IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) 38 OF 2011
In the matter between:
‘MOLE KHUMALO APPELLANT
COMMANDER, LESOTHODEFENCE FORCE 1ST RESPONDENT
MINISTRY OF DEFENCE 2ND RESPONDENT
DEFENCE COMMISSION 3RD RESPONDENT
ATTORNEY GENERAL 4TH RESPONDENT
HEARD: 6 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
CORAM: RAMODIBEDI, P
Application for a declaration of rights – Appellant a cadet officer and second lieutenant in the Lesotho Defence Force – Claim to be entitled to promotion with retrospective effect – Regulations 5 and 6 of Defence Force (Regular Force) (Officers) Regulations 1998 – Meaning and effect of – not intended to confer automatic right of promotion on all cadet officers – Appeal dismissed.
 The appellant enlisted in the Lesotho Defence Force as a private in 1996. Between 1996 and 1999, while doing service in the Regular Force as a soldier, he apparently attended a course of training to be a cadet officer. It will be accepted, for the purpose of this judgment, that the appellant became eligible in 1999 to apply for appointment as a cadet officer.He was duly appointed as such in 1999, being given the rank of Second Lieutenant. He retained this rank (having received no promotion) until July 2008. On 23 July, he lodged an application in the High Court, seeking a declaratory order to the effect that he has "a legally enforceable right" to be promoted, with retrospective effect from 2001, to the rank of lieutenant in the Lesotho Defence Force, and for an appropriate retrospective adjustment of salary payable to him. The High Court (L. Chaka-Makhooane J) dismissed the application. It is against this dismissal that the appellant now appeals to this Court. He has an LLB degree and he appeared in person.
 The appellant's claim for retrospective promotion was based on the provisions of regulation 5 of the Defence Force (Regular Force) (Officers) Regulations 1998, promulgated under Legal Notice 26 of 1998. Because it will be relevant to what I have to say later in this judgment, it is convenient to set the whole regulation out at this point. It reads as follows:
“5. (1) This Regulation shall apply to officers who are enlisted directly in the Force as cadet officers.
(2) An officer to whom this Regulation applies shall, on first being appointed, be appointed to the rank of Second Lieutenant.
(3) Promotion to the rank of Lieutenant shall be made 2 years after the date of enlistment as a cadet officer.
(4) Promotion to the rank of Captain may be made –
(a) after not less than 2 years' satisfactory service in the substantive rank of Lieutenant;
(b) after the officer has passed the examination provided for promotion from Lieutenant to Captain;
(c) after the officer has received an up-to-date recommendation for promotion to Captain; and
(d) provided there is a vacancy in the establishment for a Captain.
(5) Promotion to the rank of Major may be made –
(a) after not less than 3 years' satisfactory service
in the substantive rank of Captain;
(b) after the officer has passed the examination provided for promotion from Captain to Major;
(c) after the officer has received an up-to-date recommendation for promotion to Major; and
(d) provided there is a vacancy in the establishment for a Major."
Appellant's submission was that regulation 5(3), couched as it is in peremptory language, entitled him as of right
(a) to a promotion to the rank of lieutenant two years after his appointment as a second lieutenant; and
(b) to a retrospective increase in salary as if the promotion had occurred in 2001.
The Judge in the court below took the view that section 18(3) of the Lesotho Defence Force Act 1996, which vests the Prime Minister with the discretion to "promote or temporarily appoint any officer to a higher rank", took precedence over the "automatic promotion" provisions of regulation 5(3). She referred to the rule that subsidiary legislation cannot override a principal law and that, to interpret regulation 5(3) in the manner opted for by the appellant would be to infringe that rule. She accordingly dismissed the application.
 The primary question in this appeal concerns the proper interpretation of regulation 5(3). But before dealing with that, it is necessary to refer to an additional submission made by the appellant before us, which has a material bearing on his submissions. He was asked, at an early stage of his address, whether he could bring himself within the ambit of regulations 5(1), (2) and (3) at all. Those regulations are expressly stated to apply to "officers who are enlisted directly in the Force as cadet officers". Clearly, on the case which he had put up, the appellant did not fall within the specified class. He conceded this, but referred to regulation 6, which states:
"Regulation 5 shall apply to officers who have served in the ranks and are subsequently appointed to the officer corps."
This submission, at first sight, appears to have a measure of justification. Again at first sight the conclusion seems to be that regulations 5 and 6 were intended to be read in conjunction with each other.
 Now if, as the fundamental principle of interpretation stipulates, one gives the words of regulations 5 and 6 there ordinary grammatical meaning, one immediately notes a material contradiction. The ordinary meaning of the words in regulation 5(1) is that regulation 5 refers to "officers who are enlisted directly in the force as cadet officers". Regulations 5(2) and 5(3), in terms, relate to the class of officer referred to in sub regulation (1). But regulation 6 purports to make the provisions of 5(1), (2) and (3) applicable to soldiers, such as the appellant, who have come up through the ranks. The appellant has seized on regulation 6 for the purpose of claiming that he is entitled to promotion under 5(3).
 But if it was the intention of the draftsman to treat all soldiers who had risen to the rank of second lieutenant on an equal footing, it is difficultto understand why he drew the express distinction which appears in regulations 5(1), (2) and (3). He could, if he had such intention, simply have provided that all members of the Defence Force who achieved the rank of second lieutenant were entitled to promotion after two years at that level. However, given that the members of the Defence Force have different scales of ability, it would, as the respondent contends, be anomalous to treat them all on the same footing insofar as such an important aspect as promotion goes. That the draftsman went to the trouble of drawing the distinction between those who enlisted directly as cadet officers and those who enlisted into the ranks, militates against the interpretation contended for by the appellant. Certainly the respondent challenges such interpretation and submits that soldiers in the position of the appellant must await promotion on merit, very much in the format prescribed for the ranks of captain and major in regulations 5(4) and (5). It is understandable and reasonable that the latter two regulations should apply throughout the force, but by no means so that regulations 5(2) and (3) should apply to all second lieutenants.
 Persuasive support for the respondent's contention is to be found in the Defence Force (Regular Force) (Cadet Officers) Regulations 1998, published under Legal Notice No. 27 of 1998. It is not necessary to quote the regulations in their entirety. It suffices for the purposes of this judgment to state that the regulations draw a distinction between regular soldiers (such as the appellant) who, some time after enlisting, apply for appointment as cadet officers and those who enlist directly as such. In particular, regulation 6is in the following terms:
"(1) Where (a candidate) is seeking appointment as a cadet officer direct from civil life he must be not less than 18 years old and more than 24 years of age:
Provided that the Defence Force may, in the case of a candidate of special merit, waive the limit of 24 years of age.
(2) Where (a candidate) is already a member of the Regular Force, the upper age limit for engagement as a cadet officer shall, except in an exceptional case, be 30 years.
(3) The minimum educational requirements for a candidate shall be a diploma from a recognized institution."
Again, if all cadet officers were intended to be treated on the same footing, it would have been unnecessary to draw the distinctions apparent in sub regulations 6(1) and (2) of Legal Notice No. 27 of 1998. It seems likely that the class of cadet officer contemplated in 6(1) would be a person who was regarded as being destined for high rank in the army. He has to be young and he has, by the time he enlists, to have a diploma from a recognized institution. Obviously, a person of this calibre might be attracted into the commercial field of employment and, as an incentive to join the army, it is regarded as necessary to offer him (or her) the prospect of rapid advancement. This would account for the presence of regulations 5(2) (i.e. he starts his career with a commission) and 5(3) (he has a guarantee of promotion after two years).
 The way in which regulations 5(2) and 5(3) are worded is also wholly inconsistent with their application to promotions from the ranks. Regulation 5(2) talks about appointment as a second lieutenant "on first being appointed" (i.e. on joining the Defence Force). Regulation 5(3) talks about the promotion to lieutenant "2 years after the date of enlistment as a cadet officer". These words are significant and it is clear that they cannot be applied to members of the Defence Force who first enlisted and subsequently qualified for promotion.
 We have here a case in which the intention of the legislator is clear, but the literal meaning of the words of the regulation do not give proper effect to it. It seems likely that the draftsman wanted, in the case of promotion from the level of second lieutenant to lieutenant, to adopt the orderly pattern of procedure set out in regulations 5(4) and 5(5) for promotion of soldiers coming up through the ranks and to whom regulation 6 was to apply,i.e. on the basis of ability of the candidate and availability of the post. But he overlooked the circumstance that 5(1), 5(2) and 5(3) expressly applied to a special class. The result of his oversight is that the language of regulation 6 is irreconcilable with the language used in regulations 5(1) to (3). Nor can resort to reading the phrase mutatis mutandis into regulation 6 entirely eliminate the contradictions.
 In this situation the court might be justified in reading words into the statute to achieve the legislator's clear purpose, but it is not necessary, for the purpose of deciding this case, to embark upon that task. What is beyond doubt is that the legislator did not intend the promotion of all second lieutenants in the Defence Force to the rank of lieutenant to be automatic and to follow as a matter of right after two years of service in the lower rank. But that is precisely what the appellant is contending for. It follows that his contention must fail. Counsel for the respondent indicated that the respondent would not be asking for an order for costs, wisely so because the dispute has its origin in the poor drafting of the regulations.
 The appeal is dismissed.
JUSTICE OF APPEAL
PRESIDENT OF THE COURT OF APPEAL
For the Appellant: (In person)
For the Respondents: A.G. Chambers
See Palvie v Motale Bus Service (Pty) Ltd 1991 (2) SA 514 (C) at 525 to 526
Venter v Rex 1917 AD 731 @ 733
It seems that the regulations urgently require amending, they have already been the subject of one decision that was based on the proposition that regulation 6 applied to the provisions of regs 5(1), (2) and (3).
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law