1
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
2
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.
3
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.
4
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
5
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
6
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.
7
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,
The Crown;
any member of the Military Council acting in his official capacity;
any member of the Council of Ministers acting in his official capacity;
the Attorney-General;
any person employed in the public service;
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.
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
8
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
9
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
