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-

"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.

10

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

14

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

23

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

24

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

25

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.

26

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

27

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.

28

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

29

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

   
   

30

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".

31

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