CIV/APN/296/86

IN THE HIGH COURT OF LESOTHO

In the matter of:

NAPO MAJARA - Applicant

vs

DISCIPLINARY COMMITTEE - 1st Respondent

MINISTER OF INTERIOR - 2nd Respondent

ATTORNEY GENERAL - 3rd Respondent

JUDGMENT

Delivered by The Hon. Acting Mr. Justice M.L. Lehohla on the 7th day of August, 1987

The matter was argued before me on 6th August 1987.

In his notice of motion applicant seeks orders from this Court in the following form:-

1. Review of the proceedings of the 22nd August, 1986 before the first Respondent and the setting aside of the decision reached thereat wherein applicant's powers and duties (as a chief) were suspended.

2. Granting the applicant such further or alternative relief as may be deemed fit (by this Court).

3. Directing the Respondents to pay the costs of the application only in the event of them opposing the application.

The application is opposed and the affidavit of 1st respondent's Chairman,Chief Potsane Thabo Letsie has been solely relied upon by respondents in support of their opposition.

2

In his founding affidavit the applicant Napo Majara avers that he is the Gazetted Chief of Sekamaneng in the District of Berea where he is subordinate to the Principal Chief of Berea Ha Majara. He supported the central point of his averment in this regard by attaching Annexure "A" to his papers. Annexure "A" is a Lesotho Government Gazette No.49 of 1983 wherein under Notice 113 applicant's name is reflected showing that under the title "Chief" he is in charge of the "Area" Sekamaneng and is "subordinate to" the "Principal Chief of Majara's."

In paragraph 3 applicant avers that during August 1986 he was served with a summons in terms of Section 17(J) of Chieftainship Act No.22 of 1968 hereinafter referred to as the Act. A copy of the translated version of this summons is attached and for convenience I will refer to it as Annexure B1 while the Sesotho version is Annexure B. To these documents is attached Annexure C being a copy of a charge sheet from the Magistrate's Court Berea under Criminal Case No. C.R.183/84 of that court. Annexure "D" is the translated version of the decision by 1st respondent.

In paragraph 5 applicant avers that 1st respondent convicted him and sentenced him in terms of Section 26(1) of the Act to a deprivation of the exercise of his chiefly powers for five years. A closer look at Section 26(1) shows that this Section is meant to penalise people who pretend or hold themselves as chiefs when in actual fact they are not. It thus appears that after being charged and convicted under Section 17(j) which stipulates that:

3

" a chief is guilty of a disciplinary offence and liable to the deprivation ....... in Section 18 (amended to read 16 by Section 8(1) of Order 29/72) if he has been found guilty of a criminal offence whether or not the Court has made a recommendation under Section 37(5)"

applicant was warned of consequences that might befall him in terms of Section 26(1) if during the period of the de­privation he purported to act as chief.

In terms of Section 18(1) as amended "when the Disciplinary Committee has made a finding in terms of Section 16(8) or 16(9) ........the Disciplinary Committee may" deal with the matter (under 18(2) as amended by Order 29/72) which provides: "whenever a Disciplinary Committee has deprived a chief of all........... the powers and duties of his office for a specified period, the Minister may from time to time extend that period........ if during that period the chief concerned has behaved in a manner that is prejudicial to ......the dignity, status and reputation of that office ........"

Applicant further avers that provisions of Section 16 (1) (2) and (3) have not been complied with. Taken Seriatim they read:

1. whenever a complaint is made to the secretary of the Disciplinary Committee or it otherwise comes to his notice that a Chief may be guilty of an act or omission that constitutes a disciplinary offence under Section 17 of the Act, he shall forthwith investigate the matter and take or cause to be taken statements in writing from all material witnesses.

4

2. During the course of his investigation the Chief against whom an allegation pursuant to the provisions of Section 17 is made, of such allegation and at the same time bring to his notice that he is not obliged to reply thereto but that if he wishes to reply such reply shall be in writing and that it may be used to determine whether disciplinary proceedings shall be instituted against him, and shall be admissible in evidence against him.

3. The secretary shall, within seven days of completing his investigation, submit all the papers to the Attorney-General, together with a recommendation as to whether disciplinary proceedings should be instituted or not."

Applicant complains that no such investigation as set out above was made and goes further to aver that had such in­vestigation been made it would have been borne out in the decision of 1st respondent given on 22nd August, 1986. It is significant that respondents have made no attempt to gainsay this vehement charge against their case.

In paragraph 6.2 applicant further avers that provisions of Section 16(4) have not. been complied with, and lays stress on the fact that the requirement to comply with subsection (4) above is very important in that it is a condition precedent to any contemplated disciplinary proceedings; and charges that had this been done it would have been borne out also in the decision referred to above. Subsection (4) reads

" If the Attorney-General does not decide to institute criminal proceedings against the Chief, he shall return the papers to the secretary of the Disciplinary Committee."

Subsection (5) sets out procedures which then will follow

5

to bring the matter to a final hearing once the conditions in the previous subsections of Section 16 have been complied with.

In paragraph 6.3 applicant avers that in as much as Section 17(J) has to be read with 37(5) the Court has not made a recommendation and that the 1st respondent was wrong to have arrogated to itself the right to seize the proceedings and determine the issues to a finality there in. The finding of guilt shall be concommitant with the recommendation and such recommendation shall be conclusive as to further action deemed necessary to be taken by 1st respondent.

The wording of the relevant portion of Section 37(5) is in (b) reading:-

" In addition to imposing a penalty under this Section..... ...... a court convicting ..........may recommend to the person or body having power and authority in that regard, that the person convicted be deprived of his office or of the right to exercise the functions of an office of the Chief..................."

It would seem therefore that the substition by amendment of the words "whether or not" for the words "and" by operation of Section 8(2) of Order 29/72 in paragraph 17(j) disposes of the need for the Court to make a recommendation hence the submission by 1st respondent in paragraph 6.3 is well founded. It reads ........ "the law as amended, which applicant is presumed to know, disposes of a need by the Court to make a recommendation, and further (it is submitted) in applicant's case the amended law as aforesaid applied." To the extent that applicant's case rests on his contention that a recommendation is necessary it would seem he was labouring under a misapprehension.

6

But this is not the end of the matter. In reply to applicant's charge that first respondent proceeded in the matter on the basis of the court having found him guilty of culpable homicide whereas applicant was convicted of assault with intent to do grievous bodily harm 1st respondent con­tended itself with, according to its chairman's answering affidavit, a bare denial; and proceeds to say that despite an apparent mistake in the charge sheet, the trial was con­ducted in a fair manner and applicant was afforded a fair hearing. I do not know what apparent mistake is being re­ferred to in the charge sheet. It was never drawn to my attention. However a matter that respondents seem to have overlooked and which applicant legitimately complains of appears clearly in Annexure "B" page two of the Disciplinary Committee's Charge Sheet. It reads:

" You, Chief Napo Majara ........ are charged with contravening Section 17(j) of Chieftainship Act No. 22/68 in that on the 19th July, 1984.........you were found guilty of a criminal offence of having killed one Sealemetse Koloko without intention by the Court of the Magistrate.................. and therefore contravened the provisions of the mentioned law."

Following on the above charge was returned a verdict of guilty as charged; the actual wording is on page 3 of Annexure "D" the Disciplinary Committee's decision and is as follows:-

" Accused is found guilty under the Chieftainship disciplinary laws as charged against him."

7

Surely there can be no room for conjecture with regard to what the charge alleged i.e. contravention of Section 17(J) but I am under no misapprehension that the sentence of 5 years without discharging any Chiefly functions flowed from the consideration that applicant had killed a person as against the consideration that he had assaulted him. I came to this conclusion as a result of the Crown's failure to give sub­stantial reasons why the sentence imposed was so severe. Truly there is no gainsaying the fact that culpable homicide is a more serious offence than assault in all its categories.

In contrast to the verdict considered by the Disciplinary Committee is the verdict reached by the subordinate court that the accused was found guilty of "assault with intent to do grievous bodily harm" though charged with culpable homicide. See Annexure "C" to applicant's papers.

It is important to note that Section 16(1)(2)(3) lays down the procedure to be followed before the actual hearing by the Disciplinary Committee can be embarked upon. I find nothing in the statute that condones a departure from that procedure set. It may appear superfluous that after a court of law i.e. the subordinate court has reached a decision on the matter the proceedings should once more be referred to the Attorney-General for purposes of complying with 16(4) but as the maxim goes 'superflua non nocent' - superfluties hurt not. Moreover there is merit in the consideration that the best interpreter of the statute is the statute itself. Nothing in the statute as it stands absolves one of the necessity to act in terms of Section 16 once a conviction has been secured in terms of Section 17(J). It would be only where an exception is made authorising a departure from provisions of Section 16 or where interpretation of Section 17(j) when made to accord

8

with Section 16 leads to either illusory judgment or absurd results that such a course should be followed.

As the law stands it seems to me that it is essential in all circumstances to follow provisions of Section 16 as for instance under its subsection 2 is preserved the audi alteram partem rule. Furthermore it appears under subsection (3) and (4) that it is of vital importance to refer the papers to the Attorney General and await his action for the condition precedent to the Committee exercising its powers seems to reside in the Attorney General, Consequently if the Committee cannot exercise its powers unless the condition residing in the Attorney General is met, then it means the exercise of such power notwithstanding the fact that the condition has not been met lacks the necessary sanction and therefore irregular. Power should follow justice not, precede it. A rule of justice lays down that a condition precedent must be fulfilled before the effect can follow. Co-Litt.201.

1 need hardly emphasise that it is only in doubtful matters that, such an interpretation is to be made that inconvenience and absurdity may be avoided. Otherwise as amply shown under Section 16 the words of the law are very clear therefore there should be no departure from them for the meaning of the Legislature gathered from those words cannot be so well explained as by its own direct words, since index animi sermo (language conveys the intention of the mind) and maledicta expositio quae corrumpit textum (an exposition which corrupts the text is bad). Moreover a departure from the law makes one wander and all things become uncertain to everybody. It would be rash to allow one absurdity, because what would follow is an infinity.

9

Mr. Mohapi for the respondents in argument raised the issue that the applicant has not supplied the Court with the record of proceedings. While indeed it would have been beneficial to the Court and at least one of the Counsel to have had the record it serves no useful purpose to raise this matter at this stage when ample time existed when the matter could have properly been held in issue against the applicant. One does not know; perhaps in it might be discovered things favourable to the Crown. If applicant in considering the record decided to leave it out because of the edge it would provide the Crown with against him, so be it, for no one is bound to arm his adversary against himself.

Having considered as many issues raised in this matter as I could I find that proceedings before the Disciplinary Committee were irregular as the role of the Attorney-General was side-stepped in embarking upon them. Hence they are quashed. It is worth being borne in mind as a general rule that the good of a respondent arises from a perfect case; his harm from any defect whatsoever. Only two thirds of applicant's costs are awarded against respondents on account of the latter's partial success indicated earlier in this judgment.

M. L. LEHOHLA

ACTING JUDGE

7th August, 1987

For the Applicant : Mr. Monaphathi

For the Respondents : Mr. Mohapi