HIGH COURT OF LESOTHO
GOVERNMENT SECRETARY 1st APPLICANT
ATTORNEY GENERAL 2nd APPLICANT
DAVID THULO 1st RESPONDENT
ADJUDICATOR (P.S.C.) 2nd RESPONDENT
on the 16th January, 2003
application was brought on a certificate of urgency. The Notice of
Motion seeks orders as follows:-
that in terms of 60 (1) (c) of the Constitution the office of the
opposition ceases to exist, terminates and expires by operation of
law, immediately upon a dissolution of parliament.
2n respondent to proceed with the hearing of the disciplinary case
presently pending against 1st respondent.
with the Rules regarding service dies induciae, forum and such other
accidental matters, on account of urgency.
background to this case begins with the dissolution of Parliament by
Legal Notice N0.44 of 2002 dated 25th February of the same
Following such dissolution the Attorney General wrote to the Clerk of
the National Assembly (1st Respondent) on the 7th March
"The office of the Leader of the Opposition does not survive the
dissolution of Parliament - Section 60 (1) of the Constitution
alia provides that a member of the National Assembly shall vacate his
seat as such at the next dissolution of Parliament
after election. It
follows; therefore, the Leader of the opposition who is a
member of the National Assembly shall vacate his seat at the
dissolution of Parliament. Consequently, he will not be entitled to
receive any salary and allowances either as a member of the National
Assembly or as the Leader of the Opposition...."
of the National Assembly duly acknowledged receipt of the letter and
went on to say:
"The Leader of the Opposition holds an office which arose, like
that of the Leader of the House, out of practice but has no
functions either according to legislation or to the rules of the
House. Since receiving your savingram, I came across
section 95 (5)
(d) of the Constitution which is about vacation of the office by a
member of the Council of State, and is to the
"In the case of a member referred to in subsection (2) (h) if he
ceases to be such leader as is mentioned in subsection (2)
when the National Assembly first meets after a dissolution of
Parliament, whichever first occurs".
My interpretation of the above is that if a member of the National
Assembly holds the office of the Leader of the Opposition by
of the dissolution of Parliament then that member remains a member of
the Council of State until the National Assembly
first meets after a
dissolution of Parliament. Kindly advice on the following: does a
member of the Council of State who is such
by virtue of being Leader
of the Opposition lose his office of the Leader of the opposition
on dissolution of Parliament but nevertheless continues being a
member of the Council of State."
pause here to remark that it seems that the 1st Respondent was clear
that the office of the Leader of the Opposition did not,
advice earlier received, survive the dissolution of Parliament. All
he was doubtful about was his position as member
of the Council of
State. For this he sought advise from the Attorney General.
continue then, the Attorney General on the 12th of March duly
delivered his advice regarding the position of the Leader of the
Opposition as a member of the Council of State. He did so, but not
before reiterating at para.4 of his letter that: -
"It is trite that the office of the Leader of the Opposition
cannot survive a dissolution of Parliament. There can be no
Opposition Leader in a parliamentary vacuum".
advice as regards membership of the Council of State was at para. 7
of his letter.
"7. So to conclude, in my opinion of the two members of the
National Assembly appointed by the speaker from opposition party
parties, the Leader of the Opposition will vacate the membership of
the Council of State should he cease to be such a leader
opposition. In the case of the other member he will vacate his
membership when the National Assembly first meets after dissolution
advice of the Attorney General having thus been unequivocally stated,
the 1st Respondent decided to ignore it and proceeded
payment of the Leader of the Opposition and his assistants. Not
surprisingly Government struck back. The 1st respondent
interdicted from performing his functions as the Clerk of the
National Assembly. Disciplinary proceedings were set in motion.
Before the disciplinary tribunal the 1st Respondent admitted that he
had ignored the advice of the Attorney General but pleaded
was in law, so entitled.
Constitution creates various public offices. Thus section 65 (1)
establishes the office of Clerk to the National assembly. It
"1. There shall be a Clerk to the Senate and a Clerk to the
position is or was until his interdiction held by the first
Respondent. Its functions are not defined. The office of Attorney
General is established by section 98 (1) and it reads:
"(1) There shall be an Attorney General whose office shall be an
office in the public service"
duties of the Attorney General include:
"(2) (a) to provide legal advice to Government, (b)
take necessary legal measures for the protection and upholding of
this constitution and other laws of Lesotho. (3) In the exercise
the functions vested in him by subsection 2(a) and (b) and Sec. 69
of the Constitution, the Attorney General shall not be
the direction and control of any other person or authority."
be no doubt therefore that the position of Attorney General is a
lofty one and his duties onerous and solemn. His advice
lightly regarded. Yet the 1st Respondent without so much as
qualifying himself, decided to substitute his own interpretation
the Constitution for that of the Attorney General. This in my view is
quite brazen. The first respondent tries to wriggle himself
this untenable position by stating that his "understanding was
that the Honourable Attorney General clearly understood
office of the leader of the opposition did survive dissolution of
Parliament." (see par. 4.2 of the answering affidavit)
underlining) With respect, this is blatantly untruthful. To use the
ipsissima verba of the Attorney General from the letters
he says he got the impression, at para. 4 of the letter of the 12th
MARCH. " It is trite that the office of the
leader of the
opposition cannot survive a dissolution of Parliament." (again
my underlining) Again in the earlier
the 5th March, the Attorney General says: "The office of the
Leader of the Opposition does not survive the dissolution
what quantum leap could these words ever be understood to mean their
exact opposite, as the 1st respondent would have us
as it may, at the disciplinary hearing, the first respondent
persisting in his own interpretation of the provisions of the
Constitution, it was decided to bring this application to have a
proper interpretation thereof. This was done in terms of sec.
"128. (1) Where any question as to the interpretation of this
Constitution arises in any proceedings in any subordinate court
tribunal and the court or tribunal is of the opinion that the
question involves a substantial question of law the court or tribunal
may, and shall, if any party to the proceedings so requests refer the
question to the High Court".
dealing with the main application it proves convenient to deal with
the other two orders sought by the applicants viz, directing
respondent to proceed with the disciplinary case, presently pending
against 1st respondent
question of urgency. Counsel on either side did not address us on
these issues. I presume it is either because they did
not find them
important enough or that they were in agreement about them. But that
is not the point - they have been placed before
us and we therefore
have to dispose of them. As to the question of urgency there can be
no doubt that this application has to be
dealt with expeditiously.
The outcome of this case affects the business of government and it is
generally accepted that it is undesirable
to stall it. I need say no
more on this.
It is a
different matter however to ask us to compel an official of the
executive who has done no wrong how to go about his duties.
To do so
would compel him, an innocent citizen, under pain of contempt of
court to proceed with the matter even if the 1st respondent's
employer for some reason decided, for instance, not to further
prosecute the disciplinary hearing. We would then be indirectly
usurping the executive function whose prerogative it is, to decide
whether or not to discipline its employees. That we are not
to do so. (See the Indian case of State of Himachal Pradesh v.
Student's Parent (1986) LRC (Const.) 208 at 213).
OF SECTION 60 (1) OF
CONSTITUTION WITH REFERENCE TO THE
position of Leader of the Opposition, unlike for instance that of the
Prime Minister and Ministers, has not been formally established
the Constitution. In establishing offices the Constitution uses the
words. "There shall be" as in:-
sec. 87 (1) "There shall be a Prime Minister who shall be
appointed by the King........"
sec. 88 (1) "There shall be a Cabinet of Ministers consisting
of the Prime Minister and the other Ministers"
And so it
runs with every other office established by the Constitution. There
is no similar provision relating to the Leader of
the Opposition. The
only mention made of the Leader of the Opposition in the Constitution
is, as it were en passant, in sec. 95
(2) (h) which provides:-
(2) The Council of State shall consist of:-
members of the National Assembly appointed by the speaker from among
members of the opposition party or parties. In making this
appointment, the speaker shall appoint the leader of the opposition
and the leader of the opposition party or coalition of parties having
the next greatest numerical strength."
Constitution itself does not define the position of Leader of the
opposition apart from indicating that it is a party or coalition
parties commanding the greatest numerical strength in the National
Assembly. It was left to the Legislature to formally define
of Opposition" as meaning:
"...a member of the National Assembly who is the leader of the
political party or coalition of political parties who commands
majority in the opposition and his party or coalition has at least
25% of the total membership of the National Assembly"
18 of 1998. Members of Parliament salaries Act 1998 section 3)
Constitution confers neither powers nor duties on the Leader of
Opposition, contending itself with a fleeting recognition of
existence. Such powers and duties as it has apparently derive from
Parliamentary practice and tradition. This is in stark contrast
offices of the Prime Minister and other Ministers with which the 1st
Respondent attempts to compare that of the leader
of the opposition.
These offices are clothed with extensive and vital powers of
section of the Constitution that we have been called upon to
interpret reads as follows.
"6.0 (1) A Senator (other than a Principal Chief) or a member of
the National Assembly shall vacate his seat as such.
the next dissolution of Parliament after his nomination, designation
hasten to add that it is our unanimous view that the words used are
plain enough and admit of no ambiguity. It is said in
terms that when parliament is next dissolved a Senator and a member
of the National Assembly shall vacate their seats
as such. The leader
of the opposition is a member of the National Assembly and he owes
his position by virtue of being such member.
dissolved he shall vacate his seat as such. To borrow the Attorney
General's turn of phrase, the office of the Leader of Opposition
not survive the dissolution of parliament. Membership of the National
Assembly is so vital that the Prime Minister and Ministers
also loose such positions if they cease to be such members in
circumstances other than the dissolution of parliament.
Constitution puts it thus:
"86. (6) The office of Prime Minister shall become vacant
he ceases to be a member of the National Assembly, otherwise than by
reason of a dissolution of Parliament (My underlining)
(7) The office of a Minister other than the Prime Minister shall
he ceases to be a member of either House of Parliament otherwise
than by reason of a dissolution of Parliament (again My
be readily seen then that the position of the Prime Minister and
other Ministers is preserved in the intervening period
Parliaments. We have seen no such preservation in the case of the
Leaders of Opposition. To compare these positions is
argues that there can never be a parliamentary vacuum. We are of the
view that, on the contrary the Constitution does just
providing for the dissolution of parliament. To dissolve is defined
as "To terminate, abrogate, cancel, disintegrate"
Black's Law Dictionary -3rd Edition).
points out that in terms of the Members of Parliament Salaries Act,
the Leader of the Opposition gets a salary equal to
that of a
Minister, thus somehow indicating that his position is analogous with
that of a Minister. With respect that law in the
first place is
concerned only with salaries and has nothing to do with the position
of Leader of the Opposition beyond a dissolution
Secondly the Act again reiterates the fact that the Leader of the
Opposition owes his position to membership of
the National Assembly.
The National Assembly having ceased to exist upon dissolution there
can be no leader of the Opposition.
equally be seen that a reading of section 60 (1), (c) with section 95
(5) 2 (h) does not advance the case of the 1st respondent
further. That section deals with position
of the Opposition and his membership of the Council of State. The
"95. (2) The Council of State shall consist of: "(h)"
two members of the National Assembly appointed by the speaker
among members of the opposition or parties. In making this
appointment the speaker shall appoint the leader of the opposition
party or coalition of parties having the next greatest numerical
will be seen that membership of the National Assembly is the sine qua
non to the appointment as Leader of the Opposition.
That position is
extinguished with the dissolution of Parliament, and so would his
position as a member of the Council of State
by virtue of the
provisions of section 95 (5) (d) that:
"(d) in the case of a member referred to in subsection (2) (h)
if he ceases to be such leader as is referred to in subsection
or when the National Assembly first meets after a dissolution of
Parliament, whichever first occurs". (My underlining)
occurrence in this case is the dissolution of the existing parliament
and with it the position of the Leader of the Opposition.
stress however that we have not been called specifically to interpret
this section and our views in this regard should be
taken as obiter.
follows from the above that the main order sought viz "Declaring
that in terms of section 60 (1) (c) of the Constitution
the office of
the Leader of the Opposition ceases to exist, terminates and expires
by operation of the law immediately upon dissolution
must be answered in the affirmative and we accordingly so declare.
As to the
question of costs we have considered that although the question of
law involved was an important one and of great national
was not really very complicated as Mr. Viljoen properly conceded. It
was not necessary to brief two counsel in these
Steenkamp v Steenkamp) 1966 (3) SA. 294 (T) 297. Van Wyn v Rondalia
1967 (1) S.A. 373 (T)).
ordered then as follows:
(a) and (c) are upheld.
(b) is dismissed.
applicants having succeeded in the main relief sought are entitled
to costs against 1st Respondent but such costs not to include
of two Counsel
NOMNGCONGO - A.J.-
Applicants : Mr Viljoen SC Mr Makhethe
Respondents: Mr Mosito
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