CIV/APN/521/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

TSEPO
SEMPE NKUEBE 1ST APPLICANT

MOFUMAHALI
MONICA 'MALESHOBORO NKUEBE 2nd APPLICANT

SEABATA
MOKHANTSO 3rd APPLICANT

KHOSITLILE
NKUEBE 4th APPLICANT

AND

PRINCIPAL
SECRETARY - MINISTRY OF LOCAL

GOVERNMENT 1st
RESPONDENT

MINISTRY
OF FINANCE 2nd RESPONDENT

ATTORNEY-GENERAL
3rd RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu On the 7th November 2005

This is
the judgment. Applicant is Chief Tsepo Sempe Qefate Nkuebe. He is the
first applicant, and included are Chieftainess Monica
'Maleshoboro
Nkuebe and Seabata Mokhantso who is third applicant and Khositlile
Nkuebe fourth applicant. The respondent is the
Principal Secretary
for the Ministry of Local Government and the second respondent is the
Ministry of Finance and the third respondent
is Attorney- General.

By law in
terms of Government Proceedings and Contracts Act of 1965, the
respondents have to be

1

represented
by Attorney-General who was then Principal Legal Officer of some such
title. Applicant has made an affidavit and he
has included this
nominees of his as second respondent and they have associated
themselves with that inclusion. He had appointed
these people to act
for him and the Ministry of Local Government refuses to pay them
saying their appointment doesn't follow the
Chieftainship Act or
their nomination is invalid - if this can be put in another way. The
Chieftainship Act is a difficult Act
which is very difficult to
apply. It has not clarified the difference between temporary absence
and vacancy of office. Section
5 and its Sub-Section speak of
absences of temporary nature. Section 13 speaks of vacancy in the
Office of Chief.

As if
this is not enough there had been amendments. Unfortunately the
Attorney-General P.S. came before this court without these

amendments. This makes extremely uncomfortable that the
Attorney-General can send his Counsel or Counsel serving in his
office
to this court without proper laws that are up to date. My
complaint is caused by the fact that the Government Printer who is
responsible
for the publication of laws is an arm of the
Attorney-General. In other words the Attorney-General doesn't keep
track of what he
is doing. His office doesn't have up to date laws.
This embarrasses his Counsel. It makes them unable to work. This
needs attention.

In Seeiso
us Seeiso LLR 1976 at page 13 there was a problem of this kind. Chief
Moramang Seeiso complained that he was the rightful
person to be
appointed Acting Principal Chief of Matsieng when

2

Acting
Principal Chief of Matsieng the King's brother Chie Masupha Seeiso
had gone for a short course in Britain. Chief Masupha
Seeiso was the
substantive Acting Chief, so someone else was appointed instead.
Chief Moramang Seeiso brought an application to
challenge this
because of this confusion in the Act.

The court
found itself in difficulty precisely because of this confusion and
the fact that it was gazetted and it dismissed the
application. It
found it couldn't deal with this matter. And one of the things it
said at page 14 was that it was obvious from
the papers that there is
no question of a dispute of succession for no succession was involved
this was simply an acting appointment
made for the duration of the
absence abroad of the substantive incumbent.

Section
15 of the Interpretation Act 1977 provides:-

"Every enactment shall be deemed remedial, and shall be given
such fair, large and liberal construction and interpretation
as best
ensures the attainment of its objects."

It seems
to me the office of chief has to be manned temporarily by people who
are available when the chief is away for a short time.
This cannot
always be equated with a vacancy.

The view
I take of the situation is that there should be a clear delineation
between vacancy in the Office of Chief or an appointment
of Acting
Chief which is of substantial duration which makes it necessary for
an acting chief to be appointed. The example of course
is this one of
Seeiso vs Seeiso where the substantive holder of the Office of Acting
Principal Chief of Matsieng had gone to Britain
far away where he
couldn't exercise these powers, to that extend Section 13 Sub-Section
4 had to apply because in those circumstances
the office is de facto
vacant while this person is abroad overseas, so this distinction has
to be made.

The case
before me is entirely different, it's a case of a person who is still
within the country and from time to time goes to
the Senate. A chief
whether it is a Principal Chief or whatever who comes to Parliament
or to Senate to attend sessions of Senate
is still in the country. He
can go to his area from time to time to deal with issues and even
issues can be referred to him by
the person who has been appointed by
him to act for him in his absence. This to me is the difference, for
that reason I find the
interpretation of applicant given to Section 5
Sub-Section 5 and 7 is the more reasonable one than the one that has
been given
to this Section by the respondents.

Consequently,
I grant this application of first applicant and his entourage with
costs.

W.C.M.
MAQUTU

JUDGE

For
Applicants : Miss Sehapi

For
Respondents : Mr. Motsieloa

4