C. of A. (CIV)
NO. 4/05

CONST/C/1/2004

IN
THE COURT OF APPEAL OF LESOTHO

In the matter
between:

KHATHANG
TEMA BAITSOKOLI FIRST APPELLANT

MOSALA
NKEKELA SECOND APPELLANT

AND

MASERU CITY
COUNCIL FIRST RESPONDENT

MINISTER OF LOCAL
GOVERNMENT SECOND RESPONDENT

COMMISSIONER OF
POLICE THIRD RESPONDENT

ATTORNEY -
GENERAL FOURTH RESPONDENT

JUDGMENT

13, 20
April 2004

S.5 of Constitution of
Lesotho – right to life – whether includes right to livelihood -
regulation of trading by local authority
in terms of Urban Government
Act, 1983 - constitutional challenge – decisions of Supreme Court
of India in Olga Tellis v Bombay Municipal Corporation
and of Supreme Court of Bangladesh in Bangladesh Society for
Enforcement of Human Rights v Government of
Bangladesh not followed.

CORAM:

GROSSKOPF,
JA

SMALBERGER, JA

GAUNTLETT, JA

GAUNTLETT, JA:

?1?
The appellants are respectively a registered association of traders,
and an individual member who from 1979 until recently had a
stall in
the centre of Maseru at the area known as Makhetheng, situated on
Kingsway. Members of the first appellant seek to ply
their trade
along Kingsway, the capital’s main thoroughfare, selling foodstuffs
and other items to the public. The first and second
appellants have
instituted a constitutional challenge (pursuant to s. 22 (6) of the
Constitution, read with GG 104 of 14 December
2000) to their removal
by the first respondent (with the assistance of the other
respondents) from Makhetheng to a market some 200m
away (according to
the respondents). This is known as the Old Local Government Premises
(“the new market”).

?2?
The challenge is squarely founded on the right to life, entrenched by
the Bill of Rights comprising Chapter II of the Constitution
of
Lesotho. The second appellant’s case is that at Makhetheng he used
to gross about M300 in sales daily, but that now

“ I hardly make anything per day because of being out
of convenient reach of the public who would buy my goods. As a
result of my removal
from my long-term place of business I have been
unable to meet my basic needs………. I am not able to purchase
food and clothing
for my dependants, and we are slowly starving to
death”.

This claim is
also made on behalf of other members of the first appellant. For
brevity I shall refer to them and the second appellant
collectively
as “the traders”.

?3?
The respondents deny this. They point to the fact that the statutory
provisions which the traders had contended are relevant, in
truth do
not apply. They invoke the powers accorded to the first respondent
under the Urban Government Act 1983 (to which further
reference will
be made). They say furthermore that the first respondent, seeking to
exercise its local government responsibilities
relating to the
orderly development of Maseru, has established the new market. This
has a capacity “far outnumbering ?first
appellant’s?
members”. The respondents furthermore deny that the traders are
being prohibited from trading in the urban area of Maseru. The
statutory duties of the first respondent are said to require the
orderly regulation of trading areas. In particular the respondents
deny that moving the traders to the new market imperils their
livelihood, let alone that (as the traders contend) this threatens
their very survival.

?4?
It is common cause that the statutory provisions initially invoked by
the traders were inapposite. The court a quo
(Peete J, Molai et
Nomngcongo JJ concurring) however allowed an
amendment to the notice of motion. Ultimately an order was sought in
these terms:

“(1) Declaring Applicants’ removal from Makhetheng area and
other areas along Kingsway Street in Maseru where they trade as
street
vendors as a violation of applicants’ right to life in terms
of Article 5 of the Constitution.

(2) Declaring the First and Second Respondents’
act of removing applicants from and refusing them permission to sell
their goods
along Kingsway Street in Maseru as ultra vires First
Respondent’s powers under section 9 of the schedule I to Urban
Government
Act, 1983.

(3) Granting Applicants further and/or alternative relief.”

?5?
In a judgment which gave extensive consideration to s.5 of the
Constitution, Peete J (writing for the Full Bench) ultimately
concluded
that

“the
right to life guaranteed under s.5……….. cannot be defined and
interpreted – even most expansively and purposively –
to include
?the?
right to livelihood…………………”.

?6?
This is the first instance of which we are aware in which the right
to life has been invoked in Lesotho. That right is of course
foundational to human existence, and its constitutional significance
is itself primary (S v Makwanyane
1995 (3) SA 391 (CC) at 429 H). In the words of Lord Bridge, an
individual’s right to life is “?t?he
most fundamental of all human rights” (R v
Home Secretary, ex parte Bugdaycay ?1987?
AC 514, ?1987?
1 All ER 940 (HL) at 531G).

?7?
The traders appear in the main to be people
whom economic need has drawn from rural areas to the capital, seeking
to eke out an existence through informal trading. The
phenomenon is
familiar in many societies, particularly in Africa, and the plight of
those concerned (like that of others who struggle
as farmers or
workers) is apparent.

?8?
The affidavits however do not (applying the rule laid down in Plascon
– Evans Paints v Van Riebeeck Paints
Pty 1984 (3) SA 623
(A) at 634C – 635C) establish a threat to actual survival arising
from the relocation of the stalls, imminent or
gradual, as the
appellants assert. In argument before us, the case for the
appellants instead rests most centrally on the proposition
that the
traders’ rights to a livelihood was imperilled, and that the right
to life under Lesotho’s Constitution encompasses
these rights.
Counsel said he stood or fell by this proposition, and by his
reliance on Indian and Bangladeshi case law in that
respect.

?9?
Given the importance of a constitutional claim of a right to life, in
the exceptional circumstances of this case we shall assume
for the
purposes of the appellants’ argument that the traders’ right to a
livelihood has indeed been put at risk by their removal
to the new
market, some 200 m away. We do so without deciding that factual
inquiry. This is because the essential question for
determination is
whether the right to life in Lesotho encompasses the right to a
livelihood. If that proposition fails, so does the
claim made by the
traders. They have attacked their removal to the new market on no
other legal basis.

?10?
The statutory powers the respondents have exercised are these. S.37
of the Urban Government Act, 1983 provides:

“37 (1) Subject to this Act or any other law relating
to the duties of a council, the council shall,

1. control, manage and administer the
   municipality and generally assist in the maintenance of good order
   and Government within its
   area;

   
   

2. generally
   promote the public health, welfare and convenience, and the
   development, sanitation and amenities of the municipality;

   
   

3. act
   as a rating authority and undertake all the duties with respect to
   rating as may be imposed on any local authority under this
   Act, or
   under the Valuation and Rating Act, 1980 or under any other law;

   
   

4. undertake
   the duties and responsibilities as land authority in respect of all
   land within the municipality under Section 24 (1)
   of the Land Act
   1979 when called upon so to do by the Minister;

   
   

5. undertake
   the functions of the planning authority for the purposes of Section
   11 (4) of the Town and Country Planning Act 1980;
   and exercise any
   of the powers of consultation conferred on the public by that Act,
   including the lodging of objections under
   Section 7 (1) (c) of the
   Town and Country Planning Act 1980; and

   
   

(f) undertake any other duties which may be placed upon
a Council by this or any other Act.

(2) Without prejudice to the generality of the
foregoing, the Minister may, from time to time, by regulation,
impose on any council
any of the duties contained in Schedule I to
this Act, and described more particularly in the relevant paragraphs
thereto”.

Schedule I to the Act is
as follows:

“Schedule I

Duties
which the Council may perform

1. Sanitation
   and Housing

   
   

2. Protection
   of foodstuffs

   
   

3. Water
   and food supplies

   
   

4. Abattoirs

   
   

5. Sanitary
   Services and Refuse Removal

   
   

6. Infectious
   Diseases

   
   

7. Streets
   and Public Places

   
   

8. Abatement
   of nuisance

   
   

9. Markets

   
   

10. Burial
    Grounds

    
    

11. Pounds

    
    

12. Camping
    grounds

    
    

13. Grazing

    
    

14. Parks
    and Gardens

    
    

15. Removal
    of obstructions

    
    

16. Control
    of building permits”.

    
    

Regulations
made to enable the first respondent to carry out these duties in
relation to Maseru include (in their relevant aspects)
these:

“ 9. (1) To
establish, regulate and control markets, to regulate and control
trade therein, to let stands or plots in such markets,
and whenever
such markets are established to prohibit, regulate or control trade
elsewhere in commodities which are sold at established
markets.

(2) To undertake the administration and enforcement of
the Market Regulations L.N. 13 of 1971, and perform all the duties of
local
administration officer.

(3) To employ health officers for the purpose of such
Regulations”.

Yet other
regulations empower the first respondent to facilitate “the
efficient, rapid and safe movement of pedestrians” and to
control
access to public streets.

?11?
The attack in this matter is not made at the level of a challenge to
the validity of any of these statutory provisions. Any such
attack
would have to have been made clearly and not obliquely, to enable the
other parties to know exactly what it is that is sought
to be
invalidated, and on what specific basis. The requirements relating
to pleading a case – whether in motion or trial proceedings
–
apply with equal force in constitutional litigation (National
Director of Public Prosecutions v Phillips
2002 (4) SA 60 (W) at 106C – 107F, and cases there cited).

?12?
The attack on the actions of the respondents in obliging the
applicants to trade at the new market accordingly must assume the
constitutional
validity of the statutory powers invoked. The argument
then must be understood to be that while these powers authorise the
respondents
to effect the relocation of traders in Maseru to achieve
the purposes of the statutory provisions, the exercise of those
powers in
the present case infringes the Constitution. This, I
reiterate, is on the sole basis that the right to life subsumes the
right to
a livelihood and that the latter is infringed by the
compulsory move to the new market.

?13?
S.5 of the Constitution reads thus:

“Right to life

5. (1) Every
human being has an inherent right to life. No one shall be
arbitrarily deprived of his life.

(2) Without prejudice to any liability
for a contravention of any other law with respect to the use of force
in such cases as are
hereinafter mentioned, a person shall not be
regarded as having been deprived of his life in contravention of this
section if he
dies as the result of the use of force to such extent
as is necessary in the circumstances of the case -

(a) for the defence of any person from violence or for
the defence of property;

(b) in order to effect a
lawful arrest or to prevent the escape of a person lawfully detained;

(c) for
the purpose of suppressing a riot, insurrection or mutiny; or

(d) in order to prevent the commission by that person of
a criminal offence,

or if he dies as the result of a lawful
act of war or in execution of the sentence of death imposed by a
court in respect of a criminal
offence under the law of Lesotho of
which he has been convicted”.

This right is entrenched
in the Bill of Rights (chapter II of the Constitution) in terms of
s.4 (1) (a), where it is described again
as “the right to life”.

?14?
It is well-established now as a principle of constitutional
interpretation that a fundamental right entrenched in this way in a
justiciable
Bill of Rights should be given a generous interpretation
(Sekoati v President of the Court-Martial
?1995
- 1999?
LAC 812 at 820-2 and
the further decisions there considered). At the same time, however,
as Kentridge AJ noted in S v Zuma 1995
(2) SA 642 (CC) (in a passage adopted in Sekoati
supra at 822E):

“ We must
heed Lord Wilberforce’s reminder that even a constitution is a
legal instrument, the language of which must be respected.
If the
language used by the law giver is ignored in favour of a general
resort to ‘values’, the result is not interpretation
but
divination”.

Apart from
the words used, their context too will be of great importance in
determining the ambit of the provision. As Lord Steyn
noted most
simply in a recent decision of the House of Lords, “?i?n
law context is everything” (R v Secretary of State, ex parte
Daly ?2001?
3 All ER 433 (HL) at 447a; Aktiebolaget Hassle v Triomed (Pty)
Ltd 2003 (1) SA 155 (SCA) at 157G).

In interpreting a particular constitutional provision,
moreover, while similar exercises in other jurisdictions will
frequently be
of value and sometimes of importance, reference to them
must be undertaken with care. Kriegler J warned in Bernstein v
Bester NNO 1996 (2) SA 751 (CC) against “the frequent – and I
suspect, often facile – resort to foreign authorities ………
?and the?
blithe adoption of alien concepts or inapposite precedents” (at
811H – 812B).

?15?
With these broad considerations as to the proper approach to
interpretation in mind, I turn to the issue at hand. S.5 (1) states
the right to life in both positive and negative terms : it recognises
an inherent right to life and it prohibits its arbitrary deprivation.
As counsel for the appellants accepted, this formulation creates a
single basic right the scope of which is to be derived from taking
both parts together.

?16?
The further provisions of s.5 to my mind made it clear that the
protection accorded by the right relates to life in the ordinary
sense of human existence (as the Full Bench of the High Court
expounded in its judgment). S.5 (2) is the derogation clause in
respect
of the right conferred by s.5 (1). S.4 (1), in legislating
generally for the rights which follow, provides for derogation in
these
explicit and narrow terms:

“Subject to such limitations of that protection as are
contained in those provisions………………”

In other
words, the right may only be limited in terms of these specific
provisions.

?17?
The limitations thereafter specified in s.5 (2) are hardly consistent
with an interpretation of the right to life as encompassing
the right
to a livelihood. These limitations are both exclusive and specific,
and nowhere authorise curtailment in any circumstances,
however
pressing, of a right to livelihood. Thus if the right to life
includes the right to a livelihood, the appellants’ argument
would
have the effect of recognising an absolute right to livelihood in
Lesotho. (The same logic would apply, counsel for the appellants
acknowledged, to a claim to include the right to health and the
procurement of education in the right to life, on the analogous
reasoning
that survival is endangered without adequate provision for
either). This, moreover, in a context where the core right – the
entitlement
to exist as a human being – is itself derogable. The
proposition is clearly not tenable. Appellants’ counsel conceded
that
he could not argue for an absolute right to a livelihood, when
the right to life itself is derogable, but he was unable (in the
light
of the specificity of s.4 (1) ad fin
and s.5 (2) ) to suggest from what source and in what terms
derogation would be derived.

?18?
The wider context too is further destructive of the argument. The
position is not that there is no provision elsewhere in the
Constitution
of Lesotho relating to the right to livelihood. In
accordance with a number of other constitutions and international
convenants
on human rights, Lesotho has dealt with what are generally
described as socio-economic rights (or “green rights”) in a way
which
is distinct from the treatment of fundamental rights (or “blue
rights”). In Lesotho’s case this is to provide separately for
a
chapter in the Constitution (chapter III) entitled “Principles of
State Policy”. One of these (s.29 (1) ) is that “Lesotho
shall
endeavour to ensure that every person has the opportunity to gain his
living by work which he freely chooses or accepts”.

?19? The
aspirational language is significant. That is not to say that the
provisions of s.29, like those of adjacent provisions regarding
matters such as health, education, protection of children, workers’
rights and interest and the environment, may not in appropriate
circumstances and in appropriate ways find implementation, and that
recourse may be had to the courts in that regard. But that
is not a
matter that falls to be determined in this case. It is however to
say that the opportunity to gain a living by work –
in other words,
to secure a livelihood – is expressly dealt with outside the ambit
of s.5 (and thus outside the means for enforcement
for chapter II
rights in terms of s.22, which is expressly confined to chapter II
rights).

?20?
The argument for the appellants means that the securing of a
livelihood is dealt with twice under the Constitution: once
implicitly
as part of the right to life, entrenched in chapter II
with internal derogation provisions (which, as noted, cannot be
applied to
it) and explicit provision for enforcement under s.22 ;
and again under chapter III with none of those features. The
contradiction
is evident. Such a construction (entailing tautology,
inconsistency and anomaly) is inimical to any sound approach to
construction.

?21?
These difficulties in my view are fatal to the argument. It is not
redeemed by the reliance placed on two decisions. The first
is that
of the Supreme Court of India in Tellis v
Bombay Municipal Corporation ?1987?
LRC 351 (Const.). This dealt with the forcible eviction of persons
who were obliged by poverty and lack of adequate housing to live
on
the teeming pavements of that city in circumstances described by the
court (per Chandrachud, CJ) as “very hell on earth” (at
376b).
Their case was specifically that they could not be evicted from their
shelters without being offered alternative accommodation.
The
judgment records in this regard (at 355 c-e):

“They
rely for their rights on Article 21 of the Constitution which
guarantees that no person shall be deprived of his life except
according to procedure established by law. They do not contend that
they have a right to live on the pavements. Their contention
is that
they have a right to live, a right which cannot be exercised without
the means of livelihood. They have no option but to
flock to big
cities like Bombay, which provide the means of a bare subsistence.
They only choose a pavement or a slum which is nearest
to their place
of work. In a word, their plea is that the right to life is illusory
without a right to the protection of the means
by which alone life
can be lived. And, the right to life can only be taken away or
abridged by a procedure established by law, which
has to be fair and
reasonable, not

fanciful or arbitrary such as is prescribed by the
Bombay Municipal Corporation Act or the Bombay Police Act. They also
rely upon
their right to reside and settle in any part of the country
which is guaranteed by Article 19(1) (e) ”.

?22?
Assuming (at 368c) for the purposes of argument (as is done in this

case) the factual premise that eviction would deprive
the pavement dwellers

of their livelihood, the
court held that Article 4 of the Constitution of India,

in protecting the right
to life, encompasses the right to a livelihood.

It referred (at 368 i)
to the fact that the Constitution of India requires the

State to direct its
policies to securing that its citizens have the right to an

adequate means of
livelihood. It did not however consider the arguments

in this regard addressed in paragraphs ?18?
to ?20?
above. It proceeded to

reason thus (at 369 b-d):

“If there is an obligation upon the State to secure
to the citizens an adequate means of livelihood and the right to
work, it would
be sheer pedantry to exclude the right to livelihood
from the content of the right to life. The State may not, by
affirmative action,
be compellable to provide adequate means of
livelihood or work to the citizens. But any person who is deprived
of this right to
livelihood, except according to just and fair
procedure established by law, can challenge the deprivation as
offending the right
to life conferred by Article 21”.

Ultimately the court upheld the validity of municipal
enactments prohibiting

the erection of
structures or other encroachments upon the pavements

in question, and held
the local authority to the assurances it had made in its

papers. It ordered that
slum clearance which would affect the pavement

dwellers could not take
place until a date specified with regard to the end of

the monsoon season.

?23?
An attempt to invoke the expansive concept of the right to life has
also been made in South Africa. Rejecting the endeavour Chaskalson
P (as he then was) said:

“These
comments ?in the Indian cases
cited? must be seen in the
context of the facts of that case which are materially different to
those of the present case…………….
In our Constitution the
right to medical treatment does not have to be inferred from ……….the
right to life which it guarantees.
It is dealt with directly…………..If
?that?
were to be constructed in accordance with the appellant’s
contention it would make it substantially more difficult for the
State
to fulfil its primary obligations………In my view, much
clearer language than that used ………..would be required to
justify
such a conclusion”

(in
Soobramoney v Minister of Health, Kwazulu - Natal 1998 (1) SA
765 (CC) at 773 E – 774 A).

(This
analysis appears not to have been considered in Victoria &
Alfred Waterfront v Police Commissioner, W Cape 2004 (4)
SA 444(C), where the court (Desai J), citing Tellis v Bombay
Municipal Corporation, supra held in passing (at 448F) that the
right to life “ includes the right to livelihood”. The court
also did not consider the separate
and explicit provision in s. 26(1)
of the South African Constitution for the right “freely to engage
in economic activity and to
pursue a livelihood anywhere in the
national territory”.)

?24?
Similar considerations apply here. In Tellis
v Bombay Municipal Corporation
supra, the court had to deal with a situation of exceptional social
severity, rendered urgent by the advent of the monsoon. A situation
akin to necessity applied. This appears from the following passage
(at 355 a-b) :

“Those who have made pavements their homes exist in the
midst of filth and squalor, which has to be seen to be believed.

Rabid dogs in search of stinking meat and cats in search of hungry
rats keep them company. They cook and sleep where they ease,
for no
conveniences are available to them. Their daughters come of age,
bathe under the nosy gaze of passers-by, unmindful of the
feminine
sense of bashfulness. The cooking and washing over, women pick lice
from each other’s hair. The boys beg. Menfolk,
without
occupation, snatch chains with the connivance of the defenders of law
and order; when caught, if at all, they say: “Who
doesn’t commit
crimes in this city?”

It is these men and women who have come to this Court to
ask for a judgment that they cannot be evicted from their squalid
shelters
without being offered alternative accommodation”.

Moreover, while the judgment ranges far and wide, its ultimate thrust
(as already indicated) was a finding of procedural irregularity
in
slum clearance. “Whilst the Tellis judgement conceptually
broadened the ambit of the right to life to include an entitlement
to
the basic amenities of life, it limited the impact of its reach by
stopping short of converting the broad right into an actionable
claim
against the administration” (Chaskalson et al Constitutional
Law of South Africa 15-3 note 3). Thus the
decision is no direct authority for the substantive challenge to the
powers of the respondents mounted in this
case.

[25] Nor in my view does the decision of the
Supreme Court of Bangladesh in Bangladesh Society for the
Enforcement of Human Rights v Government of Bangladesh
(14 March 2000) appear to assist the appellants materially. (We were
furnished with a digest of the decision from the Commonwealth
Legal
Bulletin, 53 DLR (2001) 1). That matter involved a forced removal of
residents of an area, apparently because they were contended
to be
sex-workers, and their children. The court granted an order
declaring the evictions illegal and releasing the sex-workers.
The
petitioners had invoked two provisions in the Constitution of
Bangladesh, which are quoted in these terms:

“Art 31: ‘To enjoy the
protection of the law, and to be treated in accordance with law, and
only in accordance with law, is the
inalienable right of every
citizen, wherever he may be, and of every other person for the time
being within Bangladesh, and in particular
no action detrimental to
the life, liberty, body, reputation or property of any person shall
be taken except in accordance with law.’

Art 32: ‘No person
shall be deprived of life or personal liberty save in accordance with
law.”

[26] The court appears to have held that “given
that Art 31 has a similar scope to the right to life in Art 21 of the
Indian Constitution
it should be read to include the right to
livelihood (Olga Tellis v Bombay Municipal Corporation
AIR 1986 (SC) 180 applied)” (ibid). It held that
the police, in effecting the evictions, had acted illegally – and,
it is suggested, possibly corruptly - in aiding
and abetting “the
owners in their illegal acts”. The evictions, it considered,
constituted a violation of the sex-workers’
rights “to life or
livelihood” in a manner also “contrary to their personal
dignity”.

[27] The factual premise for the present
challenge is hardly comparable. The constitutional provisions differ
materially. The extract
available to us indicates that the court
followed Tellis v Bombay Municipal Corporation supra. It does
not appear to have considered the further matters which constrain me
respectfully to come to a different conclusion
in relation to the
claim made in this case.

[28] I accordingly consider that the right to
life in s.5 of the Constitution of Lesotho does not encompass a right
to a livelihood.
That is the subject of specific and separate
provision, in s.29. The latter derives its status from its inclusion
as a principle
of State policy. It is not included as a chapter II
right (even in the terms in which its comparator is under the
Constitution of
South Africa : see Minister of Health v
Treatment Action Campaign (No.2) 2002 (5) SA 721 (CC);
Government of the RSA v Grootboom 2001 (1) SA 46 (CC)).

[29] The appeal is accordingly dismissed. No
order as to costs was made by the court a quo. Although the
respondents sought an order of costs on appeal in their heads of
argument, this was not pressed in oral argument,
evidently in
accordance with the general approach in constitutional matters that a
court will be disinclined to make an order of
costs in a substantial
challenge of a public nature (see Transvaal Agricultural Union
v Minister of Land Affairs 1997 (2) SA 621 (CC); Sanderson
v Attorney General, Eastern Cape 1998 (2) SA 38
(CC) ).

_______________

J.J. GAUNTLETT

JUDGE OF APPEAL

I agree.

_________________

F.H. GROSSKOPF

JUDGE OF APPEAL

I
agree.

___________________

J.W. SMALBERGER

JUDGE OF APPEAL

MASERU

20 April 2005

Counsel for the
appellants : Mr E.H. Phoofolo

Counsel for the
respondents: Mr M. Motanyane