IN THE HIGH COURT OF LESOTHO
MOJELA HLAJOANE PLAINTIFF
MINISTRY OF LOCAL GOVERNMENT 1st RESPONDENT
ATTORNEY GENERAL 2nd RESPONDENT
Delivered by the Honourable Mr. Acting Justice T. Nomngcongo On the 18th March, 2003
The Notice of Motion in this case seeks orders in the following terms:
Directing the first Respondent and his officers to pay applicant his monthly stipend for the office of Chief of Bakaneng Corn-Exchange.
Restraining the first Respondent from withholding the stipend due and payable to the applicant for exercising the powers and performing the duties of the Chief of Bakaneng.
Costs of suit in the event of opposing this application.
Further and /or alternative relief.
The application was opposed on the grounds that applicant does not qualify to be appointed as chief of Corn-Exchange. It is further argued that and I quote "Applicant was gazetted in 1971, but was thrown out of office in terms
of the judgment attached herewith. " And again "The parties have gone to court for the determination of the rightful holder of that office. The applicant has not been appointed by the rightful authority. The judgment has thrown him out of the office. In this regard the gazettement has been rendered ineffective. " It is also complained that since applicant has not disclosed the fact that this question of succession to the Chieftaincy of Bakaneng Corn-Exchange is a subject of much litigation, the application must be dismissed on the ground of non-disclosure of that fact.
The averments in opposition make it clear that it is common cause that applicant was gazetted to act in the office of Chief of Bakaneng. This was in fact done by Government Notice N0.42 of 1971 by His Majesty in terms of the powers conferred on him in that regard by sec. 13(5) of the Chieftainship Act 1968 which reads:-
"No person shall exercise the powers or perform the duties of an office of Chief in terms of this section unless and until the King acting in accordance with the advise of the Minister has approved such person. " Sub-section (6) provides as follows:
The King acting in accordance with the advice of the Minister may at anytime withdraw such approval without assigning any reason thereof
It has not been said in opposition that such approval has been withdrawn as contemplated in sub-section (6). I take it therefore that it is also common cause.
The major bone of contention after this is to the effect that the judgment of the Senior Resident Magistrate T. Nomngcongo (with which I am a little more than familiar) had the effect of revoking the acting appointment of the applicant made in terms of section 13(5). There are two things to be said about that judgment. First, that judgment was concerned about the substantive succession to the office of Chief of Bakaneng as opposed to the acting arrangements which were still in position at the time. It did not comment or make any decision as to the status quo. Secondly it has been overtaken by CIV/A/17/99 which remitted the case to the Magistrate Court -Berea where it is apparently still pending. In the circumstance it cannot be relied upon as having decided anything, thus leaving the status quo intact.
The status quo is that the King in his prerogative and with the advice of the Minister has appointed and has yet again in his prerogative not deemed it fit to revoke the appointment of the applicant. It is not correct therefore to allege as the respondents do that the applicant has not been appointed by a proper authority. What is correct is that his appointment has not been revoked by any proper authority and therefore it still stands that such appointment has been or is being challenging in the courts of law cannot affect his present status.
The Court of Appeal decided a similar question in Monaheng Rakhoboso v Simon Rakhoboso 1997 - 1978 LLR & LB p.l where it was held in circumstances on all forms with this case :-
" The result is that the subsequent purported appointment of the respondent as headman without a valid revocation of the appointment of the appellant as acting headman, must itself be legally ineffective.
It is accordirdingly m( established that the appellant was ever duly removed from office in the manner prescribed by section 13(8) of the Chieftainship Act, 1968. On that basis alone the appeal has to succeed." (My underlining).
It is thus established that the power to appoint and to remove from the office of chief vests only in the King acting with the advice of the Minister and no one else - not even the courts of law. There is no suggestion that the applicant has been so removed from office. It follows therefore that he is still entitled to exercise the powers and perform the duties of the office of chief until removed. It further follows that he is also entitled to the rights and privileges appertaining to that office which admittedly include his stipend.
The decision of this court is that:-
The first Respondent and his officers are ordered to pay the applicant his monthly stipend for the office of Acting Chief of Bakaneng Corn-Exchange with effect from the date when such stipend was withheld.
The first Respondent is restrained from further withholding such stipend unless or until the applicant has been properly removed from office of Acting Chief by the King acting on the advice of the Minister.
Costs of suit.
18th March, 2003
For Applicant : Mr. HIaoli
For Respondents : Mr. Masoabi