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