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