CIV/APN/112/88

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

CHIEF
TSEPO Q.S. NKUEBE Applicant

and

MINISTER
OF INTERIOR AND

CHIEFTAINSHIP
AFFAIRS ....... 1st Respondent

ATTORNEY-GENERAL
............ 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 16th day of September,
1988.

The
applicant herein seeks, against the Respondents, an order framed in
the following terms :

1. Declaring
   the suspension of applicant by first Respondent with effect from
   17th March, 1988 null and void;

   
   

2. Directing
   Respondents to pay applicant's salary for the month of February,
   1988 forthwith;

   
   

3. Directing
   Respondents to pay the costs of this application;

   
   

4. Granting
   applicant such further and/or alternative relief as this Honourable
   court may deem fit."

   
   

2

The
application is opposed and affidavits have been duly filed by the
parties.

Briefly,
the facts disclosed by the affidavits are that following the
proceedings of the disciplinary committee the applicant, who
is a
gazetted Principal Chief of Quthing and the Chief of Sebapala, was on
26th January, 1988 found guilty of contravening section
17(c) read
with section 6(1) of the Chieftainship Act, 1968. He was deprived of
the powers and duties of his office for 5 years.
His wife,
Chieftainess 'Mahlabathe, was appointed/nominated initially an ad hoc
acting Principal Chief of Quthing and the Chief
of Sebapala and later
on the acting Principal Chief of Quthing and the Chief of Sebapala at
family meetings held on 30th January,
1988 and 20th February,
1988,respectively.

It would
appear that the reason behind appointing/ nominating Chieftainess
'Mahlabathe an ad hoc acting Principal Chief of Quthing
and the Chief
of Sebapala on 30th January, 1988 was that only a few members of the
family were able to attend the meeting. However,
on 20th February,
1988 the majority of the members of the family attended the meeting
at which the chieftainess was appointed/
nominated the acting
Principal Chief of Quthing and the chief of Sebapala.

It
appears, however, that the applicant subsequently approached the High
Court and on 18th February, 1988

3

obtained
an order declaring, inter alia, that his suspen-sion on 26th January,
1988 was a nullity on the ground that the proceedings
of the
disciplinary committee had not been conducted in compliance with the
provisions of the Chieftainship Act, 1968. It is significant
to note
that the decision of the court declaring the suspension of the
applicant null and void was based on a technicality and
not on the
merits. That being so, there was nothing preventing the applicant to
be brought before the disciplinary committee again
on the same
charge. Indeed, 1st Respondent addressed annexure "D", a
letter of 17th March, 1988 in which he informed
the applicant that
investigations were under way concerning his discipline with a view
to placing him, once again, before the dis­ciplinary
committee.
He was for that reason being sus­pended from office with effect
from 1st April, 1988,

The
salient question is whether or not, in the circumstances of this
case, the 1st Respondent was empowered to suspend the applicant.
It
is to be observed that subsection (11) of section 16 of the
Chieftainship Act 1968 provides:

"(11) while investigations are being made, the minister may
suspend from office with or without pay the chief in respect of
whom
such investigations arc being made until the disciplinary proceedings
are completed and shall inform the chief in writing
accordingly,'

4

Granted
that when on 17th March, 1988 the 1st Respondent suspended the
applicant from office inves­tigations were being carried
out
concerning the latter's discipline, it seems to me that the former
had the dis­cretion to act as he did. The answer to
the question
I have posted viz. whether or not, in the circumstances of this case,
the 1st Respondent was empowered to suspend
the applicant must,
therefore, be in the affirmative.

It was
argued, however, that before he sus­pended him the 1st Respondent
ought to have afforded the applicant an opportunity
to be heard. He
did not do so,, The suspension was, for that reason, a violation of
the rule of natural justice, audi alteram partem,
and therefore, bad
in law.

I am
unable to agree. Subsection (11) of section 16 of the Chieftainship
Act, 1968 uses ordinary language whose meaning is very
plain viz.
that the minister may suspend the chief in respect of whom
investi­gations are being made, until the disciplinary

proceedings are completed. The subsection clearly makes no provision
that before he is suspended from office the chief con-cerned
must be
afforded the opportunity to be heard. To add such a provision in
subsection (11) whose meaning is plain and presents no
ambiguity or
abserdity will, in my view, amount to on attempt to fill in a gap.

5

It must,
however, always be borne in mind that the function of a court of law
is to interpret a Statute, whose language is as plain
as the language
of subsection (11) of Section 16 of the Chieftainship Act, 1968, as
it stands and not to fill in gaps. I come to
the conclusion,
therefore, that in terms of the provisions of subsection (11) of
Section 16 of the Chieftainship Act, 1968 it is
not the intention of
the legislature that the chief con-cerned must be afforded the
opportunity to be heard before he is suspended
from office pending
the completion of the investigations and/or the proceedings of the
disciplinary committee. That being so, I
find no justi­fication
for the granting of prayer (a) of the notice of motion.

As
regards prayer (b) of the notice of motion, it is clear from the
provisions of S.20 of the Chieftainship Act, 1968 that the applicant

is entitled to the emoluments of the office of a chief provided he
has performed the duties of that office. In the present case
it is
not disputed that from the 26th January, 1988, when the disciplinary
committee decided to deprive him of the powers and duties
of his
office, until 18th February, 1988 when the High Court set aside the
decision of the Disciplinary Committee, the applicant
did not perform
the duties of the office of the Principal Chief of Outhing and the
chief of Sebapala.

6

Assuming
the correctness of my finding that until 18th February, 1988 the
applicant performed no chiefly duties,I find no justification
for his
claim that he is entitled to payment of salary for the whole of that
month i.e. February, 1988. He may perhaps be entitled
to salary in
respect of the remaining 10 days in February, 1988 i.e. covering the
period from 19th to 29th February, 1988 all depending
on whether or
not the salary which the applicant admittedly received in March 1988
covered the 10 days in February, 1988. There
is, however, no
certainty as to whether or not the salary cheque which the applicant
received in March, 1988 covered the 10 days
during which he performed
chiefly duties in February, 1988.

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

B.K.
MOLAI

JUDGE

16th
September, 1988.

For
Applicant : Mr. Pheko

For
Respondent : Mr. Mohapi.