CIV/APN/69/2001

IN THE
HIGH COURT OF LESOTHO

In the
application of:

'MAPOLO
NKUEBE APPLICANT

and

THE
MINISTER OF LOCAL GOVERNMENT 1st RESPONDENT

THE
ATTORNEY GENERAL 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice B.K. Molai On 22nd day of August 2005

On 9th
February, 200!, the applicant herein moved, ex-parte, an urgent
application and obtained, against the respondents, an interim
order
couched in the following terms:

"1. The forms and service provided for by Rules of court are
hereby dispensed with an account of urgency:

2. A Rule Nisi issue returnable on the 26th day of February, 2001 at
8:30a.m, or so soon thereafter calling upon the Respondents
to show
cause (if any) why -

1. The
   provisions of sec. 16 (7) of the Chieftainship Act 1968 Act barring
   legal representation before the Disciplinary Committee
   of chief's
   shall not be declared null and void for being unconstitutional;

   
   

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2. The
   Disciplinary Proceedings due to be held against the Applicant on the
   12th February,2001. shall not be stayed pending the outcome
   hereof;

   
   

3. The
   applicant shall not be declared to be entitled to appear duly
   legally represented before the Disciplinary Committee of Chiefs;

   
   

4. The
   Respondents shall not be directed to pay costs hereof in the event
   of their opposition hereto;

   
   

5. The
   Applicant shall not be granted further and or alternative relief.

   
   

3. Prayers 1 and 2 (b) operate with immediate effect as an interim
order of court."

The
respondents intimated their intention to oppose the application and
the confirmation of the interim order. Affidavits were duly
filed by
the parties.

In as far
as it is relevant, it is not really disputed, from the facts
disclosed by affidavits, that the applicant is a gazetted

chieftainess over the area of Paballong in the district of Quthing.
She is, therefore, subject to the Chieftainship Act, 1968.
The 1st
respondent is the minister responsible for the administration of the
Act.

On 26th
January 2001, the applicant was summoned to appear before the chiefs'
Disciplinary Committee, established in terms of sec.15
of the
Chieftainship Act, 1968 and answer charges of contravening sec.17
(b)(h) and (j) of the Act, The applicant averred that
in the event of
the proceedings before the Committee being finalized against her, she
was likely to lose her chieftainship rights.
According to her, the
applicant was not conversant with the procedure followed at the
hearing before the committee. However, given
the gravity of the
prejudice she was likely to suffer, the applicant felt that

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there was
a need to exercise her constitutional rights to seek a legal
representative to assist her, in the matter.

Consequently,
on 8th February 2001, the applicant approached and instructed her
attorneys of record to represent her at the hearing
before the
Chiefs' Disciplinary Committee. However, her attorneys of record's
inquiry, from the 1st respondent ministry, as to
whether or not they
could represent her at the proceedings before the Chiefs'
Disciplinary Committee did not result in a definite
answer. They were
told that a definite response, on the issue, could be given only by
the Ministry's Director who was, however,
in a meeting and,
therefore, not available.

As her
disciplinary case was to be heard before the committee on 12th
February 2001, the applicant felt she could not wait any longer

before approaching the court for an appropriate remedy. On 9th
February 2001, she accordingly moved the court for the interim order,

as she did.

In their
opposing affidavit, the respondents denied that the applicant was
entitled to any constitutional right to be legally represented,
in
the matter, and averred that legal representation, at the proceedings
before the Chiefs' Disciplinary Committee, was, specifically
excluded
by Parliament. The applicant's averment that she had constitutional
right which she could exercise to engage the services
of a legal
representative who would assist her at the proceedings before the
Chiefs' Disciplinary committee could not, therefore,
hold water.

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It is
significant to mention that, in their answering affidavit, the
respondents raised, in limine. the following points of law:-

1. that
   this application fails to comply with the duty of disclosure, which
   is an essential requirement in motion proceedings in
   that it merely
   alleges that section 16 (7) of the Chieftainship Act, 1968 is
   unconstitutional without pointing to specific provisions
   of the
   constitution to which the said section fails foul;

   
   

Consequently, respondents are forced to grope in this (sic) dark to
find out exactly in what the constitutionality of the said
provision
is being challenged or against which provision of the Constitution
the said section is alleged to offend.

1. (sic)
   the applicant further fails to allege and disclose what irreparable
   harm she is likely to suffer if the interdict is not
   granted.

   
   

2. (sic)
   she further fails to disclose the reasons why the matter should be
   heard urgently, regard being had to the remarks of
   the Court of
   Appeal in Attorney-General v. Tseliso Matela."

   
   

It is to
be borne in mind that the relief, sought by the applicant, is that
she should be allowed legal representation in the proceedings
against
her before a disciplinary committee. It is, however, important to
take note of the fact that in her certificate of urgency,
filed with
the Registrar of the High Court, on 9th February 2001, the applicant
did give the reason for urgency as being that her
contemplated
proceedings before the disciplinary committee were to be heard on
12th February 2001 i.e in three (3) days time. There
was, therefore,
no time left, before the hearing, which could allow the hearing of
this application in due course - see also para.16
of the founding
affidavit, where applicant clearly avers " I humbly ask this
Honourable Court to treat this matter as urgent
in view of the fact
that the hearing is scheduled for 12th February 2001."

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The
respondents' point in limine viz. that the applicant had failed to
disclose the reason why the matter should be heard urgently
cannot,
therefore, stand.

It is
common cause that the applicant, a gazetted chieftainess of
Paballong, in the district of Quthing, was charged, before the

disciplinary Committee established in terms of section 15 (1) of the
Chieftainship Act, 1968, with contravention of the provisions
of
section 17 (b), (h) and (j) of the Act.

Applicant
averred that she was ignorant of the provisions regulating the
proceedings before the disciplinary committee. If the proceedings

were to be decided against her, she stood to suffer irreparable harm,
namely to be stripped of her chieftainship rights. She, therefore,

needed legal representation. That being so, the respondents' point in
limine viz. that the applicant had failed to disclose what

irreparable harm she was likely to suffer if the interdict was not
granted, again, cannot succeed.

Thirdly,
the respondents averred that the application failed to comply with
the duty of disclosure in that it merely alleged that
section 16 (7)
of the Chieftainship Act, 1968 was unconstitutional without pointing
the specific provision of the Constitution
to which the said section
fell foul. It is to be observed, however, that section 16 (7) of the
Chieftainship Act, 1968 whose constitutionality
is challenged by the
applicant provides:-

"(7) when a chief is appearing before the Disciplinary Committee
he shall not have the right to be represented or assisted
by a legal
practitioner."

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It was
argued before this court that the respondents thought the specific
provision which the applicant had failed to disclose was
subsection
(8) of section 12 of the Constitution. That was, however, a mere
guess on their part. It is worth noting that subsection
(8) of
section 12 of the Constitution says nothing about legal
representation. It reads:-

"(8) any court or other adjudicating authority prescribed by law
for the determination of the existence or extent of any civil
right
or obligation shall be established by law and shall be independent
and impartial; and where proceedings for such a determination
are
instituted by any person before such a court or disciplinary
authority, the case shall be given a fair hearing within reasonable

time."

The
question of legal representation is specifically referred to under
paragraph (d) of subsection (2) of section 12 of the Constitution

which reads, in part:-

"(2) Every person who is charged with Criminal offence -

(a)...............................................................

(b)...............................................................

(c)...............................................................

(d) shall be permitted to defend himself before the court in person
or by a legal representative of his own choice."

(my
underlining)

I must
say I find it difficult to understand why the respondents thought
that the specific provision of the Constitution which the
applicant
had omitted to disclose in her founding affidavit was section 12 (8)
when the question of legal representation is clearly
dealt with under
section 12 (2) (d) of the Constitution. In my finding, by saying
section 16(7) of the Chieftainship Act, 1968
was unconstitutional to
the extent that it barred legal representation to a person who
appeared before the Disciplinary Committee
of chief's, it is clear
that the applicant was saying it offended

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section
12 (2) (d) of the Constitution which is the constitutional section
dealing with legal representation before the courts.

From what
has been said above, the view I take is that all the three (3) points
raised by the respondents, in limine, cannot succeed.
They are
accordingly dismissed.

Turning,
now to the merits of her application, the applicant challenges the
constitutionality of section 16 (7) of the Chieftainship
Act, 1968 to
the extent that it forbids legal representation to persons appearing
before the Disciplinary Committee of chief's.
I was referred, in
argument, to the decision in Maynard v Osmond (1977) Q.B. 240 where
Lord Denning M.R. said the following at
page 252:-

"On principle, if a man is charged with a serious offence which
may have grave consequences for him, he should be entitled
to have a
qualified lawyer to defend him. Such has been agreed by the
government of this country when it adhered to the European
convention
on Human Rights. But also by analogy, it should be the same in most
cases when he is charged with a disciplinary offence
before a
disciplinary tribunal, at any rate when the offence is one which may
result in his dismissal from the force or other body
to which he
belongs; or the loss may ruin his character for ever.

I gave
the reason in Pert v. Greyhound Racing Association Ltd. (1969) 1 Q.B.
125, 132:

"If Justice is to be done, he ought to have the help of some one
to speak for him. And who better than a lawyer who has been
trained
for the task?"

He
should, therefore, be entitled to have a lawyer if he wants one. But
even if he should not be entitled as of right, I should
have thought
that as a general rule the tribunal should have a discretion in the
matter. Legal representation should not be forbidden
altogether. The
tribunal should have a discretion to permit him to have a lawyer if
they think it would assist. They are the masters
of their own
procedure: and unless clearly forbidden, should have a discretion to
permit it."

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However,
it should be noted that lower down on the same page (252) Lord
Denning M.R. had the following to say:

" But I have to recognise that it is permissible for Parliament
to decree otherwise, or for a Minister to do so when making

regulations, or even a domestic body itself." (my underlining)

I have
underscored the words " it is permissible for Parliament to
decree otherwise" in the above cited decision in Maynard
v
Osmond (1977) Q.B. 240 at page 252, to indicate my view that
notwithstanding the general rule that legal representation should
not
be forbidden altogether, Parliament has a discretion to decree
otherwise. In the present case Parliament has, in exercise of
its
discretion, clearly decreed, by the enactment of section 16 (7) of
Chieftainship Act, 1968, that legal representation shall
not be
allowed to a chief appearing before the chiefs' Disciplinary
Committee.

I have
also underscored the word "Court" in the above cited
section 12 (2) (d) of the Constitution again to indicate my
view,
that applicant would be permitted legal representation if she were to
defend herself before a court of Law. In the instant
case, it is,
however, common cause from the affidavits that the applicant is
called upon to defend herself before the chiefs' Disciplinary

Committee which is, certainly not a court of law. I respectfully
agree with what Page J. said in Cuppon v Cape Display Supply Chain

Services 1995 (4) SA 175 at p. 180:

" It appears to be settled law that where a hearing takes place
before a tribunal other than a court of law, there is no general

light to legal representation."

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In
denying applicant legal representation before the Chiefs'
Disciplinary Committee, section 16 (7) of Chieftainship Act, 1968
cannot, therefore, be said to offend the provisions of section 12 (2)
(d) of the Constitution or be unconstitutional. That, in my
judgment,
disposes of the whole of this application and it will be purely
academic to proceed to deal with the rest of the prayers
in the
notice of motion

In the
result, I come to the conclusion that this application ought not to
succeed. It is accordingly dismissed with costs.

B.K.
MOLAI

JUDGE

For
Applicant : Mr. K. Mohau

For
Respondent : Mr. M. Mapetla