CONST/C/1/2004

 

 

IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:-

 

 

KHATHANG TEMA BAITSOKOLI                           1^ST APPLICANT

MOSALA NKEKELA                                                  2^ND APPLICANT

 

 

 

and

 

 

 

MASERU CITY COUNCIL                               1^ST RESPONDENT

MINISTER OF LOCAL
GOVERNMENT       2^ND
RESPONDENT

COMMISSIONER OF POLICE                       3^RD RESPONDENT

ATTORNEY GENERAL                                   4^TH RESPONDENT

 

 

JUDGMENT

 

 

CORAM:   HONOURABLE JUSTICE B.K. MOLAI

                   HONOURABLE
JUSTICE S.N. PEETE

                   HONOURABLE
JUSTICE T. NOMNGCONGO

 

 

DATE:        26^TH JANUARY 2005

 

 

Headnote

 

Constitution
of Lesotho 1993 – Right to life under section 5 thereof –

Scope of.  Right to livelihood – Justiciabililty of
under the Constitution. Purposive interpretation of human and socio-economic

rights provisions. Urban Government Act 1983 and 1971 Market Regulations.
Whether the absence of bye-laws proclaiming and designating
market places
renders the refusal to grant licences or permit ultra vires and also
unconstitutional.

 

-        
Omnia praesumuntur rite esse
acta –  meaning of - Legality
of   

    municipality
action.

 

Where an application is
made for a declaratory order under the Constitution

for
the grant of permits to applicants for them to trade as hawkers and

street vendors along the Kingsway and that their removal
therefrom as being unconstitutional in that such refusal to grant them permits

and their removal violates their right to life as guaranteed under section 5 of
the Constitution.

 

Held: That the scope right to life
being the most important and precious human right as guaranteed under section 5
of the Constitution
of Lesotho 1993 is limited to physical biological existence
of people as “homo sapiens” and should not, unless circumstances
warrant, be extended to include right to livelihood.

 

Held: The right (opportunity) to
earn a livelihood under the Lesotho Constitution should be defined purposefully
in order that it
can have a true meaning without overlapping into section 5
right to life; the Government (state) has a constitutional duty and
international obligation to actively promote the socio-economic rights of the
Basotho.

 

Held: The applicants have no
constitutional right to trade along Kingsway without licence or permit and
their removal therefrom
does not violate section 5 (right to life) of the
Constitution. Decision to remove them must be fairly and reasonably reached
with
all the empathy deserved.

 

Held: The first respondent being
vested with the power under section the Urban Government Act of 1983 can
regulate and control markets
in the city of Maseru; regulation 14 involves
power to designate and control location of market places and trading in all  areas

of the city. Prohibition to trade as hawkers and street vendors must pass the
test of fairness and reasonableness.

 

Held: Under section 29 of the
Constitution and under international covenants on socio-economic rights which
Lesotho has signed or
ratified, the state has a duty to take all reasonable
measures in a progressive manner or address the concerns of the street hawkers

and vendors through fair negotiations and consultations.

 

 

          Peete J.:

 

Introduction

 

 

1.                
This application raises issues of
great constitutional importance and is perhaps a causa celebre.

 

2.                
The application seeks the order
couched as follows:-

 

“(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 1^st,
2^nd Respondent’s act of removing

applicants from and refusing them permission to sell
their goods along Kingsway Street in Maseru as ultra vires 1^st
Respondents’ powers under section 9 of the Schedule I to Urban Government Act
1983.

 

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

 

 

The Facts

3.       In
the founding affidavit deposed to by one Tsolo Lebitsa, the chairperson of the
first applicant – an association
duly registered under Reg. No. 2000/92 in terms
of the Societies Act 1966 – it is alleged as follows:-

 

- 6 -

 

“6.1.       Our organization
has a membership of 200 people who come from different parts of/Lesotho in
quest for making a living by selling
various small items in the streets of
Maseru. Most of our members were peasant farmers in their villages. They came
to the capital
city to look for employment. In view of the scarcity of
employment opportunities our members create employment for themselves by

purchasing and selling soft goods, food stuffs and fruits at various places
along the busy streets of Maseru, particularly Kingsway
street.”

 

 

·       
It is further
alleged that their vendor business becomes profitable only if their goods and other
various wares are easily accessible
to prospective buyers and that if the street
vendors “scatter themselves down the Kingsway and busy streets,” the
consumers can easily choose from whom to buy. In confining their members to the
old Local Government area the applicants
contend that “the 1^st
respondent thereby destroys their prospect of maintaining a meaningful
and gainful employment thus limiting their right to life and to making a living.
During
the days of sitting in a confined places our members make no money at
all or very little to sustain life.”

 

4.     
In his affidavit the second applicant Mosala Nkekela – a member of

        
the 1^st Applicant –  states that since 1979 he has ever since had a
stall  

        
at Makhetheng area near the main circle and for this he obtained his

        
first permit on the 27^th April 1998. He says he has been netting
about

    M300.00 a month in
this business.

 

5.       He says in March 2003 he was
ordered by the 1^st Respondent to                  

          immediately relocate to the
Old Local Government premises but           

          declined to do so because
he noticed that “business conditions were

          unfavourable there”.

 

·       
He says he
remained at Makhetheng until he and other vendors were (sic) “forcefully”
removed and placed at the Old Local Government structure by the Police and the
1^st respondent’s security men.

 

·       
He says he
continues to sell his goods at Makhetheng “not out of disrespect of existing
laws but out of necessity.”

 

·       
He avers in his
affidavit that the 2^nd respondent has no power under the Local
Administration Act of 1979 (sic Urban Government Act 1983) to regulate his
trading outside
the established markets nor has the Minister power under the
Act or any other law to confine them to one place for purposes of carrying

trade.

 

·       
As regards
section 5 of the Constitution he states:-

 

“Article 5 (1) of the
Constitution protects our right to life. I respectfully submit that the
protection afforded by article 5
(1) is not confined only to terminating of
life by physical means. By denying us our only and basic means of livelihood, respondents

are as a matter of law and fact killing us, because they are themselves
providing us with no alternative means to keep our bodies
and souls together ….
I repeat that by selling our goods in the streets of Maseru is our only lawful
means of livelihood. We have no other means but to sit at home and die
slowly through starvation and disease exacerbated by abject poverty.” (Underlining ours)

 

·       
He ends by saying
that he used to make up about M300.00 per day and therefrom was able to pay for
the basic necessities of life
such as food, rent, water, electricity etc.

 

“As a result of my
removal from my long term place of business I have been unable to meet my basic
needs as aforementioned; I
am not able to purchase food and clothing for my
dependants and we are slowly starving to death.”

 

6.  The
other members of the 1^st Applicant who are also selling their

     
goods along the Kingsway and have been relocated have not made

      any supporting affidavits; but
for the purposes of this judgment we shall

      assume that they confirm what
has been alleged in the second applicants’

      affidavit..

 

      The legal position

 

7.   The first applicant is a
registered society and has a membership of about    

  200 members who ply
their trade as hawkers, pedlars, chapmen and   

  street vendors along
the Kingsway in the City of Maseru. They sell    

  food, fruits and other
items to the general public. The second applicant    

  is a member of the
first applicant and has deposed to a lengthy affidavit

  in support of this
application.

8.    It is an undeniable fact that
since it came into existence in the last

  century the city of
Maseru has ever since been blessed with one main

  street –  The Kingsway.
This is a relatively wide and busy public road   

  which runs through the
city from West to East. It carries most of the

  pedestrian and vehicular
traffic. At month end, it is often a living hive

  bustling with human
activity and vehicular traffic.

 

       The Constitution of Lesotho
1993

 

9.   It is not in dispute that to-day
the city of Maseru is a densely populated   

 metropolis with many people mostly from the
rural districts of the   

       Kingdom who have in the last
decades descended in droves upon the          

       city seeking  employment and
other amenities of life. Big shops line the

       Kingsway and during peak periods
of Christmas, Easter and

       Independence the Kingsway
usually bristles with great numbers of

       shoppers, pedestrians and
vehicular traffic.

 

10.  The Constitution of Lesotho of
1993 is the supreme law of the Kingdom

       and any law or any executive
or administrative action which violates or

       is inconsistent with the
Constitution is liable to be declared null and

       void. Section 2 of the
Constitution reads thus:

 

“This Constitution is
the supreme law of Lesotho and if any other law is inconsistent with this
Constitution, that other law shall,
to the extent of the inconsistency, be
void.”

 

 

11.     The Constitution of Lesotho
also entrenches a Bill of Rights in its

           Chapter II. The most
important of these human rights, (sometimes

           called political and civil
rights) is the “Right to Life”. Section 5 of

           the Constitution reads
thus in full –

 

          
“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 it 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.”

 

 

12.  The right to life under
the Lesotho Constitution is not an absolute right

and can
be abridged under prescribed circumstances (see Section 5 (2)  

(a),
(b), (c) and (d) supra). It must also be interpreted in context with
section 4 (1) of the Constitution. It reads in part “……the provisions of
this chapter shall have effect for the purpose of affording protection to those
rights and freedoms,
subject to such limitations of that protection as are
contained in those provisions, being limitations designed to ensure that the

enjoyment of the said rights and freedoms by any person does not prejudice the
rights and freedoms of others or the public interest.”

 

        Problem of definition

 

13.  A constitutional dilemma is
posed when one seeks to define the nature,   

scope and content of the “right
to life.” Life can be defined as a mammalian biological existence in which
the Homo Sapiens lives physically as a human being. Life begins – we are
told-  at conception and ends at death. During this period, the
human existence – as a living being – is protected by the Constitution and the law.
We speak therefore
of the sacrosanctity of human life. In a civilized society, the
constitution as the basic law – a grundnorm - protects the lives of its
members.

 

14.  Another intriguing constitutional
question is whether “right to life”

  should be equated to and
include “right to livelihood”. Which of the two

  rights is being
protected by section 5? Or are the two rights inseparably

  interdependent and
indivisible? The jurisprudential philosophy on this    

  topic can be gleaned
from the plethora of judicial decisions

  in South Africa, India
and elsewhere.

 

15.  A fair reading of section 5 of
our Lesotho Constitution gives one an

       irresistible impression that
it is the “right to life” of the human being

       and its biological existence
as a living organism that is being protected

       by the Constitution rather
than its wellbeing, happiness or welfare. The

       Court comes to this somewhat
restrictive interpretation because under

       section 5, what may be
abridged under subsections 2 (a) (b) (c) and (d)

       is not the livelihood
but the deprivation of human life itself e.g. through

       act of war, lawful execution (i.e.
hanging)or self defence.

 

16.  Another interesting jurisprudential
question is whether the first         

       applicant – Khathang Tema
Baitsokoli – not being a human being – can

       under law claim that its life
is being threatened; one would have thought    

       that better wisdom could counsel
that all members of the first applicant

       – being living persons- should
have sued individually in a consolidated

       application – if their lives
or indeed their individual livelihoods were         

       being threatened by the
relocations in Maseru as a market area.

 

17.  This further, raises an
important question of locus standi under the  

  Constitution. The court
is not aware that the second applicant has been

  authorized to attest to
an all embracing affidavit on behalf of all    

  members of the 1^st
applicant.

 

18.  Be that as it may and despite
all such reservations, it may be safely

       assumed in favour of the
applicants that they represent their two  

       hundred or so members in
bringing this application; and in any event,

       the decision or order of this
court shall affect their right – if we can call

       it thus – to trade as street
vendors along the Kingsway.

 

 

 

19.  The most pertinent issue to be
decided in these proceedings is whether

       in removing them from their
chosen locations along the Kingsway and

       its pavements or precincts,
the applicants’ right to life was violated in

       contravention of  section 5 of
the Constitution – even in its widest sense.

 

20.  The Oxford English Dictionary
defines “life” as:-

 

“the condition that
distinguishes animals and plants from inorganic matter including the capacity
for growth, functional activity
and continual change preceding death”.

    

    This is an organic or
biological definition that transcends the whole

    animal kingdom, “man”
included.

 

21.  On the other hand we all know
that human life is meaningless if it does    

       not enjoy liberty, freedom of movement,
freedom from torture, right to   

       privacy, freedom to earn a
living, and to enjoy other socio-economic

       rights. For example, right to
food (or to earn a living) is, by raison

       d’etre, a right
indispensable to the right to life. Without adequate food

       and medicine and other basic
amenities like fresh and clean air and

       water (environment) life can indeed
be rendered impossible to sustain.    

       The worth of human life
depends upon its access to these essential

       commodities.

 

22.  In the democratic Lesotho of
today, the court must always function

       within the spirit and parameters
of the Constitution and the law; the

       courts must however also be activistic
and progressive in interpreting all

       of the entrenched human rights
in order to give them their true meaning

       and effectiveness.

 

23.  Whereas under the South African
Constitution (1996) where “the right  

       to life” is couched in absolutist terms –
e.g. section 11 reads:- “Everyone

       has the right to life,” the right to life in Lesotho is
not thus couched, the     

       right to life in Lesotho under
section 5 of the Constitution must

       therefore be defined and intrepreted
differently from the South African

      jurisprudence, and in its true
perspective and scenario in Lesotho.

      Whilst this approach may sound rather
conservative or over-cautious,

      to do otherwise would be to
rewrite the Constitution in order to meet the

      present exigency. Moreso under
the age-old doctrine of “separation of

     powers” the courts must not be seen as usurping
the executive or

     legislative or indeed administrative
functions of other organs of state. As

     it was stated by the Full Bench
of the Constitutional Court of South

     Africa (11 Justices) in the case
of Minister of Health and Others  vs 

     Treatment Action Campaign and Others (2) – 2002 (5) SA 721 (CC) at

     755  (para 98)-

 

“This Court has made
it clear on more than one occasion that,   

  although there are
no bright lines that separate the roles of the

  Legislature, the
Executive and the Courts from one another, there

  are certain matters
that are pre-eminently within the domain of one

  or other of the arms
of government and not the others. All arms of

  government should be
sensitive to and respect this separation. This

  does not mean,
however, that Courts cannot or should not make

  orders that have an
impact on policy.”

     See also the Lesotho case of Swissbourough
Diamond Mines (Pty)

     Ltd  v  The Military Council of
Lesotho and others –
1991-96 LLR

     1481 at 1697 where Cullinan
CJ put the doctrine of separation of

     powers in Lesotho as follows:-

 

        “It is not a matter of supremacy
of Parliament nor of the Executive;

          neither is it a matter of
supremacy of the Judicature. None of them is

          supreme. It is the rule of
law which is supreme ensuring that each

          power is exercised within
its proper limits.”

    

       It is however within the
inherent right of the courts to interpret the

       constitutional clauses
affecting the social and economic rights of the

       community in an expansive and
purposive manner where this is    

       appropriate.

         

24.  In our view, the Constitution of
Lesotho and the law are meant for the

       people of the Kingdom and not vice
versa. If however a legal instrument

       is deficient in one respect or
another, it deserves to be changed by the

       appropriate body to meet the
present circumstances. Judicial activism

       should not be an “unruly
horse” because that would go against the very

       hallowed ethos of “the rule
of  law”.

 

 

25.  Jurisprudentially, the present
application needs to be pigeon-holed not   

  under section 5 of the
Constitution but “somewhere” under Part III  

 (Principles of State
Policy) of the Constitution of Lesotho. The Court is

  not oblivious to the
fact that Lesotho is a signatory to many an

  international covenant
on social, economic and cultural rights wherein

  there is a national
commitment declared to the ideal of the   

 “indivisibility”
and “universality” of human rights, be they political, civil

  social, economic or
cultural, and that if these socio-economic rights are   

  to be meaningful to
real human life, these rights ought not to exist only

  at an abstract or
wishful level.  In South Africa – where some core

  socio economic rights
are justiciable, the Constitutional Court, while

  noting that not
everyone could access these rights, has held that the state

  has a positive duty to
take reasonable measures to practicalise such

  rights on a progressive
manner (Government of RSA v Grootboom –      

  2001 (1) SA 46 (CC)

 

26. In
the Lesotho, the socio-economic and cultural rights are not justiciable. Under
Chapter III, Section 25 of the Constitution
of Lesotho reads:-

 

“The principles
contained in this chapter shall form part of the public policy of Lesotho. These
principles shall not be enforceable by any court but, subject to the limits
of the economic capacity and development of Lesotho, shall guide the
authorities and agencies of Lesotho,
and other public authorities, in the
performance of their functions with a view to achieving progressively, by
legislation or otherwise,
the full realisation of these principles.” (our
underline)

       e.g.  section 29 (1) reads:-

                “Lesotho shall
endeavour to ensure that every person has the 

                 opportunity to gain
his living by work which he freely chooses or

                accepts.”

 

27.  This Court realizes at once that
under our Constitution, services like  

        livelihood, education, health,
opportunity to work, just and favourable

       conditions of work, economic
opportunity to earn a living are

       categorized  simply as “principles”
and not as “rights” in a legal or

       jurisprudential sense. A “principle”
is defined as:-

 

“a fundamental truth
or proposition serving as a the foundation for belief or action” – Oxford
English Dictionary.

 

28. The essence of the present
application is that by being removed from   

      their Kingsway locations and
precincts where they ply their wares, the

      applicants are being deprived by
the respondents of their means of   

      livelihood. The question next
is – “does this relocation deprive them

      their right to life”? This is indeed a vexing issue
which requires a

      humanitarian, legal and
constitutional solution.

 

29. Death as cessation of life can
come about in divers ways e.g. as a natural

      end, or self-destruct/infliction
(suicide) or in some ways criminal or it

      can be brought about through
intentional deprivation of means of

      livelihood e.g. starvation or
deprivation of essential medicines or

      amenities like air or water.
The essence is where to draw the fine line of   

      demarcation between intentional
destruction of life and planned

      deprivation of means of
livelihood.

 

30. In India, the Supreme Court has
held on many occasions that the “right

      to life” must be expansively purposively and
generously interpreted in

      order to give it its fullest
meaning and purpose. The Indian Supreme  

      Court has therefore held that
in order to enjoy a right to life, man must

      live a sustainable type of life
with adequate food, shelter, health under

      favourable environmental
conditions and that without food for a few

      days, man’s life deteriorates
and he ultimately may lose his that very life.

      Intentional denial or
deprivation of food or medicine can cause death.

     

      The Indian approach to the
right to life is indeed very progressive and

      deserves all laudation.

 

31. Even though the South African
constitution recognizes the freedom of

      trade, occupation or profession,
section 22 further provides that

 

“Every citizen has the
right to choose their trade, occupation or profession freely. The practice of a
trade, occupation or profession
may be regulated by law”

 

32.  It is universally recognized in
the free democratic world that the

       exercise of human rights and
freedoms must be enjoyed in such a

       manner as not to abridge the
rights of others; in other words the

       enjoyment of such rights and
freedoms is not limitless.

 

33. Under our Constitution, trading
or earning a livelihood falls to be placed           

 under section 29. Whilst
this “right or opportunity to work or trade”  

 cannot be totally
abridged, it needs to be regulated on grounds of public

 interest and order especially
in the metropolis like Maseru where large   

 populations have
converged to live and eke out a living with each man,

 woman, boy and girl
pursuing his and her own trade or profession.  

 Public interest, law and
order require control and regulation for the sake   

 of harmony. Such
regulation should determine place, time and type of

 goods to be plied. For
example, foodstuffs have to be sold in hygienic

 and germ free
environment and perhaps even be protected from

 inclemencies of weather.

 

34.  It is in this context of its
recognition under the Constitution of Lesotho

 that
the (right) opportunity to trade enjoyed by street vendors/hawkers,

 should
be viewed and weighed against other competing interests and  

 values.
This right must not be considered in vacuo or as an absolute 

 value
or asset.

 

36.  It cannot be disputed that Lesotho
today like many states of Africa is    

       facing acute problems of hunger
and unemployment; these vices directly  

       impinge in one way or another
upon the right to livelihood and/or to  

       live. It is sometimes
difficult – if not nigh impossible – for a majority of

       our people – especially in the
metropolis like Maseru to eke out a living.  

       These people have a
constitutional right to live in Maseru or anywhere

       in Lesotho.

 

 

 

 

37.  The Court can safely take
judicial notice of this fact – that most street

        vendors, hawkers and chapmen sell
fruits, vegetables, food, items of

        clothing, ornaments and other
gadgets and these are sometimes placed

        on the pavements or on some stalls
or racks or mobile carriers while

        some are carried on the
vendors’ shoulders. The best locality occupied

        by a vendor at the busy
street corner may yield the vendor high profits

        or returns. To be removed from
such spot and to be relocated at an

        obscure spot may mean the
demise to his or her booming business or    

        trade. This is an undisputable
reality. The court must however not close            

        –  circuit its reasoning only
to the street vendors’ cause but should also

        have regard to the rights of
the pedestrians to have unimpeded access  

        to the main thoroughfare.

 

38.   It is a fact that Maseru City streets
and other infrastructures are not as

   good or perfect or
adequate as one would desire and the only few 

   streets or roads in
the Central Business District (CBD) are congested

   with narrow and ill-planned
pavements. Everyone however wishes to

   do business in the
three-kilometre Kingsway! Thus, whilst the

   relocation of street
vendors away from these pavements may be

   necessary for the free
mobility and accessibility for the general public,

   it certainly may
create real hardships to these vendors; numerically, the

   vendors are however
far outnumbered by the pedestrians who day after

   day go up and down
these narrow pavements.

 

 

 

 

39.   If the applicants are entitled
to a right to livelihood under the

        Constitution so should every
Mosotho in Lesotho! That should be the

        only conclusion if the right
to life includes and is inseparable from right

        to livelihood. Trading as
street vendors is a deliberate choice of the

        applicants and cannot be said
to be the only alternative to a living.                    

        Taking away the one and only
field of a rural peasant farmer may

        qualify more as deprivation
of means of livelihood. It is however still a

        far cry to describe it as a
violation for right to life.

 

40.   In the Indian case of Olga
Tellis  v  Bombay Manucipality

   Corporation  - 1985 Supreme Court Reports
(suppl 2) 51 the issue

   was whether the forcible eviction and
removal from the pavements of   

   City of Bombay
deprived the street dwellers and vendors of their means

   of livelihood and
consequently their right to life – i.e. whether right to    

   life per se included
the right to a livelihood. First, the Supreme Court   

   had to consider
whether administrative action of removal had been  

   done reasonably,
fairly and justly e.g. had proper notices being given to

   the affected parties;
secondly whether removal, as a matter is statistics,    

   would render the
parties totally jobless and without means of livelihood

   – this necessitated an
enquiry into whether there were other alternative

   job opportunities in
the metropolis.

 

41.  The Supreme Court held that
administrative action under law must pass

 two tests - (a) ultra
vires and (b) reasonableness/fairness or justness.  The court at the end
held that:-

 

“Pavements are public
properties which are intended to serve the convenience of the general public …
they are not laid out for
private use and indeed, their use for a private
purpose frustrates the very object for which they are carved out from the
portions
of public streets. The main reason for laying out pavements is to
ensure that the pedestrians are able to go about their daily affairs
(chores)
with a reasonable measure of safety and security. That facility, which has
matured into a right of the pedestrians, cannot
be set at naught by allowing
encroachment to be made on the pavements.”

 

42.  The Court however took due
cognizance of the fact that “right to and

  opportunity for work
is the most precious liberty that a man possesses in

  order to sustain his
livelihood. Every person has as much right to work

  as he has to live ….
It can be argued, with some merit, that the right to

  live and the right
to  work are inseparable and interdependent and that

  if a person is deprived
 of his job his very right to life is put in

   jeopardy.”

 

43.  A line must however be drawn
some where between the right to life on 

       one hand and the right to earn
a living and to have means of livelihood

       on the other; to blur the
necessary distinction would lead to absurdities

       e.g. an illiterate prostitute
could claim that her nocturnal trade is her

       only means of livelihood or a fatcake
vendor at a church door steps be

       thus entitled to ply her
fatcakes or retrenchment could be questioned as

       a violation to right to life?
Control and regulation there should be in

       order to render the Kingsway
pavements accessible and passable. What

       would happen if anyone with
means could erect a stall along every inch

       on this and our only main
street?

 

44.  It could however be also argued with
merit that if there is an obligation   

       upon the State under an international
covenant  to secure to its citizens

       adequate means of livelihood
and opportunity to work, then it would be

       sheer pedantry to exclude the
right to livelihood from the content of the

       right to life.

 

45.   This Court is however acutely cognizant
of the fact that the right to life

        guaranteed under section 5 of
the Lesotho Constitution cannot be

        defined and interpreted –
even most expansively or purposively – to

        include right to livelihood
and even so to exclude or outbalance other

        public rights. To so define
it would go against the very spirit of our

        Constitution and with absurd
results.

 

46.  The issue of socio-economic
development in Lesotho is per raison

       d’etre squarely in the domain of national
policy and it is not for the

       courts of law beyond
exhortations to point officiously at the direction

       which such policy matters
should take or follow.

 

47.  Where human rights and other
core socio-economic rights are involved,

        the court, as a bulwark of
these rights should perform a rather

        balancing act and should avoid
saying too much and yet saying too

        little. As was stated sadly
in another Indian Supreme Court case of

        Chandru  v  State (1984)
(supra).

“Most people eat to
live: only a handful can afford the luxury of living to eat… the poor may
always be with us but no one should
take a fatalistic view towards the destiny
of thousands of our fellow creatures. Their condition is not inevitable but is
one caused
by identifiable forces within the province of rational human
control.”

 

48.  Construction of necessary and
appropriate infrastructures for street           

       vendors in Maseru depends upon
variety of considerations e.g.

       availability of resources,
convenience to the general public and prior

       consultative processes. As it
was stated in the Constitutional Court of

       South Africa, the state has a
paramount duty to take such measures as

       are reasonable to address some
of the core socio-economic concerns in

       the positive meaningful and
progressive way.

 

49.  Good governance in
Lesotho entails responsiveness on the part of

       the executive and
administrative (municipal) organs to the socio-

       economic needs of the people,
urban and rural. In the metropolis, for

       example, street lighting and
sewerage services may be more necessary

       than in the rural villages; trade
regulations for street vendors may be

       totally unnecessary in the
rural Thaba-Tseka or Bela-Bela!

 

50.   Provision of the basic infrastructures
for street vendors must be

        predicated upon the empathic
responsiveness to their core needs.

        Genuine consultation with the
affected persons, devoid of any

        paternalistic attitudes, is
the only meaningful way towards addressing

        these grave concerns which
cannot just be wished away or suppressed

        and without due regard being
had to the needs of these people who eke

        their living on the streets
of not only Maseru, but all major towns in the

        districts of Lesotho.

 

51.   In dismissing prayer 1 of this application
upon the reasons just stated,

        the Court must dutifully note
that the concerns of the street vendors

        must seriously be addressed
with the empathy they deserve. Most of

        these people are poor and
their street vending may be their only means

        towards a meaningful
livelihood. Just like a supermarket located way

        out in the wilderness may
liquidate and perish, so will these hawkers

        languish if no suitable
structures are put in place at convenient places in

        town for their and public’s
convenience. Confrontational and forcible

        tactics are nothing but a recipe
for a worse disaster.

 

52.  In matters such as the present
the ball is often not in the side of the

       courts but of the executive
and administrative arms of government and

       all the court can do is to
exhort the executive and municipal authorities

       into some positive action.

 

53.   As Minister of Finance of South
Africa Mr Trevor Manuel has    

        recently put it (Business
Sunday Times – Dec 12, 2004)

 

“…there are a lot of
people who are finding ways of earning a decent, honest income. It is
understanding that and being able to
find mechanisms to assist people out of
the worst band of poverty because failure to recognize and provide assistance
to those
eking out a livelihood presents us with a risk. It is a risk to
democracy because it impacts on the quality of life of the poorest
of society”.

 

If the State cannot
within means available provide sufficient jobs to the majority of our people thereby
reducing the poverty levels,
adequate opportunities and infrastructure must at
least be availed to these people for them to eke out a living.

 

          Conclusion

         

54.   Prayer 1 of the Notice of
Motion is therefore refused upon the sole

        ground that removal of the
members of the 1^st applicant cannot be

        declared is being in
violation of section 5 (right to life) of the

        Constitution of Lesotho.

 

***

 

55.    Re: Prayer 2 of the Notice
of Motion

 

This prayer challenges
the legality or validity of the 1^st respondent’s act of removing
applicants from and refusing them permission to sell their goods along the
Kingsway.

 

56.     The
phenomenon of “rule of law” requires legality of executive and
administrative action if such action affects the rights or interests of the
individual; in other
words under the principle of ultra vires where a
public official purports to exercise an administrative power or discretion or a
Minister an executive power or discretion,
the exercise of such power or
discretion must be done within the parameters of the enabling law or some
delegated instrument otherwise
such administrative or executive action is ultra
vires and can be declared null and void by this Court.

 

57.     It is alleged in their
affidavits that on or about 1^st October 2003 the 1^st

respondent (probably upon
instructions of the 2^nd respondent) caused the forced removals of
the1st applicant’s members from the precincts of Kingsway and Makhetheng; it is
alleged
that such forced removals were ultra vires section 9 of the
Urban Government 1983 and Market Regulations 1971.

 

58.     Under the maxim omnia
praesumuntur rite esse acta, there is a

rebuttable presumption
that the 1^st respondent acted properly and officially[1].
It is upon the applicant therefore to establish the ultra vires of the
administrative action on a balance of probabilities. The inquiry is three fold
– (a) did the 1^st respondent or 2^nd respondent  cause the
forced removal of street vendors from the Kingsway, (b) were the 1^st
applicants’ entitled under law to trade along the Kingsway (c) were the 1^st
respondents authorized under law to remove the applicants’ members from the
Kingsway.

 

 

 

 

59.     It is not in dispute that in
the absence of a functional Maseru City

Council, the law dictates
that the Town Clerk shall exercise the functions of the Maseru City Council
under law (see Order No.6 of 1989) under the Urban Government Act 1983,.
Schedule 1 of the said Act reads–

 

“Duties
which the Council may perform

 

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 establish to
prohibit, regulate and control trade elsewhere in commodities which are sold at
established
markets.

 

Section 8 of the Market
Regulations 1971 reads:-

 

“A person who erects
any building, tent, booth, shelter or any structure in any town premises
without the written permission of the
Town Council or District Secretary shall
be guilty of an offence and liable on conviction to the penalty prescribed in
regulation
fifteen”.

 

Section 14 of these
Market Regulations further reads:

 

“No person other than
a licenced trader or registered cooperative society shall sell or offer for
sale or barter any goods whatever
at any place except with the written
authority of the Town Council or the District Secretary and subject to any
conditions which he may impose”
(Our underline)

 

It stands to reason that
if a person cannot lawfully carry on trade at a given place, he has no
justiciable right to continue to
trade at such place and his removal – proper
notices having been given – is not unlawful. Such removal is assumed under “regulation,
control and supervision”. In other words a vendor who carries on trade
without a permit cannot apply for an injunction to protect a non-existing
right.

 

60.     It
is not necessary to decide whether or not the removal of the street-vendors was
sanctioned by the 2^nd respondent nor is it imperative to determine
whether the 2^nd respondent was properly joined in the proceedings.
This is because – as Mr Phoofolo correctly submitted – the Town Clerk
exercises his interim powers as Maseru City Council under the control of the 2^nd
respondent (order No.6 of 1989.)

 

61.     It
should be noted in passing that it is the unrepresentative character of the
Town Clerk (being a Ministerial appointee
and not democratically elected like a
City Council) that contributed to the stalemate that has brought about this
litigation. If
Maseru City Council had been timeously and properly constituted,
perhaps the grievances of the applicants could have been discussed
and
ventilated timeously in the proper forum.

 

62.     Even
though ignorance of the law is no excuse (ignorantia juris non excusat) it
seems the street vendors were not sufficiently informed about the law and the
regulations governing street trading in the city
or were the prohibited or
restricted areas made known to them through appropriate bye – laws.

 

63.     In
his affidavit, 2^nd applicant alleges that it was the 1^st
respondent who effected the removals and we shall take it at that – no more no
less. It is also not dispute that when it purported
to remove the street
vendors having refused to grant them licences and permit to so trade along the
Kingsway, the 1^st respondent was acting under the provisions of the
Urban Government Act 1983. Section 37 thereof reads:-

 

“37.  (1)     Subject
to this Act or any other law relating to the duties 

             
     of a council, the council shall,

 

(a)            
control,
manage and administer the municipality and generally assist in the maintenance
of good order and Government within its
area;

 

(b)            
generally
promote the public health, welfare and convenience, and the development,
sanitation and amenities of the municipality.”

 

64.     The
only question therefore that remains is whether the 1^st respondent
exceeded the powers under the said Urban Government Act and Market Regulations.
The onus was upon the applicant to establish
the illegality of the 1^st
respondent’s actions upon resumption being omnia praesumuntur rite esse acta.

 

65.     The applicants do not dispute
that-

 

(a)             
the precincts
along the Kingsway where their members trade as street vendors have not been
designated at any time as market places
whereat permits can be issued for such
vendors to trade; and

 

(b)            
the 1^st
applicant’s members do not hold (or have they been granted) licences or permits
to trade along the Kingsway. In fact the vendors
admit trading along Kingsway
without proper permits or licences only because  to do so is more lucrative
than in the Old Local
Government and Makhetheng Market Places – which they contend
are obscurely located and are out of reach for the prospective buyers.
They do
not deny that they hold no permits to trade as they do. The morality or
politics precipitating this dilemma is something
not within the jurisdiction of
this court to delve into. The legality of the vendors’ action should be
divorced from reasons
whether they be moral or economic. It is a matter of pure
law. An elected Maseru City Council – not this Court – could have
been the
appropriate forum wherein to address this thorny issue. This is not to
say that the locations of the new market places are satisfactory to everyone.

That is another “kettle of fish.” Consultation and proper ventilation of
ideas in a democratic forum could have produced an all-round solution or compromise.

 

66.     The
very fact that the Market Regulations criminalise trade at any other
place in the City or Town, demonstrate clearly that no one can trade as he or
she pleases in Maseru or any other town; trading
in the city is regulated and
controlled and the law reposes the regulatory function on the Maseru City
Council (or the Town Clerk).

 

67.     One
can envisage the congestion that would occur if many people would, construct as
they please, stalls along the Kingsway
and whether the general public would
have any reasonable access and passage through the pavements of the Kingsway.

 

68.     Maseru
as city is not well planned; there are traffic bottlenecks and narrow paveways and
everything is channelled through
the Kingsway which has to bear all the human
and vehicular traffic. There must be some control somewhere, somehow. For the
time
being the Interim Town Clerk (for the Maseru City Council) is the
repository of the statutory functions under Urban Government Order
of 1983. As
a substitute for a democratically elected City Council, one can safely assume
that the Interim Town Clerk in exercising
his powers in the metropolis must do
so in a democratic fashion i.e. consult, give fair opportunity for proper representations
to be made, give notices where necessary before taking any action that
adversely affects the livelihood of the residents of this
city – “Motse ho
ahuoa oa morapeli – u ka nketsag ha e ahe motse”.

Prayer 2 for the above
reasons is also dismissed.

 

Costs

As regards costs, the
Court has seriously considered whether the applicants should pay the costs of
this application. The general
rule is that costs should follow the event. In
the exercise of its judicial discretion, the court has considered the
indisputable
fact that applicants are persons “of straw” and their
association has no tangible property or assets to satisfy the order of costs.
To order applicants to pay costs would
be an exercise in futility- a brutum
fulmen.

 

In the circumstances of
the case, justice requires that a “no order as to costs” be made and it
is so ordered.

 

                                                 
________________________

                                                JUSTICE
S.N. PEETE

 

          I agree                            ________________________                            
                                       JUSTICE
B.K. MOLAI

                            

          I agree                            ________________________                  

JUSTICE
T. NOMNGCONCO

 

For Applicants                :         Mr
H. Phoofolo

For 1^st Respondent                   :         Mr
Motanyane

For 2^nd 3^rd and
4^th Respondents:          Mr Putsoane & Mr Letsie