CIV/APN/6/83

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

TSOLOANE
MAKOALA Applicant

v

SOLICITOR-GENERAL Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 21st day of
February 1983

This is
an application in which the applicant Tsoloane Makoala is seeking an
order to compel the Road Transport Board(the Board)
to "renew"
Motor Carrier Certificates (on road sectors to be detailed in a
moment) . in respect, of four vehicles owned
by the applicant for the
year commencing 1st January 1983 to 31st December 1983

The Board
resists the application.

The
applicant avers in Clause 3 of his founding affidavit that during
1980 he applied for and was granted a Certificate to operate
a
passenger bus Registration No.D 1106 between Phoofolo (in TY
district) to Maseru Bus stop which Certificate was allegedly renewed

for the years 1981 and 1982 but refused for 1983. The applicant did
not produce such a Certificate (not even a copy) for any of
the years
in question.

The
applicant avers further that during 1981 he applied for and was
granted three other Certificates in respect of three other vehicles

Registration Nos D 1522(for the same route) D 0929 and D 1488 for the
route Phoofolo-Maputsoe. In his replying affidavit applicant
produced
photocopies of only two Certificates in respect of vehicles

2

Registration
Nos D 1522 and D 1488. Mr. Radebe says from the bar that the
originals of all four Certificates have been taken by
the Board. This
allegation was not substantiated in. the two affidavits sworn by the
applicant and the Board could not therefore
answer an allegation not
made on oath. I will assume, in favour of the applicant, and for the
purpose of this judgment, that this
may have been the position.

The Board
is a statutory body originally established under s.162 of the Road
Traffic and Transport Order No. 15 of 1970 (Vol.XV
Laws of Lesotho
179 at p 266). The Order and the Regulations made thereunder (the
principal one being Legal Notice 25 of 1970 same
volume p 581 as
amended from time to time except apparently Chapters XVIII and XIX)
were repealed by,the Road Traffic Act 1981
(Act 8/81) and the Road
Transport Act (Act 6/81) which Acts came into force on 1st October
1982 vide Government Notice No. 93 of
1982 " published in
Gazette No. 31 of 30th July 1982. The 1970 Order was thus split into
two Acts, There are two new sets
of Regulations; the Road Transport
Regulations 1981 (L.N. 83 of 1982) published as a supplement to
Gazette No. 1 of 15th January
1982 and the Road Traffic Regulations
1981 (L.N. 84 of 1981) published as a supplement to Gazette No.2 of
22nd January 1982.

If I may
digress for a moment the Regulations made under powers conferred upon
the Minister by the two Acts of 1981 (which it should
be noted had
only come fully into operation on 1st October 1982) came into force
earlier: The Road Transport Regulations 1981 on
the 1st January 1982
and the Road Traffic Regulations (as per the Interpretation Act 1977)
on publication on the 22nd January 1982.
The problem is whether
Regulations made under powers conferred by two Acts which are not yet
law can be effective before the date
of the commencement of Acts. In
the preamble to the Road Traffic Regulations 1981 the Minister refers
to powers conferred upon
him by. s.111 of the Road Traffic Act 1980.
There is no Road Traffic Act of 1980, and s.111 of the Road Traffic
Act 1981 (the printers
may have made a mistake) does not confer upon
the Minister powers to make regulations. Section 111 deals with the
powers and duties
of a vehicle

3

examiner.
The section that gives the Minister powers to make Road Traffic
Regulations is s. 114 of the Road Traffic Act 1981.

Fortunately
nothing in this application.depends on the disjointed legislation and
what appears to be numerous typographical errors
referred to.I have
engaged in this exercise just to bring to the notice of the draftsman
in the Law Office and Government printer
the absolute necessity of
clarity in expression, in intention, and reasonable accuracy in
printing and proof reading. The task
of the Judiciary will then be
much more easy.

In the
opposing affidavit the Chairman of the Board avers that the applicant
did in fact apply for and was granted a Motor Carrier
Certificate for
the route Phoofolo-TY in April 1980. This was gazetted. The applicant
also made an application in the same year
for the route
Phoofolo-TY-Maseru but this was refused. In 1981 the applicant made
applications for the routes Phoofolo-Lekokoaneng
and the route
Maseru-Ramabanta which were also refused. The Chairman of the Board
avers further that the applicant "never
made one for the route
Maseru-Maputsoe as alleged". The applicant did not in fact
allege that he applied for this route: what
he alleged was that he
applied for the Phoofolo-Maputsoe route in 1981 which was granted.
Counsel for the Board however submitted
that this could not be true
and he produced an application by the applicant (Exhibit Cl) stamp
dated 6th March 1980 for the route
Phoofolo-Maputsoe which was also
duly refused on the 28th March 1980 on the ground that the route was
adequately served and the
applicant was so informed in writing
(Exhibit C2).

The
attitude of the Chairman of the Board is that Motor Carrier
Certificates which the applicant produced for renewal sometime
towards the end of 1982 (for the year 1983) are "fabrications"
by which word I understand him to mean that they were fraudulently
or
illegally obtained because if they were not, his applications for
those routes would have been on file, the acceptance or rejection
of
the applications would also be on file, and the minutes of the Board
(of which he was Chairman since 1980) would show the fate
of every
application. The question therefore of "renewing" invalid
Motor Carrier Certificates "does not arise".

4

Mr.
Radebe argues that once the applicant produces Motor Carrier
Certificates apparently, or on the face of things, in order, the

Board has no alternative but to renew the Certificates and then
institute an action in the.High Court to prove their invalidity
on
the analogy of Phillipson Municipality v Masrai and others 1926 CPD
82. Certainly the Board can do that if it wanted to but
as I see it
they are also entitled to resist if the applicant himself choses to
come to court to compel the Board to act. The applicant
may have a
vested interest in renewal provided his Certificates are genuine but
there is no presumption of validity in his favour
unless the
Certificates were duly certified as correct in terms of s. 170(2) of
Order 15 of 1970 and there is not an iota of evidence
that the
originals were so endorsed and the two copies produced certainly were
not.

The legal
position under the Road Traffic and Transport Order 15 of 1970 and
Regulations made there under in Legal Notice 25 of
1970 (as amended)
when the applicant purportedly made his applications was primarily
governed by s. 165 which defines the Board's
functions. Granting,
refusing, or renewing licences is in the "discretion" of
the Board subject to an appeal by the person
aggrieved to the
Minister (s. 166).

The
duties of the interested applicant and the Board when applications
for Motor Carrier Certificates at the time the applications
were
purportedly made, are found in Chapter XV of the 1970 Regulations
(L.N. 25 of 1970 Regulations 181 to 202 at p. 653 et seq).
When the
applicant allegedly applied for the routes mentioned in his affidavit
in 1980 and 1981 it was encumbent on the Board to
publish the
particulars in the Government Gazette. The Government Gazettes of
Lesotho are full of such advertisements. The applicant
had not
demonstrated that his applications for the routes were properly made
or gazetted let alone granted. The Chairman swears
no such
applications exist in his office, and Board minutes do not show that
these applications were considered or discussed. On
balance of
probabilities therefore as the papers now stand these Motor Carrier
Certificates have been prima facie illegally obtained
by the
applicant.

5

Assuming
the Certificates were genuine as the applicant maintains, and
assuming the Board did refuse to renew the Certificates and
assuming
the applicant's applications for renewal were made before 1st October
1982 the applicant must have exhausted his statutory
remedies first
by appealing to the Minister.The applicant has not done so.

On the
same assumptions, if the applications for renewal were made by the
applicant subsequently to the 1st October 1982, then the
Road
Transport Act 1981 and the Road Transport Regulations 1981 will
apply. The powers and duties of the Board has been somewhat
changed.
It is now obliged to take into consideration "the policy guide
lines approved by the Government" whatever this
policy may be
from time to time and "policy" of course need not be
published or indeed publicly stated. The Board has,
at its
discretion, the power to refuse to grant an application and by
implication a renewal (Regulation 4). The aggrieved party
has a right
of appeal to the Minister in terms of s. 19 of the Act of 1981. The
procedure is laid down. The applicant had not done
so. Whether there
can be judicial review by the Court from what appears to be a purely
administrative decision does not arise for
consideration now and I
express no opinion.

I am
satisfied beyond any doubt that this review application to the High
Court, certainly at this stage, is utterly misconceived
and must be
dismissed with costs.

CHIEF
JUSTICE

21st
February 1983

For
Applicant : Mr. Radebe

For
Respondent : Miss Lelosa (Law Office)