C. of A.
(CIV) 25 of 1987
LESOTHO COURT OF APPEAL
OF FINANCE First Respondent
time that the application that is the subject of this appeal was
brought, the appellant, then applicant, was a deputy governor
Central Bank of Lesotho and a director of its board- He had the
departmental responsibility for the exchange control legislation.
notice of motion he claimed the following relief inter alia:
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
First Respondent's appointment and/or authorization of Captain
Leseteli Malefane of the Royal Lesotho Mounted Police
Charles Robert van Staden of the Exchange Control Department of the
South African Reserve Bank null and void.
application was dismissed with costs by Allen J.
papers it emerges that the appellant was himself under suspicion of
having contravened the Exhange Control Regulations.
appellant complained of in his papers was that his affairs had been
investigated by the said
and Van Staden on the authority of certain authorizations which,
according to the appellant, were invalid for one reason
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.
root of this appeal lie the two documents of authority, and certain
statutory provisions of the law. Captain Malefane's authority
Minister of Finance in the Kingdom of Lesotho in the exercise of the
powers vested in me by Regulation 19(1) of the Exchange
Regulations 1975 hereby authorize Captain Leseteli
Malefane of the Royal Lesotho Mounted Police to order any person to
furnish any information at such person's disposal or which
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
control of such person."
document is signed by Mr. Sekhonyana as Minister of Finance.
Staden's authority is in the following terms:
IT MAY CONCERN
undersigned E.R. Sekhonyana, in my capacity as Minister of Finance
and under powers vested in me by Regulation 19(1) of the
Control Regulations, 1975, hereby appoint Charles Robert
van Staden who is employed in the Exchange Control Department of the
South African Reserve Bank, to exercise on behalf of the Minister
Finance the powers conferred on him by Exchange Control Regulations
document also is signed by Mr. Sekhonyana as Minister of Finance.
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
Minister is hereby empowered to make regulations prohibiting 'or
restricting dealings in or possession of gold, goods,
securities and for purposes incidental thereto and connected
prejudice to the generality of the foregoing, the regulations may –
any person to make statements or produce documents for the purposes
of the regulations;
for the entry of any premises and the search of any premises or
person for the purpose of giving effect to any of the
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;
the form of any document required for the purpose of giving effect
to the regulations or the rules;
as to all matters which
he considers it necessary or expedient to prescribe in order that the
objects of this Act may be achieved."
Exchange Control Regulations 1975 were promulgated by the Minister of
Finance in terms of the aforesaid s.3, and Regulation
"The Ministry, or any person authorised by the Ministry, may
order any person to furnish any information at such person's
which the Ministry or such authorised person deems necessary for the
purposes of these regulations and any person generally
specifically appointed by the Ministry for the purposes may enter the
residential or business premises of a person so ordered
inspect any books or documents belonging to, or under the control of
Ministry is defined in Regulation 2(2) to mean:
".... the Minister of Finance and in respect of any power or
function assigned to the Ministry by these regulations, includes
person authorised by the Minister to exercise or to perform such
power or function. "
of Reg.22 read with S. 4 of the Act, a person refusing to give
information, or who obstructs the authorized person, commits
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:
intr. To speak or make relation of
some matter fully or in detail ...
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).
I do not
think that that could have been the intention of S.3(2)(c). That
subsection itself contemplates the empowerment not only
"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
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"
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)
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
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.
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
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.
was submitted that inasmuch as regulation 19(1) may affect the
privacy, liberty and property of the subject it should be
strict interpretation. That may be so. But the conclusion sought to
be drawn from this submission is this: that on a proper
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
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
reason not to interpret the regulation strictly in the respect
suggested. As to the other points, it is unfortunate that
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.
point argued was that there had not been a compliance with S.36(1)(d)
of the Interpretation Act 19 of 1977 consequent upon
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
(d) reads in part :
"Where a Minister has delegated powers and duties under section
35(2) ....... (d) notice of such delegation shall be published
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.
question arises whether there have been "delegations" in
one or both cases.
Phrases Legally Defined 2 ed Vol.2 p. 35 defines delegation as
meaning, "...... the devolution from an agent upon
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,
points rather to a conferring of an authority to do things which
otherwise the person would have to do himself".
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.
appointement of Mr. Van Staden, an the other hand does present some
problem. It is ineptly worded, because of a possible reading,
out of the last three lines,that Mr. van Staden was authorized to
exercise all the Minister's powers under the Exchange
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
the Minister's powers under the Act. I say that because of the words,
"...... and under powers vested in me by Regulation
.......". 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
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
and with regard to Mr. Van Staden's not being a
result the appeal is dismissed with costs.
JUDGE OF APPEAL
at Maseru this 28H day of July, 1988.
Appellant : Mr. L. Pheko
Respondent : Mr. C.J. Pearson.
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