Government Secretary and Another v Thulo and Another (CIV/APN/485/2002)

Case No: 
CIV/APN/485/2002
Media Neutral Citation: 
[2003] LSHC 14
Judgment Date: 
16 January, 2003

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CIV/APN/485/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:

THE GOVERNMENT SECRETARY 1st APPLICANT

THE ATTORNEY GENERAL 2nd APPLICANT

AND

MONARE DAVID THULO 1st RESPONDENT

THE ADJUDICATOR (P.S.C.) 2nd RESPONDENT


CORUM: Guni J.

Hlajoane J.

Nomngcongo A.J.


JUDGMENT


Delivered on the 16th January, 2003


NOMNGCONGO A.J.


This application was brought on a certificate of urgency. The Notice of Motion seeks orders as follows:-


  1. Directing that in terms of 60 (1) (c) of the Constitution the office of the leader of


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opposition ceases to exist, terminates and expires by operation of law, immediately upon a dissolution of parliament.


  1. Directing 2n respondent to proceed with the hearing of the disciplinary case presently pending against 1st respondent.


  1. Dispensing with the Rules regarding service dies induciae, forum and such other accidental matters, on account of urgency.


The background to this case begins with the dissolution of Parliament by Legal Notice N0.44 of 2002 dated 25th February of the same year. Following such dissolution the Attorney General wrote to the Clerk of the National Assembly (1st Respondent) on the 7th March advising inter alia:


"The office of the Leader of the Opposition does not survive the dissolution of Parliament - Section 60 (1) of the Constitution inter alia provides that a member of the National Assembly shall vacate his seat as such at the next dissolution of Parliament after election. It follows; therefore, the Leader of the opposition who is a


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member of the National Assembly shall vacate his seat at the dissolution of Parliament. Consequently, he will not be entitled to receive any salary and allowances either as a member of the National Assembly or as the Leader of the Opposition...."


The Clerk of the National Assembly duly acknowledged receipt of the letter and went on to say:


"The Leader of the Opposition holds an office which arose, like that of the Leader of the House, out of practice but has no official functions either according to legislation or to the rules of the House. Since receiving your savingram, I came across section 95 (5) (d) of the Constitution which is about vacation of the office by a member of the Council of State, and is to the following effect."


"In the case of a member referred to in subsection (2) (h) if he ceases to be such leader as is mentioned in subsection (2) (h) or when the National Assembly first meets after a dissolution of Parliament, whichever first occurs".


My interpretation of the above is that if a member of the National Assembly holds the office of the Leader of the Opposition by the date of the dissolution of Parliament then that member remains a member of the Council of State until the National Assembly first meets after a dissolution of Parliament. Kindly advice on the following: does a member of the Council of State who is such by virtue of being Leader of the Opposition lose his office of the Leader of the opposition consequently


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on dissolution of Parliament but nevertheless continues being a member of the Council of State."


I may pause here to remark that it seems that the 1st Respondent was clear that the office of the Leader of the Opposition did not, according to advice earlier received, survive the dissolution of Parliament. All he was doubtful about was his position as member of the Council of State. For this he sought advise from the Attorney General.

To continue then, the Attorney General on the 12th of March duly delivered his advice regarding the position of the Leader of the Opposition as a member of the Council of State. He did so, but not before reiterating at para.4 of his letter that: -


"It is trite that the office of the Leader of the Opposition cannot survive a dissolution of Parliament. There can be no Opposition Leader in a parliamentary vacuum".


His advice as regards membership of the Council of State was at para. 7 of his letter.


"7. So to conclude, in my opinion of the two members of the National Assembly appointed by the speaker from opposition party or parties, the Leader of the Opposition will vacate the membership of the Council of State should he cease to be such a leader of the opposition. In the case of the other member he will vacate his membership when the National Assembly first meets after dissolution of Parliament".


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The advice of the Attorney General having thus been unequivocally stated, the 1st Respondent decided to ignore it and proceeded to authorize payment of the Leader of the Opposition and his assistants. Not surprisingly Government struck back. The 1st respondent was interdicted from performing his functions as the Clerk of the National Assembly. Disciplinary proceedings were set in motion. Before the disciplinary tribunal the 1st Respondent admitted that he had ignored the advice of the Attorney General but pleaded that he was in law, so entitled.


The Constitution creates various public offices. Thus section 65 (1) establishes the office of Clerk to the National assembly. It provides


"1. There shall be a Clerk to the Senate and a Clerk to the National Assembly."


The position is or was until his interdiction held by the first Respondent. Its functions are not defined. The office of Attorney General is established by section 98 (1) and it reads:


"(1) There shall be an Attorney General whose office shall be an office in the public service"


The duties of the Attorney General include:


"(2) (a) to provide legal advice to Government, (b) ........................


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  1. to take necessary legal measures for the protection and upholding of this constitution and other laws of Lesotho. (3) In the exercise of the functions vested in him by subsection 2(a) and (b) and Sec. 69 of the Constitution, the Attorney General shall not be subject to the direction and control of any other person or authority."


There can be no doubt therefore that the position of Attorney General is a lofty one and his duties onerous and solemn. His advice cannot be lightly regarded. Yet the 1st Respondent without so much as qualifying himself, decided to substitute his own interpretation of the Constitution for that of the Attorney General. This in my view is quite brazen. The first respondent tries to wriggle himself out of this untenable position by stating that his "understanding was that the Honourable Attorney General clearly understood that the office of the leader of the opposition did survive dissolution of Parliament." (see par. 4.2 of the answering affidavit) (My underlining) With respect, this is blatantly untruthful. To use the ipsissima verba of the Attorney General from the letters from which he says he got the impression, at para. 4 of the letter of the 12th MARCH. " It is trite that the office of the leader of the opposition cannot survive a dissolution of Parliament." (again my underlining) Again in the earlier


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letter of the 5th March, the Attorney General says: "The office of the Leader of the Opposition does not survive the dissolution of Parliament."


Now, by what quantum leap could these words ever be understood to mean their exact opposite, as the 1st respondent would have us believe?


Be that as it may, at the disciplinary hearing, the first respondent persisting in his own interpretation of the provisions of the Constitution, it was decided to bring this application to have a proper interpretation thereof. This was done in terms of sec. 128 (1) which provides


"128. (1) Where any question as to the interpretation of this Constitution arises in any proceedings in any subordinate court or tribunal and the court or tribunal is of the opinion that the question involves a substantial question of law the court or tribunal may, and shall, if any party to the proceedings so requests refer the question to the High Court".


Before dealing with the main application it proves convenient to deal with the other two orders sought by the applicants viz, directing the 2nd respondent to proceed with the disciplinary case, presently pending against 1st respondent


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and the question of urgency. Counsel on either side did not address us on these issues. I presume it is either because they did not find them important enough or that they were in agreement about them. But that is not the point - they have been placed before us and we therefore have to dispose of them. As to the question of urgency there can be no doubt that this application has to be dealt with expeditiously. The outcome of this case affects the business of government and it is generally accepted that it is undesirable to stall it. I need say no more on this.


It is a different matter however to ask us to compel an official of the executive who has done no wrong how to go about his duties. To do so would compel him, an innocent citizen, under pain of contempt of court to proceed with the matter even if the 1st respondent's employer for some reason decided, for instance, not to further prosecute the disciplinary hearing. We would then be indirectly usurping the executive function whose prerogative it is, to decide whether or not to discipline its employees. That we are not entitled to do so. (See the Indian case of State of Himachal Pradesh v. Student's Parent (1986) LRC (Const.) 208 at 213).


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INTERPRETATION OF SECTION 60 (1) OF


THE CONSTITUTION WITH REFERENCE TO THE

LEADER OF THE OPPOSITION

The position of Leader of the Opposition, unlike for instance that of the Prime Minister and Ministers, has not been formally established by the Constitution. In establishing offices the Constitution uses the words. "There shall be" as in:-


sec. 87 (1) "There shall be a Prime Minister who shall be appointed by the King........"


sec. 88 (1) "There shall be a Cabinet of Ministers consisting of the Prime Minister and the other Ministers"


And so it runs with every other office established by the Constitution. There is no similar provision relating to the Leader of the Opposition. The only mention made of the Leader of the Opposition in the Constitution is, as it were en passant, in sec. 95 (2) (h) which provides:-


(2) The Council of State shall consist of:-


  1. ..................................

  2. ..................................

  3. ..................................

  4. ..................................

  5. ..................................

  6. .................................

  7. .................................

  8. two members of the National Assembly appointed by the speaker from among the


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members of the opposition party or parties. In making this appointment, the speaker shall appoint the leader of the opposition and the leader of the opposition party or coalition of parties having the next greatest numerical strength."


The Constitution itself does not define the position of Leader of the opposition apart from indicating that it is a party or coalition of parties commanding the greatest numerical strength in the National Assembly. It was left to the Legislature to formally define "Leader of Opposition" as meaning:


"...a member of the National Assembly who is the leader of the political party or coalition of political parties who commands the majority in the opposition and his party or coalition has at least 25% of the total membership of the National Assembly"


(Act. NO. 18 of 1998. Members of Parliament salaries Act 1998 section 3)


The Constitution confers neither powers nor duties on the Leader of Opposition, contending itself with a fleeting recognition of its existence. Such powers and duties as it has apparently derive from Parliamentary practice and tradition. This is in stark contrast


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with the offices of the Prime Minister and other Ministers with which the 1st Respondent attempts to compare that of the leader of the opposition. These offices are clothed with extensive and vital powers of government.


Now the section of the Constitution that we have been called upon to interpret reads as follows.


"6.0 (1) A Senator (other than a Principal Chief) or a member of the National Assembly shall vacate his seat as such.


  1. .............................

  2. ...............................

  3. At the next dissolution of Parliament after his nomination, designation or election."


I must hasten to add that it is our unanimous view that the words used are plain enough and admit of no ambiguity. It is said in no uncertain terms that when parliament is next dissolved a Senator and a member of the National Assembly shall vacate their seats as such. The leader of the opposition is a member of the National Assembly and he owes his position by virtue of being such member. When parliament


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is dissolved he shall vacate his seat as such. To borrow the Attorney General's turn of phrase, the office of the Leader of Opposition does not survive the dissolution of parliament. Membership of the National Assembly is so vital that the Prime Minister and Ministers themselves also loose such positions if they cease to be such members in circumstances other than the dissolution of parliament. The Constitution puts it thus:


"86. (6) The office of Prime Minister shall become vacant


  1. if he ceases to be a member of the National Assembly, otherwise than by reason of a dissolution of Parliament (My underlining)


(7) The office of a Minister other than the Prime Minister shall become vacant.


  1. if he ceases to be a member of either House of Parliament otherwise than by reason of a dissolution of Parliament (again My Underlining).


It will be readily seen then that the position of the Prime Minister and other Ministers is preserved in the intervening period between Parliaments. We have seen no such preservation in the case of the Leaders of Opposition. To compare these positions is therefore inappropriate. Mr


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Mosito argues that there can never be a parliamentary vacuum. We are of the view that, on the contrary the Constitution does just that by providing for the dissolution of parliament. To dissolve is defined as "To terminate, abrogate, cancel, disintegrate" -(see Black's Law Dictionary -3rd Edition).


Mr Mosito points out that in terms of the Members of Parliament Salaries Act, the Leader of the Opposition gets a salary equal to that of a Minister, thus somehow indicating that his position is analogous with that of a Minister. With respect that law in the first place is concerned only with salaries and has nothing to do with the position of Leader of the Opposition beyond a dissolution of Parliament. Secondly the Act again reiterates the fact that the Leader of the Opposition owes his position to membership of the National Assembly. The National Assembly having ceased to exist upon dissolution there can be no leader of the Opposition.


It will equally be seen that a reading of section 60 (1), (c) with section 95 (5) 2 (h) does not advance the case of the 1st respondent any further. That section deals with position


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of Leader of the Opposition and his membership of the Council of State. The section reads:


"95. (2) The Council of State shall consist of: "(h)" two members of the National Assembly appointed by the speaker from among members of the opposition or parties. In making this appointment the speaker shall appoint the leader of the opposition party or coalition of parties having the next greatest numerical strength."


Again it will be seen that membership of the National Assembly is the sine qua non to the appointment as Leader of the Opposition. That position is extinguished with the dissolution of Parliament, and so would his position as a member of the Council of State by virtue of the provisions of section 95 (5) (d) that:


"(d) in the case of a member referred to in subsection (2) (h) if he ceases to be such leader as is referred to in subsection 2 (h) or when the National Assembly first meets after a dissolution of Parliament, whichever first occurs". (My underlining)


The first occurrence in this case is the dissolution of the existing parliament and with it the position of the Leader of the Opposition.


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I must stress however that we have not been called specifically to interpret this section and our views in this regard should be taken as obiter.


It follows from the above that the main order sought viz "Declaring that in terms of section 60 (1) (c) of the Constitution the office of the Leader of the Opposition ceases to exist, terminates and expires by operation of the law immediately upon dissolution of Parliament" must be answered in the affirmative and we accordingly so declare.


As to the question of costs we have considered that although the question of law involved was an important one and of great national interest, it was not really very complicated as Mr. Viljoen properly conceded. It was not necessary to brief two counsel in these circumstances, (see Steenkamp v Steenkamp) 1966 (3) SA. 294 (T) 297. Van Wyn v Rondalia 1967 (1) S.A. 373 (T)).


It is ordered then as follows:


    1. Prayers (a) and (c) are upheld.

    2. Prayer (b) is dismissed.


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  1. The applicants having succeeded in the main relief sought are entitled to costs against 1st Respondent but such costs not to include costs of two Counsel


T. NOMNGCONGO - A.J.-


I concur

GUNI J


I concur

HLAJOANE - J


For Applicants : Mr Viljoen SC Mr Makhethe

For Respondents: Mr Mosito


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