HIGH COURT OF LESOTHO
DIAMOND MINES 9PTY) LTD APPLICANT
DIAMONDS (P[TY) LTD SIXTH APPLICANT
COMMISSIONER OF MINES AND
NO. 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. Kheolaon 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
(I) ........................The 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
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.
(4) (a) Upon receipt of the application and the recommendation of the
Mining Board thereon the Principal Chief or Ward Chief concerned
shall 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
accordingly; but if it shall appear to him that such majority
disapprove the grant he shall then, in his discretion but
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 1stJuly,
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.l 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:
This Order may be cited as the Lesotho Order 1970 and shall be
deemed to have come into operation immediately before the suspension
of the Lesotho Independence Order 1966.
Order and every legislative function performed thereunder shall have
the force of law.
2. (1) In
this Order, unless inconsistent with the context -
of Ministers" means the Council of Ministers established by
section 5 of this Order;
law" means any proclamation, law, rule, regulation, order or
other instrument having effect as part of the law
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 any
Subject to the provisions of this Order all laws (other than the
Lesotho Independence Order) 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.
provisions ofthis section are without prejudice to any powers to make
provision for any matter, including the amendment
or repeal of any
existing laws shall, from the coming into operation of this Order, be
construed with such modifications, adaptations, qualifications
as may be necessary to bring them into conformity with the provisions
of this Order.
4. (1) The executive authority of Lesotho is, for so long as
this Order remains in force, exercised by the King in all respects in
accordance with the advice of the Prime Minister.
(2) The 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.
(3) Any reference in any law or notice to Tona-Kholo, or anything
done or purporting to have been done by any person holding the
of Tona-Kholo, shall be deemed to be a reference to the Prime
Minister, or to have been done by the Prime Minister, as the
Section 1,2,3 and 4 of Order of 1986 read as follows:
1. (i) This Order may be cited as the Lesotho Order 1986 and shall be
deemed to have come into operation on the 20th January, 1986.
(ii) This Order and every legislative function performed thereunder
shall have the force of law.
2. In 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
part of the law of Lesotho immediately before the coming into
operation of this Order.
Subject 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:
Provided that any such law which is inconsistent with this Order
shall, to the extent of such inconsistency, be void.
(ii) The provisions of this section are without prejudice to any
powers to make provision for any matter, including the amendment
repeal of any existing law.
(iii) The existing laws shall, from the coming into operation of this
Order, be construed with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring them into
conformity with the provisions of this Order.
4. (i) The legislative and executive authority in Lesotho is vested
in the King and may be exercised by him either directly or
officers or authorities of the Government of Lesotho.
(ii) In the exercise of his functions under this Order or any other
law the King shall act in accordance with the advice of the
Mr. Edeling submitted that Jonathan's 1970 Constitution did not
recognise the King or the Chiefs, and the effect of this revolution
was to abolish the Monarchy and also any legal recognition of the
Chiefs. He relies on the words of Ackerman, J.A. in the case
Strong Thabo Makenete v. General Justin
Lekhanya and others 1991 -1996 (1) LLR486 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
November 1970 by the Office of King Order No.51 of 1970, the King of
Lesotho re-established as Head of State, continuity being
with 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
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
Senate and a maximum of 20 members to the National Assembly, while
executive authority was vested in the King which He had to
in accordance with the advice of the Prime Minister. Section 41
restored the King's prerogative of mercy. All these provisions
to an end in consequence of the 1986 coup d'etat when the Parliament
Act of 1983 was repealed by Lesotho Order, 1986 and Lesotho
of Lesotho Order (No.2), 1986:
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:
titles may be granted by Tona-Kholo.
(b) .........mining leases shall, as far as possible, be in the form
set out in the
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 13
the 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. He 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)NoticeNo.8 of 1970 issued
on the 7th April, 1970. It reads as
"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
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
'Mamohato Seeiso to be the Regent in pursuance of the provision of
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
nothing in Order 1 of 1970 or in the Regent (Assumption of Office)
1970 that the King's Civil List was ever suspended while he was
absent from Lesotho. He obviously continued to be entitled
Civil List. The Government could not continue to pay a person who was
no longer the King of Lesotho if the monarchy had
Section 36(1) of the Constitution of Lesotho 1966 provides that the
King shall have such Civil List as may be provided
by Parliament and
that Civil List shall be a charge upon the Consolidated Fund and
shall not be reduced during the King's continuance
It is for
this reason that I am of the view that King Moshoeshoe II continued
to be entitled to the Civil List because he was never
did he abdicate.
repeat that if the office of King had been abolished by Order 1 of
1970 the concept of Regency would have disappeared with
of the monarchy. The mere fact that Chief Jonathan seized executive
powers of the King by Order 1 of 1970 does not
necessarily mean that
Lesotho became a republic. It remained a kingdom and the Regent
exercised the powers of the King. No one
ever regarded Lesotho as the
Republic of Lesotho during the absence of the King.
Palace remained the home of Queen 'Mamohato as the Regent.
Magesty has another Palace (home) at Matsieng. If the monarchy had
she would have had no right to live at the Royal Palace in Maseru.
She performed all the ceremonial functions of the King,
receiving ambassadors accredited to Lesotho by other countries. She
was for all intents and purposes the Head of State
on behalf of her
husband who was absent from Lesotho.
intention of Chief Jonathan was to abolish the monarchy why did he
not say so in no uncertain terms in Order 1 of 1970. In
1990 when the
Military Council removed the late King Moshoeshoe II from the office
of King they clearly said so in section 21 of
the office of King
Order No. 14 of 1990 which reads as follows:
"Notwithstanding the provisions of sections 4, 5 and 6, the
person holding the office of King immediately before coming into
operation of this Order shall cease to be King and Head of State on
the coming into operation of this Order."
view that I take Chief Jonathan never intended to dethrone the late
King Moshoeshoe II by Order 1 of 1970 nor did he intent
the monarchy. Even at that time when the late King Moshoeshoe II was
dethroned the monarchy was not abolished.
with the submission that the remark made by Ackerman, J.A. in
Makenete's case-supra - was orbiter and not binding on this
whether the Monarchy was abolished by Order 1 of 1970.
common cause that customary law is still part of our law as it was in
1970 when Order 1 of 1970 was passed. This view is supported
section 33(1) of the 1966 Constitution of Lesotho which reads as
"The College of Chiefs may at any time designate, in accordance
with the customary law of Lesotho, the person (or the persons,
order of prior right) who are entitled to succeed to the office of
King upon the death or abdication of the holder of that office;
if, upon the death or abdication of the holder of the office of King,
there is a person who has previously been designated
in pursuance of
this section and who is capable under the customary law of Lesotho of
succeeding to that office, that person (or,
if there is more than one
such person, that one of them has been designated as having the first
right to succeed to the office)
shall become King."
designation of the person who has to be King is made by the College
of Chiefs in accordance with the customary law of Lesotho.
Order 1 of 1970 specifically referred to the customary law and that
the office of King was abolished even under that law,
continued to exist and the King remained as
State under that law.
32.(2) and (3) of the Constitution of Lesotho 1966 provide that
King shall do all things that belong to his office in accordance
with the provisions of this Constitution and of all
other laws for
the time being in force. (My underlining)
person holding the office of Paramount Chief (styled Motlotlehi)
under Basotholand Order 1965 immediately before coming into
operation of this Constitution is hereby recognised and confirmed as
the holder of the office of King as from the commencement
underlined above clearly include customary law. The office of
Paramount Chief was a customary position which was recognised
confirmed by the Constitution, I entirely agree with what Cullinan,
C.J. said in Mokotso and others v. H M. King Moshoeshoe
II and others
1989 L.R.C. (Const.) 24 at p52 when he said:
my view that definition excludes customary law. I am confirmed in
that view by the definition which replace that above,
in s.3 of the
Interpretation Act 1977, wherein 'the customary law of Lesotho and
unwritten rule of law' is specifically included. The latter
definition repeats verbatim that contained in s. 139 (1) of the
Indeed the term 'existing law' is given a definition
under s.45 (5) of the Lesotho Independence Order 1966, which
includes 'the customary law of Basutoland and any other
unwritten rule of law'.
As I see it therefore, s.3 of the Lesotho Order 1970 did not
contemplate customary law. In the absence of any specific reference
thereto, the reality of the situation was that such law continued to
apply, as it had done from time immemorial. That being the
office of King continued to be recognised at customary law, as did
His Majesty King Moshoeshoe II as King of Lesotho.
The purpose of the Office of King Order 1970 was no doubt to repeal
and replace the relevant constitutional provisions and indeed
provisions. In view of the additional provisions previously referred
to, I do not see that the order could have been made retrospective
30 January, 1990. In any event, in my judgment the office of King
continued to exist, both under statutory and customary law,
break from 4 October 1966. Further, as the office had continued to
exist, the constitutional recognition and confirmation
of the holder
of the office continued also to be valid, again both under statutory
and customary law, which recognition was but
repeated in legal notice
No. 8 of 1970. In my judgment therefore, His Majesty King Moshoeshoe
II has continued to hold the office
of King of Lesotho without break
from 4 October 1966.
During the years 1970 and 1971 a number of orders were made which
made provision in areas previously covered by the Constitution.
addition to those already mentioned, the Council of Ministers made
for example the Public Service Order 1970 (No.21), which,
inter alia, established a Public Service Commission, but not a
Judicial Service Commission (and revoked the rules made in 1969
that commission), the Lesotho Citizenship Order 1971 (No.16), and
the Ministers of State Order 1971 (No.34), which latter order
provided that the King, 'acting in accordance with the advice of the
Prime Minister', might appoint and remove ministers of state."
in the above judgment at pages 49-50 the learned Chief Justice said:
"One significant aspect of the Lesotho Order 1970, the
Constitution having been suspended, is that it made no provision for
the office of King. Despite this, on 7 April 1970 Tona-Kholo issued a
legal notice (No.8 of 1970) which stated that Her Majesty
'Mamohato Seeiso, having been designated as Regent on 26 May 1967
under s 34 of the Constitution 'as previously in force',
the office of Regent during the absence of 'the present holder of the
Office of King,
II', who is to be absent from Lesotho.
On 8 May
1970 the Court of Appeal and High Court Order 1970 (NO. 17) was made.
It established a Court of Appeal and High Court but
transitional provision that the corresponding courts in existence on
29 January 1970 should be the Court of Appeal
and High Court for the
purposes of the order. In particular the order provided that judges
would be appointed by the King 'acting
in accordance with the advice
of Tona-Kholo'. On 5 June 1970 the Lesotho Order 1970 was amended (by
Order No 28 of 1970) to provide
that the executive authority of
Lesotho was to be exercised by the Regent; further, a provision was
added whereby laws passed by
the Council of Ministers would require
the assent of the Regent: both functions were to be exercised 'in all
respects in accordance
with the advice of Tona-Kholo'.
On 3 July
there was published the Chieftainship
(Amendment) Order 1970 (no.29): its provisions referred a number of
times to 'the King', whose approval was required for the succession
to any office of Chief. Some ten months after the suspension of the
Constitution, on 20 November 1970, the Office of King Order
(No.51 of 1970) was made by the Council of Ministers. It provided
that 'there shall be a King of Lesotho who shall be the
State'. In particular, s 2(3) read thus:
'The person who held the office of King under the Lesotho
Independence Order 1966 shall, immediately upon having made and
to the oath of office prescribed in the Schedule to this
Order, be recognised and confirmed as the holder of the office of
as from the commencement of this Order'."
references to the King in Legal Notice 8 of 1970, Order 29 of 1970
51 of 1970 clearly indicate that Chief Jonathan and legal advisers
never thought that the office of King was abolished
by Order 1 of
1970. If they had thought so they would have never said that certain
functions would be done by the King acting in
accordance with the
advice of Tona-Kholo. Being the people who drafted Order 1 of 1970
they ought to have known better. However
in actual fact they were
sometimes confused and were under the impression that the office of
King had been abolished because it
was not mentioned in Order 1 of
1970. That was incorrect. The appointment of a Regent to perform
certain functions on behalf of
the King is proof that the monarchy
was not abolished. The King was to be absent from Lesotho for an
unspecified period. His Majesty's
absence from Lesotho did not amount
to the abolition of his office or abdication.
Edeling submitted that because the executive authority referred to in
the 1966 Constitution, the King was replaced in Order
1 of 1970 by
the Prime Minister, those provisions of the Mineral Rights Act which
stipulated that mineral titles were to be granted
by the King and the
Chiefs on his behalf fell away because:
"The grant of mineral titles is an executive act of government,
which could henceforth therefore only be performed by the
Minister in whom all executive powers vested under Order 1 of 1970."
Viljoen submitted that the executive functions of government are
carried out by a legion of functionaries, properly authorised
so, - apart from those officials who are in the upper echelons of
government, such as the Prime Minister and his cabinet.
such functions entails a myriad of tasks involved in the
administration of a country. Apart from common sense, so
submitted, this follows from the meaning of the word "executive".
Executive - Pertaining to execution: having the function of
executing; esp, as concerned with carrying out the laws, decrees and
judicial sentences: as opposed to "judicial" and
"legislative" B.1 That branch of the government which is
charged with the execution of laws." (Shorter Oxford English
submitted that on the face of it, therefore to suggest that all
executive functions would, after the 1970 coup, be carried out
Prime Minister is absurd. Reference to the 1966 Constitution
Chapter VII headed "The Executive", the following is said
(after vesting authority in the King):
(2) Nothing in this section shall prevent Parliament from conferring
functions on persons or authorities other than the
done by Parliament in a number of Acts. For instance:-
Liquor (Amendment) Act 1969 - Board
Casino Act 26/1969 - Board
Industrial Licencing Act 26/1969 - Board
Deed Registry Act 1967 – Registrar
Employment Act 1967 - Labour Officer.
following sections of the 1966 Constitution also provide for
executive functionaries S.72 (2), S.73 (1) S.78, S.80, S.81, S.82,
S.83, S.84 and S.87.
important to consider these submissions and to make a decision. It is
correct that the work of executing the laws of a country
is done by
numerous functionaries other than the King, the Prime Minister and
the Cabinet. In fact most of the executive functions
are done by the
executive functionaries who are fairly
the hierarchy of the executive. The five acts mentioned above are
only a few examples. There are numerous Acts of Parliament
the executive functions to many other persons and bodies other than
the King, the Prime Minister and the Cabinet. For
Criminal Procedure and Evidence Proclamation of 1938 (now Criminal
Procedure and Evidence Act of 1981) which gives
executive powers to the Director of Public Prosecutions. In the
exercise of his discretion the Director of Public
independent and does not get orders or directives from anybody.
to me that the executive functions referred to in Order 1 of 1970 was
only in regard to the upper echelons of government
in the execution
of particular acts. Such acts do not include allocation of land or
grants of rights in land which is a function
of the King and Chiefs
under customary law. That these rights are derived from the customary
law and not from their executive functions
is confirmed by section 93
(1)(2) of the 1966 Constitution which reads as follows:
The power to allocate land that is vested in the Basotho Nation, to
make grants of interests or rights in or over such
land, to revoke
or derogate from any allocation or grant that has been made or
otherwise to terminate or restrict any interest
or right that has
been granted is vested in the King in trust for the Basotho Nation.
power that is vested in the King by subsection (1)
section shall be exercised by him and, on his behalf, by the Chiefs
in accordance with the provisions of this Constitution
and any other
law and the King and the Chiefs shall, in relation to the exercise
of that power, be subject to such duties and
have such further powers
as may be imposed or conferred on them by this
or any other law.
is defined in section 139 of the 1966 Constitution as including "the
customary law of Lesotho and any other
unwritten rule of law".
"Any other law" in subsection (2) refers to customary law.
already said earlier in this judgment that the office of King
survived the 1970 coup. This finding is obviously in direct
with section 2 of The Office of King 1970 which purported to
recognise and to confirm the late King Moshoeshoe II as the
the office of King as from the commencement of this Order. (My
underlining). The underlined words can give the impression
was only from the commencement of the Order that the office of King
was created. To recognise is to know again or to identify
The lawmaker was under the impression that Order 1 of 1970 had
abolished the office of King and that was the reason
why it was felt
that office had to be recognised and be confirmed. It seems to me
that as far as the recognition and confirmation
of the office of King
was concerned was redundant. The Order was probably necessary for
other purposes mentioned from section 3
to the end of the Order.
Offices of Chief Order 1970 was also enacted under the same wrong
impression that the existence of the chiefs or the chieftainship
1968 was inconsistent with Order I of 1970. The Order was given
retrospective effect from the 29th January, 1970 when Order
1 of 1970
was passed. I am of the view that it was also redundant. The
Chieftainship Act of 1968 was not inconsistent with Order
1 of 1970.
Even the amendments which were made to the Chieftainship Act by Order
No.29 of 1972 had nothing to do with the existence
of the institution
of Chieftainship but merely replaced the word "Constitution"
with the words "this Act or any
other law." This confirms
the view I hold that Order 1 of 1970 never abolished the office of
Edeling submitted that the fundamental flaw in the LHDA's argument
that Chiefs Order 26/70 reinstated the earlier mining grant
procedure, is that whilst a revolution can abolish a law, such a law
can only be revived or re-enacted in express terms by a clear
legislative act. He submitted that it admits of no doubt that after
the Jonathan coup but prior to Order 26/70, there were no chiefs
recognised by law (may be as opposed to customary law) and they had
no executive powers, and they had no role to play in the grant
with this submission as regards the effect of the revolution on the
that are inconsistent with the new laws brought by the revolution. Mr
Edeling has conceded that it may be that under customary
were still chiefs. That is correct. I have already stated above that
Order 1 of 1970 did not deprive the chiefs of their
allocate land. It is not correct that because Order 1 of 1970 gave
executive powers to the Prime Minister it meant that
powers including power to allocate land and rights in land were to be
exercised by the Prime Minister only. There
are many other
functionaries at the lower end of the hierarchy. Chiefs are such
functionaries and their powers were not affected
by Order 1 of 1970.
Edeling submitted that it has long been recognised in Lesotho that
the Government is bound by its contracts, if they are signed
Minister or a person authorised by him (See Government Proceedings
and Contracts Act No.4 of 1965 -Section 10). ......
submitted that this Act recognises the validity of government
contracts and provides that they will be enforceable if properly
signed, regardless of whether the prior procedures were complied
with. 1 am not happy with the underlined words starting from the
"regardless". Section 10 of the Act reads as follows:
"A contract or agreement other than a contract or agreement
entered into by virtue of the provisions of section eight and
purporting to be made on behalf of Her Majesty in Her Government of
Basutoland or the Basutoland Government shall be held
to be a
contract or agreement made by and on behalf of Her Majesty in Her
Government of Basutoland if signed by a Minister of Motlotlehi's
Government or by an officer authorised by such Minister, and unless
so signed shall be of no effect."
view there is nothing, in section 10 to support the submission that
the contract shall be enforceable if properly signed regardless
whether the prior procedures were complied with. What is said is that
once the contract is signed by the Minister or a person
him, it shall be held to be a contract or agreement made by on behalf
of His Majesty's Government. The signature
of the Minister or of a
person authorised by him proves that it is a contract made on behalf
of His Majesty's Government. That
does not mean that such a contract
cannot be challenged in a court of law to show that it is invalid for
any reason. Section 10
of the Act can be a defence only in a case
where there is a dispute as to whether that is a contract on behalf
of His Majesty.
The applicant has to show that it is signed by the
Minister or a person authorised by him. It will be held that it is a
made on behalf of His Majesty's Government. That section has
nothing to do with "procedural irrelevance."
30 of the Interpretation Act of 1977 reads as follows:
an Act confers powers upon a person to –
any subsidiary legislation; or
and the Act conferring the power prescribes conditions subject to the
observance, performance or existence of which the power conferred
be exercised, those conditions shall be deemed to have been fulfilled
if in the subsidiary legislation or instrument exercising
there is a statement to the effect that the subsidiary legislation is
made, or the power exercised, subject to the conditions
section the words "shall be deemed" are used. In my view
this a rebuttable presumption. The thing that is deemed
rebutted. In the Canadian Case of Credit Foncier Franco - Canadian v.
Bennett and A.G. (B.C) (1963) 43 W.W.R. 545 Sheppard,
J.A. said at p.
"The word 'deemed' is capable of meaning rebuttably presumed;
that is, presumed until the contrary is proved".
therefore not correct to say that once it is proved that the contract
properly signed by a Minister or a person authorised by him, the
procedures prescribed by law become irrelevant whether they
followed or not: 'A person who is directly affected by such a
contract can challenge the validity of such a contract
in a court of
law to show that there has been a non-compliance with the prescribed
procedures especially in a matter in which such
procedures appear to
be of vital importance.
with the submission that the wording of the provisions of section 6
of the MRA where they require that the Mining Board
that the chiefs after consultation, grant a lease are peremptory.
That follows from the opening words of subsection
6(1) which provide
that a mineral title may be granted "in the manner prescribed in
this Act, but not otherwise," the
word "shall" is
repeatedly used in outlining the procedures to be followed.
Messenger of the Magistrate's Court, Durban v. Pillay 1952(3) S.A.
678 at p. 683 C-D Van den Heever said:
the first place the sub-rule with which we are concerned is couched
in peremptory terms: the messenger "shall cause
the sale to be
advertised...". The Afrikaans version has the categorical
imperative "moet". If a statutory command
is couched in
such peremptory terms it is a strong indication, in the
of considerations pointing to another conclusion, that the issuer of
the command intended disobedience to be visited with
v. Atteridgeville Town Council 1989(1) S.A. 721 (T) at p. 724 E - H
Stafford, J. said:
"There is no doubt that the peremptory language used in the
regulations mean that, where a local authority, as in this case,
empowered to make by-laws which can encroach upon the rights of
persons or affect their pockets, the formalities to bring such
must be scrupulously observed. I refer to Maxwell The Interpretation
'Where powers, rights or amenities are granted with the direction
that certain regulations, formalities or conditions shall be
with, it seems neither unjust nor inconvenient to exact a rigorous
observance of them as essential to the acquisition
of the right or
authority conferred and it is therefore probable that such was the
intention of the Legislature.'
This passage has been quoted with approval in many judgments over the
years. There is no point in mentioning all these judgments,
of Van den Heever JA in Messenger of the Magistrate's Court, Durban
v. Pillay 1952 (3) S.A. 678 (A)( at 683.
I am in agreement with what Roux J said in an unreported judgment in
the Transvaal Provincial Division, Marcus v. Town Council
Mamelodi, case No. 12722/86, dated 24 February 1987:
'If a statute is construed as peremptory, non-compliance with its
prescriptions by a subordinate law-maker cannot bring about the
consequences required. It results in a nullity. I have no doubt that
the regulations must be held to be peremptory with all
consequences which follow upon such an interpretation."
v. Scheepers 1932 A.D. 165 at pp 173 - 174 Wessels, J.A. said"
"The word "shall" when used in a statute is rather to
be construed as peremptory than as directory unless there
circumstances which negative this construction - Standard Bank Ltd v.
van Rhyn (1925, A.D. 266).
provision is couched in a negative form it is to be regarded as a
peremptory rather than as a directory mandate. To say that
of attorney shall be accepted by the Deeds Office unless it complied
with certain conditions rather discloses an intention
to make the
conditions peremptory than directory: though even such language is
provision is couched in positive language and there is no sanction
added in case the requisites are not carried out, then
presumption is in favour of an intention to make the provision only
directory. Thus is Cole v. Greene (L.J.C.P.., vol. 13
at p. 32)
Tindall, C.J., approving of a decision of Lord Tenterden and dealing
with this same question as to when "shall"
is to be
interpreted as peremptory and when as directory, says: "It may
be observed here as it was by Lord Tenterden....
in the case of The
King v. Justices of Leicester that
the words are in the affirmative only and that there are no negative
words; nor are the words so stringent as in those of the
4 Geo. IV c. 76, s. 16 whereby it was enacted 'that the father, if
living, of any party under twenty-one years of
age (such party not
being a widower or widow), or if the father shall be dead, the
guardian or guardians, etc., shall have authority
to give consent to
the marriage of such party; and such consent is hereby required for
the marriage of such party so under age,
unless there shall be no
person authorised to give such consent:' and yet, in The King v.
Birmingham it was held that those words
are directory only. Lord
Tenterden, in giving judgment, says: 'The language of this section is
merely to require consent; it does
not proceed to make the marriage
void if solemnised without consent.' So here, the Act says, the
contract shall be signed by the
commissioners, or three of them, or
by their clerk; it does not say it shall be void unless so signed."
when we consider the scope and objects of a provision we find that
its terms would, if strictly carried out, lead to injustice
fraud, and if there is no explicit statement that the act is to be
void if the conditions are not complied with, or
if no sanction is
added, then the presumption is rather in favour of the provision
history of the legislation will also afford a clue in some cases."
correct that section 6 (4) of the MRA is couched in positive language
and there is no sanction added in case of non- compliance
provisions of the subsection, then there is a presumption in favour
of an intention to make the provisions only directory.
This is what
was held in Sutter's Case (supra). However, subsection (4) must be
read with subsection (1) of section 6 where the
words "and in
the manner prescribed in this Act, but not otherwise." (My
underlining). The underlined words leave no
doubt in mind that the
intention is to make the provisions of subsection (4) peremptory. The
words "but not otherwise"
apply to the whole Act including
come to the conclusion that the provisions of section 6 of MRA are
mandatory and the "grant of the "lease"
which does not
conform to the requirements of that subsection is no grant at all. It
is in fact a nullity, and no duty to act can
flow from such a
nullity." See Ondombo Beleggings v. Minister of Mineral and
Energy Affairs 1991 (4) S.A. 718 (A) at p. 725.
common cause that even the then Minister of Water, Energy and Mining
was of the opinion that consultation with Principal or
within whose jurisdiction the mining area falls is mandatory. In his
memorandum dated January 27, 1988 and another memorandum
25, 1988 he stated in
"The Mining Board may wish to note that, in terms of Section 6
of the Mining Rights Act No.43 of 1967, His Majesty the King
Chief on His behalf may, in accordance with the advice of the Mining
Board, grant mineral titles. Therefore, consultations
chiefs is mandatory. (My underlining)
present case it is subsection (4) of Section 6 of the MRA whose
provisions are mandatory. What must now follow is the analysis
evidence to find out if any consultations with the Principal Chiefs
of Leribe and Butha Buthe did take place or not before
the lease in
question was granted. The first witness called by LHDA is
Chieftainess 'Mamolapo Motsoene who has been the acting
Chief of Leribe since the beginning of 1986. She testified that
during the period between 5th May and 8th August 1988
she was away
from her area because she was attending a course in Israel. Her
evidence was that she never approved the granting
of a lease to SDM
at Rampai area. She did not know anything about that lease until the
5th February, 1995. She did not ever receive
a recommendation from
the Mining Board that a lease be granted in the Rampai area.
secretaries of Chieftainess Mamolapo Motsoene, namely Mrs
and Mrs Matsie testified that during the absence of Chieftainess
Motsoene no recommendation from the Mining Board was
ever received by
them and that the late chief who was acting while the chieftainess
was away never approved the granting of a lease
at Rampai area.
Kuni Hlasoa Mopeli has been the Principal Chief of Butha Buthe since
early 1986. In his evidence on affidavit he states that
approved the granting of a lease at Rampai area.
It is a
fact that the evidence of the above witnesses on behalf of LHDA has
not been controverted by any evidence on behalf of SDM.
would normally be accepted by the court without much ado had it not
been for the submissions by Mr. Edeling as to
why such evidence
should not be accepted as true. Before dealing with such evidence I
must mention that General Lekhanya and Mr.
Makhakhe stated in
cross-examination that they could not deny that the chiefs were not
consulted in terms of section 6 of the MRA.
Edeling submitted that there are a number of unsatisfactory features,
which raise serious questions as to the credibility of
LHDA's case in
this regard. The first of such features is that most of LHDA
witnesses, including chiefs, falsely
prior knowledge of the SDM lease and dishonestly tried to distance
themselves from it. In this regard he made reference to
investigation which was conducted by LHDA in 1991 into the question
of whether there was non-compliance with the prescribed
He submitted that Mr. Putsoane testified at p.480 of the record that
as part of such investigations, LHDA consulted
with the chiefs. He
submitted that his evidence was true as it accords with every
probability, and there is much corroboration
suprised that Mr. Edeling seems to have forgotten what Mr. Putsoane
said in cross-examination by him. (Mr. Edeling). He said:
"Why do you say LHDA consulted with chiefs? Is it because you
know that that is so, and you remember it or is it just an inference
you are making? — It is
It is an inference? – Yes
Would it then be fair to say that you really have no personal
knowledge of what LHDA actually did in order to investigate the
lease? - You mean as a person
Whether I was the one that A, B, C, D?
No, I am saying you as a person have got no personal knowledge of
what was done by the LHDA to investigate the leases? —
Is there any record or report about such investigations that you have
seen? - I am not aware of the report but I think this case
and parcel of that.
then correct that when Mr. Sole made that affidavit, which you have
just referred to at page 463, LHDA's position was we intend
investigate it, after that they did but you do not know the details
of the investigation? —Right.
with my summary?----I do."
Putsoane's answers put it beyond any reasonable doubt that he had no
personal knowledge of the details of the investigations
and that he
was just drawing an inference based on the facts (proved facts) which
he did not disclose. This inference is altogether
cannot be used to rebut the oral evidence of witnesses who were
cross-examined at length and withstood such cross-examination
Makhakhe's evidence does not carry SDM's case any further on this
point. He is alleged to have testified that he was consulted
legal representatives of GOL and LHDA during late 1991, specifically
on the question of the procedures leading to the grant
of the SDM
leases. Mr. Edeling submiited that that evidence was not challenged
and corroborates Putsoane's evidence that LHDA indeed
investigations at that time.
true that the intention to make such investigations by LHDA was there
but there is no conclusive evidence that it took place
at that time.
It seems to me
enough evidence has been placed before the Court to enable it to make
a finding that the chiefs have given false or wrong
Edeling submitted that there are suggestions in the evidence of
chiefs that it is their perception that if SDM should win, and
compensation, there will be less compensation for them and their
people. That although that is certainly not enough for a finding
corruption, the motivation would be the same. Money motivates many
people, so he submitted, and if for purposes of this action
chiefs were brought under the impression that SDM success would have
adverse economic consequences for the chiefs and their
would provide a further motive to give false evidence.
view the above submission is nothing but speculation based on the
assumption that the chiefs were given that impression by
some people unknown. 1 do not accept that speculation. The economic
value to Lesotho by selling water to South Africa
is something that
was explained to this nation and debated in political forums for many
years starting from as early as the 1950's.
People, including chiefs,
have formed their own opinions about its economic value to this
country. It is unfair to say that the
chiefs are motivated by the
economic consequences they are going to enjoy to give false evidence.
All the chiefs gave
evidence in a fair and straightforward manner which gave me the
were telling the truth.
Edeling submitted that a further cloud of suspicion arises from the
content of trial Exhibit K1, being the affidavit of the
Secretary stating that the government files are missing. He submitted
further that the Court has already formed strong
prima facie views in
that regard. At record p. 350/5-11, the Court held that it is unusual
to allege that government files are
lost, that it is no doubt
corruption at the highest point, that the learned Chief Justice does
not know who is practising that
corruption, but does know that –
"there is somebody who is playing tricks and for what purpose I
have no idea."
submitted that despite these strong sentiments, neither LHDA nor GOL
places any evidence before the court to dispel those prima
views, which at the close of the trial therefore become much
stronger. He concludes by saying, in other words, the Court
that such files existed, and what those files contained. The most
natural inference is that those files also contained the
responses of the chiefs in regard to such recommendations.
that I did express those strong sentiments about the alleged
disappearance of government files from government offices.
I was very
angry about such an occurrence and had no doubt that it was
corruption practised by some people or some government officials.
had no idea about their identity. However I must point out that those
remarks I made will not influence me one way or the other
of any of the parties before me because I have no idea who "stole"
those files. I have no idea whose case the
disappearance of those
files is going to benefit. If their contents included the
recommendations of the Mining Board to the Principal
chiefs and the
approval of such Principal chiefs that would benefit SDM's case. But
if there were no such recommendations and approvals
benefit LHDA's case.
I do not
agree with the submission that the Court knows "what those files
contained." I have no idea what those files
contained and no
reliabre evidence was led by any party as to the contents of those
files. I do not think that Mr. Tsekoa, the
Government Secretary, has
given evidence on which I can rely. In paragraph 9 of his affidavit
(Exhibit K1) he states
those files which are no longer available are those files containing
recommendations by the Mining
Board to Principal Chiefs regarding mineral titles to be considered
by those Chiefs regarding the Mining Act 1967." (My underlining)
Government Secretary does not disclose the source of his knowledge.
Who told him what the contents of those files were? If he
personal knowledge, did he see the contents of those files and what
was he looking for when he came across such information,
was it in
the normal course of performing his duties? These explanations are
necessary if I am to rely on the bold statement he
has made in his
he contradicts himself because in paragraph 10 of the same affidavit
wish to state that no files relating to the matter in issue in this
application is in my possession or control and consequently
to produce them. In spite of my diligent search I am unable to say
whether those documents existed or not." (My
to me that the Government Secretary is contradicting himself
in paragraph 9 he alleges that amongst the files which are missing
containing recommendations by the Mining Board to the Principal
Chiefs. However in paragraph 10 he alleges that he is unable
whether those documents existed or not. It is obvious that he never
saw those recommendations by the Mining Board to the
Chiefs. It is also clear that when he became Government Secretary in
1996 the relevant files had long been removed from
in March, 1993.
his evidence as being of no assistance to the Court except the fact
that the files are no longer available.
Edeling submitted that the Turguand Rule, which is not based on
estoppel, applies to public bodies and in suitable cases the
deems internal procedures to have been met. He further submitted that
the Turquand Rule, which is not based on estoppel, also
public bodies which may be estopped from raising a legal defect as a
ground for invalidity where such defect is an internal
present case this clearly means that if the GOL were to raise the
legal defect that the chiefs were not consulted in terms
of section 6
of the MRA, as a ground for invalidity, they would be estopped where
such a defect is an internal irregularity. The
Turquand rule may
operate against the GOL and not again LHDA who are a third party.
Henochsberg on the Companies Act, Fourth Edition by Meskin, Vol. 1 at
pp 105-106 the learned author defined Turquand rule in
Turquand rule is that while a bona fide third party who contracts
with a company is presumed to be aware of any requirement
terms of its public documents must be observed "internally",
i.e. as between the company and its members,
in order that the
company should be effectively bound by the contract he is neither
presumed to know, nor bound, for the purpose
of holding the company
to the contract, to ascertain, whether it has in fact been observed.
In this context, the third party
is not bona fide if he in fact
knows that the requirement has not been observe (Mine Workers' case
supra at 845-846; cf Burstein
v Yale 1958 (1) SA 768 (W) at
771-772) or if he knows facts which as a reasonable man should put
him on enquiry with regard to whether or not it has been (AL
Underwood Ltd v. Bank of Liverpool.[\927] 1 KB 775 (CA) at 787-789;
Houghton & Co v. Nothard Lowe & Wills Ltd  1
(CA) at 261-262 affirmed  AC 1 (HL)). If eg he knows that under
the articles the transaction must be approved by a
resolution, he should inspect the records of the Registrar since if
the resolution has been adopted it will be on record
with the latter
(Irvine v. The Union Bank of Australia (1877) 2 App Cas 366 (PC) at
LHDA is a
third party in the present case. There is nothing to show that it had
knowledge that the requirement had not been observed.
In other words
there is no evidence that LHDA is not bona fide. It was only much
later when it launched some investigations that
it found that the
requirements of section 6 of the MRA had not been observed.
Viljoen submitted that whatever the ambit of the rule, it cannot
apply to a third party and an entirely separate entity (LHDA)
the "company" (here,
argument, GOL). In other words, Turquand rule has no bearing on a
situation in which LHDA relies on non-compliance with
provisions by GOL in order to set aside what purported to be done.
The extension of the rule to public bodies relied
upon by SDM can, at
best for it, only prevent GOL itself from relying on non-compliance
with its own procedures to set aside SDM's
with the above submission.
called, as witnesses, three former Ministers in the 1986 Military
Government, namely Mr. Sello, Dr. Makenete and Mr. Khaketla.
evidence was that without the Council of Minister's recommendations
the Military Council would not approve any application
for a mining
lease. They further testified that no recommendation or approval of
the Rampai mining lease was ever given by the
Council of Ministers.
As former members of that Council their evidence must be given a very
thorough consideration because they
must know what happened in the
meetings of that Council.
of their evidence was that they believed that to grant a mining lease
for a period often to fifteen years in the catchment
area of Katse
dam would compromise the Lesotho Highlands Water Project which was of
witness, Mr. Makhakhe, agreed that the attitude which the three
former Ministers displayed was reasonable:
"They said, if we had known that the lease was being suggested
for fifteen years in an area that was to be flooded or parts
was to be flooded we would never have agreed to that and we do not
think any of our colleagues in the Council of Ministers
Now my question to you simply is, does that seem to you a reasonable
reaction, a responsible reaction by those Ministers
or do you think
that is unreasonable, they are not thinking the thing through
properly?.... Well, I think I would have thought
that this was a
evidence Mr. Labuschagne also said that he did not find it
understandable that the Government of Lesotho would grant a mining
lease which covered the catchment area of the Katse dam.
Viljoen submitted that the probabilities heavily favour the evidence
given by Messrs. Sello, Khaketla and Dr. Makenete. Nor
suggested in their
that they had any reason whatsoever to dissimulate in this regard (or
even, that they were part of some conspiracy).
other hand Mr. Edeling submitted that bearing in mind the broad
policy objectives of the legislation namely that the leaders
Government should have an input, it could be argued in the
alternative that even if the Council of Ministers passed no
they were certainly consulted and had every opportunity
of airing their views, which according to the evidence of LHDA's own
in fact happened.
further submitted that although Mr. Sello denied that the SDM leases
were before them, the other witnesses were prepared to remember
testify that the question of SDM's leases was placed before the
Ministers, that certain reservations were expressed and that
matter was referred back to address such reservations.
of section 6(1), (2) and (3) of the MRA it is not enough for the
Mining Board to be consulted about the application for
mining rights. They are expected to make recommendations concerning
every such applications and submit the recommendations
Principal Chief of the district in which the
area is located. The most important input by the Mining Board is to
make recommendations in writing which must be submitted
Principal Chief in whose district the mining area fails. Consultation
alone without a recommendation in terms of section
6 (1), (2) and (3)
of the MRA is not a proper compliance with the provisions of the law.
know that according to the evidence of the Principal Chiefs of Butha
Buthe and Leribe no recommendations by the Mining Board
submitted to them and that they never approved the grant of mining
rights to SDM.
altogether inconceivable that the Mining Board would make a
recommendation that SDM's application for a grant of a mining
should be granted for a period of up to fifteen years despite the
fact that the Rampai area was just about to be flooded.
probabilities are in favour of the LHDA's evidence. I have not lost
sight of the fact that it was hinted that the diamonds
removed before the flooding. If that was the case why grant a mining
lease for a very long period of between ten and fifteen
this is improbable. The Mining Board and the Principal Chiefs as well
as local chiefs would not prejudice the gigantic
water project that
was to bring about great economic benefits to this country.
Edeling submitted that the evidence shows that it was the general
view, both in government and among the chiefs and governmental
advisors, that mining rights are granted by the King acting on the
advice of the Military Council without any necessary role being
played by the Chiefs. That might have been the general view but
section 6 (1), (2) and (3) of the MRA is very clear that the
by the Mining Board ought to go to the Principal Chief
who shall consult the local chiefs under whose area the application
and if the chiefs approve the Principal Chief shall grant the
application. The grant or approval shall be referred back to the
Mining Board and the lease documents shall be prepared and signed by
the authorities. Any practice which was inconsistent with the
provisions of section 6 of the MRA renders such a lease invalid.
true that concurrences were made by certain Ministries including the
Ministry of Law which was signed by the Honourable Attorney-General,
Mr. K.A. Maope (as he then was). The problem I have with the SDM's
case is that Mr. Sello who was the Minister of Law at the relevant
time denies that he ever concurred. He did not sign the concurrence,
it was prepared and signed by Mr. Maope. It would have been
convenient to have called Mr. Maope as a witness to contradict Mr.
Sello and to explain under what circumstances the concurrence
made. The Court would be in a position to evaluate their
submitted on behalf of SDM that there was conspiracy to deprive SDM
of its lawful rights. It was submitted that the parties
the conspiracy were GOL, South African Government and LHDA. It was
the duty of SDM to prove this allegation on a balance
probabilities especially against LHDA which is trying to set aside
the SDM's Rampai lease on the ground that certain procedures
prescribed by law were not followed when the application for the
lease was granted. I have already found that there is overwhelming
evidence that the chiefs under whose jurisdiction the Rampai area
falls were not consulted and that the recommendation by the Mining
Board was never submitted to them.
not lead any evidence to show that the chiefs were in fact consulted.
Mr. Makhakhe's evidence did not establish that fact.
His evidence was
to the effect that the Minister of Water and Energy repeatedly
emphasised that consultation with the chiefs was
necessary. He apparently assumed that because there was a concurrence
by the Minister of the Interior consultation with
the Chiefs must
have taken place. Unfortunately we now know through the evidence of
such chiefs that there was no consultation.
Lekhanya and Mr. Makhakhe who were star witnesses of SDM
when they were cross-examined by counsel on behalf of LHDA that there
was any conspiracy to deprive SDM of its lawful rights.
and Mr. Labuschagne also denied any conspiracy.
following is what General Lekhanya said under cross-examination:
Mr. Viljoen: "Let us turn now to the topic that has been raised
here by our learned friend, Mr. Edeling, in an address in
set out the case to be made on behalf of Swissbourgh (in)
cross-examination, and that is that there was a conspiracy,
there is a conspiracy between the governments of Lesotho and South
Africa against Swissbourgh, and that in fact LHDA, and
understand the argument, the government of Lesotho are really puppets
of the South African government. Did you ever encounter
convince you that the government of Lesotho was a puppet of the South
African government in your time in power? - -I
did not believe our
government to be a puppet of South Africa about all the pressure that
at times were exerted on the government
of Lesotho. Were you not
acting, General, as a puppet of the South African
at that time? - - No, I was not. Would you be surprised if anyone
suggested that you were? - -I would not be surprised,
there were a
lot of fingers being pointed at our Military Government that even the
coup was as a result of pressure from South
Africa which was not.
that be an untrue and a reckless allegation about you? - -I think it
Viljoen: I want to know from you.......did you ever experience any
dishonesty, any under-handedness when you were chairman of
LHDA in the dealings of the South African Government - -
No, .... (inaudible)
Or of the Lesotho Government? - - No.
Or of LHDA?--No."
Viljoen: "Now I have summarised what is at that passage. But
are the questions I want to ask you. Is, to your knowledge, South
Africa the real person or the real body before this Court? --No.
Is LHDA a
puppet of South Africa? - - No.
My question is, is the gist of that statement: "You [Putsoane]
are not the real person before the Court, the South Africans
running it".......is what is said there correct? - - No, it is
I want to
ask you, have you ever been part of the secret plan, illegally and
dishonestly, - that is what was put, - to deprive SDM
of its rights
here in Lesotho unlawfully? - - No, I have not.
know of any such plan? - -I do not Have you had any part in
presenting evidence to mislead this Court? - - No."
witnesses were SDM's witnesses but they had no knowledge of uch
Edeling submitted that in the main application in case 394/91, SDM
a strong case of abuse of government power in purporting to cancel
SDM's mining leases for the ulterior motive of assisting
LHDA and the
two governments to avoid the consequences of their unlawful
activities, and to evade payment of compensation.
common cause that both the High Court and the Court of Appeal came to
the conclusion that the revocation of Specified Mining
(No.7 of 1992) is declared to be void and of no force or effect in
1 - 5 of the Order of the Court of Appeal read as follows:
revocation of Specified Mining Leases Order (No. 7 of 1992) is
declared to be void of no force or effect in law.
first and second respondents are directed to ensure that the
proceedings under Civil Application No. 198 of 1991 and Civil
Application No. 206 of 1991 are properly enrolled forthwith and
expeditiously prosecuted in terms of the relevant Rules of Court.
the respondents are directed to enrol the proceedings under Civil
Application No. 394 of 1991 forthwith and expeditiously
the said application in terms of the Rules of Court.
the respondents referred to in paragraphs 2 and 3 fail to enrol and
prosecute the applications referred to in these sub-paragraphs
directed herein, the relevant respondents in the said applications
shall be so entitled (after notice to the relevant applicants)
enrol the said applications for determination by the Court.
the period commencing from the date of this order and expiring at
midnight on the 31" of July 1995 the appellants
and restrained from interfering with, obstructing or impeding any
agent, employee or expert engaged by or in
the employment of the
respondents (and who is lawfully entitled to be in . Lesotho).
conducting any tests or investigations in the areas identified in
Schedule A hereto, for the bona fide purposes of estimating
quantifying any damages
suffered by the respondents or any of the,
in consequence of any unlawful acts perpetrated by or on behalf of or
at the instance of the appellants.
using equipment, machinery or materials to conduct such tests or
investigations, in the said areas, whether such equipment,
machinery, or materials already exist within the areas are covered
by Schedule A or is introduced for that purpose after the
revocation of Specified Mining Leases Order (No.7 of 1992) was
declared to be void and of no force or effect in law. The declaration
has nothing to do with the present proceedings which are based on an
entirely different cause of action. After some investigations
found that the procedures prescribed by section 6 of the MRA had not
been complied with when the mining application by SDM
Rampai area was considered and finally granted. It has been submitted
on behalf of LHDA that such non-compliance renders
the lease in
question null and void. This cause of action cannot be regarded as
abuse of power
LHDA, which is admittedly a public body. It has nothing to do with
whatever previous abuse of power was used by GOL by passing
which allegedly attempted to assist the LHDA not to comply/with its
obligations. It is a cause of action based on a point
of law. There
is no suggestion that section 6 of the MRA was passed with any
ulterior motive involved. It was passed several years
present litigation was even contemplated.
of abuse of State power is altogether irrelevant in the present
proceedings and ought not to have been raised at all.
common cause that when this case started the parties were in
agreement that it would occupy about five court days. In fact
case ran for a total of fifty-nine days. From this total must be
deducted 9 days in respect of which the court has already
costs orders. That leaves 50 days.
the greater part of this period of 50 court days was occupied with
the conspiracy issue. The same can be said of the thousands
of documents with which the court was flooded by SDM.
following witnesses only were relevant to the issue raised in the
Putsoane who was called simply in order to define the area of the
Rampai lease to show that it fell within both the Butha
Leribe districts. That evidence, including cross-examination, could
not have taken more than half a day. The rest of
(which occupied a total of 8 days) was taken up with the allegations
Chiefs and members of Chieftainess Motsoene's staff. They gave
evidence on 24 and 25 September, 1996 and 12 November, 1996
three members of the Council of Ministers. They gave evidence on 12
to 14 November, 1996 for 3 days.
Lekhanya - He gave evidence for 8 days. His evidence is allowed
under the issue raised in the counter - application.
was also allocated to Mr. Makhakhe.
Viljoen submitted that making liberal provision for the time spent on
the issue which should have occupied the Court time (namely
the Rampai lease was granted with the approval of the Chiefs and the
Council of Ministers) fourteen days were spent on
that topic, leaving
36 days which were devoted to the conspiracy. In respect of this
Court time, whatever the outcome of the Court's
decision on the legal
argument addressed above and the question as to whether the chiefs
and the Council of Ministers gave their
approval to the registration
of the Rampai lease, LHDA is entitled to costs, including the cost of
submitted that as to the scale of such costs order it should be on
the scale as between attorney and own client for the following
reasons; As has been pointed out in the section above dealing with
allegations of conspiracy, no evidence whatever was presented
justify conspiracy. It follows that it was reprehensible to make the
far-reaching and defamatory statements mentioned above,
regard. Such behaviour is sufficient to justify a punitive costs
order such as that now sought.
referred to the following authorities:
order is asked for that he pays the costs as between attorney and
Now sometimes such an order is given because of something in the
conduct of a party which the Court considers be punished,
misleading the Court and things like that, but I think the order may
also be granted without any reflection upon the party
proceedings are vexatious, and by vexatious I mean where they have
the effect of being vexatious, although the intent
may not have been
that they should be vexatious. There are people who enter into
litigation with the most upright purpose and a
most firm belief in
the justice of their cause, and yet whose proceedings may be regarded
as vexatious when they put the other
side to unnecessary trouble and
expense which the other side ought not to bear. That I think is the
position in the present case."
In re: Alluvial Creek, Ltd 1929
CPD 532 at 535 "In my opinion these attacks made upon Jordaan,
on the evidence placed before
the Court in Mr. Eiser's affidavit, are
scurrilous. It is unjustified by anything stated or done by Mr.
Jordaan. If attorneys,
as officers of the Court, behave in such a
fashion towards each other such conduct can only reflect upon the
dignity of the whole
legal profession. Furthermore, such conduct
brings not only the profession into contempt but indeed the whole
system of justice
and the Court.
view it is at least highly arguable that Mr. Eiser, part from having
acted unfairly and in an excessive fashion both the
plaintiff an J
his attorney, has committed contempt of court. He is fortunate in my
view that Mr Selvan, for the reason I have
mentioned, withdrew the
application for costs de bonis propriis. In my view, however, having
regard to the seriousness of the attack
which Mr Eiser made upon the
plaintiff, who is a professional man, and against Mr Jordaan, an
officer of this court, it is proper
that, as a mark of the court's
extreme displeasure at this conduct, an award of an attorney and
client costs should be made. Insofar
as this might be unfair upon the
insurance company for whom Mr. Eiser acts, that is a matter to be
settled between Mr. Eiser and
his client." Goldstone J. (as he
then was) in Protea Assurance Comapny Limited v.Januskeewics 1989 (4)
SA 292 (W) at 298D-299B.
"Applying the principles laid down in decisions such as Nel v.
Waterberg Landbouwers Ko-operatieve Vereening 1946 AD 597 at
seems to me that the present case is one in which it would work an
injustice were a special order as to costs not to be
conduct on the part of the respondents outlined above is
As I have indicated, the defences advanced in the main application in
my view bordered on the trifling. At that time,
however, it seemed to
me that the resistance, although ill-founded, might have been no more
than misconceived. Since then, it has
become quite clear that the
respondents have been determined by a resort of procedural stratagems
and dilatory tactics to achieve
the 'practical course' I was
repeatedly asked at various stages to accept, and which I have found
myself unable at each stage to
accept (for reason which I have been
concerned at each stage to explain without delay). Overall I have
been obliged to reach the
conclusion that this conduct (viewed in its
full context) is vexatious, at the very least in the objective sense
re Alluvial Creek Ltd 1929 CPD 532 at 535 (and see
the further authorities collected in Cilliers Costs 2nd ed (1984)
further seems to me that in all the circumstances, the request that
costs be awarded on the scale as between attorney and own
not attorney and client, would be appropriate (as to the distinction,
see Cambridge Plan Ag v. Cambridge Diet (Pty)
Ltd and others 1990 (2)
SA 574(T); Malcolm Lyons and Munro v.
Another 1991 (3) SA 464(W) at 469D-E)." Gauntlett AJ in Delfante
v. Delta Electrical Industries Ltd 1992(2) SA 221(C)at
submitted that the manner in which the case was conducted, the
allegations of dishonesty and impropriety levelled at LHDA and
members of its legal team which appear from some of the quotations
set out hereinabove, and the sheer waste of time and money
by the manner in which the litigation has been conducted on behalf of
SDM and its associate companies, justifies an
order of costs on the
scale between attorney and own client, including the costs of two
Edeling submitted that LHDA's request for special order as to costs
arising from SDM's challenge to the bona fides of LHDA and
controlling it, is preposterous. To its credit, LHDA has not argued
that a common purpose abuse of power would be legally
seems to suggest that simply because on its submission the abuses of
power have not been established, that SDM must
be penalised for
having raised the issue. Such an attitude is difficult to reconcile
with the challenge by LHDA's counsel that
SDM should try and prove
conspiracy relied on. In any event, as set out above, there is an
to support the finding contended for SDM.
submitted in the alternative that even if the Court should decide in
SDM's favour on another basis thereby relieving it of the
to make findings on all the other issues it has been indicated above
that SDM was fully entitled to challenge the conduct
of LHDA and
those behind it, and there can be no proper basis for denying SDM of
any portion of its costs. It may be noted that
at any early stage in
the trial the relevance thereof was argued and the Court ruled that
the conspiracy issue is properly before
the Court and may be
submitted that the delays can certainly not be laid before SDM's door
and were caused by a combination of factors including the
of the case, the availability of the Court in Lesotho, availability
of witnesses, the other duties of the Chief Justice
conspiracy of silence which forced SDM to exhaust every remedy in its
attempts to have the facts and documents placed before
that a very insignificant time was taken up by some of my other
duties. It is unfortunate that no one kept a record of such
the Court adjourned or started late because of my other duties. But
as I say that was a very
time which cannot make any much difference. Be that as it may I will
be generous and allocate four (4) days for that.
This is a very
arbitrary decision based on no actual facts. The time will be divided
equally between the times spent on conspiracy
and that time on the
evidence of the chiefs and the Council of Ministers.
the issue of conspiracy was relevant I am of the view that the manner
in which the case was conducted the issue of conspiracy
vexatious in the objective sense as the trial went on.
that on the issue of conspiracy which was allocated 36 days I shall
deduct 2 days and then order SDM to pay LHDA costs on
the scale as
between attorney and own client for 34 days such costs to include
costs of two counsel.
issue of whether the approval of Chiefs and Council of Ministers was
necessary I order SDM to pay costs to LHDA for 12 days
on the scale
as between party and party and such costs to include costs of two
As far as
the costs in CIV/APN/198/91 and CIV/APN/206/91 are concerned the
order of the Court of Appeal was that the 1st and 2nd
directed to ensure that the proceedings in those two applications are
forthwith and expeditiously prosecuted in terms of the relevant Rules
of Court. It seems to me that there has been no compliance
order I am therefore unable to make any order of costs in those two
applications. They have not been properly enrolled.
summary the Counter-Application is granted in terms of prayers 1 and
2. SDM shall pay LHDA's costs as stated above.
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