IN THE HIGH COURT OF LESOTHO In the matter between :
THE DIRECTOR OF IMMIGRATION
MUBITA MUBITA & 3 OTHERS
Delivered by the Honourable Mrs Justice K.J. Guni on the 11th day of September, 2001
1st and 2nd respondents herein are husband and wife. The couple is visiting this Kingdom. They are the citizens of the Republic of Zambia. It is in the common cause that presently, the temporary residents' permits held by these two respondents have expired. The expiration date of the said permits was the 29th May 2000. There are no reasons given by the two respondents, why they failed to renew their resident's permits timeously. The impression given by the averments in these two respondents' affidavits is very clearly, that it is their wish and desire to remain in this kingdom as welcome guests for a considerable length of time.
The 1st respondent claims to have sought and obtained a specialist teaching position in one of our local English Medium Schools. Following from securing that job, he then joined the Teaching Service Commission. According to the respondent, the school and the Commission assisted him to obtain the work permit. These averments are denied by the applicant: There is no proof before this court that the 1st respondent has now changed his status from that of a visitor who has over stayed his welcome to the status of a worker with a permanent resident's permit. In any case, that is not the issue. The issue of remaining in Lesotho after the expiration of their permits should be resolved by the department of Immigration and the aliens concerned alone. The problem which brought this matter to court, is in fact the court order made by the learned Magistrate after convicting and sentencing the two respondents who were the accused in his court, under the Aliens Control Act 1966.
On the 13th June 2000, 1st and 2nd respondents appeared before the Director of Immigration, presumably to apply for the extension of their temporary resident's permits. Perhaps on noticing that the respondents' permits had in fact expired some days prior to this date, the Director of Immigration called the Police. The two were arrested and taken to the Subordinate Court in Maseru where they were put before the Magistrate and charged with contravention of section 7(5) ALIENS CONTROL ACT NO 16 OF 1966. The charge read as follows :
That the said accused are charged jointly with the crime of Contravening section 7(5) of Aliens Control Act No 16 of 1966
In that upon or about the 8th day of June 2000 and at or near Immigration Office in the district of Maseru, the said accused Were unlawfully and intentionally to have remained in Lesotho after the expiration of their temporary permit being from the 29th May 2000 until 12th June 2000 and thus committed The crime as aforesaid."
(See the charge sheet on the record sent for review - Cr&/1025/2000)
The two [accused] 1st and 2nd respondents pleaded guilty to the charge. They were found guilty and cautioned and discharged. In addition the learned Magistrate made the following order:
"Both exhibits A&B to be returned back to the accused for the purpose of making their permits to be renewed. They are given a period of  thirty days within which to do so. After they have completed their business they should come back to the Clerk of Court who shall lawfully have the passports released the accused as they shall still be named exhibits." [My underlining to highlight the relevant position which was misread and therefore totally misunderstood by the Director of Immigration]
Definitely the two [accused] 1st and 2nd respondents did come back, at least three times, but not to the Clerk of Court for the purpose indicated in the Court Order. They returned each time to seek from the court, an extension of the period within which they should obtain or renew their permits. The question of whether or not the two respondents are in or out of this Kingdom is a controversial one. It does not, however, fall for determination in this case.
Every time the said court order was renewed, it was served upon the Ministry of Home Affairs and/or the Director of Immigration. The Director of Immigration has taken an exception to this court order. Immediately after service upon them of the court order after it was renewed in October 2000, the Director of Immigration approached this court and obtain ex-parte and on the basis of urgency the Rule Nisi in the following terms : The respondent's should show cause why :-
(a) The ordinary rules relating to time and mode of service shall not be dispensed with on account of urgency of this matter.
(b)The order granted by Third Respondent herein on the 13th June, 2000 between Rex V Mubita Mubita and Another CR 1025/2000 shall not be reviewed and set aside as irregular.
(c)The orders of Third Respondent granted on the 27st July 2000, the 28th August 2000; and the 13th October,2000 respectively,which orders extended the order referred to in (b) above shall not be declared null and void and
(d)The fourth Respondent herein shall not be ordered to dispatched to the above Honourable Court the record of the proceeding in CR 1025/2000 within fourteen days upon service of the Interim Court Order of these proceedings
(e) The Applicant shall not be granted such further and/or alternative relief.
(f) The Respondents shall not pay costs herein in the event of opposing this application.
2.That prayers 1(a) and (d) operate within immediate effect as the Interim Court Order.
The main complained by the applicant is that she was not given a hearing before the learned Magistrate made the order giving the [accused] respondents time to obtain new permits or to renew their expired temporary permits. The second question seems to be a challenge of the learned Magistrate's authority to issue the said Court Order. He is accused of acting ultra vira.
The applicant was not a party in the Criminal Proceedings where the order which she seeks to have this court review and set aside, was made. How and why should she have been given an opportunity to be heard before such an order was made? From the papers filed on behalf of the applicant, there is no answer to the above question.
3rd and 4th respondents have not filed any opposing papers in this matter. The Clerk of Court has forwarded to this court the record of the proceedings and the court order complained of. Therefore they have satisfactorily complied with an interim court order which was made against them.
The court order made by the learned Magistrate must have been made in terms of section 33 ALIENS CONTROL ACT NO 16 OF 1966. The relevant portion thereof provides as follows :
"(1) Any person guilty of an offence under [subsection (5)] of section seven, Subsection (3) of section eleven, or subsection (6) of section twenty-four, shall be liable on conviction to a fine not exceeding twenty rands, or in default of payment, to imprisonment for a period not exceeding two months, and the court by which he is convicted may either in addition to or in lieu of any such punishment require him to enter into recognisances, with or without sureties, to comply with the provisions of this Act or such provisions thereof as the court may direct. " [My underlining]
It is not clear what exactly happened between the respondents and the applicant during the intervening period [i.e. from the date of the issue of this court order to the date when this applicant filed this application]. In terms of section 33 above, the court which convicts an alien under section 7(5) of the said Act, may in addition or in lieu of any punishment, require an alien to enter into a recognisance with or without a surity, to comply with the provisions of this Act.
in which that trial court conducted itself.
The court order complained of may have been served upon the Director of Immigration or the Ministry of Home Affairs but the Ministry and the Director are not ordered to do anything. The Ministry of Home Affairs and the Director of Immigration were not parties in the criminal action under which the said court order was made. There is no way the court order could have been made against them when they were not parties involved in the said trial.
The court order is directed at the [accused] 1st and 2nd respondent herein. They are the ones who have been found guilty of an offence under section 7(5). ALIENS CONTROL ACT 1966. They are the ones who are required by the court in the said order, to comply with the provisions of this ALIENS CONTROL ACT. The court merely specified the period of thirty(30) days within which they should comply with the Aliens Control Act.
Although there is a further claim by the applicant that the 3rd respondent has granted the 1st and 2nd respondents thirty (30) days to remain in Lesotho, there is no where in the said court order where the learned Magistrate granted the respondents thirty (30) days or any time to remain in Lesotho. The court order, properly read, mere gives the [accused] these 1st and 2nd respondents time to go to the Immigration where they should, renew their expired permits. The (30) thirty
For these reasons this application must fail. There are further points in limine raised and argued but I feel there is no need to determine the same because they take this matter no further. Those are the questions of urgency and locus standi.
Therefore this application is dismissed with costs.
K.J. GUNI JUDGE
FOR APPLICANT : MR PHAKISI FOR RESPONDENT : MR MPOBOLE