HIGH COURT OF LESOTHO
DIAMOND MINES 9PTY) LTD APPLICANT
DIAMONDS (P[TY) LTD SIXTH APPLICANT
COMMISSIONER OF MINES AND
N.O. FIRST RESPONDENT
ATTORNEY GENERAL SECOND RESPONDENT
OF THE MINING BOARD THIRD RESPONDENT
OF DEEDS FOURTH RESPONDENT
by the Honourable Chief Justice Mr Justice J.L. Kheola on the 28th
This is a
counter-application by the fifth respondent (LHDA) against first and
sixth respondents for an order in the following terms:
mining lease registered under No.21044 in the Deeds Registry, in
Maseru, on 26 October, 1988, entered into between the
and Swissbourgh Diamong Mines (Pty) Limited in respect of the Ramapi
Area, void ab initio and of no force and
the entry in the register of the Registrar of Deeds, Maseru,
relating to the aforesaid mining lease;
applicants and/or first to fourth respondents to pay the costs of
this counter application only in the event that they
such further or alternative relief as the Honourable Court may deem
just and equitable.
sake of convenience, I shall adopt Mr Edeling's suggestion and refer
to the first to sixth applicants as "SDM",
respondent as "LHDA" and to the other respondents as "GOL".
counter application is based on the ground that when the Rampai lease
was granted to SDM by GOL there was non-compliance with
procedures prescribed by sections 6 and 7 of the Mining Rights Act
No.43 of 1967, as amended. For the sake of easy reference
reproduce subsections (1), (2), (3) and (4) of section 6 of the
Mining Rights Act 1967 (M.R.A.), as amended. They read
King and the Chiefs on his behalf, may in accordance with the terms
of a recommendation of the Mining
Board, and in the manner
prescribed in this Act, but not otherwise, grant mineral titles
(other than existing grants) but (subject
to subsection (5) of this
section) nothing in this section shall be construed as
fettering the discretion of the King and the Chiefs on his behalf to
refuse any grant recommended by the Mining Board.
person may apply to the King for the grant of a mineral title (other
than an existing grant). The application shall be in
shall be made in the first instance to the Minister by whom it shall
be referred to the Mining Board in order that
the latter may make
Mining Board shall consider every application so forwarded, and may
either decline to make any recommendation thereon, in
which event it
shall so inform the applicant, or may determine to recommend the
grant of a mineral title of the kind applied
for in respect of the
land and on the conditions stated in the recommendation which may
include conditions of the type referred
to in subsection (3) of
section 8 and subsection (3) of section 14. The recommendation shall
be in writing and shall be forwarded
to the Principal Chief or Ward
Chief within whose jurisdiction the land in question falls
accompanied (in the case of a recommendation
for the grant of a
prospecting lease or mining lease) by a written statement of the
recommendation for the grant of a prospecting
lease or mining lease
shall be so forwarded unless the Mining Board shall have received
from the applicant written approval of
the terms of the lease which
the recommendation proposes shall be granted.
Upon receipt of the application and the recommendation of the Mining
Board thereon the Principal Chief or Ward Chief concerned
consider them and shall consult with all those chiefs within the
area of jurisdiction of each of whom any part of the land
question falls. If upon such consultation it shall appear to the
Principal Chief or Ward Chief that a majority of those consulted
approve of the grant of the application in terms of the
recommendation he shall
grant it accordingly; but if it shall appear to him that such
majority disapprove the grant he shall then, in his discretion but
subject to subsection (5) of this section -
the application in terms of the recommendation; or
the application; or
the matter back to the Mining Board for its recommendation upon any
alterations which that Chief may propose.
the application is granted in terms of item (i) of paragraph (a),
the Principal Chief or Ward Chief concerned shall declare
accordingly to the Mining Board, which shall inform the applicant
and shall forthwith cause the relevant mineral title to be
prepared. Upon the provision by the applicant of any guarantees or
other instruments which the terms of the mineral title may
it shall be signed by or on behalf of the King and the applicant in
manner prescribed by paragraph (b) of subsection
(6) of section 24
and registered as so prescribed.
the application is refused in item (ii) of paragraph (a), the
Principal Chief or Ward Chief concerned shall declare accordingly
to the Mining Board which shall inform the applicant.
the matter is referred back in terms of item (iii) of paragraph
(a), the Mining Board shall consider the reference and, after
consultation with the applicant, either withdraw the recommendation
(which shall then lapse) or submit a revised recommendation
of which the provisions of subsection (3) and paragraphs (a), (b)
and (c) of this subsection excluding subparagraph
paragraph (a) shall again mutatis mutandis apply."
of contention between the parties is the proper interpretation of
section 6 of the M.R.A. especially after the coup d'etat
of 1970. Mr.
Edeling, counsel of SDM has submitted that the MRA of 1967 was
abolished by subsequent coups d'etat, and re-enacted
in amended form,
so as to do away with the earlier requirement of approval by the
chiefs. This submission is fully developed in
a legal opinion
prepared by Mr. Edeling as a consultant of SDM dated the 1st July,
1996. I shall deal with the legal opinion immediately
because it is
the basis of SDM's defence to the counter application.
before I do that it is important to reproduce Order No. 1 of 1970
known as The Lesotho Order 1970 and Order No.1 of 1986 known
Lesotho Order 1986. These two Orders are particularly important
because of the alleged amendment they made to the MRA 1967.
for SDM submitted that the Lesotho Order 1970 abolished or repealed
sections 6 and 7 of the MRA.
1, 2, 3 and 4 of Order 1 of 1970 reads as follows:
Order may be cited as the Lesotho Order 1970 and shall be deemed to
have come into operation immediately before the suspension
Lesotho Independence Order 1966.
Order and every legislative function performed thereunder shall have
the force of law.
this Order, unless inconsistent with the context -
"Council of Ministers" means the Council of Ministers
established by section 5 of this Order;
"existing law" means any proclamation, law, rule,
regulation, order or other instrument having effect as part of the
law of Lesotho immediately before the coming into operation of his
Order but does not include the Lesotho Independence Order 1966.
under any provision of this Order, any person or authority is
authorised or required to exercise any function after consultation
with some other person or authority, the person or authority first
referred to shall not be required to act in accordance with
advice of the other person or authority and the question whether
such consultation was made shall not be enquired into in
to the provisions of this Order all laws (other than the Lesotho
Independence Order) that were enforceable in Lesotho
before the coming into operation of this Order, shall continue to be
of full force and effect:
Provided that any such law which is inconsistent with this Order
shall, to the extent of such inconsistency, be void.
provisions of this section are without prejudice to any powers to
make provision for any matter, including the amendment or
any existing law.
existing laws shall, from the coming into operation of this Order,
be construed with such modifications, adaptations, qualifications
exceptions as may be necessary to bring them into conformity with the
provisions of this Order.
executive authority of Lesotho is, for so long as this Order remains
in force, exercised by the King in all respects in accordance
the advice of the Prime Minister.
person holding the office of Prime Minister under the Lesotho
Independence Order immediately before the coming into operation
this Order is the holder of the office of [Prime Minister] as from
the commencement of this Order.
reference in any law or notice to Tona-Kholo, or anything done or
purporting to have been done by any person holding the office
Tona-Kholo, shall be deemed to be a reference to the Prime Minister,
or to have been done by the Prime Minister, as the case
1, 2, 3 and 4 of Order of 1986 read as follows:
Order may be cited as the Lesotho Order 1986 and shall be deemed to
have come into operation on the 20th January, 1986.
this Order, unless inconsistent with the context -
"Military Council" means the Council established by Section
5 of this Order.
"Council of Ministers" means the Council of Ministers
established by Section 7 of this Order.
"Existing law" means any proclamation, law, rule,
regulation, order or other instrument having effect as
the law of Lesotho immediately before the coming into operation of
to the provisions of this Order all laws that were enforceable in
Lesotho immediately before the coming into operation
of this Order,
shall continue to be of full force and effect:
that any such law which is inconsistent with this Order shall, to the
extent of such inconsistency, be void.
and exceptions as may be necessary to bring them into conformity
with the provisions of this Order.
legislative and executive authority in Lesotho is vested in the King
and may be exercised by him either directly or through
authorities of the Government of Lesotho.
the exercise of his functions under this Order or any other law the
King shall act in accordance with the advice of the Military
Edeling submitted that Jonathan's 1970 Constitution did not recognise
the King or the Chiefs, and the effect of this revolution
abolish the Monarchy and also any legal recognition of the Chiefs. He
relies on the words of Ackerman, J.A. in the case
of Strong Thabo
Makenete v. General Justin
Lekhanya and others 1991 - 1996 (1)LLR 486 at pages 501-502 where
learned judge said:
"As already pointed out Order No. 1 of 1970 (following in the
wake of the 1970 Constitution Suspension Order) made no provision
the office of King at all and vested legislative authority in the
Council of Ministers and executive authority to all intents
purposes in the Prime Minister. The conclusion cannot be avoided
that, insofar as the Monarchy in Lesotho was concerned, the
1970 Constitution Suspension Order read with Order No. 1 of 1970, was
to make a radical break with the past and in truth
to abolish the
Monarchy. The office of King was only re-established in the Office of
King Order No. 51 of 1970 and subsequently
certain further powers
gradually reconferred on Him in the manner outlined above. The
consequence hereof is that, in order to determine
constitutional position of the King was immediately prior to the
alleged coup d'etat of the 30th January 1970. In other
words, none of
the rights, powers, prerogatives or functions of the King which
existed under and at the time of the 1966 Constitution
1970 coup d'etat, save to the extent that they were re-introduced or
re-incorporated by subsequent legislation.
In this connection reference has already been made to the fact that
the Office of King was re-introduced with effect from 20th
1970 by the Office of King Order No.51 of 1970, the King of Lesotho
re-established as Head of State, continuity being
the person who held the Office of King under the 1966 Independence
Order and that, in terms of section 12, the
King had the right to be
consulted and kept fully informed concerning matters of government.
The Office of King remained substantially
symbolic until Lesotho
Order No. 13 of 1973 came into effect. The effect, for present
purposes, of this latter order was that the
King could, on the advice
of the Prime Minister, nominate 71 members to the National Assembly
and was invested with executive authority
subject to the advice of
the Cabinet or a Minister. In terms of the Parliament Act No.5 of
1983, which repealed Lesotho Order No.13
of 1973, the King could (on
the advice of the Prime Minister) nominate 8 senators to
the Senate and a maximum of 20 members to the National Assembly,
while executive authority was vested in the King which He had
exercise in accordance with the advice of the Prime Minister. Section
41 restored the King's prerogative of mercy. All these
came to an end in consequence of the 1986 coup d'etat when the
Parliament Act of 1983 was repealed by Lesotho Order,
Lesotho (No.2) Order, 1986.
of Lesotho Order (No.2), 1986:
Executive and legislative authority in Lesotho was (by virtue of
Section 9 (1) vested in the King.
King, acting on the advice of the Chairman of the Military Council,
was empowered to appoint the other members of the Military
(Section 4(2)(b); and
King, acting on the advice of the Military Council, was likewise
empowered to appoint the other members of the Council of
virtue of section 10 the King, acting on the advice of the Military
Council, could "make laws for the peace, order and
Government of Lesotho" and "amend or repeal any law so
King was obliged, in consequence of section 9(2), to exercise his
functions under the Order or any other law "in accordance
the advice of the Military Council".
aforegoing were the only powers and authority vested in the King
after the 1986 coup d'etat save that, in terms of the Office
King Order No.51 of 1970, the King was still Head of State, entitled
to a civil list and had the right to be consulted and
informed concerning matters of government. No other prerogatives of
the King survived."
submitted that following Order 1 of 1970 neither the King nor the
his behalf had any place in the legal structure of the State and
could not exercise any executive powers, whether in regard
allocation of land or grant of interest in land, or otherwise.
submitted that it follows that insofar as the MRA provided in
sections 6 and 7 thereof that mineral titles are to be granted
"the King and the Chiefs on his behalf and that appeals were to
be heard by the King, such provisions were inconsistent
with Order 1
of 1970 which vested all executive power in the Prime Minister and
were accordingly void. Section 24 (6) which refers
to grant by Chief
or King was also void to that extent. It follows, so he submitted,
that sections 6,
7 and 24
(6) of the MRA were not re-enacted, and that the MRA 1970 has to be
construed with necessary modifications.
submitted that sections 6, 7 and 24 (6) (b) of the MRA should be
construed as follows:
"6. Mineral titles may be granted by Tona-Kholo.
24 (6) (b) .........mining leases shall, as far as
possible, be in the form set out in the
schedule to this Act and shall be signed by a signing officer
designated in writing by the Minister but subject to paragraph (d)
and shall be registered by the Registrar.
signing officer shall not sign any such document unless he has
satisfied himself from written evidence that the grant was
Edeling submitted that the procedures contemplated in sections 6 and
7 of the MRA were therefore inconsistent with the new legal
That Orders 26 and 51 of 1970 recognising the Chiefs and the King,
respectively, did not amend any other laws or "revive
old sections of the 1967 MRA. That, between 1970 and 1986, mineral
titles could only be granted by the Prime Minister.
And that after
the Lekhanya coup in 1986 the MRA was (tacitly) re-amended to provide
that mineral titles might be granted by the
King in accordance with
the advice of the Military Council.
to the above submissions Mr. Viljoen submitted that it was never
intention to abolish the Office of King with Order 1 of 1970 and that
did not occur. It does not follow from the fact that the
King is not
mentioned in Order 1 of 1970 that His office was abolished. It is
true that that is stated to be the case in the judgment
of the Court
of Appeal in Makenete v. Lekhanya and others C. of A (CIV) 17/1990.
But the remarks made in this regard were essentially
obiter to the
decision in that case and, it is submitted, not in accordance with
what actually occurred.
submitted that that it was never the intention of Leabua Jonathan to
abolish the Office of King in 1970, is apparent from the
terms of the
Regent (Assumption of Office) Notice No.8 of 1970 issued on the 7th
April, 1970. It reads as follows:
"Whereas the Constitution of Lesotho as previously in force
provided in Section 34 that the College of Chiefs might at any
designate, in accordance with the customary law of Lesotho the person
who shall be Regent, in any of the following circumstances
the holder of the office of King has not attained the age of
twenty-one years; or
the holder of that office is unable by reason of absence from
Lesotho or by reason of infirmity of body or mind to exercise
functions of that office,
whereas by Government Notice, No.58 of 1967 published in Gazette No.
16 of 26th May, 1967 the College of Chiefs designated Queen
Seeiso to be the Regent in pursuance of the provision of that
whereas the present holder of the office of King, Moshoeshoe II is to
be absent from Lesotho and will for that reason be unable
the functions of that office during the period of that absence;
therefore, I Leabua Jonathan, Tona-Kholo, hereby notify for general
information the assumption of office by Queen 'Mamohato
Regent from the time of the departure from Lesotho of King Moshoeshoe
II for the duration of that absence."
Viljoen submitted that this Notice was not drawn to the attention of
the Court of Appeal considering Makenete's Case (supra).
that it removes any vestige of doubt that the King's Office was not,
in a legal or any other sense, abolished by Order
1 of 1970.
important for the Court to consider the effect of The Regent
(Assumption of Office) Notice of 1970. In the Shorter Oxford
Dictionary, Regent is defined as:
"One who is invested with Royal authority by, or on behalf of,
another; especially one appointed to administer a kingdom during
minority, absence, or incapacity of the sovereign."
common cause that in the present case King Moshoeshoe II was to be
absent from Lesotho and would for that reason be unable
the functions of that office during the period of that absence. The
reason for his inability to exercise the functions
of his office is
stated in the Notice as being his absence
Lesotho. It is not alleged that the reason is that the office of King
has been abolished. If the monarchy had been abolished
by SDM counsel, why was a Regent necessary as the monarchy no longer
existed? There would have been no need to appoint
a Regent because
the monarchy had been abolished.
Notice clearly indicates that the monarch was to be absent from
Lesotho for an unspecified period but there was nothing to show
the office of King had been abolished. The mere fact that the King
would be absent from Lesotho does not mean that his office
abolished. In the Notice the late King Moshoeshoe II is described as
the present holder of the office of King. (my underlining).
not have been described as the present holder of the office of King
if that office had been abolished by Order 1 of 1970.
'Mamohato Seeiso was to be Regent for the duration of the absence of
the King from Lesotho. That implies that as soon as the
He would continue with his duties without any problem. If his office
had been abolished the words "for the duration
of that absence"
would be meaningless. Their actual meaning is that the King retained
His office after Order 1 of 1970 and
was only to be absent from
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