CIV\APN\334\94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

SEHLOHO
MOKAPELA APPLICANT

and

MINISTRY
OF HOME AFFAIRS 1ST RESPONDENT

COMMISSIONER
OF POLICE 2ND RESPONDENT

DEFENCE
COMMISSION 3RD RESPONDENT

R.L.M.P.
DISCIPLINARY BOARD OF OFFICERS 4TH RESPONDENT.

ATTORNEY
GENERAL 5TH RESPONDENT

RULING

Delivered
by the Honourable Acting Justice Mrs K.J. Guni on the 14th day of
July, 1995

The
applicant in this matter is MR. SEHLOHO MOKAPELA, who is a member of
the Police force.

At the
time of this application MR. MOKAPELA was stationed at PTC where he
worked. On 14th September 1994 there at P.T.C. the applicant
was
charged and convicted before a board of 4 officers. The applicant was
charged and convicted of misconduct or indiscipline under
the
regulations made in Legal Notice No,72 of 1994.

2

The
applicant is challenging the validity and\or legality of thi3
instrument, Legal Notice No.72 of 1994. The challenge is based
on the
ground that the body which made the said instrument claims to be
acting in pursuant to section 145 (4) of the constitution.
It is
section 145 (i) of our constitution that created the defence
commission. Subsection (2) of section 14b makes the list of

Responsibilities of the defence commission.

Subsection
(4) of section 145 of our constitution, from which the defence
commission claims to have derived the power to makes regulations
and
procedures it has enacted in Legal Notice No. 72 of 1994, reads as
follows:

"(4) The Commission may by regulation or otherwise regulate its
own procedures and may delegate any of its functions under
subsection
(2) to any public officer."

The
responsibilities of Defence Commission listed in section 145 ( 2 )
are :

1. appointment

   
   

2. discipline
   and

   
   

3. removal
   of members of the police force. By giving Defence Commission these
   responsibilities, does it necessarily follow that Defence
   Commission
   has been given power and authority to perform those
   responsibilities. The duty or obligation to carry out certain

   actions goes hand in hand with the authority to carry-out those
   actions. Section 30 Interpretation Act 1977. {Presumption of
   lawful
   exercise of power).

   
   

How does
defence commission carry out those

3

responsibilities?
There is no special provision in the said constitution which
describes the methods or mode or manner in which
the defence
commission is to carry out those responsibilities conferred upon it
by section 145 (2) of the constitution. It is silent.
It is upon this
silence that reliance is placed to challenge the authority of the
defence commission to make the regulations it
has made by instrument,
Legal Notice 72 of 1994. This Legal Notice was promulgated pursuant
to section 145 (4] constitution. In
the preamble of the R.L.M.P.
Regulations Legal Notice No.72 of 1994, it is abundantly clear that
Defence Commission being mindful
of its responsibilities in terms of
section 145 (2) and having carefully considered to carry out those
responsibilities, decided
to promulgate these regulations with
express intention of remedying the evil created by the repeal of
sections 5 (2) 12 to 22 of
Order No.26 of 1971. When construing the
meaning of the words used in the statute attention must be paid to
the declared intention
and the obvious evil which it is designed to
remedy. Jaga v Donges, N.O. and Another 1950 (4) SA 653.

There
appears to be no problems with regard to the delegation of the
responsibilities to the board of officers-to discipline this

particular member of the police force. The applicant questions the
legality and\or validity of the regulations under which he was

disciplined. The Defence Commission is a creature of statute. Its
powers, responsibilities or functions must necessarily come from
the
statute which created it. To determine the legality of its action

4

this
court must read the enabling statute under which the action is
takentogether with the terms of the instruments complained of.
The
Royal Lesotho Mounted Police regulations will be found to be a law
with authority and force of law because and only because
they are a
legislative pronouncement of a competent law-giver vested with the
authority to legislate - (The interpretation of statute
by Lourens M
du Plessis page 139 - chapter 6) Authority and validity of an
actments"

The
provisions in the constitution as in ordinary Acts or orders of that
size and nature, are in skeleton form. Flesh is to be added
by
delegated enactments which usually regulate in greater detail matters
provided for by original enactment in an outline form.
The
constitution is a main statute which dealt with a variety of
specialised complex matters. It has just provided frame work within

which various legal issues are dealt with. How the entities created
by the constitution carry out their responsibilities may be
up to
them. The practice of statutory bodies is to carry out their duties
by issuing circulars, giving directive and making regulations,
this
is most desirable "modus operandi" by statutory bodies.
Defence commission is such a body. Can it carry out its

responsibilities by issuing circulars directives and enacting
regulations? The answer to this question must be found in the
enabling
statute. Every power lawfully used by the defence commission
must be derived from that enabling statute from which its authority

emanates.

It was
argued quite strenuously by counsel for the applicant

5

that
defence commission in terms of, "section 145 (4) may by
regulation or otherwise regulate its own procedures". In
terms
of this section the defence commission according to the applicant,
has no power and\or authority to make the regulations
it enacted in
legal notice 72 of 1994.

What seem
to be the problem is the reading and understanding of the enabling
statute. In order to understand appreciably the meaning
of the words
used in section 145 (4), the section or the words in it must not be
read in the vacum. This point of view was expressed
by Schreiner J.A
in Jaga v Donges, N.O and another 1950 (4) SA (A.D) page 653 at page
663 where he quoted Lord Greene then Master
of the Rolls in Re bidie
(1949, ch. 121).

"The first thing to be done, I think, in construing particular
words in a section of an Act of Parliament is not to take in
vacuo,
so to speak, and attribute to them what is sometimes called their
natural or ordinary meaning. Few words in the English
language have a
natural or ordinary meaning in the sense that their meaning is
entirely independent of their context. The method
of construing that,
I myself prefer is not to take out particular words and attribute to
them a sort of prima facie meaning which
may have to be displaced or
modified, it is to read the statute as a whole and ask myself the
question: "In this statute,
in this context, relating to this
subject-matter, what is the meaning of this words?"

In our
present case we may not face just two possible meanings. Both the
constitution and the R.L.M.P. Regulations in Legal Notice
12 of 1994,
are written by Basotho. Although both instruments are written in
English when translated they may add a further connotation
to our
understanding. That is why it is most important that this court in
order to determine the true

6

meaning
of the section in question, it must look at the whole statute or at
least, the relevant parts to this subject matter before
it. That is,
sections 145, 147 and others relating particularly to the police
force. This the court must do bearing in mind the
evil the
Regulations are designed to remedy: Jaga v Donges N.O and Another
supra.

One of
the most relevant section that must be read with section 145 is
section 147 which created the Police Force. Section 147 (2)
vested
the power of command of the Police Force in the commissioner of
Police and subject to any direction of the defence commission.
(My
underlining). The defence commission remains as the ultimate
authority in the Police Force. The Police commissioner's actions
with
regard to his responsibilities for administration and discipline are
all subject to the direction of the defence commission.
How does the
defence commission give the directions to the commissioner of police?
In the performs of this duty the defence commission
may act as it
sees fit. It may issue out directives, circulars or make regulations.
All these methods are within its competency
as the flesh that is
added to the skeleton form of the main statute from which it derives
its power to take action.

Reasonableness
may be used as a yard stick measure in determining the validity of
the Regulations. That is to say, that the court
without usurping the
powers of the legislature, may declare the regulations invalid
because of their unreasonableness. R v Seedat
and another 1957 (1)
page 34. As

7

the
History of Police Force shows, these regulations subject matter of
this complaint - are a replica of the previous ones. The
regulations
may be described as unreasonable and therefore invalid on that basis
according to Lord Russell in Kruse v Johnson sited
in Seedat and
Another Supra at page 34. First of all if they are "found to be
partial, secondly" if they are "unequal
in their operation"
thirdly if they are manifestly unjust and disclose bad faith;
fourthly if they involved such oppressive
or gratuitous interference
with the rights of those subject to them as could find no
justification in the mind of reasonable men".
Regulations in
Legal Notice 72\94 in no way fit any of these descriptions. They were
part III of Order No.26 of 1971. They were
in the previous
proclamation 21 of 1957. Prior to the coming into force of the
present constitution, these were the operating Regulations
in the
Police Force.

Sub-section
(2) of section 145 vested the power to discipline the members of the
police force in the defence commission which in
terms of section 145
(4) may delegate that power to any public officer. The defence
commission has power to give directions to
the commissioner of police
when he carries out his responsibility to discipline the members of
the police force. Can the defence
commission have the power to give
direction to any public officer to whom it has delegated the
responsibility to discipline the
members of the police force? Defence
commission .supervises the commissioner of police by giving him
directions; can it not supervise
such public officer in the same way?
Making regulations to direct them in carrying

8

out of
those responsibilities seems practical and desirable. Could it have
been the intention of the legislator to give the defence
commission
the power and authority to makes regulations in order to be able to
carry out effectively and efficiently its responsibility
to
discipline the members of the police force? There is no doubt in my
mind that this is the intention of the legislature of the

constitution in respect of sections 145.

There has
always been the Regulations that were used for the proper
administration and discipline of the force. Proclamation 27
of 1957
provided for enrolment, discipline and administration of the then
Basutoland mounted police. It appears from its humble
beginnings that
the police force was built with mechanisms of discipline. This
proclamation was repealed and replaced by ORDER
NO 26 OF 1971. This
order was enacted to consolidate the laws providing for the
establishment, organisation and control of the
Lesotho mounted
Police. At all times there was some control exercised over the police
force.

When the
new constitution came into force, there were similar provisions which
gave power and authority to somebody or entity that
was to exercise
some control over the police force, this time the authority was given
to a newly created body, the defence commission.

By
proclamation 27 of 1957 the Police Force was not only organised but
was also disciplined. By order No 26 of 1971, the same spirit
of
organization, discipline and control prevailed

9

with the
legislator. All these statutes were not by Parliament. Nevertheless
there should have been some sort of debate to highlight
the purpose
of those statutes. The preamble of both statutes spell out in no
uncertain terms the whole purpose of the making of
proclamation and
the order no.26 of 1971. I have already made a mention that the
spirit and letter of both those instruments, was
to built and
maintain order and discipline in the force. The powers that are
questioned in this application, the respondent claims
that they are
derived, as they must, from the constitution. There is no preamble
from which search for the intention of the legislator
can be made.
Recourse to preliminary deliberation as a prime source of
legislator's intention, in regard to this shift of power
of control,
may have assisted if those deliberations were available. This is the
constitution that has brought about the constitutional
order in the
whole country. This is the constitution which has heralded and
brought about democracy in Lesotho. It is intended
to bestow
legitimacy to the Government and all its organs. How can it be
interpreted to have been intended to bring anarchy particularly
in
the police force? The answer is most certainly in the negative. The
constitution must have been intended to re-establish the
rule of law
and order. The constitution merely transferred the powers and
authority over the members of the police force from the
minister to
the defence commission. Police may have wanted to be in control of
themselves - But certainly not to be out of control.
The commissioner
of police subject to the direction of the defence commission is still
in control of the members of the police
force at least according to
the spirit and letter of the

10

constitution.
There might be a wrong impression that the police are out of control.
That is a very wrong impression because according
to the supreme law
of this land, there is someone who should exercise those controls. In
terms of our supreme law, the constitution,
it is the defence
commission. The history of the force clearly shows that at all times,
there was somebody with authority and power
to discipline members of
force. There is nowhere I find an indication or inclination to remove
such authority altogether. The police
force remains a disciplined
force. The defence commission cannot be denied the power and
authority to carry-out its responsibilities
in the manner it chooses
as long as it does so within the framework of those responsibilities.
BINDURA TOWN MANAGEMENT BOARD V
DESAI & CO. 1953 (1) SA 370. The
Legal Notice No. 72 of 1994 was lawfully promulgated by a competent
body.

This
application is dismissed with costs.

K.J. GUNI

(ACTING
JUDGE)

For
Applicant: Mr. Mosito

For
Respondent: Mr. Makhethe