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CIV\APN\35\92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

KAN-YUEN
TSANG 1st Applicant

LAN-SIM
LAM 2nd Applicant

TZE-TIN
TSANG 3rd Applicant

TZE-KIN
TSANG. 4th Applicant

KAR-WAI
TSANG 5th Applicant

and

MINISTER
OF FOREIGN AFFAIRS 1st Respondent

MINISTER
OF INTERIOR CHIEFTAINSHIP

AFFAIRS
2nd Respondent

ATTORNEY-GENERAL
OF LESOTHO 3rd Respondent

JUDGEMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 25th day of
February. 1992

On the
3rd December, 1991 the Ministry of Foreign Affairs of the Kingdom of
Lesotho issued a Note No.36 advising all Diplomatic
Missions,
Consulates and Trade Missions accredited to Lesotho that certain
Lesotho International Passports had been cancelled and
declared
invalid with immediate effect. A list was attached to show the
numbers of such passports. It is now common cause that
the
applicants' Lesotho International passports were included in that
list.

At the
time the applicants' passports were cancelled they

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were
visiting Hong Kong. They had been given permission to stay in Hong
Kong until the 19th January, 1992. As a result of the cancellation
of
the applicants' passports by the First Respondent, the Director of
Immigration of Hong Kong informed the first applicant that
because
his and his family's passports had been declared invalid and
cancelled they had to leave Hong Kong on or before the 19th
January,
1992.

The
applicants launched this application seeking an order declaring that
the first respondent's notice of revocation of the applicants'

Lesotho International Passports is ultra vires, ordering the first
respondent forthwith to notify in writing all persons to whom
notice
of the revocation as aforesaid of the applicants' passports was
forwarded including, without limitation, the passport and
immigration
officials of Hong Kong, the Republic of South Africa and of the
Kingdom of Lesotho, of the reinstatement of such passports;
the first
and second respondents were called upon to show cause why the
purported revocation of the applicants' Lesotho passports
should not
be reviewed, corrected, set aside and declared invalid in terms of
Rule 50.

On the
4th February, 1992 Mr. Sapire, for applicants and Mr. Tampi, for
respondents appeared before me and by agreement the matter
was
postponed to the 12th February, 1992.

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Again on
the 12th February, 1992 Mr. Sapire and Mr. Tampi appeared before me.
This time Mr. Tampi asked for postponement on the
ground that the
Military Council had already passed legislation which cancelled the
applicants' passports. He pointed out that
the legislation had a
retrospective effect from the 1st December, 1992. He provided the
Court with a copy of the legislation and
pointed out that the
legislation had not yet been published in a Lesotho Government
Gazette in terms of section 13 (2) of the National
Constituent
Assembly Order, 1990 which provides -

"All laws made by the Military Council shall be styled "Orders"
and shall be signed by the chairman who shall cause
them to be
published in the Gazette."

Mr. Tampi
submitted that the legislation had already been submitted to the
Government Printer for publication in a Gazette.

Mr.
Sapire submitted that the aforesaid legislation was not the law of
this country because it had not been published in a Gazette.
He
further submitted that Note No.36 issued by the first respondent is
invalid because passport matters are the responsibility
of the
Ministry of the Interior.

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I checked
the legislation and found that it had been signed by the Chairman of
the Military Council and Council of Ministers.

The
preamble reads as follows:

"WHEREAS the persons specified in the Schedule hereto have been
granted Lesotho Citizenship and issued with Lesotho passports;

AND WHEREAS the said granting of Lesotho citizenship and issuing of
Lesotho passports were unlawful, fradulent, irregular and against
the
public interest of Lesotho;

NOWTHEREFORE be it enacted as follows BY THE MILITARY COUNCIL,"

According
to the preamble the issue of the applicants' Lesotho passports was
not done according to the law of this country. There
was an
allegation of fraud and irregularity and that the issue was against
the interest of Lesotho. I came Co the conclusion that
it would be
unreasonable to ignore such serious allegations of corruption. In any
event I had a piece of legislation before me
which had already been
passed by the Military Council and which was already in the hands of
the Government Printer for publication.

I agree
with Mr. Sapire that the legislation was not yet law of the Kingdom
of Lesotho but I do not agree with him

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that,
despite the serious allegations of corruption made by the legislation
which was before me, I had to ignore it and refuse the
application.
After all this was merely an application for postponement and not for
the dismissal of the application.

Mr.
Sapire's second submission that Note No.36 issued by the first
respondent is also untenable because there is nothing in it to
show
that the cancellation of the applicants' Lesotho passports was done
by the first respondent. Note 36 merely informs the diplomatic

missions, consulates and trade representatives accredited to Lesotho
of the cancellation of certain passports. I do not think that
matters
of this nature can be communicated to foreign embassies by the
Ministry of Interior.

I granted
the postponement to the 17th February, 1992 and extended the rule to
that date. The respondents were ordered to pay the
costs of the day.

On the
17th February, 1992 Mr. Tampi handed in a Lesotho Government Gazette
Extraordinary No.11 dated the 11th February, 1992 which
contained an
order named Revocation of Specified Citizenship and Cancellation of
Passports Order No.3 of 1992. It is clear from
the Gazette that on
the 12th February, 1992 when an application for postponement was made

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and
granted by the Court, the law had been published in the Gazette on
the previous day, i.e. 11th February, 1992. Mr. Sapire and
Mr. Tampi
as well as the Court were not aware of this development. Our not
being aware that Che order was published in the Gazette
on the 11th
February, 1992 does not affect the publication and operation of the
Order. It was deemed to have come into operation
on the 1st December,
1991 (section 1 of Order 3 of 1992).

On the
17th February, 1992 Mr. Sapire did not appear to argue the matter but
his instructing attorney, Mr. Molete, appeared. He
submitted that
because the Court had granted the respondents a postponement, they
had decided to argue the matter on appeal. He
however submitted that
the legislation was unconstitutional inasmuch as it took away
peoples' rights and that the Military Council
had no power to pass
legislation to that effect.

In his
submission Mr. Tampi referred to section 12 of the National
Constituent' Assembly Order No.4 of 1990 which provides that
'the
legislative authority in Lesotho is vested in the Military Council.'
I have already quoted above section 13 (2) of the same
Order which
provides that the Chairman shall sign such Orders and cause them to
be published in the Gazette.

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Section 4
of Order No.3 of 1992 reads as follows:

(l)Notwithstanding
any other law, no action or other proceedings whatsoever, whether
civil or criminal shall be instituted in any
court of law against,

1. The
   Crown;

   
   

2. any
   member of the Military Council acting in his official capacity;

   
   

3. any
   member of the Council of Ministers acting in his official capacity;

   
   

4. the
   Attorney-General;

   
   

5. any
   person employed in the public service;

   
   

6. any
   other person acting under the authority of a person so holding
   office or so employed as aforesaid,

   
   

for or on
account of, or in respect of any act whatsoever, matter or thing done
or purported to be done in connection with or related
to the granting
or revocation of citizenship or the issuing or cancellation of
Lesotho passports.

2. If
   any such proceedings have been instituted whether before or after
   the passing of this order, they shall forthwith by operation
   of this
   Order, be discharged and made void and no order for coats shall be
   made against the Crown or persons specified in subsection
   (1)."

   
   

This
section settles this matter. The application shall have to be
discharged and made void and no order of costs shall be made
against
the respondents.

With
regard to parliamentary sovereignty Mr. Tampi referred me to a number
of authorities. Halsbury, 3rd edition

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Volume 7
- para. 406 provides -

"The powers of the Crown when acting in association with
Parliament are unlimited. The Crown in Parliament is sovereign power

in the state."

It is for this reason that there is no law which the Crown in
Parliament cannot make or unmake, whether relating to the
construction
or otherwise.

In
Collins v. Minister of Interior, 1957 (1) S.A. 552 at p. 565 it was
held that if a legislative authority has plenary powers to
legislate
on a particular matter, no question can arise as to the validity of
any legislation on that matter.

In
Mortensen v. Peters (1906) 8 F. (Justiciary Cases) 93 Lord Justice -
General (Lord Dunedin) said:

"I apprehend that the question is one of construction, and of
construction only. In this Court we have nothing to do with
the
question of whether the Legislature has or has not done what foreign
powers may consider a usurpation in a question

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with them. Neither are we a tribunal sitting to decide whether an Act
of the Legislature is . ultra vires as in contravention of
generally
acknowledged principles of international law. For us an Act of
Parliament duly passed by Lords and Commons and assented
to by the
King, is supreme, and we are bound to give effect to its terms."

The law
of Lesotho is the same as the law of England and Republic of South
Africa. An Act of Parliament is supreme. Once it has
been properly
passed by the Military Council the courts must give effect to it. In
the present case the Revocation of Specified
Citizenship and
Cancellation of Passports Order No.3 of 1992 has been properly passed
by Military Council which is the legislative
authority in this
country. Our courts are bound to give effect to its terms. If the
Order violates some principles of International
Law, such as forcing
people to become stateless, that should not be the concern of this
Court.

In the
result the rule is discharged and there is no order as to costs.

J.L.
KHEOLA

JUDGE

10

25th
February, 1992.

For
Applicants - Mr. Sapire

For
Respondents - Mr. Tampi