C. of A. (CIV) 25 of 1987
IN THE LESOTHO COURT OF APPEAL
In the matter between:
E.H. PHOOFOLO Appellant
and
MINISTER OF FINANCE First Respondent
ATTORNEY-GENERAL Second Respondent
HELD AT MASERU
Coram:
SCHUTZ P.
PLEWMAN J.A.
ACKERMANN J.A.
JUDGMENT
Schutz P.
At the time that the application that is the subject of this appeal was brought, the appellant, then applicant, was a deputy governor of the Central Bank of Lesotho and a director of its board- He had the departmental responsibility for the exchange control legislation.
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In his notice of motion he claimed the following relief inter alia:
Directing First Respondent to desist forthwith from appoint ing and/or authorizing persons and/or authorities under regulation 19(1) of the Exchange Control Regulations 1975 to order or demand from the Applicant any documents or information relating to exchange control;
Directing First Respondent's appointment and/or authorization of Captain Leseteli Malefane of the Royal Lesotho Mounted Police and Mr. Charles Robert van Staden of the Exchange Control Department of the South African Reserve Bank null and void.
The application was dismissed with costs by Allen J.
From the papers it emerges that the appellant was himself under suspicion of having contravened the Exhange Control Regulations. What the appellant complained of in his papers was that his affairs had been investigated by the said
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Malefane and Van Staden on the authority of certain authorizations which, according to the appellant, were invalid for one reason or another. The details of the investigations need not be set out. Suffice it to say that Captain Malefane performed certain acts of interrogation and search, and that Mr. van Staden also interrogated the appellant in relation to his exchange control activities.
At the root of this appeal lie the two documents of authority, and certain statutory provisions of the law. Captain Malefane's authority reads:
ORDER
I,Evaristus Retselisitsoe Sekhonyana
the Minister of Finance in the Kingdom of Lesotho in the exercise of the powers vested in me by Regulation 19(1) of the Exchange Control Regulations 1975 hereby authorize Captain Leseteli
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Malefane of the Royal Lesotho Mounted Police to order any person to furnish any information at such person's disposal or which the aforesaid authorized person deems necessary for the purposes of the Exchange Control Regulation and I also authorize the aforementioned
person to enter the residential or business premises of the person so ordered, and inspect any books or documents belonging or under the control of such person."
This document is signed by Mr. Sekhonyana as Minister of Finance.
Mr. van Staden's authority is in the following terms:
TO -WHOM IT MAY CONCERN
I, the undersigned E.R. Sekhonyana, in my capacity as Minister of Finance and under powers vested in me by Regulation 19(1) of the Exchange Control Regulations, 1975, hereby appoint Charles Robert
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van Staden who is employed in the Exchange Control Department of the South African Reserve Bank, to exercise on behalf of the Minister of Finance the powers conferred on him by Exchange Control Regulations 1975."
This document also is signed by Mr. Sekhonyana as Minister of Finance.
The relevant power to make regulations (such as regulation 19(1 ))is to be found in s.3 of the Exchange Control Act 2 of 1975, which reads in part:
"3The Minister is hereby empowered to make regulations prohibiting 'or restricting dealings in or possession of gold, goods, currency or securities and for purposes incidental thereto and connected therewith. .
Without prejudice to the generality of the foregoing, the regulations may –
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require any person to make statements or produce documents for the purposes of the regulations;
provide for the entry of any premises and the search of any premises or person for the purpose of giving effect to any of the regulations;
empower such authorities or persons as may be specified
in the regulations to make orders, rules or directions for giving effect to any of the regulations;
prescribe the form of any document required for the purpose of giving effect to the regulations or the rules;
generally, as to all matters which
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he considers it necessary or expedient to prescribe in order that the objects of this Act may be achieved."
The Exchange Control Regulations 1975 were promulgated by the Minister of Finance in terms of the aforesaid s.3, and Regulation 19(1) reads:
"The Ministry, or any person authorised by the Ministry, may order any person to furnish any information at such person's disposal which the Ministry or such authorised person deems necessary for the purposes of these regulations and any person generally or specifically appointed by the Ministry for the purposes may enter the residential or business premises of a person so ordered and may inspect any books or documents belonging to, or under the control of such person."
The Ministry is defined in Regulation 2(2) to mean:
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".... the Minister of Finance and in respect of any power or function assigned to the Ministry by these regulations, includes any person authorised by the Minister to exercise or to perform such power or function. "
In terms of Reg.22 read with S. 4 of the Act, a person refusing to give information, or who obstructs the authorized person, commits an offence.
Mr. Pheko, for the appellant, contends that both documents of authorization are invalid on one or more grounds. First. he contends
that the regulations contemplated under S.3(2)(c)should "specify" the persons empowered to make, inter alia, orders. The Oxford English Dictionary defines the word "specify" as follows:
" 1" intr. To speak or make relation of
some matter fully or in detail ...
2. trans. To mention, speak of, or name
(something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail".
Mr. Pheko contends that, in order for an empowerment to be good, the regulations had actually to name the persons who could exercise
powers under Reg. 19(1).
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I do not think that that could have been the intention of S.3(2)(c). That subsection itself contemplates the empowerment not only of specified "persons" but also of specified "authorities." That would have the result that among those empowered would be an unspecified and constantly changing number of individuals who worked in the Ministry, the Ministry being an "authority"
mentioned in Reg. 19(1). For any individual in the Ministry to be empowered all that is necessary is that he be "authorised"
by the Minister - see the definition of "Ministry". If that be right then it has already been demonstrated that individuals may be empowered without being specified by name in the regulations. Once that is so it is difficult to see why individuals not employed in the Ministry should stand on a different footing. Circumstances might well arise where the Ministry might wish or need to avail itself of the skills of persons such as accountants, policemen and so on, and sometimes urgently. It would be cumbersome indeed if such appointments could be made only after the regulations had been amended in the Gazette so as to "specify" such persons. Moreover, the Minister was under no compulsion to promulgate regulations under any or all of the subsections contained in S. 3(2). He might have made regulations under the general subsection 3(1) or under that subsection and also those parts of S.3(2) which exclude 3(2)(c). In either of those eventualities it would have been open to the Ministry to authorize persons to give effect to the regulations. I fail to see that the fact that a regulation (that is regulation
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19(1)) was made under S.3 made it necessary to name all the persons authorized. My view is that the class of persons empowered is
suffiently "specified" as being person in the Ministry who are authorized, and persons outside the Ministry who are authorized.
In any event Reg. 19 by no means depends only upon S.3(2)(c). The whole of it was authorized by the remaining parts of S.3.
This leads on the next point, namely that the phrase "any person authorised by the Ministry" is not wide enough to cover
foreigners such as Mr. Van Staden. The word "any" is a word of wide and unqualified generality: see R. v. Hugo 1926 AD 2G8 at 271. I can see no reason at all. to qualify it in the context in which it has been used. On the contrary there is every reason why the Minstry should be able to use foreign skills where they are needed.
Then it was submitted that inasmuch as regulation 19(1) may affect the privacy, liberty and property of the subject it should be given a strict interpretation. That may be so. But the conclusion sought to be drawn from this submission is this: that on a proper reading it does not authorize the search of premises in respect of which entry is made: that it has no extra-territorial application, and that it does not authorize seizure of documents or books inspected. As to the submission that the regulation does not have extra-territorial application, I find it quite startling. Occasions may arise where in order to investigate an exchange control contravention properly it is absolutely necessary to send an investigator out of the country or to use one who is abroad, and there
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is every reason not to interpret the regulation strictly in the respect suggested. As to the other points, it is unfortunate that regulation 19 does not expressly mention search (which is provided for in S.3(2(c) of the Act or seizure of books and documents, which is not expressly provided for in the Act, although I think it is covered by the generality of S.3(1) and S.3(2)(c) or (e). Why regulation 19(1) was not expressly made coextensive with S.3 of the Act is not clear to me, particularly when the Act is a skeleton, leaving practically everything to regulations to be made- It is not necessary to decide in this case whether the failure to mention search and seizure expressly means that those powers were not conferred on the persons authorized, because even if that were so no specific relief has been sought in regard to those matters.
The next point argued was that there had not been a compliance with S.36(1)(d) of the Interpretation Act 19 of 1977 consequent upon an alleged delegation under S.35(2) of that Act. 5.35(2) reads:
"A minister may delegate to any public officer the exercise of any power, other than the power to make subsidiary legislation,
and the performance of any duty, conferred or imposed upon him by the Act."
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S. 36(1) (d) reads in part :
"Where a Minister has delegated powers and duties under section 35(2) ....... (d) notice of such delegation shall be published in the gazette."
The potential significance of these provisions arises because Mr. Van Staden is not a public officer, and because the alleged delegations
have admittedly not been published in the Gazette.
The question arises whether there have been "delegations" in one or both cases.
Words and Phrases Legally Defined 2 ed Vol.2 p. 35 defines delegation as meaning, "...... the devolution from an agent upon another person of a power or duty entrusted to the agent by his principal." See also Wills J. in Huth v. Clarke (1890) 25 Q.B.D. 391 at 395:
"Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to a conferring of an authority to do things which otherwise the person would have to do himself".
Judged by this test I do not consider that the appointment of Captain Male fane is to be regarded as a delegation. Manifestly it was never intended that the Minister himself, or even the Ministry was to conduct all investigations. Captain Malefane was simply authorized to do a specific job of work.
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The appointement of Mr. Van Staden, an the other hand does present some problem. It is ineptly worded, because of a possible reading, arising out of the last three lines,that Mr. van Staden was authorized to exercise all the Minister's powers under the Exchange Control Regulations. If that is what it really means it would be a delegation. But as a matter of interpretation I think that the
document does not mean that. I consider that it confers on Mr. Van Staden all the regulation 19(1) powers, but only those, and not all the Minister's powers under the Act. I say that because of the words, "...... and under powers vested in me by Regulation 19(1) .......". This phrase indicates that the Minister was directing himself only to those powers, and serves sufficiently to limit the powers actually conferred. The prase is there and must be given a meaning.
If that is so the arguments based on S.35(2) and S.36(1)(d) of the Interpretation Act falls away, that is both with regard to non-publication and with regard to Mr. Van Staden's not being a public officer.
In the result the appeal is dismissed with costs.
W.P. SCHUTZ
PRESIDENT
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I agree
C.PLEUMAN
JUDGE OF APPEAL
L.W.H. ACKERMANN
Delivered at Maseru this 28H day of July, 1988.
For the Appellant : Mr. L. Pheko
For the Respondent : Mr. C.J. Pearson.
