CIV/APN/394/91

IN THE HIGH COURT OF LESOTHO

In the matter between:

SWISSBOURGH DIAMOND MINES 9PTY) LTD APPLICANT

RAMPAI DIAMONDS (P[TY) LTD SIXTH APPLICANT

and

THE COMMISSIONER OF MINES AND

GEOLOGY N.O. FIRST RESPONDENT

THE ATTORNEY GENERAL SECOND RESPONDENT

CHAIRMAN OF THE MINING BOARD THIRD RESPONDENT

REGISTRAR OF DEEDS FOURTH RESPONDENT

LESOTHO HIGHLANDS DEVELOPMENT

AUTHORITY FIFTH RESPONDENT

JUDGMENT

Delivered by the Honourable Chief Justice Mr Justice
J.L. Kheola on the 28^th April. 1999.

This is a counter-application by the fifth respondent
(LHDA) against first and sixth respondents for an order in the
following terms:

1. Declaring mining lease registered under No.21044 in
the Deeds Registry, in Maseru, on 26 October, 1988, entered into
between the
Basotho Nation and Swissbourgh Diamong Mines (Pty)
Limited in respect of the Ramapi Area, void ab initio and of no force
and

2 effect;

2. 
   Cancelling the entry in the register of the Registrar
   of Deeds, Maseru, relating to the aforesaid mining lease;

   
   

3. 
   Ordering applicants and/or first to fourth respondents
   to pay the costs of this counter application only in the event that
   they
   should oppose it;

   
   

4. 
   Granting such further or alternative relief as
   the
   Honourable Court may deem just and equitable.

   
   

For the sake of convenience, I shall adopt Mr Edeling's
suggestion and refer to the first to sixth applicants as "SDM",
to fith respondent as "LHDA" and to the other respondents
as "GOL".

This counter application is based on the ground that
when the Rampai lease was granted to SDM by GOL there was
non-compliance with
the procedures prescribed by sections 6 and 7 of
the Mining Rights Act No.43 of 1967, as amended. For the sake of easy
reference
I shall reproduce subsections (1), (2), (3) and (4) of
section 6 of the Mining Rights Act 1967 (M.R.A.), as amended. They
read as
follows:

(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 be
construed as

3

fettering the discretion of the King and the Chiefs on
his behalf to refuse any grant recommended by the Mining Board.

2. 
   Any person may apply to the King for the grant of
   a
   mineral title (other than an existing grant).
   The
   application shall be in writing and 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 its
   recommendation.

   
   

3. 
   The 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
   in 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

   
   

4

grant it accordingly; but if it shall appear to him that
such majority disapprove the grant he shall then, in his discretion
but subject
to subsection (5) of this section -

(i) grant the application in terms of the
recommendation; or

(ii) refuse the application; or

(iii) refer the matter back to the Mining Board for its
recommendation upon any alterations which that Chief may propose.

2. 
   If 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 require, 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.

   
   

3. 
   If 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.

   
   

4. 
   If 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 respect of
   which the provisions of subsection (3)
   and paragraphs
   (a), (b) and (c) of this subsection
   excluding
   subparagraph (iii) of paragraph (a) shall again
   mutatis
   mutandis apply."

   
   

5
The bone 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 1^st
July, 1996. I shall deal with the legal opinion immediately because
it is the basis of SDM's defence to the counter application.

But before I do that it is important to reproduce Order
No. 1 of 1970 known as The Lesotho Order 1970 and Order No.1 of 1986
known
as Lesotho Order 1986. These two Orders are particularly
important because of the alleged amendment they made to the MRA 1967.
Counsel
for SDM submitted that the Lesotho Order 1970 abolished or
repealed sections 6 and 7 of the MRA.

Section 1, 2, 3 and 4 of Order 1 of 1970 reads as
follows:

1. (1) 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.

6

(2) This Order and every legislative function performed
thereunder shall have the force of law.

2. (1) In this Order, unless inconsistent with the
context -

"Council of Ministers" means the Council of
Ministers established by section 5 of this Order;

"existing law" means any proclamation, law,
rule, regulation, order or other instrument having effect as part of
the law
of Lesotho immediately before the coming into operation of
his Order but does not include the Lesotho Independence Order 1966.

(2) If, 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 the
advice of the other person or authority and the
question whether such consultation was made shall not be enquired
into in any court.

3. (1) 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:

Provided that any such law which is inconsistent with
this Order shall, to the extent of such inconsistency, be void.

(2) The provisions of this section are without
prejudice
to any powers to make provision for any
matter,
including the amendment or repeal of any existing law.

(3) The existing laws shall, from the coming
into
operation of this Order, be construed with
such
modifications, adaptations, qualifications and

7

exceptions 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 of 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 office 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 case may
   be.

   
   

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
20^th
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

8

part of the law of Lesotho immediately before the coming
into operation of this Order.

3. (i) 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
or 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 through 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 Military
Council.

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
of
Strong Thabo Makenete v. General Justin

9 Metsing Lekhanya
and others 1991 - 1996 (1)LLR 486 at pages 501-502 where

the 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
for the office of King at all and vested
legislative authority in the Council of Ministers and executive
authority to all intents
and purposes in the Prime Minister. The
conclusion cannot be avoided that, insofar as the Monarchy in Lesotho
was concerned, the
effect of 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 what
the constitutional position of the King was
immediately prior to the alleged coup d'etat of the 30^th
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 survived the 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
20^th November 1970 by the Office of King Order No.51 of
1970, the King of Lesotho re-established as Head of State, continuity
being established
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
symbolic
until Lesotho Order No. 13 of 1973 came into effect. The
effect, for present purposes, of this latter order was that the King
could,
on the advice of the Prime Minister, nominate 71 members to
the National Assembly and was invested with executive authority
subject
to the advice of the Cabinet or a Minister. In terms of the
Parliament Act No.5 of 1983, which repealed Lesotho Order No.13 of
1973,
the King could (on the advice of the Prime Minister) nominate 8
senators to

10

the Senate and a maximum of 20 members to the National
Assembly, while executive authority was vested in the King which He
had to
exercise in accordance with the advice of the Prime Minister.
Section 41 restored the King's prerogative of mercy. All these
provisions
came 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
(No.2) Order, 1986.

In terms of Lesotho Order (No.2), 1986:

"a) Executive and legislative authority in
Lesotho was (by virtue of Section 9 (1) vested in the King.

2. 
   The King, acting on the advice of the Chairman of
   the
   Military Council, was empowered to appoint the other
   members
   of the Military Council (Section 4(2)(b); and

   
   

3. 
   The King, acting on the advice of the Military
   Council,
   was likewise empowered to appoint the other members
   of
   the Council of Minister;

   
   

4. 
   By virtue of section 10 the King, acting on the advice
   of
   the Military Council, could "make laws for the
   peace,
   order and good Government of Lesotho" and "amend
   or
   repeal any law so made".

   
   

5. 
   The King was obliged, in consequence of section
   9(2),
   to exercise his functions under the Order or any other
   law
   "in accordance with the advice of the Military
   Council".

   
   

The aforegoing were the only powers and authority vested
in the King after the 1986 coup d'etat save that, in terms of the
Office
of the 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
kept fully informed concerning matters of government. No other
prerogatives of the King survived."

He submitted that following Order 1 of 1970 neither the
King nor the Chiefs

11
"on his
behalf had any place in the legal structure of the State and could
not exercise any executive powers, whether in regard
to the
allocation of land or grant of interest in land, or otherwise.

He submitted that it follows that insofar as the MRA
provided in sections

6. 
   and 7 thereof that mineral titles are to be granted by
   "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.

   
   

He submitted that sections 6, 7 and 24 (6) (b) of the
MRA should be construed as follows:

"6. Mineral titles may be granted by
Tona-Kholo. 7. (Deleted)

24 (6) (b) mining leases shall, as far as

possible, be in the form set out in the

12 schedule to this
Act and shall be signed by

a signing officer designated in writing by the Minister
but subject to paragraph (d) and shall be registered by the
Registrar.

(d) The signing officer shall not sign any such document
unless he has satisfied himself from written evidence that the grant
was
approved by Tona-Kholo.

Mr. Edeling submitted that the procedures contemplated
in sections 6 and 7 of the MRA were therefore inconsistent with the
new legal
order. That Orders 26 and 51 of 1970 recognising the Chiefs
and the King, respectively, did not amend any other laws or "revive
the void 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.

In answer 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) Notice No.8 of
1970 issued on the 7^th April, 1970. It reads as follows:

"Whereas the Constitution of Lesotho as previously
in force provided in Section 34 that the College of Chiefs might at
any time
designate, in accordance with the customary law of Lesotho
the person who shall be Regent, in any of the following circumstances
-

1. 
   when the holder of the office of King has not attained
   the age of twenty-one years; or

   
   

2. 
   when the holder of that office is unable by reason
   of
   absence from Lesotho or by reason of infirmity of body or mind
   to exercise the functions of that office,

   
   

And whereas by Government Notice, No.58 of 1967
published in Gazette No. 16 of 26^th May, 1967 the College
of Chiefs designated Queen 'Mamohato Seeiso to be the Regent in
pursuance of the provision of that section;

14

And whereas the present holder of the office of King,
Moshoeshoe II is to be absent from Lesotho and will for that reason
be unable
to exercise the functions of that office during the period
of that absence;

Now therefore, I Leabua Jonathan, Tona-Kholo, hereby
notify for general information the assumption of office by Queen
'Mamohato Seeiso
as Regent from the time of the departure from
Lesotho of King Moshoeshoe II for the duration of that absence."

Mr. Viljoen submitted that this Notice was not drawn to
the attention of the Court of Appeal considering Makenete's Case
(supra).
He submitted 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.

It is important for the Court to consider the effect of
The Regent (Assumption of Office) Notice of 1970. In the Shorter
Oxford English
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
the minority, absence, or incapacity of the sovereign."

It is common cause that in the present case King
Moshoeshoe II was to be absent from Lesotho and would for that reason
be unable to
exercise 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

15
from Lesotho.
It is not alleged that the reason is that the office of King has been
abolished. If the monarchy had been abolished
as submitted 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.

The Notice clearly indicates that the monarch was to be
absent from Lesotho for an unspecified period but there was nothing
to show
that the office of King had been abolished. The mere fact
that the King would be absent from Lesotho does not mean that his
office
has been abolished. In the Notice the late King Moshoeshoe II
is described as the present holder of the office of King. (my
underlining).
He could not have been described as the present holder
of the office of King if that office had been abolished by Order 1 of
1970.

Queen 'Mamohato Seeiso was to be Regent for the duration
of the absence of the King from Lesotho. That implies that as soon as
the
King returned 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 Lesotho.