Yearn For Economic Sustainability (YES) V The Speaker, National Assembly of Lesotho (CONST No: 14 0f 2023) [2023] LSHC 145 (25 August 2023)

 

 

 

 

IN THE HIGH COURT OF LESOTHO

(CONSTITUTIONAL JURISDICTION)

 

HELD AT MASERU                                          CONST.CASE NO. 0014/2023

 

In the matter between

 

YEARN FOR ECONOMIC SUSTAINABILITY        

(YES)                                                                            1^ST APPLICANT

MEDIA INSTITUTE OF SOUTHERN AFRICA

(MISA) LESOTHO                                                      2^ND APPLICANT

KANANELO BOLOETSE                                           3^RD APPLICANT

 

AND

 

THE SPEAKER OF THE NATIONAL ASSEMBLY  1^ST RESPONDENT

THE PRESIDENT OF THE SENATE                         2^ND RESPONDENT

THE CLERK OF THE NATIONAL ASSEMBLY      3^RD RESPONDENT

MINISTER OF LAW, JUSTICE AND

PARLIAMENTARY AFFFAIRS                                 4^TH RESPONDENT

SENATE HOUSE OF PARLIAMENT                        5^TH RESPONDENT

THE NATIONAL ASSEMBLY HOUSE OF

PARLIAMENT                                                            6^TH RESPONDENT

HIS MAJESTY THE KING LETSIE III                      7^TH RESPONDENT

ATTORNEY GENERAL                                             8^TH RESPONDENT

 

 

 

Neutral Citation: Yearn for Economic Sustainability & Others v The Speaker of the National Assembly & Others [2023] LSHC 145 Const. (25^TH AUGUST 2023)

 

CORAM:             MAHASE J

                             MOKHESI J

                             BANYANE J

 

HEARD:               18^TH AUGUST 2023

DELIVERED:      25^TH AUGUST 2023

 

SUMMARY

 

 

CONSTITUTIONAL LAW: Reinstatement of bills that have lapsed with dissolution of Parliament – The National Assembly Standing Order 105B permitting reinstatement of the lapsed business at the stage it reached in the previous parliament-whether Standing Order 105(B) inconsistent with section 78 of the Constitution.

 

 

 

 

 

 

 

 

ANNOTATIONS

Books:

A. V. Dicey, An Introduction to the Study of the Law of the Constitution 10^th ed. 1959, London: Macmillan

Ian Currie & Johan De Vaal The Bill of Rights Handbook 6^th Ed.

 

 

Cited Cases

Lesotho

1. Attorney General and Another v Kananelo Boloetsi C of A (CIV) No. 55/2022 (unreported)
2. Kananelo Boloetse and Another v His Majesty the King and Others Constitutional Cases Nos. 00123 and 0015/2022 unreported) (dated 12 September 2022)
3. The Lesotho Medical Association and Another v The Minister of Health and Others Const. CC No.19/2019 (unreported),
4. Makoala v Makoala LAC (2009-2010) 40
5. The Speaker of the National Assembly and Others v Moruri and Others C of A (CIV) No.40/2018 (unreported)
6. Transformation Resource Centre & Another v Speaker of the National Assembly and Others Constitutional Case No. 14/2017
7. Christiaan Advocates and Ambassadors Association & others  v The National Assembly & Others Const .Case No 0018/2022

 

 

South Africa

8. Doctors for Life International v President of the Republic of South Africa 2006 (6) SA 416 (CC)
9. Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A)
10. Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
11.  Rumdel Cape v South African Roads Agency (234/2015) [2016] ZASCA 23 (18 March 2016)

 

Zimbabwe

12. Retrofit (PVT) Ltd v Posts and Telecommunications Corporation (Attorney General of Zimbabwe Intervening) 1996 (1) SA 847 (ZSC)

 

England

13. R (on the Application of Miller) v The Prime Minister Cherry and Others v Advocate General for Scotland (Scotland [2019] UKSC 41

 

Legislation:

1. Constitution of Lesotho 1993
2. National Assembly Standing Orders of 2022

New Zealand

1. Constitution Act No. 114 of 1986

 

 

 

 

 

JUDGMENT

 

MOKHESI J

 

[1]     Introduction

This Constitutional motion was filed by the applicants who are variously, two juristic persons and one natural person.  The 1^st applicant is a political party duly registered as such in terms of the relevant laws of the Kingdom, and 2^nd applicant is a duly registered legal person committed to promoting the rule of law, freedom of expression and freedom of media, among its objectives.  The 3^rd applicant is suing in his personal capacity.  He is also the Chairperson of the 2^nd applicant.  The applicants are seeking the following reliefs:

 

“(a) Dispensing with the Rules of Court relating to service and timeframes in relation thereto on account of urgency hereof, and the court to issue directions for the matter to be dealt with at such time and in such manner and place in accordance with such procedure as to promote convenient, expeditious and cheap hearing of the matter;

 

(b) An interdict that the Parliamentary purported business of the 14^th August, 2023 be halted pending finalization of this proceedings and/or that such proceedings be declared null and void ex tunc;

 

(c) A declarator that the Circular No. 5 of 2023 and the Standing Order No.105B purporting to reinstate by Motion or resolution the Bills that were pending immediately before the dissolution of the past Parliament i.e. 10^th Parliament, are null and void for violating mandatory law making processes and procedures laid in section 78 of the Constitution;

 

(d) A declarator that in casu, the word “National Assembly” in section 78 of the Constitution means the current National Assembly of the 11^th Parliament, and not the dissolved National Assembly of the 10^th Parliament;

 

(e) A declarator that the dissolution of the 10^th Parliament on the 14^th of July, 2022 had the legal effect of disintegrating irretrievably (not preserving) all pending Parliamentary business and Bills.  Hence, the 11^th Parliament cannot (including the 11^th Amendment to the Constitution Bill, 2022) and carry them over on the, 14^th August 2023 at 2:30 p.m. and/or any time thereof;

 

(f) An interdict that the Respondents be jointly and/or severally restrained and/or interdicted from promulgating into laws all dead Bills referred to in paragraph 1 (d) above;

 

(g) An interdict that the (sic) His Majesty the King be restrained and interdicted from giving Royal Assent to any Bill relating to the resolved 10^th Parliament;

 

(h) A mandamus that the Respondents be jointly and/or severally directed to start de novo all the processes relating to enacting into laws all the resolved Bills referred to in paragraph 1 (e) above;

 

(i)That the completed resurrection of Tobacco and Alcohol Products Levy Bill, 2022 be declared null and void ab origine;

 

 

(j) That the applicants be granted further and/or alternative appropriate and effective relief;

 

(d) That the Respondents be directed to pay costs for this Application, jointly and/or severally.” (sic)

 

[2]     Background Facts

On the 14 July 2022 the 10^th Parliament was dissolved by the King in anticipation of the General Elections which were held on the 7 October 2022.  One of the businesses which were pending before the National Assembly when the Parliament was dissolved was the Amendment to the Constitution Bill, 2022.  This Bill, as it is now well known, embody the seven thematic sub-components of the National Reforms agenda which has been in progress for some time in this country.

 

[3]     While Parliament stood dissolved it was recalled on the predicate of Section 84(2) of the Constitution of Lesotho 1993, the Government having immediately prior to that recall declared the State of Emergency in terms of Section 23 of the Constitution of Lesotho 1993.  The purpose of the recall was to pass the Bills which were affected by the dissolution of Parliament.  The recall was successfully challenged before this court by the 3^rd applicant and another individual who is the advocate of this court, invalidating among others the purported State of Emergency and issuing a declarator that Parliament has no constitutional authority to debate and pass the two Bills it intended to deal with while it stood dissolved.

 

[4]     The General Elections were duly held on the 07 October 2022 resulting in the current 11^th Parliament.  It resumed its business until it was adjourned for winter.  During this adjournment the Clerk to the National Assembly Advocate L. F. Maema KC at the instruction of the speaker of the National Assembly issued National Assembly Circular No. 5 of 2023 recalling Parliament.  In relevant parts, the said circular was worded as follows:

 

“SECOND SPECIAL MEETING OF THE ELEVENTH PARLIAMENT OF THE KINGDOM OF LESOTHO (RECALL OF PARLIAMENT DURING ADJOURNMENT).

 

I am directed to inform you that the Second Special Meeting of the Eleventh Parliament of the Kingdom of Lesotho (Recall of Parliament during adjournment will be held at the New Parliament Building, Maseru, on Monday 14^th August 2023, at 2:30 p.m. in terms of the attached Temporary Standing Order framed and determined pursuant to Standing Order No. 110.  The purpose of the meeting is to consider the Eleventh Amendment to the Constitution Bill, 2022.

 

(Signed)

Adv. L. F. MAEMA KC

CLERK TO THE NATIONAL ASSEMBLY”

 

[5]     Parliament is in session, only that it is on an adjournment.  The purpose of the recall, as it is evident from the Circular, is to enable Parliament to consider  the Eleventh Amendment to the Constitution Bill, 2022. On being aware of this recall and the business it was recalled to transact, the applicants lodged the current application seeking the reliefs outlined in the introductory part of this judgment.  Even though the application was lodged on an urgent basis seeking interim reliefs, the court did not accede to the request, but instead put counsel to terms as to exchange of pleadings so that the matter could be heard to finality.  The pleadings were duly closed, and the matter was heard on the 18 August 2023.

 

[6]     This application is opposed by the respondents.  The Clerk to the National Assembly, Advocate L. F Maema deposed to an answering affidavit on behalf of the respondents.  In his answering affidavit, he raised one point in limine, namely, that the “court is not competent to adjudicate over present case [jurisdiction]”. Although the point is classified as pertaining to jurisdiction, upon reading of its particulars, one is left in no doubt that the respondents intended to raise a point that the matter is not ripe for hearing.

 

 

 

[7]     Jurisdiction

Although the respondents did not raise the issue regarding jurisdiction of this court to hear and determine the present matter, it is however, important that this issue be dealt with as it pertains to the competence of this court to hear it.  The approach to preliminary points of law is trite (Makoala v Makoala LAC (2009-2010) 40 at para. [4]).  The approach is to consider whether the applicant’s affidavit make out a prima facie case.  Only the applicant’s affidavit should be considered, and the averments contained therein are to be taken as true for the purpose of determining the validity of the preliminary point.

 

[8]     The 3^rd applicant, when dealing with the issue of jurisdiction, says he is bringing this application in his own interest and in an official capacity as the chairperson of the 2^nd applicant.  The 1^st applicant, as per the founding affidavit, is stated to be committed to the rule of law.  In the founding affidavit, Mr Boloetse says this court has jurisdiction to deal with this matter because:

 

“…[D]espite that it relates to the generally nonjusticiable question of procedure/process for legislation-making.  This is because, firstly the law to be made relate to the Amendment of the Constitution.  It does call for the preliminary due exercise of Parliament mind(sic) whether public must participate or not and the appropriate and proper modalities thereto.  Hence, this matter involves violation and/or threat of violation of section 20 of the Lesotho Constitution.  To be more exact, I and/or Applicants are unhappy with the 11^th Amendment to the Constitution Bill, 2022 since we were not heard, the Parliament had not exercised the jurisdictional fact whether to involve us or not.  It comprises freedom of expression and freedom of press to the extent that it purports to reinstate criminal defamation abolished by this court.”

 

[9]     Evidently, all the applicants, juristic and natural, are alleging a threatened violation of a right to participate in government in terms of Section 20 of the Constitution of Lesotho 1993. Whether juristic persons can claim violation of the right to participate in government is a matter I leave open for now. It is my considered view, that the allegation by the 3^rd applicant that reinstatement of the 11^th Amendment to the Constitution Bill, 2022, threatens violation of Section 20 of the Constitution, is sufficient to engage the jurisdiction of this court.  In Attorney General and Another v Kananelo Boloetse C of A (CIV) No. 55/2022 (unreported) at para. [20], the Court of Appeal said:

 

“… Thus, jurisdiction conferred by section 22(1) is derived from or based on an allegation of actual or prospective contravention of a fundamental right or freedom.  The mere allegation of such contravention is sufficient to engender constitutional jurisdiction in the High Court to hear and determine the application in which the allegation is made.”

 

 

[10]   Locus Standi of the 1^st and 2^nd Applicants to challenge Constitutionality of the law

 

          This point was not raised in limine by the respondent, but it was subsumed under their ‘jurisdictional’ point.  It should be stated at the outset that the 1^st and 2^nd respondents have no locus standi to sue in the circumstances of this case.  The remarks of the Court in Retrofit (PVT) Ltd v Posts and Telecommunications Corporation (Attorney General of Zimbabwe Intervening) 1996 (1) SA 847 (ZSC) at 854 D-F, are apposite:

 

“The contention advanced on behalf of the Corporation was that s.24 (1) affords the applicant no locus standi in judicio to seek redress for a contravention of the Declaration of Rights other than in relation to itself (the exception being where a person is detained).  It has no right to do so either on behalf of the general public or anyone else.  Put otherwise, a constitutional right that invalidates a law may be invoked by a person affected by the law only if that person is also entitled to the benefit of the constitutional right.  If not so entitled, then that person will be precluded from impugning the law …  The exception is where the person is the accused in a prosecution for breach of the law.” 

 

[11]   This decision was applied with approval in Transformation Resource Centre & Another v Speaker of the National Assembly and Others Constitutional Case No. 14/2017 at para. [29] where this court stated that “[a] corporate body and an unincorporated voluntary association, just like natural persons, …” do not have locus standi to sue for declaration of rights in relation to others.  Moreover, the court of Appeal in Attorney General and Another v Kananelo Boloetse above dispelled the belief that Section 2 of the Constitution confers locus standi on every person in Lesotho to institute proceedings against any authority for non-compliance with the Constitution. It said the following:

 

“[17] Section 2 of the constitution provides that the Constitution of Lesotho 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. Does this confer locus standi on every person in Lesotho, without more, to institute proceedings in a court against any authority for non-compliance with the constitution? The concept of the rule -of- law has its origin in English law. The grounds recognised by the courts for interference in decisions subject to the rule-of-law review are substantially similar to the ones recognised by our courts as justification for a rule-of-law review. To call it a rule of law review is merely an appellation because principles underlying such a review are the same as any other review. In our view, the requirement that government should observe the law must be a constitutional priority which the courts should recognise. We cannot imagine any principled reason for non-observance of the Constitution. While the standing principle poses important questions about the meaning of the rule of law, the Constitution, statute law and common law coalesce into one legal system. The Constitution has a direct effect on statute law and common law as well as an indirect radiating influence on both. There is, however, no textual basis for the extension or broadening of the concept of locus standi in Lesotho’s Constitution as it presently stands. As this Court stated in Hlajoane’s case (supra), the expansion or broadening of the concept of locus standi in former British colonies is a legislative act.” (footnotes omitted)

 

[12]   From reading of the papers in this matter I did not find anywhere where the two applicants are saying they are suing for declaration of rights in relation to themselves. They would not have sued on behalf of others because they would have been met by an objection against actio popularis.

 

[13]   The situation of these two applicants should be distinguished from that which obtained in The Lesotho Medical Association and Another v The Minister of Health and Others Const. CC No.19/2019 (unreported), where an association of medical practitioners was recognised by this court as having the locus standi to seek redress for contravention of the practitioners’ right to life.  In that matter the court accepted that “all the applicant had to show was a sufficient interest of its members in the relief sought and that its members were directly affected by the impugned conduct.” (ibid para. 14). The two applicants are comprised of disparate groups of people with different interests, unlike in the Lesotho Medical Association case where the association represented only the interests of medical practitioners. In the present matter the two applicants have failed to meet this threshold.

 

 

[14]   Ripeness

This doctrine postulates that the time for seeking redress for constitutional violation is crucial.  Adjudication of constitutional disputes is appropriate, generally, when they have crystallised.  A court should not use its time by issuing advisory opinions on hypothetical issues (Rumdel Cape v South African Roads Agency (234/2015) [2016] ZASCA 23 (18 March 2016) at para.25); see also Ian Currie & Johan De Vaal :The Bill of Rights Handbook 6^th Ed. p. 85 (para.4.3)).  As a matter of general practice, the courts tend to wait until the legislative process, where legislative process is under challenge as in this case, to be completed by legislative enactment, instead of interrupting it.  However, there are exceptions to this approach, as stated in the case of Doctors for Life International v President of the Republic of South Africa 2006 (6) SA 416 (CC), paras.[68] – [69] where the position is stated as follows:

 

[68] Courts in other jurisdictions, notably in the Commonwealth jurisdictions, have confronted this question.  Courts have traditionally resisted intrusions into the internal procedures of other branches of government.  They have done this out of comity, and, in particular, out of respect for the principle of separation of powers.  But at the same time they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution.  To reconcile their judicial role to uphold the Constitution, on the one hand, and the need to respect the other branches of government, on the other hand, courts have developed a “settled practice” or general rule of jurisdiction that governs judicial intervention in the legislative process.

 

[69] The basic position to be that, as a general matter, where the flaw in the law-making process will result in the resulting law being invalid, courts take the view that the appropriate time to intervene is after the completion of the legislative process. The appropriate remedy is to have the resulting law declared invalid.  However, there are exceptions to this judicially developed rule or “settled practice”. Where immediate intervention is called for in order to prevent the violation of the Constitution and the rule of law, courts will intervene and grant immediate relief.  But intervention will occur in exceptional cases, such as where an aggrieved person cannot be afforded substantial relief once the process is completed because the underlying conduct would have achieved its object.”

 

This case was applied with approval in the case of The Speaker of the National Assembly and Others v Moruri and Others C of A (CIV) No.40/2018 (unreported).

 

[15]   It is the 3^rd applicant’s argument that unlike ordinary bills whose constitutional validity may be challenged after enactment into law, the constitution is unchallengeable once it is enacted into law.  If passage of the 11^th Amendment to the Constitution Bill, 2022 is not challenged at this stage, and the bill is enacted into law, it becomes the supreme Law against which all laws and conduct are measured. For this reason, constitutional provisions cannot be measured against the constitution itself. In other words, the constitution cannot be declared unconstitutional.  The case of Christiaan Advocates and Ambassadors Association & Others v The National Assembly & Others, Const. Case No 0018/2022 was cited in support of this submission.

 

[16]   The anterior question to ask, therefore, under this leg of inquiry is whether the applicant’s claims are ripe for adjudication or whether even if they are not ripe, they should nonetheless be treated as exceptional? The answer should be in the affirmative. Although the reliefs which the applicant is seeking have not concretised or crystalized:  For example, an interdict sought to restrain His Majesty from giving Royal Assent to any Bill relating to the resolved 10^th Parliament, and an interdict against Parliament from promulgating into law “all the dead Bills referred to in paragraph 1(d),” I have carefully considered the applicant’s argument. There is merit in the argument that the applicant cannot wait for the legislative process to run its course and attack constitutionality of the law afterwards because constitutional provisions cannot be measured against the constitution itself. To deny the applicant an opportunity to attack the legislative process now and to insist that he awaits its conclusion, will amount to closing the gates after the horses have bolted.

 

The merits

[17]   For these reasons, I proceed to consider the merits of the application. It should be stated at the outset that the applicant’s case faces insurmountable hurdles as will be shown in the ensuing discussion.

 

[18]   The 3^rd applicant’s first complaint is that the process of enacting the 11^th amendment into law violates the provisions of Section 20 of the Constitution of Lesotho, in that in terms of the Standing Order 105B, the Bill will go straight to where the dissolution of Parliament caught it, yet they were “not heard” as media practitioners.  He contends further that among the Bills included in this Bill, is one that will reinstate criminal defamation which was declared unconstitutional by this court.  In this vein, he argues that the Bill must start afresh, not where it was caught by dissolution of Parliament, in order that they, as media practitioners may be given “fair and meaningful participation in order to safeguard the interest of media.”

 

[19]    This fallacious belief that Section 20 of the Constitution of Lesotho confers a right on citizens to participate directly in legislative process was jettisoned by this court in the case of Transformation Resource Centre and Another v Speaker of the National Assembly and Others above para. [17] where the court said:

 

“[17] From this General Comment, it becomes clear that what section 20(1)(a) confers, is a right to participate in public affairs through elected representatives.  It does not guarantee a right to directly participate in public affairs or put a corresponding duty on the elected representatives to consult or not to consult electors in the decision-making processes.  The section guarantees an opportunity for political participation by citizens and requires Government to be accountable to electorate …”

 

[20]   Standing Order No. 105B violative of section 78 of the Constitution?

It is the applicant’s further contention that Standing Order No. 105B is unconstitutional for violating the provisions of Section 78 of the Constitution because it enables Parliament to reinstate the Bills that were pending at the stages they were at the time when the 10^th Parliament got dissolved, thereby denying them an opportunity to be consulted on certain aspects of the Bill which pertains to the media.

 

[21]   It is important that Section 78 of the Constitution is understood. It provides that:

 

“78(1) The power of Parliament to make laws shall be exercisable by bills passed by both Houses of Parliament (or, in the cases mentioned in section 80 of this Constitution, by the National Assembly) and assented to by the King.

 

(2) A bill may originate only in the National Assembly

 

(3) When a bill has been passed by the National Assembly it shall be sent to the Senate and –

 

1. When it has been passed by the Senate and agreement has been reached between the two houses on any amendments made to it by the Senate; or  

 

2. When it is required to be presented under Section 80 of this Constitution, it shall be presented to the King for assent.

 

(4) When a bill has been presented to the King for assent in pursuance of subsection (3), he shall signify that he assents or that he withholds assent.

 

(5) When a bill that has been passed is assented to in accordance with the provisions of this Constitution it shall become law and the King shall thereupon cause it to be published in the Gazette as a law.

 

(6) No law made by Parliament shall come into operation until it has been published in the Gazette but Parliament may postpone the coming to operation of any such law and may make laws with retrospective effect.

 

(7) All laws made by Parliament shall be styled “Acts of Parliament” and the words of enactment shall be ‘Enacted by the Parliament of Lesotho.”

 

[22]   Section 78 provides for how legislation should be made.  It provides for where bills should originate, and where they should end in order to be called “Acts of Parliament.” The purview of this section is legislation- making and the processes to be followed in reaching that end.  On the other hand, rule-making powers of the National Assembly flow from a different section, and that is Section 81 of the Constitution.

 

[23]   Section 81 of the Constitution provides that:

 

“(1) Subject to the provisions of Constitution, each house of Parliament may regulate its own procedure and may in particular make rules for orderly conduct of its own proceedings.

 

(2) Each house of Parliament may act notwithstanding any vacancy in its membership (including any vacancy not filled when the House first meet after any general elections) and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate those proceedings.

 

(3) ….”

 

[24]   It is in terms of this section that the National Assembly makes rules to regulate its own procedure and for orderly conduct of its own proceedings.  It is in terms of this power that the National Assembly promulgated Standing Orders (National Assembly Standing Orders of 2022).  One such Standing Order is Standing Order No. 105B which provides for reinstatement of business which fell as a result of dissolution of Parliament.  It provides that:

 

“Business that has lapsed with dissolution or prorogation of Parliament may be reinstated by resolution of the House and will be resumed in the National Assembly at the stage it had reached in the previous Parliament.”

 

[25]   In order to understand the import of this Standing Order it is important to understand why it was necessary that it be included in the National Assembly rulebook.  Parliamentary sovereignty as practised in the United Kingdom has at least three main principles; namely, (i) That Parliament is the supreme law-making body, and as result, can enact any law on any issue whenever it desires; (ii) Parliament cannot bind its successors; (iii) No court of law can question the validity of any Parliamentary enactments.  (See: A. V. Dicey, An Introduction to the Study of the Law of the Constitution 10^th ed. 1959, London: Macmillan, p.p. 39 – 40).  I am referencing the United Kingdom conventions because of our colonial history. We inherited many of the United Kingdom’s parliamentary conventions. That Parliament is charged with the sole responsibility of legislation-making still obtains even today in our constitutional supremacy dispensation.  This and the principle that Parliament cannot bind its successors survived the current era where Constitution reigns and looms large in every facet of our daily lives.

 

[26]   The last of three principles is inimical to our Constitutional dispensation and is therefore not applicable. The Constitution is the supreme law, and any law that is inconsistent with it will be struck down as such by the courts of law. It is precisely because of this principle of Parliamentary Sovereignty that no parliament can bind its successors that when Parliament gets dissolved, its unfinished business falls with it.  This is to give a new Parliament after the general elections to put together the business it wants to deal with without having its hands tied to the unfinished business of the previous Parliament.  As to the effect of dissolution of Parliament see R (on the Application of Miller) v The Prime Minister Cherry and Others v Advocate General for Scotland (Scotland [2019] UKSC 41 paras. [4]-[5]).

 

[27]   It is due to the effect of dissolution of Parliament on its unfinished business that the National Assembly Standing Order 105B was included in the National Assembly Standing Orders of 2022.  From the way it is couched, it is apparent that the successive Parliament is not bound to reinstate the lapsed business.  It is given a discretion whether to do so.  This is not a novel approach in the Commonwealth, as in New Zealand, Section 20 of the Constitution Act No. 114 of 1986 makes provision in similar terms:

 

“20. Lapse or reinstatement of Parliamentary business

 

(1) Any Bill, petition, or the business before the House of Representative or any of its committees during a session of a Parliament (any Parliamentary business) –

 

1. does not lapse on the prorogation of that Parliament and may be resumed in the next session of Parliament (a session of that Parliament).

 

2. lapses on the dissolution or expiration of that Parliament but may be reinstated in the next session of Parliament (a session of the next Parliament).

 

(2) Parliamentary business is reinstated in that next session if, after that dissolution or expiration, the House of Representatives resolves that the Parliamentary business be reinstated in that session.”

 

[28]   The fact that in New Zealand this is provided for in the Act of Parliament not Standing Orders or Rules does not make any difference.  Coming back to the applicant’s contention, its essence is that Standing Order No. 105B violates the provisions of Section 78 of the Constitution because it provides for resumption of the lapsed business of Parliament at the stage where it was when Parliament got dissolved thereby depriving the new Parliament of the right to originate the bill.  I have to say I do not fully appreciate the thrust of this contention as all bills whether or not they got hit by dissolution are originated in the National Assembly.  It does not matter that they were originated by the past Parliament. 

 

[29]   In terms of the constitutional power bestowed on Parliament to make rules to regulate its own procedure, it is well within its powers to reinstate the lapsed business, if it so desires.  The only limit to the exercise of this power is that it must do so consistently with the Constitution (Mathibeli Mokhothu and Others v The Speaker of the National Assembly and Others Constitutional Case NO. 20/2017 (unreported) (dated 21 February, 2018) at para. [14]).  In my judgment, the contention that Standing Order no. 105B is violative of Section 78 of the Constitution is without any merit.

 

[30]   Dissolution of the 10^th Parliament on the 14 of July, 2022 had the effect “irretrievably” “disintegrating” all pending parliamentary business and Bills?

 

          The applicant has urged upon us to declare that when the 10^th Parliament was dissolved that had the effect of “irretrievably” “disintegrating” all pending parliamentary business.  This contention stems from what he says are the “binding statements” having the force of law to the effect contended for, in paragraphs [75] and [77] of the case of Kananelo Boloetse and Another v His Majesty the King and Others Constitutional Cases Nos. 00123 and 0015/2022 unreported) (dated 12 September 2022) (hereinafter ‘Boloetse’) where the court said:

 

“[75] I am fortified in this view by the effect of dissolution on the business of Parliament.  A dissolution terminates all pending bills.  It does not preserve them in a legislative fridge to be opened if Parliament is recalled.  A recalled Parliament does not have jurisdiction and authority to resurrect businesses killed and buried by its dissolution.

 

[76] ….

 

[77] It follows that failure by Parliament to pass the two Bills on 14 June when the Proclamation had the effect of annulling and cancelling them for good.  They became corpses which declaration of the state of emergency cannot resurrect into a legislative business for a recalled Parliament.  The notice of Recall is a textbook repurposing of the constitutional functions of a dissolved Parliament.  To the extent that the Recall notice purports to authorize or direct Parliament to resurrect and pass the Bills it is ultra vires His Majesty’s powers.”

 

[31]   In view of the discussion we had on the preceding sub-topic on the effect of dissolution on the unfinished business of Parliament, it would ordinarily be unnecessary to go to town with the current sub-topic because it would in essence amount to repeating what has already been discussed.  I am acceding to discuss the current topic merely to dispel the notion that the extract from the Boloetse case has the force that we are being urged to construe it to have.

 

[32]   The principles which are applicable to interpretation of court orders or judgments are trite.  They were articulated in Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at p. 304 as follows:

 

“…[T]he court’s intention is to be ascertained from the language of the judgment or order as construed according to the usual, well-known rules …  Thus, as in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole to ascertain its intention.”

 

[33]   In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para. [18], the court described interpretation as a unitary exercise involving a triad of language, context and purpose.

 

[34]   In Boloetse, the court was dealing with the constitutionality of recalled Parliament to deal with the Bills which fell with its dissolution.  The 10^th Parliament had been dissolved and when it was recalled on the pretext of the fictitious state of emergency to deal with the business it had failed to dispose of before its dissolution, it clearly acted inconsistently with the Constitution.  The orders and views expressed by the learned Chief Justice in that case should be properly contextualised.

 

[35]   The facts of that case are different from the current one in that, the 11^th Parliament is in session, only that it is on winter adjournment. It has been recalled to invoke its legitimate and constitutional powers in terms of Standing Order No. 105B to reinstate the business which fell with the dissolution of the 10^th Parliament.  As we have seen in the preceding discussion on the effect of dissolution of Parliament on its unfinished business, it is well within its powers to reinstate the unfinished business of the 10^th Parliament.

 

[36]   The remaining reliefs are unnecessary to deal with as they are taken care of by what is discussed in this judgment.

 

[37]   In the result, the following order is made:

 

1. The application is dismissed with no order as to costs.

 

 

 

 

_________________________

MOKHESI J

 

 

 

I Agree_________________________

MAHASE J

 

 

 

I Agree________________________

BANYANE J

 

 

For the Applicants:       Adv. Fusi Sehapi instructed by K. J Nthontho Attorneys

 

For the Respondents:    Adv. P.T.B.N Thakalekoala from Attorney General’s Chambers