CIV/APN/296/86 IN THE HIGH
COURT OF LESOTHO
In the matter of:
NAPO MAJARA - Applicant
DISCIPLINARY COMMITTEE - 1st Respondent MINISTER OF
INTERIOR - 2nd Respondent ATTORNEY GENERAL - 3rd Respondent
Delivered by The Hon. Acting Mr. Justice M.L. Lehohla on
the 7th day of August, 1987
The matter was argued before me on 6th August 1987.
In his notice of motion applicant seeks orders from this
Court in the following form:-
Review of the proceedings of the 22nd August,
1986before the first Respondent and the setting aside ofthe
decision reached thereat wherein applicant'spowers and duties
(as a chief) were suspended.
Granting the applicant such further or
alternativerelief as may be deemed fit (by this Court).
Directing the Respondents to pay the costs of
theapplication only in the event of them opposing
The application is opposed and the affidavit of 1st
respondent's Chairman,Chief Potsane Thabo Letsie has been solely
relied upon by
respondents in support of their opposition.
/In his ...
In his founding affidavit the applicant Napo Majara
avers that he is the Gazetted Chief of Sekamaneng in the District of
he is subordinate to the Principal Chief of Berea Ha
Majara. He supported the central point of his averment in this regard
Annexure "A" to his papers. Annexure "A"
is a Lesotho Government Gazette No.49 of 1983 wherein under Notice
applicant's name is reflected showing that under the title
"Chief" he is in charge of the "Area" Sekamaneng
is "subordinate to" the "Principal Chief of
In paragraph 3 applicant avers that during August 1986
he was served with a summons in terms of Section 17(J) of
No.22 of 1968 hereinafter referred to as the Act. A
copy of the translated version of this summons is attached and for
I will refer to it as Annexure B1 while the Sesotho
version is Annexure B. To these documents is attached Annexure C
being a copy
of a charge sheet from the Magistrate's Court Berea
under Criminal Case No. C.R.183/84 of that court. Annexure "D"
translated version of the decision by 1st respondent.
In paragraph 5 applicant avers that 1st respondent
convicted him and sentenced him in terms of Section 26(1) of the Act
to a deprivation
of the exercise of his chiefly powers for five
years. A closer look at Section 26(1) shows that this Section is
meant to penalise
people who pretend or hold themselves as chiefs
when in actual fact they are not. It thus appears that after being
charged and convicted
under Section 17(j) which stipulates that:
/"a chief ...
" a chief is guilty of a disciplinary offence and
liable to the deprivation ....... in Section 18
(amended to read 16 by Section 8(1) of Order 29/72) if
he has been found guilty of a criminal
offence whether or not the Court has made a recommendation
under Section 37(5)"
applicant was warned of consequences that might befall
him in terms of Section 26(1) if during the period of the
he purported to act as chief.
In terms of Section 18(1) as amended "when the
Disciplinary Committee has made a finding in terms of
Section 16(8) or 16(9) ...the Disciplinary Committee
may" deal with the matter (under 18(2) as amended
by Order 29/72) which provides: "whenever a Disciplinary
has deprived a chief of all the powers and duties
of his office for a specified period, the Minister may
time to time extend that period if during that
period the chief concerned has behaved in a manner that
prejudicial to the dignity, status and reputation of
that office "
Applicant further avers that provisions of Section 16
(1) (2) and (3) have not been complied with. Taken Seriatim
" (1) whenever a complaint is made to the secretary
of the Disciplinary Committee or it otherwise comes to his notice
Chief may be guilty of an act or omission that constitutes a
disciplinary offence under Section 17 of the Act, he shall forthwith
investigate the matter and take or cause to be taken statements in
writing from all material witnesses.
/"(2) During ...
(2) During the course of his investigation the
Chiefagainst whom an allegation pursuant to theprovisions of
Section 17 is made, of such allegationand at the same time bring
to his notice that he
is not obliged to reply thereto but that if he wishes to
reply such reply shall be in writing and that it may be used to
whether disciplinary proceedings shall be instituted
against him, and shall be admissible in evidence against him.
(3) The secretary shall, within seven days ofcompleting
his investigation, submit all thepapers to the Attorney-General,
together witha recommendation as to whether
disciplinaryproceedings should be instituted or not."
Applicant complains that no such investigation as set
out above was made and goes further to aver that had such
been made it would have been borne out in the
decision of 1st respondent given on 22nd August, 1986. It is
significant that respondents
have made no attempt to gainsay this
vehement charge against their case.
In paragraph 6.2 applicant further avers that provisions
of Section 16(4) have not. been complied with, and lays stress on the
that the requirement to comply with subsection (4) above is very
important in that it is a condition precedent to any contemplated
disciplinary proceedings; and charges that had this been done it
would have been borne out also in the decision referred to above.
Subsection (4) reads
" If the Attorney-General does not decide to
institute criminal proceedings against the Chief, he shall return the
the secretary of the Disciplinary Committee."
(5) sets out procedures which then will follow
/to bring ....
to bring the matter to a final hearing once the
conditions in the previous subsections of Section 16 have been
In paragraph 6.3 applicant avers that in as much as
Section 17(J) has to be read with 37(5) the Court has not made
a recommendation and that the 1st respondent was wrong to have
arrogated to itself the right to seize the proceedings
the issues to a finality there in. The finding of guilt shall be
concommitant with the recommendation and such recommendation
conclusive as to further action deemed necessary to be taken by 1st
The wording of the relevant portion of Section 37(5) is
in (b) reading:-
" In addition to imposing a penalty under this
a court convicting may recommend to
the person or body having power and
authority in thatregard, that the person convicted be
deprived of hisoffice or of the right to exercise
the functions ofan office of the Chief "
It would seem therefore that the substition by amendment
of the words "whether or not" for the words "and"
operation of Section 8(2) of Order 29/72 in paragraph 17(j)
disposes of the need for the Court to make a recommendation hence the
submission by 1st respondent in paragraph 6.3 is well
founded. It reads "the law as amended, which
is presumed to know, disposes of a need by the Court to make a
recommendation, and further (it is submitted) in applicant's
amended law as aforesaid applied." To the extent that
applicant's case rests on his contention that a recommendation
necessary it would seem he was labouring under a misapprehension.
But this is not the end of the matter. In reply to
applicant's charge that first respondent proceeded in the matter on
of the court having found him guilty of culpable homicide
whereas applicant was convicted of assault with intent to do grievous
harm 1st respondent contended itself with, according to
its chairman's answering affidavit, a bare denial; and proceeds to
that despite an apparent mistake in the charge sheet, the trial
was conducted in a fair manner and applicant was afforded a
fair hearing. I do not know what apparent mistake is being referred
to in the charge sheet. It was never drawn to my attention.
matter that respondents seem to have overlooked and which applicant
legitimately complains of appears clearly in Annexure
page two of the Disciplinary Committee's Charge Sheet. It reads:
" You, Chief Napo Majara ........ are charged with
contravening Section 17(j) of Chieftainship Act No.
22/68 in that on the 19th July, 1984 you were
found guilty of a criminal offence of having killed
one Sealemetse Koloko without intention by the Court
of the Magistrate. and therefore
contravened the provisions of the mentioned law."
Following on the above charge was returned a verdict of
guilty as charged; the actual wording is on page 3 of Annexure "D"
the Disciplinary Committee's decision and is as follows:-
" Accused is found guilty under the Chieftainship
disciplinary laws as charged against him."
Surely there can be no room for conjecture with regard
to what the charge alleged i.e. contravention of Section 17(J) but I
no misapprehension that the sentence of 5 years without
discharging any Chiefly functions flowed from the consideration that
had killed a person as against the consideration that he
had assaulted him. I came to this conclusion as a result of the
failure to give substantial reasons why the sentence
imposed was so severe. Truly there is no gainsaying the fact that
homicide is a more serious offence than assault in all its
In contrast to the verdict considered by the
Disciplinary Committee is the verdict reached by the subordinate
court that the accused
was found guilty of "assault with intent
to do grievous bodily harm" though charged with culpable
homicide. See Annexure
"C" to applicant's papers.
It is important to note that Section 16(1)(2)(3) lays
down the procedure to be followed before the actual hearing by the
Committee can be embarked upon. I find nothing in the
statute that condones a departure from that procedure set. It may
superfluous that after a court of law i.e. the subordinate
court has reached a decision on the matter the proceedings should
more be referred to the Attorney-General for purposes of
complying with 16(4) but as the maxim goes 'superflua non
nocent' - superfluties hurt not. Moreover there is merit in the
consideration that the best interpreter of the statute is the statute
Nothing in the statute as it stands absolves one of the
necessity to act in terms of Section 16 once a conviction has been
in terms of Section 17(J). It would be only where an
exception is made authorising a departure from provisions of Section
where interpretation of Section 17(j) when made to accord
with Section 16 leads to either illusory judgment or
absurd results that such a course should be followed.
As the law stands it seems to me that it is essential in
all circumstances to follow provisions of Section 16 as for instance
its subsection 2 is preserved the audi alteram partem
rule. Furthermore it appears under subsection (3) and (4) that it is
of vital importance to refer the papers to the Attorney General
await his action for the condition precedent to the Committee
exercising its powers seems to reside in the Attorney General,
Consequently if the Committee cannot exercise its powers unless the
condition residing in the Attorney General is met, then it means
exercise of such power notwithstanding the fact that the condition
has not been met lacks the necessary sanction and therefore
irregular. Power should follow justice not, precede it. A rule of
justice lays down that a condition precedent must be fulfilled
the effect can follow. Co-Litt.201.
1 need hardly emphasise that it is only in doubtful
matters that, such an interpretation is to be made that inconvenience
may be avoided. Otherwise as amply shown under Section
16 the words of the law are very clear therefore there should be no
from them for the meaning of the Legislature gathered from
those words cannot be so well explained as by its own direct words,
index animi sermo (language conveys the
intention of the mind) and maledicta expositio
quae corrumpit textum (an exposition which corrupts the text is
bad). Moreover a departure from the law makes one wander and all
things become uncertain
to everybody. It would be rash to allow one
absurdity, because what would follow is an infinity.
/Mr. Mohapi ...
Mr. Mohapi for the respondents in argument raised
the issue that the applicant has not supplied the Court with the
record of proceedings. While
indeed it would have been beneficial to
the Court and at least one of the Counsel to have had the record it
serves no useful purpose
to raise this matter at this stage when
ample time existed when the matter could have properly been held in
issue against the applicant.
One does not know; perhaps in it might
be discovered things favourable to the Crown. If applicant in
considering the record decided
to leave it out because of the edge it
would provide the Crown with against him, so be it, for no one is
bound to arm his adversary
Having considered as many issues raised in this matter
as I could I find that proceedings before the Disciplinary Committee
as the role of the Attorney-General was side-stepped
in embarking upon them. Hence they are quashed. It is worth being
mind as a general rule that the good of a respondent arises
from a perfect case; his harm from any defect whatsoever. Only two
of applicant's costs are awarded against respondents on
account of the latter's partial success indicated earlier in this
M. L. LEHOHLA ACTING JUDGE
7th August, 1987
For the Applicant : Mr. Monaphathi For the
Respondents : Mr. Mohapi
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