CONST/C/1/2004

IN THE HIGH COURT OF LESOTHO

In the matter between:-

KHATHANG TEMA BAITSOKOLI 1st APPLICANT

MOSALA NKEKELA 2nd APPLICANT

and

MASERU CITY COUNCIL 1st RESPONDENT

MINISTER OF LOCAL GOVERNMENT 2nd RESPONDENT

COMMISSIONER OF POLICE 3rd RESPONDENT

ATTORNEY GENERAL 4th RESPONDENT

JUDGMENT

CORAM: HONOURABLE JUSTICE B.K. MOLAI

HONOURABLE JUSTICE S.N. PEETE

HONOURABLE JUSTICE T. NOMNGCONGO

DATE: 26th JANUARY 2005

Headnote

Constitution of Lesotho 1993 -Right to life under section 5 thereof-

Scope of. Right to livelihood - Justiciability of under the Constitution. Purposive interpretation of human and socio-

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economic rights provisions. Urban Government Act 1983 and 1971 Market Regulations. Whether the absence of bye-laws proclaiming and designating market places renders the refusal to grant licences or permit ultra vires and also unconstitutional.

- Omnia praesumuntur rite esse acta - meaning of - Legality of municipality action.

Where an application is made for a declaratory order under the Constitution for the grant of permits to applicants for them to trade as hawkers and street vendors along the Kingsway and that their removal therefrom as being unconstitutional in that such refusal to grant them permits and their removal violates their right to life as guaranteed under section 5 of the Constitution.

Held: That the scope right to life being the most important and precious human right as guaranteed under section 5 of the Constitution of Lesotho 1993 is limited to physical biological existence of people as "homo sapiens" and should not, unless circumstances warrant, be extended to include right to livelihood.

Held: The right (opportunity) to earn a livelihood under the Lesotho Constitution should be defined purposefully in order that it can have a true meaning without overlapping into section 5 right to life; the Government (state) has a constitutional duty and international obligation to actively promote the socio-economic rights of the Basotho.

Held: The applicants have no constitutional right to trade along Kingsway without licence or permit and their removal therefrom does not violate section 5 (right to life) of the Constitution. Decision to remove them must be fairly and reasonably reached with all the empathy deserved.

Held: The first respondent being vested with the power under section the Urban Government Act of 1983 can regulate and control markets in the city of Maseru; regulation 14 involves power to designate and control location of market places and trading in all areas of the city. Prohibition to trade as hawkers and street vendors must pass the test of fairness and reasonableness.

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Held: Under section 29 of the Constitution and under international covenants on socio-economic rights which Lesotho has signed or ratified, the state has a duty to take all reasonable measures in a progressive manner or address the concerns of the street hawkers and vendors through fair negotiations and consultations.

Peete J.:

Introduction

1. This application raises issues of great constitutional importance and is perhaps a causa celebre.

2. The application seeks the order couched as follows:-

1. Declaring Applicants' removal from Makhetheng area and other areas along Kingsway Street in Maseru where they trade as street vendors as a violation of applicants' right to life in terms of Article 5 of the Constitution.

2. Declaring the 1st, 2nd Respondent's act of removing applicants from and refusing them permission to sell their goods along Kingsway Street in Maseru as ultra vires 1st Respondents' powers under section 9 of the Schedule I to Urban Government Act 1983.

3. Granting Applicants further and/or alternative relief "

The Facts

3. In the founding affidavit deposed to by one Tsolo Lebitsa, the chairperson of the first applicant - an association duly registered under Reg. No. 2000/92 in terms of the Societies Act 1966 - it is alleged as follows:-

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"6.1. Our organization has a membership of 200 people who come from different parts of/Lesotho in quest for making a living by selling various small items in the streets of Maseru. Most of our members were peasant farmers in their villages. They came to the capital city to look for employment. In view of the scarcity of employment opportunities our members create employment for themselves by purchasing and selling soft goods, food stuffs and fruits at various places along the busy streets of Maseru, particularly Kingsway street"

• It is further alleged that their vendor business becomes profitable only if their goods and other various wares are easily accessible to prospective buyers and that if the street vendors "scatter themselves down the Kingsway and busy streets" the consumers can easily choose from whom to buy. In confining their members to the old Local Government area the applicants contend that "the 1st respondent thereby destroys their prospect of maintaining a meaningful and gainful employment thus limiting their right to life and to making a living. During the days of sitting in a confined places our members make no money at all or very little to sustain life"

4. In his affidavit the second applicant Mosala Nkekela - a member of the 1st Applicant - states that since 1979 he has ever since had a stall at Makhetheng area near the main circle and for this he obtained his first permit on the 27th April 1998. He says he has been netting about M300.00 a month in this business.

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5. He says in March 2003 he was ordered by the 1st Respondent to immediately relocate to the Old Local Government premises but declined to do so because he noticed that "business conditions were unfavourable there".

• He says he remained at Makhetheng until he and other vendors were (sic) "forcefully" removed and placed at the Old Local Government structure by the Police and the 1st respondent's security men.

• He says he continues to sell his goods at Makhetheng "not out of disrespect of existing laws but out of necessity."

• He avers in his affidavit that the 2nd respondent has no power under the Local Administration Act of 1979 (sic Urban Government Act 1983) to regulate his trading outside the established markets nor has the Minister power under the Act or any other law to confine them to one place for purposes of carrying trade.

• As regards section 5 of the Constitution he states:-

"Article 5(1) of the Constitution protects our right to life. I respectfully submit that the protection afforded by article 5 (!) is not confined only to terminating of life by physical means. By denying us our only and basic means of livelihood, respondents are as a matter of law and fact killing us, because they are themselves providing us with no alternative means to keep our bodies and souls together .... I repeat that by selling our goods in the streets of Maseru is our only

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lawful means of livelihood. We have no other means but to sit at home and die slowly through starvation and disease exacerbated by abject poverty." (Underlining ours)

• He ends by saying that he used to make up about M300.00 per day and therefrom was able to pay for the basic necessities of life such as food, rent, water, electricity etc.

"As a result of my removal from my long term place of business I have been unable to meet my basic needs as aforementioned; I am not able to purchase food and clothing for my dependants and we are slowly starving to death. "

6. The other members of the 1st Applicant who are also selling their goods along the Kingsway and have been relocated have not made any supporting affidavits; but for the purposes of this judgment we shall assume that they confirm what has been alleged in the second applicants' affidavit..

The legal position

7. The first applicant is a registered society and has a membership of about 200 members who ply their trade as hawkers, pedlars, chapmen and street vendors along the Kingsway in the City of Maseru. They sell food, fruits and other items to the general public. The second applicant is a member of the first applicant and has deposed to a lengthy affidavit in support of this application.

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8. It is an undeniable fact that since it came into existence in the last century the city of Maseru has ever since been blessed with one main street - The Kingsway. This is a relatively wide and busy public road which runs through the city from West to East. It carries most of the pedestrian and vehicular traffic. At month end, it is often a living hive bustling with human activity and vehicular traffic.

The Constitution of Lesotho 1993

9. It is not in dispute that to-day the city of Maseru is a densely populated metropolis with many people mostly from the rural districts of the Kingdom who have in the last decades descended in droves upon the city seeking employment and other amenities of life. Big shops line the Kingsway and during peak periods of Christmas, Easter and Independence the Kingsway usually bristles with great numbers of shoppers, pedestrians and vehicular traffic.

10. The Constitution of Lesotho of 1993 is the supreme law of the Kingdom and any law or any executive or administrative action which violates or is inconsistent with the Constitution is liable to be declared null and void. Section 2 of the Constitution reads thus:

"This Constitution is the supreme law of Lesotho and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void. "

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11. The Constitution of Lesotho also entrenches a Bill of Rights in its Chapter II. The most important of these human rights, (sometimes called political and civil rights) is the "Right to Life". Section 5 of the Constitution reads thus in full -

"5. (1) Every human being has an inherent right to life. No one shall be arbitrarily deprived of his life.

(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use of force to such extent as it necessary in the circumstances of the case —

1. for the defence of any person from violence

or for the defence of property;

2. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

3. for the purpose of suppressing a riot, insurrection or mutiny; or

4. in order to prevent the commission by that person of a criminal offence,

or if he dies as the result of a lawful act of war or in execution of the sentence of death imposed by a court in respect of a criminal offence under the law of Lesotho of which he has been convicted. "

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12. The right to life under the Lesotho Constitution is not an absolute right and can be abridged under prescribed circumstances (see Section 5 (2) (a), (b), (c) and (d) supra). It must also be interpreted in context with section 4 (1) of the Constitution. It reads in part "......the provisions of this chapter shall have effect for the purpose of affording protection to those rights and freedoms, subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest"

Problem of definition

13. A constitutional dilemma is posed when one seeks to define the nature, scope and content of the "right to life" Life can be defined as a mammalian biological existence in which the Homo Sapiens lives physically as a human being. Life begins - we are told- at conception and ends at death. During this period, the human existence - as a living being - is protected by the Constitution and the law. We speak therefore of the sacrosanctity of human life. In a civilized society, the constitution as the basic law - a grundnorm - protects the lives of its members.

14. Another intriguing constitutional question is whether "right to life" should be equated to and include "right to livelihood*. Which of the two rights is being protected by section 5? Or are the two rights inseparably interdependent and indivisible? The jurisprudential philosophy on this topic can be gleaned from the plethora of judicial decisions

in South Africa, India and elsewhere.

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15. A fair reading of section 5 of our Lesotho Constitution gives one an irresistible impression that it is the "right to life" of the human being and its biological existence as a living organism that is being protected by the Constitution rather than its wellbeing, happiness or welfare. The Court comes to this somewhat restrictive interpretation because under section 5, what may be abridged under subsections 2 (a) (b) (c) and (d) is not the livelihood but the deprivation of human life itself e.g. through act of war, lawful execution (i.e. hanging)or self defence.

16. Another interesting jurisprudential question is whether the first applicant — Khathang Tema Baitsokoli - not being a human being - can under law claim that its life is being threatened; one would have thought that better wisdom could counsel that all members of the first applicant - being living persons- should have sued individually in a consolidated application — if their lives or indeed their individual livelihoods were being threatened by the relocations in Maseru as a market area.

17. This further, raises an important question of locus standi under the Constitution. The court is not aware that the second applicant has been authorized to attest to an all embracing affidavit on behalf of all members of the 1st applicant.

18. Be that as it may and despite all such reservations, it may be safely assumed in favour of the applicants that they represent their two hundred or so members in bringing this application; and in any event, the decision or order of this court shall affect their right -if we can call

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it thus - to trade as street vendors along the Kingsway.

19. The most pertinent issue to be decided in these proceedings is whether in removing them from their chosen locations along the Kingsway and its pavements or precincts, the applicants' right to life was violated in contravention of section 5 of the Constitution - even in its widest sense.

20. The Oxford English Dictionary defines "life" as:-

"the condition that distinguishes animals and plants from inorganic matter including the capacity for growth, functional activity and continual change preceding death ".

This is an organic or biological definition that transcends the whole animal kingdom, "man" included.

21. On the other hand we all know that human life is meaningless if it does not enjoy liberty, freedom of movement, freedom from torture, right to privacy, freedom to earn a living, and to enjoy other socio-economic rights. For example, right to food (or to earn a living) is, by raison d'etre, a right indispensable to the right to life. Without adequate food and medicine and other basic amenities like fresh and clean air and water (environment) life can indeed be rendered impossible to sustain. The worth of human life depends upon its access to these essential commodities.

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22. In the democratic Lesotho of today, the court must always function within the spirit and parameters of the Constitution and the law; the courts must however also be activistic and progressive in interpreting all of the entrenched human rights in order to give them their true meaning and effectiveness.

23. Whereas under the South African Constitution (1996) where "the right to life" is couched in absolutist terms - e.g. section 11 reads:- "Everyone has the right to life" the right to life in Lesotho is not thus couched, the right to life in Lesotho under section 5 of the Constitution must therefore be defined and intrepreted differently from the South African

jurisprudence, and in its true perspective and scenario in Lesotho. Whilst this approach may sound rather conservative or over-cautious, to do otherwise would be to rewrite the Constitution in order to meet the present exigency. Moreso under the age-old doctrine of "separation of powers" the courts must not be seen as usurping the executive or legislative or indeed administrative functions of other organs of state. As it was stated by the Full Bench of the Constitutional Court of South Africa (11 Justices) in the case of Minister of Health and Others vs Treatment Action Campaign and Others (2) - 2002 (5) SA 721 (CC) at 755 (para 98)-

"This Court has made it clear on more than one occasion that, although there are no bright lines that separate the roles of the Legislature, the Executive and the Courts from one another, there are certain matters that are pre-eminently within the domain of one

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or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. This does not mean, however, that Courts cannot or should not make orders that have an impact on policy. "

See also the Lesotho case of Swissbourough Diamond Mines (Pty) Ltd v The Military Council of Lesotho and others- 1991-96 LLR 1481 at 1697 where Cullinan CJ put the doctrine of separation of powers in Lesotho as follows:-

"It is not a matter of supremacy of Parliament nor of the Executive; neither is it a matter of supremacy of the Judicature. None of them is supreme. It is the rule of law which is supreme ensuring that each power is exercised within its proper limits. "

It is however within the inherent right of the courts to interpret the constitutional clauses affecting the social and economic rights of the community in an expansive and purposive manner where this is appropriate.

24. In our view, the Constitution of Lesotho and the law are meant for the people of the Kingdom and not vice versa. If however a legal instrument is deficient in one respect or another, it deserves to be changed by the appropriate body to meet the present circumstances. Judicial activism should not be an "unruly horse" because that would go against the very hallowed ethos of "the rule of law".

25. Jurisprudentially, the present application needs to be pigeon-holed not

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under section 5 of the Constitution but "somewhere" under Part III (Principles of State Policy) of the Constitution of Lesotho. The Court is not oblivious to the fact that Lesotho is a signatory to many an international covenant on social, economic and cultural rights wherein there is a national commitment declared to the ideal of the "indivisibility" and "universality" of human rights, be they political, civil social, economic or cultural, and that if these socio-economic rights are to be meaningful to real human life, these rights ought not to exist only at an abstract or wishful level. In South Africa — where some core socio economic rights are justiciable, the Constitutional Court, while noting that not everyone could access these rights, has held that the state has a positive duty to take reasonable measures to practicalise such rights on a progressive manner (Government of RSA v Grootboom -2001 (1) SA 46 (CC)

26. In the Lesotho, the socio-economic and cultural rights are not justiciable. Under Chapter III, Section 25 of the Constitution of Lesotho reads:-

"The principles contained in this chapter shall form part of the public policy of Lesotho. These principles shall not be enforceable by any court but, subject to the limits of the economic capacity and development of Lesotho, shall guide the authorities and agencies of Lesotho, and other public authorities, in the performance of their functions with a view to achieving progressively, by legislation or otherwise, the full realisation of these principles. " (our underline) e.g. section 29 (1) reads:-

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"Lesotho shall endeavour to ensure that every person has the opportunity to gain his living by work which he freely chooses or accepts."

27. This Court realizes at once that under our Constitution, services like livelihood, education, health, opportunity to work, just and favourable conditions of work, economic opportunity to earn a living are categorized simply as "principles " and not as "rights " in a legal or jurisprudential sense. A "principle" is defined as:-

"a fundamental truth or proposition serving as a the foundation for belief or action" - Oxford English Dictionary.

28. The essence of the present application is that by being removed from their Kingsway locations and precincts where they ply their wares, the applicants are being deprived by the respondents of their means of livelihood. The question next is — "does this relocation deprive them their right to life"? This is indeed a vexing issue which requires a humanitarian, legal and constitutional solution.

29. Death as cessation of life can come about in divers ways e.g. as a natural end, or self-destruct/infliction (suicide) or in some ways criminal or it can be brought about through intentional deprivation of means of livelihood e.g. starvation or deprivation of essential medicines or amenities like air or water. The essence is where to draw the fine line of demarcation between intentional destruction of life and planned deprivation of means of livelihood.

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30. In India, the Supreme Court has held on many occasions that the "right to life " must be expansively purposively and generously interpreted in order to give it its fullest meaning and purpose. The Indian Supreme Court has therefore held that in order to enjoy a right to life, man must live a sustainable type of life with adequate food, shelter, health under favourable environmental conditions and that without food for a few days, man's life deteriorates and he ultimately may lose his that very life. Intentional denial or deprivation of food or medicine can cause death.

The Indian approach to the right to life is indeed very progressive and deserves all laudation.

31. Even though the South African constitution recognizes the freedom of trade, occupation or profession, section 22 further provides that

"Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law"

32. It is universally recognized in the free democratic world that the exercise of human rights and freedoms must be enjoyed in such a manner as not to abridge the rights of others; in other words the enjoyment of such rights and freedoms is not limitless.

33. Under our Constitution, trading or earning a livelihood falls to be placed under section 29. Whilst this "right or opportunity to work or trade"

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cannot be totally abridged, it needs to be regulated on grounds of public interest and order especially in the metropolis like Maseru where large populations have converged to live and eke out a living with each man, woman, boy and girl pursuing his and her own trade or profession. Public interest, law and order require control and regulation for the sake of harmony. Such regulation should determine place, time and type of goods to be plied. For example, foodstuffs have to be sold in hygienic and germ free environment and perhaps even be protected from inclemencies of weather.

34. It is in this context of its recognition under the Constitution of Lesotho that the (right) opportunity to trade enjoyed by street vendors/hawkers, should be viewed and weighed against other competing interests and values. This right must not be considered in vacuo or as an absolute value or asset

36. It cannot be disputed that Lesotho today like many states of Africa is facing acute problems of hunger and unemployment; these vices directly impinge in one way or another upon the right to livelihood and/or to live. It is sometimes difficult - if not nigh impossible - for a majority of our people - especially in the metropolis like Maseru to eke out a living. These people have a constitutional right to live in Maseru or anywhere in Lesotho.

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37. The Court can safely take judicial notice of this fact - that most street vendors, hawkers and chapmen sell fruits, vegetables, food, items of clothing, ornaments and other gadgets and these are sometimes placed on the pavements or on some stalls or racks or mobile carriers while some are carried on the vendors' shoulders. The best locality occupied by a vendor at the busy street corner may yield the vendor high profits or returns. To be removed from such spot and to be relocated at an obscure spot may mean the demise to his or her booming business or trade. This is an undisputable reality. The court must however not close - circuit its reasoning only to the street vendors' cause but should also have regard to the rights of the pedestrians to have unimpeded access to the main thoroughfare.

38. It is a fact that Maseru City streets and other infrastructures are not as good or perfect or adequate as one would desire and the only few streets or roads in the Central Business District (CBD) are congested with narrow and ill-planned pavements. Everyone however wishes to do business in the three-kilometre Kingsway! Thus, whilst the relocation of street vendors away from these pavements may be necessary for the free mobility and accessibility for the general public, it certainly may create real hardships to these vendors; numerically, the vendors are however far outnumbered by the pedestrians who day after day go up and down these narrow pavements.

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39. If the applicants are entitled to a right to livelihood under the Constitution so should every Mosotho in Lesotho! That should be the only conclusion if the right to life includes and is inseparable from right to livelihood. Trading as street vendors is a deliberate choice of the applicants and cannot be said to be the only alternative to a living. Taking away the one and only field of a rural peasant farmer may qualify more as deprivation of means of livelihood. It is however still a far cry to describe it as a violation for right to life.

40. In the Indian case of Olga Tellis v Bombay Manucipality Corporation - 1985 Supreme Court Reports (suppl 2) 51 the issue was whether the forcible eviction and removal from the pavements of City of Bombay deprived the street dwellers and vendors of their means of livelihood and consequently their right to life - i.e. whether right to life per se included the right to a livelihood. First, the Supreme Court had to consider whether administrative action of removal had been done reasonably, fairly and justly e.g. had proper notices being given to the affected parties; secondly whether removal, as a matter is statistics, would render the parties totally jobless and without means of livelihood - this necessitated an enquiry into whether there were other alternative job opportunities in the metropolis.

41. The Supreme Court held that administrative action under law must pass

two tests - (a) ultra vires and (b) reasonableness/fairness or justness. The court at the end held that:-

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"Pavements are public properties which are intended to serve the convenience of the general public ... they are not laid out for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from the portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs (chores) with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachment to be made on the pavements. "

42. The Court however took due cognizance of the fact that "right to and opportunity for work is the most precious liberty that a man possesses in order to sustain his livelihood. Every person has as much right to work as he has to live ....It can be argued, with some merit, that the right to live and the right to work are inseparable and interdependent and that if a person is deprived of his job his very right to life is put in jeopardy."

43. A line must however be drawn some where between the right to life on one hand and the right to earn a living and to have means of livelihood on the other; to blur the necessary distinction would lead to absurdities e.g. an illiterate prostitute could claim that her nocturnal trade is her only means of livelihood or a fatcake vendor at a church door steps be thus entitled to ply her fatcakes or retrenchment could be questioned as a violation to right to life? Control and regulation there should be in order to render the Kingsway pavements accessible and passable. What

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would happen if anyone with means could erect a stall along every inch on this and our only main street?

44. It could however be also argued with merit that if there is an obligation upon the State under an international covenant to secure to its citizens adequate means of livelihood and opportunity to work, then it would be sheer pedantry to exclude the right to livelihood from the content of the right to life.

45. This Court is however acutely cognizant of the fact that the right to life guaranteed under section 5 of the Lesotho Constitution cannot be defined and interpreted - even most expansively or purposively - to include right to livelihood and even so to exclude or outbalance other public rights. To so define it would go against the very spirit of our Constitution and with absurd results.

46. The issue of socio-economic development in Lesotho is per raison d'etre squarely in the domain of national policy and it is not for the courts of law beyond exhortations to point officiously at the direction which such policy matters should take or follow.

47. Where human rights and other core socio-economic rights are involved, the court, as a bulwark of these rights should perform a rather balancing act and should avoid saying too much and yet saying too little. As was stated sadly in another Indian Supreme Court case of Chandra v State (1984) (supra).

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"Most people eat to live: only a handful can afford the luxury of living to eat... the poor may always be with us but no one should take a fatalistic view towards the destiny of thousands of our fellow creatures. Their condition is not inevitable but is one caused by identifiable forces within the province of rational human control."

48. Construction of necessary and appropriate infrastructures for street vendors in Maseru depends upon variety of considerations e.g. availability of resources, convenience to the general public and prior consultative processes. As it was stated in the Constitutional Court of South Africa, the state has a paramount duty to take such measures as are reasonable to address some of the core socio-economic concerns in the positive meaningful and progressive way.

49. Good governance in Lesotho entails responsiveness on the part of the executive and administrative (municipal) organs to the socio-economic needs of the people, urban and rural. In the metropolis, for example, street lighting and sewerage services may be more necessary than in the rural villages; trade regulations for street vendors may be totally unnecessary in the rural Thaba-Tseka or Bela-Bela!

50. Provision of the basic infrastructures for street vendors must be predicated upon the empathic responsiveness to their core needs. Genuine consultation with the affected persons, devoid of any paternalistic attitudes, is the only meaningful way towards addressing these grave concerns which cannot just be wished away or suppressed

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and without due regard being had to the needs of these people who eke their living on the streets of not only Maseru, but all major towns in the districts of Lesotho.

51. In dismissing prayer 1 of this application upon the reasons just stated, the Court must dutifully note that the concerns of the street vendors must seriously be addressed with the empathy they deserve. Most of these people are poor and their street vending may be their only means towards a meaningful livelihood. Just like a supermarket located way out in the wilderness may liquidate and perish, so will these hawkers languish if no suitable structures are put in place at convenient places in town for their and public's convenience. Confrontational and forcible tactics are nothing but a recipe for a worse disaster.

52. In matters such as the present the ball is often not in the side of the courts but of the executive and administrative arms of government and all the court can do is to exhort the executive and municipal authorities into some positive action.

53. As Minister of Finance of South Africa Mr Trevor Manuel has recently put it (Business Sunday Times - Dec 12, 2004)

"...there are a lot of people who are finding ways of earning a decent, honest income. It is understanding that and being able to find mechanisms to assist people out of the worst band of poverty because failure to recognize and provide assistance to those eking out a

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livelihood presents us with a risk. It is a risk to democracy because it impacts on the quality of life of the poorest of society".

If the State cannot within means available provide sufficient jobs to the majority of our people thereby reducing the poverty levels, adequate opportunities and infrastructure must at least be availed to these people for them to eke out a living.

Conclusion

54. Prayer 1 of the Notice of Motion is therefore refused upon the sole ground that removal of the members of the 1st applicant cannot be declared is being in violation of section 5 (right to life) of the Constitution of Lesotho.

55. Re: Prayer 2 of the Notice of Motion

This prayer challenges the legality or validity of the 1st respondent's act of removing applicants from and refusing them permission to sell their goods along the Kingsway.

56. The phenomenon of "rule of law" requires legality of executive and administrative action if such action affects the rights or interests of the individual; in other words under the principle of ultra vires where a public official purports to exercise an administrative power or

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discretion or a Minister an executive power or discretion, the exercise of such power or discretion must be done within the parameters of the enabling law or some delegated instrument otherwise such administrative or executive action is ultra vires and can be declared null and void by this Court.

57. It is alleged in their affidavits that on or about 1st October 2003 the 1st respondent (probably upon instructions of the 2nd respondent) caused the forced removals of the 1st applicant's members from the precincts of Kingsway and Makhetheng; it is alleged that such forced removals were ultra vires section 9 of the Urban Government 1983 and Market Regulations 1971.

58. Under the maxim omnia praesumuntur rite esse acta, there is a rebuttable presumption that the 1st respondent acted properly and officially1. It is upon the applicant therefore to establish the ultra vires of the administrative action on a balance of probabilities. The inquiry is three fold - (a) did the 1st respondent or 2nd respondent cause the forced removal of street vendors from the Kingsway, (b) were the 1st applicants' entitled under law to trade along the Kingsway (c) were the 1st respondents authorized under law to remove the applicants' members from the Kingsway.

1 Hoffman & Zeffert S.A. Law of Evidence (1988) page 548;Cape Town Municuplaity v Abdulla -1974 (4) SA 428 and Mohr v Division Council - 1974 (2) SA 257 at 261.

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59. It is not in dispute that in the absence of a functional Maseru City Council, the law dictates that the Town Clerk shall exercise the functions of the Maseru City Council under law (see Order No.6 of 1989) under the Urban Government Act 1983,. Schedule 1 of the said Act reads-

"Duties which the Council may perform

9. (1) To establish, regulate and control markets, to regulate and control trade therein, to let stands or plots in such markets and whenever such markets are establish to prohibit, regulate and control trade elsewhere in commodities which are sold at established markets.

Section 8 of the Market Regulations 1971 reads:-

"A person who erects any building, tent, booth, shelter or any structure in any town premises without the written permission of the Town Council or District Secretary shall be guilty of an offence and liable on conviction to the penalty prescribed in regulation fifteen ".

Section 14 of these Market Regulations further reads:

"No person other than a licenced trader or registered cooperative society shall sell or offer for sale or barter any

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goods whatever at any place except with the written authority of the Town Council or the District Secretary and subject to any conditions which he may impose " (Our underline)

It stands to reason that if a person cannot lawfully carry on trade at a given place, he has no justiciable right to continue to trade at such place and his removal — proper notices having been given - is not unlawful. Such removal is assumed under "regulation, control and supervision". In other words a vendor who carries on trade without a permit cannot apply for an injunction to protect a non-existing right.

60. It is not necessary to decide whether or not the removal of the street-vendors was sanctioned by the 2nd respondent nor is it imperative to determine whether the 2nd respondent was properly joined in the proceedings. This is because - as Mr Phoofolo correctly submitted -the Town Clerk exercises his interim powers as Maseru City Council under the control of the 2nd respondent (order No.6 of 1989.)

61. It should be noted in passing that it is the unrepresentative character of the Town Clerk (being a Ministerial appointee and not democratically elected like a City Council) that contributed to the stalemate that has brought about this litigation. If Maseru City Council had been timeously and properly constituted, perhaps the grievances of the applicants could have been discussed and ventilated timeously in the proper forum.

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62. Even though ignorance of the law is no excuse (ignorantia juris non excusat) it seems the street vendors were not sufficiently informed about the law and the regulations governing street trading in the city or were the prohibited or restricted areas made known to them through appropriate bye - laws.

63. In his affidavit, 2nd applicant alleges that it was the 1st respondent who effected the removals and we shall take it at that - no more no less. It is also not dispute that when it purported to remove the street vendors having refused to grant them licences and permit to so trade along the Kingsway, the 1st respondent was acting under the provisions of the Urban Government Act 1983. Section 37 thereof reads:-

"37. (1) Subject to this Act or any other law relating to the duties of a council, the council shall,

1. control, manage and administer the municipality and generally assist in the maintenance of good order and Government within its area;

2. generally promote the public health, welfare and convenience, and the development, sanitation and amenities of the municipality. "

64. The only question therefore that remains is whether the 1st respondent exceeded the powers under the said Urban Government Act and Market Regulations. The onus was upon the applicant to establish the

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illegality of the 1st respondent's actions upon resumption being omnia praesumuntur rite esse acta.

65. The applicants do not dispute that-

1. the precincts along the Kingsway where their members trade as street vendors have not been designated at any time as market places whereat permits can be issued for such vendors to trade; and

2. the 1st applicant's members do not hold (or have they been granted) licences or permits to trade along the Kingsway. hi fact the vendors admit trading along Kingsway without proper permits or licences only because to do so is more lucrative than in the Old Local Government and Makhetheng Market Places -which they contend are obscurely located and are out of reach for the prospective buyers. They do not deny that they hold no permits to trade as they do. The morality or politics precipitating this dilemma is something not within the jurisdiction of this court to delve into. The legality of the vendors' action should be divorced from reasons whether they be moral or economic. It is a matter of pure law. An elected Maseru City Council - not this Court - could have been the appropriate forum wherein to address this thorny issue. This is not to say that the locations of the new market places are satisfactory to everyone. That is another "kettle of fish" Consultation and proper ventilation of ideas in a democratic

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forum could have produced an all-round solution or compromise.

66. The very fact that the Market Regulations criminalise trade at any other place in the City or Town, demonstrate clearly that no one can trade as he or she pleases in Maseru or any other town; trading in the city is regulated and controlled and the law reposes the regulatory function on the Maseru City Council (or the Town Clerk).

67. One can envisage the congestion that would occur if many people would, construct as they please, stalls along the Kingsway and whether the general public would have any reasonable access and passage through the pavements of the Kingsway.

68. Maseru as city is not well planned; there are traffic bottlenecks and narrow paveways and everything is channelled through the Kingsway which has to bear all the human and vehicular traffic. There must be some control somewhere, somehow. For the time being the Interim Town Clerk (for the Maseru City Council) is the repository of the statutory functions under Urban Government Order of 1983. As a substitute for a democratically elected City Council, one can safely assume that the Interim Town Clerk in exercising his powers in the metropolis must do so in a democratic fashion i.e. consult, give fair opportunity for proper representations to be made, give notices where necessary before taking any action that adversely affects the livelihood of the residents of this city - "Motse ho ahuoa oa morapeli -u ka nketsag ha e ahe motse".

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Prayer 2 for the above reasons is also dismissed.

Costs

As regards costs, the Court has seriously considered whether the applicants should pay the costs of this application. The general rule is that costs should follow the event. In the exercise of its judicial discretion, the court has considered the indisputable fact that applicants are persons "of straw" and their association has no tangible property or assets to satisfy the order of costs. To order applicants to pay costs would be an exercise in futility- a brutum fulmen.

In the circumstances of the case, justice requires that a "no order as to

costs " be made and it is so ordered.

JUSTICE S.N. PEETE

I agree

JUSTICE B.K MOLAI

I agree

JUSTICE T.NOMNGCONCO

For Applicants : Mr H. Phoofolo

For 1st Respondent : Mr Motanyane

For 2nd 3rd and 4th Respondents: Mr Putsoane & Mr Letsie