondents made no
attempt to contradict.

The
English remedy of habeas corpus finds its equiva­lent in the
Roman Dutch Law in the interdictum de nomine libero exhibendo
which
is referred to in Voet: 43 : 29, based on the Practor's Edict as set
out in Digest 43.29 (See 1962 S.A. L.J. 283 Hahlo and
Kahn : The
Union of South Africa:

The
Development of its Laws and Constitution (1960) p.137)

Invoking
this remedy, in the case of Principal Immigration

7

Officer
and Minister of Interior v. Narayansamy 1916 T.P.D. 274, Wessels J
said

"Apart from any legislative enactment, there is an inherent
right in every subject, and in every stranger....... to sue out
a
writ of habeas corpus. This right is given not only by English law
but also by Roman-Dutch law prima facie, therefore, every
person
arrested by the warrant of the Minister," or by any other
person, is entitled to ask this Court for his release, and
this Court
is bound to grant it unless there is some lawful cause for his
detention."

Where an
applicant has, therefore, shown prima facie grounds for believing
that a detention is unlawful, the Courts have consistently
required
the detaining authority to show cause why the detention is lawful.
This was the approach adopted by Mofokeng J. in his
very thorough and
lucid judgment in the case of Sello v. Commissioner of Police and
Another 1980(1) L.L.R. 158 at 168 where the
Learned Judge stated

"It is argued, on behalf of the first respondent, that there is
no evidence in the petition to support the allegation that
the arrest
and detention of the detainee is wrongful and unlawful. The contents
of paragraph 5 of the said Sello's affidavit.........
in my view,
have established prima facie case against the first respondent. In
any event there is never any presumption that the
arrest and
detention of an individual is lawful until the contrary is shown. The
Act in question does not purport to establish
anything of the sort.
In my view the onus is on the first respondent to show, on a balance
of probabilities, that his arrest and
the detention of the detainee
is lawful, that is : that it is strictly in accordance with the
provisions of the Act. Or as Bankes
L.J. said in Rex v. Secretary of
State for Home Affairs Ex parte O'Brien 1923(2) K.B. at 375.

" "The duty of the Court is clear, the liberty of a subject
is in question. The Court must enquire closely into the question

whether the order of internment complained of was or was not lawfully
made."

The Act is a very drastic one indeed on an individual. Parliament has
seen fit to curtail the liberty of an individual in order
to protect
that of the State. Parliament has seen fit to give to an individual
the authority to terminate another infividual's
liberty if the former
individual is of a certain opinion. The detained person is at the
mercy of that individual

8

as to when he will be allowed to regain his liberty .... It is the
main function of the Courts in our Kingdom to protect the rights
of
an individual. It is equally the function of Parliament. If those
rights are infringed or curtailed, however, slightly, and
the
situation is brought to the notice of the Courts, our Courts will
jealously guard against such an erosion of the individual's
rights.
Any person who infringes or takes away the rights of an individual
must show a legal right to do so. The rights of an individual
being
infringed or taken away, even if a legal right is shown, the Courts
will sorutinise such legal right very closely indeed.
If it is an Act
of Parliament, the Courts will give it the usual strict
interpretation in order to see whether the provisions of
the said Act
have been strictly observed. If the Courts come to the conclusion
that the provisions of such an Act are not being
strictly observed
then the detention of the de­tainee would be illegal and the
Courts will not hesitate to say so ........"

The
approach, adopted by Mofokeng J, as to the duty of a detaining
authority where there are prima facie grounds for believing the

detention to be unlawful, is supported by a large number of
authorities.

In re William Kok__1879 Buch 45 at 60; Kazee v Principal Immigration
Officer 1954(3) S.A. 759 at 761: In re Merechane (1882)(1)
S.A.R. 27;
Tonge v Governor of Johannesburg Gaol 1903 T.H. 393.

Such an
approach is in accordance with both logic and sound jurisprudential
values. The protection of the liberty of the subject
and the need for
recourse to due process of law where there are legitimate grounds for
its curtailment are basic to the foundations
of civilized society,
They constitute a crucial heritage of our legal culture, which the
Courts would be anxious to protect against
unlawful invasion.

The
appellant established prima facie grounds for the belief that there
was an unlawful invasion of the liberty of the detainee.
The Court
called upon the respondents to justify its actions. The respondents
chose not to do so. They did not even deny the averment
that the
detention of the detainee was unlawful. In these circumstances, I see
no reason why the appellant should not have been
entitled to her

9

costs.
She was clearly justified in coming to Court to enforce the rights of
the detainee, and to be compensated for the costs incurred
in doing
so.

In
addition to alleging unlawful detention, the appellant in her
founding affidavit made a number of other allegations to the effect

that even if the detention of the detainee was lawful, there were
other contraventions of the Internal Security Act of 1982. It
was
contended by the respondent's Counsel that many of these allegations
were based on hearsay evidence, although it was conceded
that the
appellant's averments that the detainee was wrong­fully refused
the right to receive food from outside the prison
was based on
admissible evidence.

Since the
appellant was,in my view,in any event entitled to the costs of the
application in the High Court, because of the failure
of the
respondents to rebut in any way the prima facie grounds adduced by
the appellant in support of the averment that the detention
of the
detainee was unlawful, it is unnecessary to examine more closely all
these allegations of contraventions of the Act. The
only issue on
appeal is the issue of costs

The
question of costs is primarily a matter to have been determined in
the exercise of the discretion of the Court a quo. An Appeal
Court
would not interfere with the the judicial exercise of such a
discretion simply because it is of the view that if it had been

sitting as a Court of first instance, it would have made a different
order.

In the
present matter, however, the Court of Appeal is free to substitute
its own discretion because I have found that the appellant
had
established a prima facie case of unlawful detention which the
respondent had failed to answer. This finding was not made by
the
Court a quo whose discretion on the question of costs was, therefore,
not predicated thereon.

In the
result, it is ordered that :

1. The
   appeal be upheld with costs.

   
   

10

2. The
   order of the High Court to the effect that each party bears its own
   costs is set aside and substituted by the following order
   :-

   
   

"The respondents are directed to pay the applicant's costs in
the application."

Signed by I. Mahomed

I. MAHOMED

Judge of Appeal

I agree
Signed by S. Aaron

S. AARON

Judge of Appral

I
agree Signed by E.M. Wentzel

E.M. WENTZEL

Judge of Appeal

Delivered
on 28th this day of January, 1985 at MASERU

For
Appellant : Mr. W.C.M. Maqutu

For
Respondent : Mr. E.D. Muguluma

C.of A.
(CIV) No.3 of 1984.

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

MIKHANE
MAQETOANE Appellant

and

MINISTER
OF INTERIOR 1st Respondent

CHIEF
DAVID G. MASUPHA 2nd Respondent

CHIEF
MOJEA MASUPHA 3rd Respondent

CHIEF
MATHEALIRA J.MASUPHA 4th Respondent

HELD AT
MASERU

Coram :

SCHUTZ,
P.

AARON,
J.A.

WENTZEL,
J.A.

JUDGMENT

Wentzel,
J.A.

In 1983
the appellant applied to the High Court for an order –

1. "
   Declaring the Applicant, the official headman of Maqetoane's
   pursuant to the High Commissioner's Notice No, 170 of 1950.

   
   

2. Declaring
   that Government Notice No.25 in the official Gazette Extraordinary
   No. 3413 of the 11th February, 1964 is invalid insofar
   as it relates
   to Appli­cant and the Headmanship of Maqetoane.

   
   

3. Granting
   such further or alternative relief as the above Honourable Court may

   
   

deem fit.

4. Costs
   of this application only if the Respondents oppose it."

   
   

He cited
as respondents the Minister of the Interior as 1st respondent and the
Principal Chief of 'Mamathe's and 2 Ward Chiefs of
that area as 2nd,
3rd and 4th respon­dents.

He failed
in the High Court and appeals now to this Court. I shall state the
facts as I outline the history of the relevant enactments
affecting
the chieftainship in this

2

Kingdom.
In doing so I have had the benefit of Mr. Tsotsi's very extensive
heads of argument and most helpful oral sub­missions.

PROCLAMATION
61 OF 1938

In terms
of Section 3(1) of Proclamation 61 of 1938, the High Commissioner was
empowered after consultation with the Paramount Chief
to declare any
Chief, Sub-Chief or Head­man to be Chief, Sub-Chief or Headman
for any specified area or areas by notice in
the Gazette. In terms of
High Commis­sioner's Notice No. 170 of 1950, the appellant was
declared to be the Headman for the
area of Maqetoanes.

THE
BASUTOLAND (CONSTITUTION) 1959

The
Basutoald (Constitution) Order in Council 1959 in Part VI under the
title "The Chieftainship" established a College
of Chiefs.
(Section 73(1)). In the 2nd Schedule, there were set out the names of
the Principal and Ward Chiefs, who were then members
of the College
together with other persons elected to the college. The proviso to
Sec­tion 73(1) makes specific mention of
Headman as members of
the College; but the office of Headman did not in itself imply such
membership.

The
powers and duties of the College of Chiefs were defined in Section
74(1). The relevant provisions are –

2. "The
   recommendation for recognition by the Paramount Chief, of Chiefs and
   Headmen, or for an acting appointment during minority,
   illiness,
   absence, incapacity, removal or suspension of a Chief or Head­man.

   
   

3. The
   settlement of disputes concerning the succession to the offices of
   Para­mount Chief, Chief or Headman or concer­ning
   other
   matters relating to the powers and duties annexed to the offices of
   Para­mount Chief, Chief or Headman which are regulated
   by Basuto
   law and custom.

   
   

4. The
   definition and adjustment of the ter­ritorial boundaries of
   areas within which Chiefs and Headmen exercise their powers
   and
   perform their duties:

   
   

3

Provided
that the definition or adjustment of the boundaries of the area of
jurisdiction of a Principal or Ward Chief shall be subject
to the
approval of the High Commissioner.

2. The
   investigation of allegations of misconduct, inefficiency or
   absenteeism of any Chief or Headman, and, as a result of such

   investigation, the making of recommendations to the Paramount Chief
   for the suspension or removal of any Chief or Headman by
   the
   Paramount Chief.

   
   

3. The
   review and amendment of the grading or classifica­tion of Chiefs
   and Headmen.

   
   

4. The
   review and amendment of the lists of persons holding the appointment
   of Chief and Headman."

   
   

A
Standing Committee of the College was established in terms of Section
75(1). Section 76 empowered the College to make Standing
Orders both
for the College and its standing committees and "without
prejudice to the generality of the ........ power"
(i.e. to make
standing orders) Section 76 particularly referred to the procedure to
be adopted in exercising the powers of the
College under paragraph
(a)(b) (f) and (g) of Section 74(1). Section 77 required the
con­currence of the Chief Justice for
standing orders made to
deal with the matters referred to in paragraphs (c) (d) and (e).

Section
78 of the 1959 Order in Council provided the following procedure for
proceedings under Section 74:

1. "The
   finding, decision or recommendation shall be communicated to the
   Paramount Chief who shall either notify his provi­sional

   acceptance to the College or Standing Committee or refer it back for
   further consideration.(my underlining)

   
   

2. When
   the Paramount Chief has notified his provisional acceptance or the
   matter has been reconsidered then –

   
   

(Section
78 (2))

" all parties shall be informed of such finding decision or
recommendation in the prescribed manner" (my underlining)

Section
79(1) provided for a review in the High Court by any person aggrieved
within 30 days of the decision being communicated
to him. After the
expiration of the 30 day period, or, if there was a review, after the
High

4

Court had
determined the matter, the Paramount Chief was to give his decision
(in accordance with the determination of the College
or Standing
Committee or the High Court as the case may be) and that decision was
to be "made public in such manner as may
be prescribed and
thereupon shall be conclusive and binding on all persons affected
thereby" There was, however, a proviso
- the Paramount Chief was
not entitled to exercise any authority to recognise, suspend or
remove any Chief or Headman except after
prior consultation with the
Resident Commissioner. These matters are dealt with in Section 80.

THE
STANDING ORDERS

Under
Government Notice No. 15 of 1960, Standing Orders for the College of
Chiefs were published. Part K dealt inter alia with the
"Recognition
of Chiefs and Headmen. Review and Recognition of Chiefdoms and
Headmanships". Under Standing Order 45, the
Headman concerned in
the matter was entitled to attend and speak on the matter.

Standing
Order 46 provided for publication in the Gazette of a final decision
by the Paramount Chief made in terms of Section 80
of the 1959 Order
in Council,

Under
Government Notice 16 of 1960, Standing Orders for the Standing
Committee were published. Standing Order No, 19 provides -

" Whenever a finding, decision or recommendation of the Standing
Committee has been provisionally accepted or reconsidered
in
pursuance of sub-section (2) of section seventy-eight of the
Basutoland (Cons­titution) Order In Council, 1969, the Chairman

shall with notice to the parties fix a day for the re­opening of
the proceedings. On that day the Chairman shall announce in
Open
Committee the finding, decision or recommendation in the form in
which it was provi­sionally accepted or in the form agreed
upon
after reconsideration. Announcement under this Rule shall be
communicated to the parties within the meaning of sub-section
(1) of
section seventy-nine of the Basutoland (Constitution) Order in
Council, 1959."

Under
Government Notice 17 of 1960, the High Court (College of Chiefs's
Review) Rules, 1960 were published.

5

It is
thus apparent that, as is befitting its status in the Kingdom, the
office of Chief or Headman was one which was to be created
with
prescribed formality and, similarly, if the particular office itself
was to be ended or its in­cumbent removed, the law
prescribed a
procedure whereby af­fected persons would be heard, and a
procedure for publica­tion, so that the public would
be aware of
these matters so significant in their effect on the lives of the
people of Lesotho.

THE 1964
GOVERNMENT NOTICE

On 11th
February, 1964, Government Notice No. 25 was published in terms of
Section 80 of the Basutoland (Cons­titution) Order
in Council
1959. That notice was one in which the Paramount Chief's final
decision in terms of Section 80 was notified for general
information
recognising the persons named in a schedule thereto as Principal
Chiefs, Chiefs, and Headmen. The area Maqetoane was
excluded and
ap­pellant was accordingly not recognised as a Headman therein.

Why
appellant's appointment was not continued is a matter of controversy.
There is a suggestion that it was by mistake but the 1st
Respondent
averred in these proceedings that the office in question was
abolished "consciously in 1964".

In the
1950 Notice under heading "Ward of 'Mamathe's and Thupa-Kubu",
the appellant was gazetted by name as Headman of
Maqetoane
subordinate to the Principal Chief of 'Mamathe's and Thupa-Kubu. In
the 1964 Notice, it is patent that a major restructuring
of the ward,
its hierarcy and areas was done.

Whatever
the situation, however, as to why and how appellant-name came to be
omitted, what is plain is that the procedures for informing
appellant
were not followed, nor was appellant ever called upon to address the
College of Chiefs. That being so, it seems to have
been not merely a
particular headmanship, but that the area of which he was Headman was
itself omitted from the list, along with
others, and had appellant
brought a review in the High Court, he would have succeeded on the
facts

6

as they
are now presented to us. (D.T. Griffith vs T.C. Makara, HCTLR 1963 -
1966 p. 292).

APPELLANT'S
DELAY

Appellant
came to learn of the decision in 1964. It was only in 1983 that he
launched proceedings for the orders set out earlier
in this judgment.
The delay is, on the face of it, inordinate and even gross. The
proceedings are not based on Section 79(1) of
the 1959 Order in
Council; that has long since been repealed. Nor are the proceedings a
review of a decision but rather an application
for a decla­ration
of rights; appellant says in effect, that he was and still is the
Headman of Maqekoane, and that the Government
Notice which purported
to remove him from office was invalid.

Nonetheless
and even if the remedy is not review, but a declaration of rights,
the delay is a factor to be consi­dered, as the
remedy of a
declaratory order is a discretionary one.

The
grounds upon which a Court can excuse delay are set out in Wolgroiers
Afslaers (Edms) Bpk v. Munisipaliteit van Kaapstad 1978
(1) S.A. 13.
Prejudice to those affected by an order is ordinarily one of the most
significant of these factors.

In this
case, appellant, on learning of the omission, made representations to
his Superior Chiefs for his reinstate­ment. Even
the 4th
respondent who would be directly affect by the gazetting of
Maqetoane, as it presently is in his area, supported appellant.
He is
the Chief of Pulane and according to the determination of 1964,
Maqetoane forms a part of his area, having on the face of
it
disappeared as a separate entity; he was served with the application
and did not oppose.

We
invited counsel for respondent to suggest the prejudice which might
arise if appellant were reinstated; she relied only on the
fact that
he would be reinstated to an office which no longer exists.

It does
not appear as if there will be prejudice to any body if the
application is granted. Appellant has also given

7

an
explanation for his delay. Soon after he heard that his name was on
the list, he approached the authorities through the Chiefs
directly
superior to him, hoping for some kind of administrative action.
Evidence of some letters was placed before us. The representation

apparently went on for many years, because appellant believed it was
a matter for the administration to put right.

Finally
the Permanent Secretary to the Ministry of Interior and Chieftainship
Affairs in March, 1983, referred appellant to Griffith's
case (supra)
and suggested that possibly an application might be made to Court.

In the
very unusual circumstances and despite the delay, we would not on
that ground refuse to give appellant relief. However, the
fact that
relief was available in 1964 does not mean that a declaration as
sought by appellant is competent now in 1985.

I turn
now accordingly to the legislative provisions from 1964 relevant to
the office of Chief and Headman.

THE
BASUTOLAND ORDER 1965.

Schedule
2 to the Basutoland Order 1965 (an Order of the United Kingdom in
Council) established the Constitution of Basutoland.
The 1959 Order
was repealed in the First Schedule, but in Section 11(3) provision
was made for the continuation in force of certain
relevant sections
and rules in respect of pending matters. Section 83 of the
Constitution provided –

1. "The
   twenty-two offices of Principal Chiefs and Ward Chiefs set out in
   Schedule 2 to this Constitution and the other offices
   of Chief
   recognised under the law in force immediately before the
   commencement of this constitution are hereby established.

   
   

2. Nothing
   in sub-section (1) of this section

   
   

shall prevent the alteration from time to time, by our under any law
in that behalf, of the number of offices of Chief of any kind
(other
than Principal or Ward Chief) or the area of Jurisdiction of any
Chief (other than a Prin­cipal Chief or a Ward Chief).

8

3. Each
   Chief shall have such functions as are conferred on him by this
   Constitution or by or under any other law."

   
   

Section
130(1) defined Chief as –

"Chief" does not include Motlotlehi but includes Principal
Chief, Ward Chief and Headman and any other Chief whose office
is
established by section eighty-three (1) of this Consti­tution,
and references to a Chief are references to the person who,
under the
law for the time being in force in that behalf, is recognised as
entitled to exercise the functions of the office of
that Chief;"

Schedule
2 stated the Principal and Ward Chiefs, and included as one of the
Principal Chieftainships that of 'Mamathe's, Thupa-Kubu,
Teyateyaneng
and Jordan. The second respondent is the Principal Chief of
'Mamathe's.

In terms
of Section 84 of the Constitution, the College of Chiefs was
retained, but it appears from this Section read with Section
22 that
for the time its functions were limited to those relating to the
Paramount Chieftancy and the Regency.

THE
INDEPENDENCE ACT OF 1966

The
Lesotho Independence Act of 1966 (an Act of the United Kingdom
Parliament) did not affect the position.

THE
CHIEFTAINSHIP ACT

Act No.22
of 1968 (The Chieftainship Act) dealt extensively with the office of
a Chief. Section 2(1) initially read as follows :

"Chief does not include the King but includes a Principal Chief,
a Ward Chief, and a Headman and any other Chief whose office
is
established by Section 88(1) of the Constitution and referen­ces
to a Chief or references to the person who under this Act
is entitled
to exercise the functions of the office of that Chief."

It would
appear that this reference to Section 88(1) is an error; perhaps
section 83(1) was intended. In the light of the view I
take, I
fortunately do not have to determine this Section 5(1), to which I
refer later also has that error.

9

As
Section 2(1) provided, after its amendment by the Chieftainship
(Amendment) Order 29 of 1970:

"Chief
does not include the King but includes a Principal Chief, a Ward
Chief and a Headman and any other Chief:

1. whose
   office is acknowledged by Order No. 26 of 1970; and

   
   

2. whose
   succession to an office of chief has been approved by the King
   acting in accordance with the advice of the Minister."

   
   

In terms
of an amendment in terms of Act 12 of 1984 that definition was
amended to read –

"'Chief'
does not include the King but includes a Principal Chief, a Ward
Chief, a Headman and any Chief whose –

1. Office
   is acknowedged by the offices of Chief Order 1970;

   
   

2. Succession
   to an office of Chief has been approved by the King acting in
   accordance with the advice of the Minister; or

   
   

3. hereditary
   right to the office of a Chief is recognised under customary law,
   and his succession to the office of Chief has been
   approved by the
   King acting in accordance with the advice of the Minister."

   
   

Section
5(1) (as amended by Order 29 of 1970) provided –

"No person is a Chief unless he lawfully holds an office of
Chief acknowledged by Order No. 26 of 1970 or unless his succession

to an office of Chief has been approved by the King acting in
accordance with the advice of the Minister."

That
Section too was amended by Act 12 of 1984. It now reads Section 5(1)

"No
person is a Chief unless –

1. he
   holds an office of Chief acknowledged by the offices of Chief Order
   1970;

   
   

2. his
   succession to an office of a Chief has been approved by the King
   acting in accordance with the advice of the Minister; or

   
   

10

3. he
   has a hereditary right to the office of Chief under customary law,
   and his succession to an office of Chief has been approved
   by the
   King acting in accordance with the advice of the Minister."

   
   

It too,
as it initially was published, had read:

"No person is a Chief unless he lawfully holds an office of
Chief established by Section 88(1) of the constitution".

I have
mentioned earlier my view that this reference to Section 88(1) is an
error.

Part V of
the Chieftainship Act under the Title "Lists of Holders of
Office of Chief" provides in Section 14 :

1. "Until
   such time as the Minister has, by notice in the Gazette under
   subsection (2), amended or replaced them, the following
   Notices have
   effect as giving public notice for general information of the names
   of each person who is authorised to exercise
   the powers and perform
   the duties of an office of Chief, that is to say, each High
   Commissioner's Notice and Government Notice
   in force immediately
   before the commence­ment of this Act relating to offices of
   Chief, to the extent that each such Notice
   is not inconsis­tent
   with the provisions and principles of this Act, and to the extent
   that a person to whom any such Notice
   applies has not been deprived
   accor­ding to law of the right to exercise the powers and
   perform the duties of an office of
   Chief.

   
   

2. The
   Minister may from time to time, by Notice in the Gazette, give
   public notice for general information of the names of persons
   who
   hold the office of Chief, or who are authorised to exercise the
   powers and perform the duties of the office of Chief, and
   may amend,
   revoke and replace a notice specified in subsection (1) or a notice
   made under this subsection for the purpose of
   giving public notice
   of anything affecting those offices or the holders thereof,
   including any punishment under the provisions
   of Part VI relating to
   discipline and anything done under the provisions of Part VII
   relating to the emoluments of an office
   of Chief.

   
   

3. The
   provisions of this section are in addition to, and not in derogation
   from, the other provisions of this Act, and do not affect
   any remedy
   that may exist, or may have existed at the material time, in respect
   of holding or succeeding to, or exercising the
   powers and performing
   the duties of, an office of Chief, and accordingly a Notice referred
   to in subsection (1) or made under
   sub­section (2) does not
   affect any such remedy."