Thulo v Government Secretary and Others (Cof A (CIV) No. 2/2003 )

Media Neutral Citation: 
[2003] LSHC 50
Judgment Date: 
14 April, 2003

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Cof A (CIV) No. 2/2003

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:

MONARE DAVID THULO Appellant

and

THE GOVERNMENT SECRETARY First Respondent

THE ATTORNEY GENERAL Second Respondent

THE ADJUDICATOR Third Respondent

(Public Service Commission)


HELD AT MASERU


CORAM: Steyn, P

Grosskopf, JA

Plewman, JA


Meaning of section 60(1 )(c) of the Constitution - leader of the opposition has to vacate his seat as member of the National Assembly when Parliament dissolves - not entitled to further parliamentary salary in terms of Act 18 of 1998 thereafter - certain specific offices preserved after dissolution of Parliament, but no similar provision in the case of the leader of the opposition - the provisions of section 95(5)(d) of the Constitution does not preserve his position as regards the National Assembly.


JUDGMENT


GROSSKOPF, JA:


1. During October 2001 Mr. K.A. Maope became the leader of the opposition


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in the National Assembly and as such became entitled to certain remuneration and

privileges in terms of the Members of Parliament Salaries Act, 18 of 1998 ("the 1998

Act").


2. When Parliament dissolved on 25 February 2002 the appellant, who was then Clerk to the National Assembly, was advised by the second respondent in writing that the leader of the opposition was no longer entitled to receive any salary and allowances since he had to vacate his seat as a member of the National Assembly in terms of Section 60 (1) (c) of the Constitution, which provides as follows:


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

(c) at the next dissolution of Parliament after his nomination, designation or election;....."


3. The appellant disagreed with the legal opinion of the second respondent and pointed out in his response that despite the dissolution of Parliament the leader of the opposition remained a member of the Counsel of State in terms of Section 95 of the Constitution. The second respondent replied, but notwithstanding his instructions the appellant authorised payment of the March salary of Mr. Maope. Disciplinary


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charges were preferred against the appellant who contended that he had acted lawfully and in terms of the Constitution by paying Mr. Maope as he was still the leader of the opposition. The question which arose involved the interpretation of the Constitution and the third respondent referred the question to the High Court in terms of section 128 of the Constitution.


4. The first and second respondents then launched an application against the appellant and third respondent for an order:


  1. Declaring that in terms of section 60 (1) (c) of the Constitution the office of the leader of opposition ceases to exist, terminates and expires, by operation of law. immediately upon dissolution of Parliament.


  1. Directing second respondent [now third respondent] to proceed with the hearing of the disciplinary case presently pending against first respondent [now appellant].


  1. Dispensing with the rules regarding service, dies induciae, form and such other incidental matters, on account of urgency."


The application was heard by a full bench of the High Court. That court upheld prayers (a) and (c) but dismissed prayer (b). Costs were awarded to the then applicants but the court a quo held that such costs were not to include the costs of two counsel. The appellant appeals against this order in terms of section 129 of the


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Constitution.


5. It is common cause that the leader of the opposition is a member of the National Assembly. It follows in my view that the leader of the opposition ceases to be leader of the opposition of the National Assembly if he has to vacate his seat as member. Section 60 (I) (c) of the Constitution (quoted in paragraph 2 above) provides that a member of the National Assembly , and therefore also the leader of the opposition, shall vacate his seat when Parliament dissolves.


6. The Constitution does, however, expressly preserve certain specific "offices" and provides that the holder of a particular office shall not be obliged to vacate his office when Parliament dissolves, but only -


"if he ceases to be a member of the National Assembly [either House of Parliament] otherwise than by reason of a dissolution of Parliament". (Emphasis added).


This applies to the office of the Prime Minister (section 87 (6) (a)), a Minister (section 87 (7) (a)), an Assistant Minister (section 93 (2)). the Speaker of the National Assembly (section 63 (3) (a)) and the Deputy Speaker of the National Assembly (section 64 (4) (a)). The Constitution preserves these offices in order that government


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may remain in office to govern until the National Assembly first meets after the

dissolution of Parliament.


7. The Constitution does not. however, have a similar provision for the leader of the opposition so as to preserve his position as far as the National Assembly is concerned. He, like any other member of the National Assembly, must therefore vacate his seat when Parliament dissolves, as provided for in section 60 (1) (c) of the Constitution. The conclusion that the Constitution does not provide for the leader of the opposition to remain "in office" as such when Parliament dissolves is confirmed by the 1998 Act which makes provision "for the salaries of Members of the National Assembly and Senate". The position of the leader of the opposition is specifically prescribed in section 3 of the 1998 Act as follows:


"'Leader of the Opposition' means 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.


The entitlement of the leader of the opposition to the salary, allowances and privileges set out in the schedules to the 1998 Act is clearly dependent upon his remaining a member of the National Assembly. This entitlement falls away when he ceases to be


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a member upon the dissolution of Parliament.


8. The appellant contends that section 60 (1) (c) of the Constitution must be read with section 95 (5) (d). The submission is that if this is done it becomes apparent that the office of leader of the opposition is preserved in section 95 and that it therefore survives the dissolution of Parliament. Section 95 of the Constitution deals with the Council of State which is constituted "to assist the King in the discharge of his functions and to exercise such other functions as are conferred by this Constitution" (Section 95 (1)). The Council of State consists of persons holding various offices. Included in terms of section 95(2)(h) are two members of the opposition -


"two members of the National Assembly appointed by the Speaker from among the 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. If there is only one opposition party the Speaker shall appoint another member of that party."


9. Section 95 (5) (d) deals with the circumstances in which the two members of the opposition holding a seat under section 95 (2) (h) are obliged to vacate their seats. The subsection reads as follows:


"95 (5) A member of the Council of State shall vacate his office -


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(d) 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;"


The court a quo made the following remark with reference to this provision:


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


In my view that is not what section 95 (5) (d) says. Section 95 (5) (d) actually preserves the position of the leader of the opposition after the dissolution of Parliament, but only in respect of his membership of the Council of State. The Council of State is an organ of State which is completely distinct from the National Assembly. Section 95 (5) (d) certainly does not also preserve the position of the leader of the opposition as member of the National Assembly. The fact that the leader of the opposition is entitled to be paid an allowance in terms of the Council of State Act, 5 of 1994, as long as he remains a member of that Council does not confer any entitlement on him in respect of the March salary which the appellant paid him as a presumed member of the National Assembly.


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10. Counsel for the appellant referred us to the historical significance of the Leader of the Opposition in the United Kingdom. Be that as it may, the position in this country is regulated by the Constitution. As was held in S v Makwanyane 1995 (3) SA 391 (CC) at [15] by South Africa's Constitutional Court:


"A constitution is no ordinary statute. It is the source of legislative and executive authority. It determines how the country is to be governed and how legislation is to be enacted. It defines the powers of the different organs of State, including Parliament, the executive, and the courts, as well as the fundamental rights of every person which must be respected in exercising such powers."


11. This court has previously set out the general approach a court is required to adopt in the interpretation and application of the Constitution. It has been held that although the interpretation entails a broadly purposive approach, involving the recognition and application of constitutional values and not a search to find the literal meaning, the exercise must be undertaken within limits (Sekoati and Others v President of the Court Martial and Others 2001 (7) BCLR 750 (Les CA) at 756-7; Attorney General of Lesotho v Tebelo Mopa. C of A (CIV) 3 of 2002). Counsel for the appellant urged upon us to adopt a purposive and benevolent approach in interpreting the Constitution, yet counsel could not indicate which section of the Constitution should be open to such interpretation, nor could he explain how it should be interpreted to reach the result he requires.


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12. Section 60 (!) (c) of the Constitution is quite clear in my view. The general rule is that a member of the National Assembly shall vacate his seat when Parliament dissolves. There are certain exceptions provided for in the Constitution where specific offices are preserved in order that the country may be governed after the dissolution of Parliament. (See paragraph 6 above). There is no similar provision in the Constitution whereby the leader of the opposition retains his position as an elected member of the National Assembly. It will require an amendment of the Constitution if the office of leader of the opposition is to be preserved in this respect.


13. In my judgment the appeal should accordingly be dismissed with costs. I am however of the view that prayer (a) should be rephrased and that the order of the court a quo should be amended accordingly.


14. The following order is made:


14.1 The order of the court a quo is amended by rephrasing prayer (a) as follows:


"(a) Declaring that in terms of section 60 (1) (c) of the Constitution, and upon dissolution of Parliament the leader of the opposition is obliged to vacate his seat as member of the National Assembly, whereupon his position as leader of the opposition in the National Assembly and any entitlements receivable as such cease."


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14.2 The order of the court a quo as amended is hereby confirmed.


14.3 The appeal is dismissed with costs.


F.H Grosskopf

JUDGE OF APPEAL


I agree:


J.H.Steyn

PRESIDENT


I agree;


C Plewman

JUDGE OF APPEAL

Delivered at Maseru this 14th day of April 2003.


Counsel for the appellant : K.E. Mosito

Counsel for first and

second respondents: H.P. Viljoen SC

D.P. Molyneaux