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CIV/APN/147/2000
IN THE HIGH COURT OF LESOTHO

In
the matter between:

MOEKETSI KUTLO SEOTSANYANA APPLICANT

and

THE ATTORNEY GENERAL 1st RESPONDENT

THE MINISTER (FOR PASSPORT CONTROL) 2nd RESPONDENT

For time Applicant: Mr. M.K. Seotsanyana
For the
Respondents: Mr. T.S. Putsoane

JUDGMENT

Delivered by the Honourable Mr. Justice T. Monapathi on
the 13th day of July 2000

The Applicant, an advocate of fifty three years of age,
was holder of a Lesotho local passport no.M259170 which would expire
on the
23rd August 2003. He sought a replacement passport in terms of
section 13 of Lesotho Passports and Travel Documents Act No.15 of
1998. The reason was that all the pages or spaces

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in the passport had been filled up with ink stamp
impressions of the various endorsements which had been duly made on
entry and exit
from Lesotho. As a result it was used up but a still
valid passport. The Applicant had to apply to a replacement document.

In order to be issued with a replacement passport a
person has to apply in a prescribed form to the Director of
Immigration (the Director)
which Mankopane Mathibeli, (the
Respondent's deponent) the Principal Immigration Officer said "is
currently being used in respect
of all applications for passports."
Applicant must have been issued with such a form. That is why he
objected to filling up
certain, sections of the form more especially
the one which should be filled by a chief under

whose jurisdiction an applicant is. About this sections
the Applicant said: "

inasmuch as they were intended to prove his citizenship
they were superfluous unnecessary and unconstitutional" and
inasmuch
as Applicant still held his "government-issued
declaration of citizenship, namely my own passport." I will come
later and
briefly to this question of citizenship.

The most important prayers in the Applicant's notice of
motion were for the following:

"(a)

(b)

(c) Finding and declaring the oral refusal by the
government of Lesotho

through its civil servants at passport-control at
Teja-tejaneng on Monday 10th April, 2000 and at Maseru on Tuesday
11th April, 200
to issue a new passport-book to cover travel outside
Lesotho by applicant for the unexpired period of validity of passport
no. M259710,
that is, ending 23rd August, 2003 to be
unconstitutional, unlawful and an oppressive denial of citizenship
and its attendant

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rights and privileges.

(d) Consequently upon the declaration in (c) above,
ordering the Attorney-General as chief legal adviser to the
government to advise
passport-control or office at Maseru to issue
the said new passport-book to applicant forthwith.

(e)

(f) "

I would have wished to underplay this question of
citizenship. But section 7(1) of Act No.15 of 1998 refer to persons
to whom passports
may be issued as "citizens of Lesotho for
purposes of travelling in or out of Lesotho." In paragraphs 10
and 11 the Applicant
puts in summary form all that shows and proves
that he was a lawful citizen of this kingdom and added:

" that any government thereof, however incompetent
it may be, is

in that possession of the truth of the matter".

Indeed in the preceding paragraphs despite, the
Respondents' response thereto by denial of "personal knowledge"
and applicant
being "putt proof thereof", several other
facts are put in which in most probabilities indicated that the
Applicant was
indeed a citizen of Lesotho. This was however not
entirely satisfactory in another respect. These facts and statements
were however
couched in such strong, prolix, verbose and at some
places in plainly insolent language that it becomes inexplicable why
Counsel
of the Applicant's seniority and of his formidable
intelligence should have this tendency at all. (See paragraph 10 of
the (bunding
affidavit and most of the paragraphs in the replying
affidavit.) (See also ROMA BOYS FC AND OTHERS v LESOTHO FOOTBALL
ASSOCIATION
AND OTHERS 1995-1996 LLR 456 at 470. The Applicant will
almost always see no amount of rectitude in people with whom he
disagrees.
He says it with no holds barred. I agreed with my brother
Ramodibedi J in ROMA BOYS FC case that this is most

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disrespectful to other people. I would be kind to the
Applicant and say that he must learn to moderate his language.

Still on the issue of citizenship, it may perhaps be
that the applicable forms were primarily geared towards proving
citizenship.
And that there are various ways to prove one's
citizenship one of which is one's previous passport as the Applicant
submitted. I
am sure that if these historical facts in the life of
the Applicant were put before the officials of the Director he would
even find
that, they outweigh the supporting evidence of a chief in
showing that the Applicant is actually a citizen of Lesotho. Here one
would
still speaks of probabilities .

But most importantly the Director has determined that
there are ways of proving certain things (including citizenship) and
there are
ways of collecting information which the Director deems
essential. This information may even have nothing to do with proof of
citizenship
or re-proving that one is a Mosotho as Applicant has
variously styled the reason for the requirement. The Director runs a
bureaucracy
which must have an established routine because it
accounts to the public. He has prescribed forms.

Then in above circumstances, is it not within the powers
of the Director to prescribe requirements which he deems necessary to
enable
him to properly discharge his powers? Is it part of the
bureaucratic game that a citizen must always have every explanation
as to
why administrative instruments such as forms are designed to
elicit information from the citizen? And why in any or selected
incidents
should the citizen pick and choose suitable requirements?
The questions are not too broad but are relevant and relate to the
present
situation wherein the Applicant takes the view that the
requirement that his chief must fill a portion of an application is
unnecessary.
Before dwelling further on this question of filling of

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forms there was one matter that the Applicant pursued
most vigorously in his argument much against what I had expected. It
had to
do with the following.

The Applicant sought to persuade the Court that he had
lost touch with and had no relationship with any chief. This included
the chief
of Masoeling Ha Patso in the district of Berea where he was
bom. The reason as he said was that he had effectively been a
resident
of the town of Maseru from as early as 1962. He said he was

" to date an urbanite and have never had to seek a
service from

a chief (morena ofe kapa ofe Maseru) in the town of
Maseru, or indeed anywhere else. In consequence I do not have to be
known to any

chief or to know any for my citizenship to subsist "
(vide

paragraph 4 of founding affidavit).

_I found it strange for the Applicant to say that he had
no relationship to any chief. I would hesitate to believe so with
respect
to the Applicant. This was reinforced by my personal
knowledge of the Applicant. And generally from my own knowledge of
the life
of our people in this country. I would similarly not believe
so. This I would say despite Respondents unhelpful response to the
said
paragraph 4 that the contents thereof were not within the
knowledge of the deponent and they put Applicant "to prove".

I would add that whether any Mosotho has needed no
service of any chief at any given time does not retract from the fact
that a great
majority of Basotho have at least a sentimental
attachment to a chief in this country. It is more so when a person
has been bom at
a place which he knew and has merely removed
therefore by reason of schooling, working and stay in Maseru which is
not even more
than one hundred (100) kilometres from his place of
birth. Such is the Applicant. That relationship with one's chief
however sentimental
and attenuated it may be, it still

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remains a fact very easy to presume than not. As such I
took the Applicant's denial of relationship with his chief as a red
herring
if not a stratagem to avoid going about a task which the
Applicant thought was inconvenient or onerous.

Indeed one need not be formally known to his chief. In
my view it is an

office of chief that seems to be a requirement in that
form prescribed by the
Director. So, if it was not the chief of
Masoeling why was the Applicant not able
to resort to one of the
chiefs of Maseru if the meaning of jurisdiction of a chief
is
inclusive or is to be extended to mean the chief under whose
jurisdiction a person
resides? I however felt that as onerous as
the requirement was that would not be
a reason for dispensing with
it. In my mind as long as the requirement for filling
up the form
remained as I decide, it would be a matter of discretion of the
Director
whether the whole of the form or some other part
(including that of the chief) is to
be dispensed with.

I would reiterate that for various reasons including
those that may be given

by the Director some parts of the application form may
be dispensed with in deserving cases. As the Principal Immigration
Officer
has said an application form for a passport has to be
accompanied by inter alia a birth certificate or affidavit of birth.
This includes
the part that has to be completed by a chief under
whose jurisdiction an applicant is. I would not say that every such
document must
accompany an application as a matter of law "without
exception." It surely cannot be pitched to level. If so it would
negate
that discretion that the Director has.

The reason why some degree of rigidity is necessary in
complying with all requirements has been called for is to be found in
what
the Principal Immigration Officer said were compelling reasons.
Firstly she said that despite possession of old passport it has still
to be proved that an applicant was actually a citizen of Lesotho.

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This insistence was found necessary because it was
discovered that some people had in the past been granted passports
when they in
fact were not citizens of Lesotho, nor would they
qualify for possession of any Lesotho passports. The strict
requirement for support
by chiefs to applicants in the prescribed
forms was grounded on this problem.

The second reason why emphasis was put on the earnest
filling up of forms was the following. After political disturbances
of 1998
records of passport holders of the old type (such as
Applicant's) of passports were burned down at the old immigration
offices. This
consequently made verification of the goodness or
lawfulness of passports already held much difficult. The risk of
wrongly issuing
passport would be lessened by meticulous filling up
of forms afresh.

Also advised against by Government was the previous
practice of issuing of new passports to persons applying therefor on
the basis
of production of old passports. The issuing of a new
passport on production of an old one was what Applicant apparently
wanted. This
filling up of forms afresh conduced to a safer and
securer compilation of record of passport holders in the whole
country. This I
would have found to be the most persuasive reason.
This would even justify encroaching or impinging on the extent of the
Director's
discretion in selected cases in which form would not be
filled or where only partial filling of forms would be allowed. The
Chief
Immigration Officer conceded that the filling up of forms by
individuals would entail a delay and was "simply not
prejudicial".
He said it was prejudicial but it was to be
balanced against the interest of the nation which was against issuing
passports to people
who did not qualify. The new records would
facilitate the introduction of machine readable passports which
system was presently in
vogue and was actually adopted in this
country.

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I did not see how the need for filling up fresh forms
would be unjustified or excused by production of a used up passport
on the basis
of provisions of section 6 of Act No.15 of 1998. The
section reads:

"6. A passport shall contain the following
information

1. 
   full names and surname of bearer

   
   

2. 
   date and place of birth of bearer

   
   

3. 
   sex of bearer

   
   

4. 
   photograph of bearer

   
   

5. 
   signature of bearer

   
   

6. 
   date and place of issue

   
   

7. 
   expiry date of the passport

   
   

(h) signature of the person issuing the passport

(i) passport number and

(j) endorsements."

I thought the section prescribed as to what a regularly
completed and executed passport document should contain as
information or
marks. The provision appears to be nowhere near a
suggestion that an old passport (since it contains most of this
information) is
a substitute for filling up fresh forms. Indeed in
the discretion of the Director this would be a time saving device.
But he would
normally not be inclined towards this short cut on the
ground of the said compelling reason of the need to compile new
records from
the beginning.

It should be clear that I was not overly attracted to
arguments like whether the chiefs statement in the required form was
the only
way of proving one's citizenship or not. But I ended up
deciding that any portion of the application form remained as
important as
other parts of the form unless in the discretion of the
Director of Immigration that (of the chiefs statement) part or other
could
be dispensed with.

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I thought in the final analysis, as Mr. Putsoane for
Respondents correctly submitted, the question which became uppermost
was only
one. It was whether or not there was anything wrong with the
requirement to fill up fresh forms, which requirement the Director
had
determined and deemed necessary to enable the Department to
properly discharge its powers. I agreed that in law:

"where an Act confers upon a person power to do or
enforce the doing of an act or thing, all such powers shall be deemed
to be
also conferred as are reasonably necessary to enable the person
to do or enforce the doing of the act or thing."

(Section 32(1) INTERPRETATION ACT 19 of 1977) See also
CENTRAL TENDER BOARD AND OTHERS v MOSIANE BUILDING CONSTRUCTION (C of
A (CIV)
No.23/1999. It trenchantly meant that unless something
unlawful or irregular was pointed out as having been done by the
Director
the presentation of forms could not be faulted, as a
requirement for all applicants. Nor could it be criticized as a
wrongful exercise
of power by the Director.

I accepted Respondents submission that although
Applicant was intending to apply for a new passport to replace the
old one, he was
for all intents and purposes applying for a different
type of a document i.e. a machine readable

passport. He still had to apply in terms of section 9 of
Act No.15 of 1998. The section requires production of a birth
certificate,
affidavit of birth and several other items. Some of
these could be dispensed with by the Director in his discretion. Even
if the
Director can do that he can in no way be impeached for
insisting on a procedure of filling up of forms which is key to
granting of
passport documents. In no way therefore can it be
contended that production of old passport automatically qualifies an
applicant
for a new passport. Possession of a valid used passport
would merely suggest a reasonable likelihood or expectation that the
holder
will be issued

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The Principal Immigration Officer stated that pending
the issuance of a new passport, an applicant could be issued (as it
is the practice)
with a temporary travel document in order to enable
an applicant to travel. In that way the Applicant would not suffer
any prejudice
by following the procedure which has been put in place
by the Director pending Applicant's application for a replacement
passports.
I respectfully agreed.

It was argued correctly in my view that in urging the
Respondents to dispense with theirs procedure, without indication of
likely
prejudice, to the Applicant was engaged in misuse of Court
process. In no way had it been demonstrated that there were any
actions
by the Respondents which were contrary to the law in
discharge of their duties. It was submitted that in the circumstances
the Court
could not interfere with administrative action of the
Respondents when they were acting in terms of the law and acting
regularly.
It could not even be said that there was a refusal to
grant Applicant with a passport. In terms of set procedures Applicant
had not
applied for one. I agreed.

In the circumstances of this case none of the prayers
were tenable. They had to be dismissed with costs. It was so ordered.

T.MONAPATHI
JUDGE