Mona v Lesotho Electricity Corporation (CIV/APN/465/03 )

Case No: 
CIV/APN/465/03
Media Neutral Citation: 
[2004] LSHC 51
Judgment Date: 
22 March, 2004

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CIV/APN/465/03

IN THE HIGH COURT OF LESOTHO


In the matter between:


TS'ELISO MONA APPLICANT

AND

LESOTHO ELECTRICITY CORPORATION RESPONDENT


JUDGMENT


Delivered by the Honourable Mr. Justice WCM Maqutu on the 22nd March, 2004

HISTORY OF THE APPLICATION


1. On the 14th November, 2003 this Court granted applicant's Ex parte application and made the following order:


  1. That the periods and modes of service of processes stipulated by the rules be dispensed with on account of the urgency of the matter.

  2. That a rule nisi be issued returnable on the 24th November, 2003 calling upon respondent to show cause (if any) why:


    1. The respondent shall not be ordered forthwith To restore applicant's electricity supply omnia Ante.

    2. Respondent shall not be interdicted from Interrupting the electricity supply to applicant herein otherwise than in accordance with due process of law.

© Respondent's act of unilaterally interrupting the electricity supply to applicant shall not be declared unlawful.


    1. Respondent herein shall not be ordered to pay costs of this application.


  1. That prayers (1) and (2) (a) above operate with immediate effect as an interim interdict.


2. When the above order was issued the court had noted that "there is Notice of Intention to Oppose" filed. On the 24th November, 2003, of the rule was extended at the instance of respondent to enable respondent to file opposing papers on the 1st December 2003. There was another postponement and extension of the rule nisi at the instance of respondent. Respondent had on that day filed of record its opposing affidavits - which had been served on applicant on the 26th November, 2003.


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3. On the 8th December, 2003 the rule was discharged by consent and the matter postponed to the 9th February, 2004 to enable applicant to file replying papers. The matter on the 9th February, 2004 was again postponed to the 1st March, 2004 and applicant had filed the replying affidavit on the same day.

POINTS IN LIMINE

4. Respondent's first complaint was that applicant was abused the court process by obtaining a court order ex parte when there was already a notice of Intention to Oppose the application. Respondent further submitted that the mere fact that a matter is urgent is not a ground to proceed ex parte. The other complaint of applicant was that the Certificate of urgency was filed of record four days after the Notice of Motion and the Notice of Intention to oppose the application had been filed of record.


5. When the matter came before me, I took the view that since the Judge who granted applicant's application had noted that there was a Notice of Intention to oppose already - the granting of application was use of the court's discretion with which I could not interfere. The court that day had considered the sole ground of urgency that counsel had put before it, and agreed with counsel that "applicant's power supply has been disconnected causing extreme disruption of his family life".


6. Nevertheless it remains true that there are rules that govern both ex parte applications and other applications. Ex parte applications are governed by Rule 8 (4) while other applications which have to be on


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notice to the other side are governed by Rule 8 (7). Rule 8 (22) is designed for all applications, whether ex parte or on notice, if there are circumstances or reasons that make them urgent.


7. Consequently if conditions set out in Rule 8 (22) are met a court or Judge dealing with an urgent application "may dispense with forms of service ... and may dispose of such time and place and in such manner an in accordance with such procedure as the court or Judge may deem fit."


8. Because it is fundamental principle of our judicial system that both sides be heard before a court issues an order, ex parte applications should be made only in exceptional well-grounds circumstances. Courts are therefore enjoined to avoid ex parte orders, if they can.


In case Mapuseletso Mahlakeng & 55 others v Southern Sky (Pty) Ltd. & 7 others C of A (CIV) No. 16 of 2003 (unreported) the President of the Court of Appeal said:


"The Court of Appeal has in numerous judgments, given over the past two decades, depreciated the practice of seeking and granting orders which affect the rights of others in the absence of timeous and proper notice to those affected by such an order."


9. No hard and fast rules can be made on when and how ex parte orders may be issued. Each case depends on its merits. Courts should therefore be extremely careful when they deal with applications for ex parte orders. In other words, the party has to satisfy the Judge that there exist special reasons why notice should not be given. To put this in Gauntlett JA's words in The Commander LDF & another v Matela


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1999 - 2000 LLR & Legal Bulletin 13 (unreported) at page 16 emphasising the need for good reasons before granting an ex parte order said:


"To have issued an interim order without notice to the other side - when no basis was laid for this on the papers - was a serious error on the part of the court."


10. It seems obvious that in the mind of the Judge that granted the interim order that the Judge took the view that prima facie the disconnection of applicant's power supply was causing extreme disruption of applicant's family life. Furthermore the balance of convenience favoured the granting of the interim order as the LEC itself would not suffer any prejudice of the type applicant was suffering if the interim order was not granted. Consequently without presuming to review the interim order - I cannot fault the manner the judicial discretion was exercised that day.


11. It is quite fitting and even encouraged, for a party who wishes to move an ex parte application for interim relief to serve the respondent. It is for the Judge to require the other party's presence if such a party has had time to file a notice of intention to oppose. The fact that the application was moved seven days later is a ground for criticism, but cannot in itself be fatal to the application or be seen as an abuse of court process.


12. Respondent could have filed opposing papers during that seven days. As the respondent could even anticipate any ex parte order that could have been made by obtaining an earlier date I saw no reason for


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respondent's irritation. What happened was that, respondent took 20 days to file opposing affidavits and never anticipated the rule. On the 8th December, 2003, the rule nisi was discharged by consent. By the 1st of March, 2004 when the matter was argued there was no interim order in place, but the urgency of hearing remained. Applicant had asked for time because the matter and the issues involved were not as simple as he had thought.


13. Gauntlett JA's strict injunction in Commander LDF & Another v Matela at page 16 does not only limit the granting of ex parte orders to cases where prior notice would frustrate the order - it only makes such a situation one of the examples. Gauntlett JA after expressing concern about the misuse of ex parte applications and orders said:


"As a general rule, basic considerations of fairness and the need to prevent the administration of justice from being brought into disrepute - require appropriate notice to be given. Orders should only be granted without notice where this is rigorously justified ..."


14. It seems to me that having considered the rights of others and found that (because of the serious disruption of applicant's life) the duty Judge was justified to grant relief without first hearing respondent, we can now deal with the merits of this application.

APPLICANT'S CASE


15. Applicant brought an urgent application for the aforementioned relief against respondent hereinafter referred to as the LEC. Applicant's grievance was that without notice and without being heard the LEC


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had disconnected the electricity of his home on the 23rd October, 2003 because the LEC alleged his "meter bypassed red phase not metered." See "TMI" of applicant's founding affidavit. The conditions for reconnection were the following:


Penalty - Ml 000.00

Reconnection fee - M300.00

Estimated consumption - M5226.90

TOTAL - M6526.90


16. The LEC is a statutory body entrusted with the generation, transmission, distribution and supply of electricity in Lesotho. It has extensive powers that give it a monopoly in the supply and distribution of electricity. In terms of Section 7 (I) of the Electricity Act of 1979, the LEC "shall have the right to impose such conditions as it thinks fit in contracts or agreements for the supply for electricity."


17. Applicant claims he has been paying for he electricity that he consumes. He claims that an employee of the LEC called Motsoari disconnected his electricity supply at his residence at Tsenola and handed him "TM1" claiming applicant had made an illegal electricity connection. Consequently applicant was consuming electricity without paying for it. Applicant denies this allegation and hands "TM2" an LEC receipt showing he had just bought 460 units of electricity for the sum of Ml 50.00 on the 14th October, 2003.


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18. Applicant claims the LEC does not check its electrical installation properly. Applicant further says his electricity supply was changed from three phase to single phase by LEC employees when LEC removed his three phase metre and replaced it with a single phase meter. Applicant further states that, that single phase meter was later replaced and another single phase metre operated with pre-paid coupons installed. Whatever installations that exist in his electricity supply were put by LEC employees, not by him.


19. Applicant also says the said Motsoari is not the Chief Engineer with powers to disconnect his electricity supply. Applicant adds in his own words. "I am further legally advised that the proper thing for respondent to do in case there is suspicion that I have tempered with any of its facilities, is to take me through the process of law and not take the law into his own hands by disconnecting my electricity." Applicant consequently claims he was in peaceful possession of the electricity which the LEC has disconnected.


20. Applicant concludes by showing how his private life and that of his children has been disrupted. He cannot cook or use any electrical appliance and his children cannot be able to study as a result of the act of the LEC. Consequently applicant avers the balance of convenience favours the granting of his application.


RESPONDENT'S ANSWER


21. The answering affidavit of the LEC is attested by Paseka Motsoari. He says " applicant has not been religiously purchasing electricity


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units in as much as the units purchases are not commensurate with his total consumption of electricity". The LEC' s deponent claims applicant has made additions to his electrical fittings without thereby notifying the LEC. He claims applicant has (by so doing) been interfering with main fuses and thereby been fraudulently consuming LEC's electricity which was not metered.


22. Paseka Motsoari further states that applicant's employee on applicant's instructions initially refused them access to applicant's premises, but they prevailed on her to allow them to allow them access to the meter. Paseka Motsoari says applicant's connection "is three phase supply with a single meter." The other two phases (including the red one) are just hanging in the circuit breaker in the meter box.


23. Consequently the supply of electricity from the other phases which applicant is not entitled to use is not measured: Inspection revealed that applicant had connected his own extension cord to the red phase which has bypassed the meter and supplies applicant with an unmeasured amount of electricity through an outbuilding which then passes the electricity to the main house. The phase which has a meter only provides electricity for lighting. The consumption of electricity for the outbuilding and appliances in the main house from the red phase cannot be measured because it does not pass through the meter. This consumption of electricity is fraudulent.


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24 The LEC's deponent vigorously denies that applicant does not know how the M6526.90 is arrived at. He insists that the law authorizes LEC to disconnect the electricity where there are illegal connections and fraudulent consumption of electricity of the type applicant has embarked upon. LEC's deponent has displayed his electrical engineering qualifications from the LEC, Escom distribution, Lesotho government collectively marked "PM1".


25. The LEC's second deponent is Mokhitli Shai who stated that he was also authorized to oppose applicant's application. He states he was with Paseka Motsoari on the 23rd October, 2003 when they discovered that applicant had tempered with LEC's main fuses and apparatus. He saw that applicant had effected an illegal connection that enabled applicant to consume LEC's electricity without metering. Mokhitli Shai has annexed his diploma in electricity from the Techinical school of Leribe and from Escom Distributors he has attached a certificate in pre paid meters (Electricity Dispenser) collectively marked "MSI.


26. The Managing Director of LEC has filed an affidavit showing that Paseka Motsoari is duly authorized to make the opposing affidavit on behalf of the LEC.


APPLICANT'S REPLY


27. Applicant's maintains he never fraudulently accessed LEC's electricity through an illegal connection that does not go through the meter. He purchased all the units he used. He contends that that all changes were effected to in the electrical system when it was changed from three


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phase to single phase were made by LEC's employees as more fully appeared in paragraph 7, 8 and 9 of his founding affidavit.


28. Applicant challenges the qualifications of LEC's deponents who have done short courses in electricity. He annexes Lebohang Motsotsoana who holds approximately the same qualifications as one of LEC's deponents M. Shai. Lebohang Motsotsoana's affidavit is to the effect that an illegal connection would be impossible from a red phase or any other phase when such is alive.


EVALUATION OF EVIDENCE


29. I invited applicant to address me first on the issue of disputed facts that are apparent from the papers. I wanted to be addressed on why I should not dismiss the application out of hand because Rule 8 (14) provides:


"If in the opinion of the court the application cannot be properly decided on affidavit, the court may dismiss the application or make such orders as to it seems appropriate with a view to ensuring a just and expeditious decision."


30. Applicant emphasized the urgency caused by the disruption of his life occasioned by the arbitrary disconnection of his electricity supply. LEC in turn emphasized the powers it has to disconnect without the need of a hearing of applicant in terms of the Electricity Act of 1969 and the Electricity Regulations of 1970.


31. Consequently the only practical way of disposing of this matter expeditiously is to deal with the powers and the manner and


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procedure the LEC can disconnect the electricity supply if it finds that there as been tampering with electrical appliances. I asked both counsels whether the alleged connection can be found if the court went to applicant's house. LEC's counsel said that since the applicant has (for the last four months) been in control of the premises in which the alleged illegal connection was made, the court is not likely to find it. In other words it was easy for applicant to remove the illegal connection during that period. Applicant's counsel (having regard to his instructions) was not in a position to comment.

32. The problem I have is that whatever LEC saw at applicant premises, the LEC two employees saw alone in the absence of applicant. There are no independent witnesses to back up the LEC's allegations. If even a layman could see the illegal connection accessing electricity as M. Shai alone claims, why were independent witnesses not sought?


33. The other problem I have is why did the employees of the LEC leave the two other phases from the circuit breaker hanging when they changed applicant's electricity from three phase to single phase? Regulation 26 clearly states that the meter, fuse box, time switch or similar devices should be sealed. Nowhere does the LEC's deponent suggest that seals were broken. It is as if they were hanging for all and sundry to tap electricity should they be tempered to do so.


Electricity Regulations of 1970 seem at first glance to be arbitrary and unfettered. Consequently counsel argued this matter as if the requirement for LEC to act fairly and to hear others before LEC acts against them has been dispensed with by law.


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34. LEC's Counsel in support of the right of the LEC to act arbitrarily quoted shearer AJA in Lesotho Electricity Corporation v M. Moshoeshoe 1997 - 1978 LLR and Legal Bulletin 412 at 415 where he says:


"Now the common law right to a hearing exists unless either expressly or by necessary implication. In the present matter the words "without notice" is an incontrovertible indication that such is excluded."


35. The words without notice ordinarily suggest a situation that require instant action - usually an emergency. I think the above words of Shearer AJA in Lesotho Electricity Commission v M. Moshoeshoe can easily be read out of context if they are read in isolation, ignoring the judgment as a whole legal policy and the tradition on which Lesotho's legal system is based. In the case of Moshoeshoe LEC was not only tempering, but seals had been broken and the meter was unsealed. Moshoeshoe was also refusing to return the seals. There was no effective denial by Moshoeshoe. The meter was no more functioning and yet consumption of electricity continued in Moshoeshoe's electrical appliances. Nothing from the facts of that case violated the expectations of fairness and justice in what LEC did when it instantly decided to disconnect Moshoeshoe's electricity.


36. The powers given to the LEC in Section 7 of the Lesotho Electricity Act of 1969 and the Act as a whole have to be exercised openly and fairly, transparently and flexibly. This is clearly spelt out in Section 7 of the Electricity Act of 1969. Indeed Section 7 (2) (b) and 7 (4) of


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the Act obliges LEC to be flexible in dealing with the problems of consumers and fixing tariffs owing to special circumstances.


37. The abovementioned words of shearer AJA in Lesotho Electrify v M Moshoeshoe have to be read against the backdrop of formal legalism in the court below that did not take into account the purpose of the audi alteram parterm principle. Ignoring fairness and justice in practical situations, thereby ignoring other considerations that surround that principle. The principle has been put in a disciplined manner geared towards justice and fairness by Gauntlett JA in Matebesi v Director of Immigration 1997 - 98 LLR and Legal Bulletin 455 at page ... in the following words:


"The right to audi is however infinitely flexible ... (thus in appropriate circumstances fairness may require only the submission and consideration of written representations ...) or the operation of the rule may be outsted or attenuated by a particular set of facts, where it cannot practically implemented, at all..." AG v Swissborough Diamond Mines & 5 others 1991-96 LLR 27 at page 31.


38. Executive power and the use of these powers by statutory bodies with extensive powers is the problem of modern societies. The scope of government or governmental bodies has been extended to the provision of services and the regulation of socio-economic life of the country. Initially this power centered around the King and were largely directed to the maintenance of law and order and the protection of property. Now executive power in a parliamentary democracy centers around Government which from the twentieth century now controls parliament and regulates the entire life of the


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nation - as already stated. In other words the scope of government is not what it used to be. The doctrine of the "rule of law" now focuses on the control of the use of broader executive power, and has to be geared to prevent or ameliorate its arbitrary use, which could result in oppression.


39. However the rule of law is not intended for the courts to usurp the powers of administration from government and the bodies that should exercise them. The courts at all times have to keep in mind Section 15 of the Interpretation Act of 1911 which provides that:


"Every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".


To put what has been said above in Michael Fordham's words in Judicial Review Handbook 2nd Edition at page 322 paragraph 29.1:


"Courts frequently need to focus on the aims and wishes of Parliament. This involves asking not just what Parliament has said, but what it meant or intended."


40. Lesotho differs from Britain in that in interpreting the legislation that impinges on the rights of an individual. Not only has the court to interpret the enactment, but it must reconcile it with the Constitution of 1993, especially if an enactment pre-dates the Constitution of 1993. In Lesotho it is the Constitution that is the supreme law - while in Britain there is the doctrine of "Supremacy of Parliament." In Lesotho the Constitution says what the Parliament can and cannot do. For this reason current South African law is relevant in so far as it


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emphasizes that the Constitution should always be kept in mind when statutory powers are exercised. See among other cases Deacon V Controller of Customs 1999 (2) SA 905 at 1918 EG.


41. It has never to be forgotten that onerous modern state duties have been put on the LEC, which are exercised for the welfare of individuals in the public interest. These duties have very often to be exercised in emergency situations. In Minister of Finance & Others VEBN Trading (PTY) Ltd 1998 (2) SA 319 at 329 C - F Magid J said:


"Certainly I can see no compelling ground of public policy to differentiate between wrongful detention of a person or his property ... I bear in mind the duties and obligations of the Commissioner so eloquently urged upon me by Mr. Joubert. But equally I am conscious of the extraordinary powers conferred upon the Commissioner. Having such extraordinary powers there is no reason at all why he should not use particular care in exercising them."


In other words these powers have to be exercised with moderation and care in keeping with the spirit of the constitution and the democratic culture of Lesotho.


42. Dicey in An Introduction to the Study of the Constitution 10 Edition at page 289 had to concede that sometimes power has to be used arbitrarily and firmly by the authorities such as the Police and Magistrates. However, Dicey adds "they are, each and all of them, liable to be called to account before a jury for the use of excessive, that is unnecessary force". That is the essence of the rule of law when dealing with emergencies and dangerous substances like electricity.


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The LEC may within the doctrine of the "rule of law" act and account later.


43. The Court of Appeal saw legislation and the rule of law as part of the human civilization consequently the President of the Court of Appeal Mr. Justice Mahomed said of law:


"That law must be rational and just; and that civilization is imperiled when fundamental values are not defended by rulers of the country."


It is therefore not expected that in a civilized state that laws should be unfair and unjust. Courts have a duty to uphold this principle.


44. A proper reading of the Electricity Act of 1969 shows that the intention of the legislature was to enhance the quality of life and the human civilization. It did this by fairly and justly promoting the welfare and economic well-being of the people by providing electricity, energy and light through the LEC.


45. The legislature gave the LEC not only the power to generate and distribute electricity, but powers to police and protect the electricity itself, its generation and distribution apparatus and appliances as well. The power to protect electricity from being misused, stolen and maldistributed was to protect in the public interest the welfare of the nation. The Electricity Act of 1969 and the Electricity Regulations of 1970 cannot be collectively be called "truly nasty and brutish" as the Revocation Specified Mining Leases Order No.7 of 1992 was called


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by the President of the Court of Appeal Mr. Justice Mahomed in AG v Swissborough Diamonds Mines Ltd. & 5 ors (supra at page 29.


WHETHER THE LEC HAS NOT EXCEEDED ITS POWERS.


46. The audi alteram partem rule and the principles of natural justice are part of the Rule of Law. Consequently the rule of law is the fruit of legal policy. Good governance protect the general welfare in the state, the dignity and the rights of an individual - as the Court of Appeal said in Selikane & 33 Others v LTC 1999 - 2000 - LLR 455 at 461 - 462. The legal policy in a democratic civilization which bred the rule of law (which we have in mind) - is different from the rule of law in a despotic oppressive dictatorial regime where freedom and the right of the person is not the concern of the regime. Even in such a brutal dictatorship too there can be laws within which the organs of the state and statutory bodies operate to perpetrate the oppression with impunity.


47. Professor E.C.S. Wade in the introduction to Dicey's Introduction to the study of the law of the Constitution as page cxvi says of the rule of law as understood and popularized by Dicey: "Individual liberty of action and how it is guarded by the courts is his theme". Professor has noted that philosophy of government has changed because the duty of government in Britain had widened to include provision of social services. He. therefore concludes at page civ: "So far as the provision of social services and the regulation of economic conditions have become part of the philosophy of government, the rule of law rests upon the supremacy of parliament."


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In Lesotho where activities of parliament are governed by the Constitution which has a Bill of Rights, Parliament is subject to the Constitution of 1993. The provision of Electricity is one of the social services that government and Parliament are providing.

48. In dealing with the police powers of the LEC a different approach which is embodied in the democratic rule of law is called for. In taking administrative actions which adversely affect the rights of citizen the distinction between purely administrative decisions and administrative decisions that are quasi-judicial exists although it is narrowing. The Rule of Law - inside which the audi alteram principle has been growing - puts administrative law under the scrutiny of courts. The activities of statutory bodies such as the LEC that exercise governmental powers are also included.


49. The police can arrest and detain in police cells instantly in their maintenance of law and order. Such a person may even be remanded in a prison by a Magistrate before he is heard. When doing this their activities fall within the doctrine of the rule of law. During this process they must gather evidence and continue to do so even after they have arrested a suspect. The LEC is expected and empowered by law to act instantly against those who temper with the LEC's installations in order to access electricity illegally or steal it by bypassing meters. LEC's uses meters to measure consumption and controls the supply of electricity. Consequently the LEC is empowered to disconnect electricity immediately if its control of supply is interrupted. When the police arrest and detain offenders in a


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similar speedy fashion they are not deemed to have violated the audi alteram partem rule. The same applies to the LEC.


50. Actions of the police in arresting, detaining the individual and ultimately requesting the Magistrate to remand the suspect to prison in a free and democratic society are within the Rule of Law because they have later to account for the interference with the liberty of that person before a court of law. The accused will also be heard by the courts. Even where they made a mistake, if they acted in good faith, in arresting an individual, their action is still legal.


51. By the same token the LEC can lawfully instantly disconnect electricity if in good faith it acted in the belief that electricity installations have been tempered with, thereby causing electricity to be lost or to be unaccounted for. However the Rule of Law obliges (in a free and democratic state) the LEC to account for its action before a court of law - if the accused has committed an offence or called upon to do so, because an individual claims to have been wrongfully blamed or injured by that action of the LEC.


52. Section31 (1) @ of the Lesotho Electricity Act 1969 empowers the LEC to disconnect an individual electricity supply if that consumer tempered with electricity installations and the LEC rightly or wrongly finds that the particular individual is consuming electricity that is unmeasured fraudulently. If an aggrieved individual comes before court claiming that LEC is mistaken when it says he tampered with LEC's electrical installations, the LEC should prove this. It should


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also prove that such an individual has been accessing unmeasured and unpaid for electricity if it says he has done so.


53. Consequently in AG & Another v Swissborough Diamond Mines & 5 others (rupra) at page 31 the president of the Court of Appeal Mr. Justice Mahomed said:


"Respect for the rule of law is crucial in a defensible durable civilization. Whatever be the parameters ... the fundamental human rights every citizen is entitled to exercise inhere in him in consequence of his humanity and are therefore inalienable; that no government... be permitted to invade any such fundamental rights ... that no person is permitted to take or remove what he considers to be his through his unilateral act of volition, in any dispute with another, save through the intervention of the law fairly but vigorously applied through the courts; ..."


54. It is a criminal offence to access unmeasured electricity or to tamper with the electrical supply apparatus of the LEC. In other words people who tamper with LEC supply lines or bypass meters (in terms of Section 42 (2) of the Electricity Act 1969 should be punished. The fine of M100.00 of six months imprisonment was a heavy fine in 1970. By to-days valuation the fine of M100.00 may be equivalent to M2,500.00.


55. In other words applicant and people like him should be brought before the courts, their misdeed exposed and publicly scrutinized. Their defence heard in public in the courts. Which shall if their guilt is proved, publicly denounce them as criminals and wrong doers and publicly punish them. This not only protects the rights of the


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individual but through public exposure deters potential offenders. I am unable to understand why LEC has chosen to ignore the Electricity-Act of 1969 and deal with these alleged criminals in secret. The LEC makes them pay fines and unintelligible and unsubstantiated consumption charges, out of the glare of publicity. This is against what parliament intended and this causes criminal to avoid public denunciation and punishment which is their legally intended due so as to deter others.


56. It seems to me the applicant was entitled to take action when he was accused of the criminal act of tempering with LEC's electrical supply apparatus and fraudulently consuming electricity. Applicant had a right to defend himself and his good name before the courts like other alleged criminals.


57. I do not agree with applicant's submissions that Regulation 11 (a) or (b) is ultra vires when it authorizes the cutting of electricity supply without notice because of arrears of payment or for the effecting repairs. There is nothing drastic or arbitrary about Regulation 11. It enables pressure to be put on consumers to pay and enables harm that di sanctioning of electricity installations might cause to be avoided and repairs to be effected. It will be observed that Part vii of the Electricity Act of 1969 shows how dangerous electricity is.


58. Indeed where electricity supply of a consumer who has paid was cut by mistake the LEC would be liable in damages for negligence like any other person or body. In the use of these powers disconnection for effecting repairs or for any other legitimate purpose where


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reasonably possible notice should be given - see Regulation 11 (b). That being the case the consumer is protected.


RIGHT TO ESTIMATE CONSUMPTION AND IMPOSE PENALTIES


59. Having decided interpreting the electricity laws that they are fair and are intended to meet the needs of consumers and ensure an ongoing supply of electricity - it remains to determine whether the LEC can impose penalties and impose estimated consumption charges at will.


60. Section 31 (1) (a) of the Electricity Act 1969 empowers the LEC to discontinue the supply of electricity to a consumer who:


"(iv) makes any alterations and additions to his electrical fittings without notifying the corporation or ...


(x) Fraudulently extracts, causes to be wasted or diverted, consumes or uses electricity of the corporation.


61. The LEC is authorized to refuse in terms of Section 32 (2) to reconnect

such supply until:


"(a) The matter complained of has be rectified to its satisfaction or the sums due to it have been paid, as the case may be, and


(b) There have been paid to it –


(i) any expenses reasonable incurred by it in


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cutting off the supply; and


(ii) any expenses reasonably likely to be incurred by it in reconnecting supply; and


(ii) any prescribed fees if any."


62. Bradley and Ewing in Constitutional and Administrative Law 12th Edition at page 729 dealing with the role of courts in reviewing administrative acts and ministerial power to make regulation have said:


"If made in accordance with the prescribed procedure and within the powers conferred by the parent Act, a statutory instrument is as much part of the law as the statute itself. The essential difference between statute and statutory instrument is that, unlike Parliament, a minister's powers are limited."


In Lesotho unlike in the United Kingdom - because of a definite and written Constitution, even powers of Parliament are regulated and limited by the Constitution.

63. In imposing penalties and the estimated consumption charge, the LEC was not acting in terms of a Regulation or the Electricity Act OF 1969. In the case of Commissioners of Customs and Excise v Cure and Deeley Ltd. [1962] 1 QB 340 at page 369 Sachs J said about powers to impose amounts for payment:


"First it is no part of the functions assigned to the Commissioners to ... decide issues of fact and law


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As between the Crown and the subject. Secondly, it renders the subject liable to pay such tax as the commissioners believe is due whereas the charging sections impose a liability to pay such tax as in law due. Thirdly, it is capable of excluding the subject from access to the courts and of defeating pending proceedings."


64. hi the case before me, both counsel agree that applicant is presently been denied electricity pending the payment of Ml 000.00 and the estimated consumption charge of M5226.90, while proceedings are pending, merely because the rule nisi has been discharged. This demand of total fine of M5226.90 virtually defeats pending proceedings, as applicant is blackmailed into paying them whether they are lawfully due or not - because the alternative is to be without electricity.


65. I found nowhere in the act where the LEC can impose penalties and suck up from the thumb any amount which it considers to be an estimated consumption charge. Except from the reconnection fee, I was not able to find the powers in the Electricity Act of 1969 that enable the LEC that enable it to impose the other arbitrary amounts in their letter of 23/10/03 marked "TM1".


66. It was right and proper for the LEC to disconnect applicant's electricity if applicant had (from the LEC's allegation in this case) done something to "enable a consumer to obtain electricity without due payment to the Corporation" (LEC). Within the meaning of Section 42 (2) of the Lesotho Electricity Act applicant committed crime. This statutory provision was avoided by the LEC. It chose to


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impose its own punishments outside the criminal courts. This is something not provided for by the Electricity Act of 1969.


67. Any enactment must be interpreted as much as possible in harmony with the common law. Common law includes the legal policy of the judicial system. Consequently when dealing with the drastic provisions of "the Electricity Act of 1969 which are penal and at places impact adversely on the rights of individual, they should be given a strict interpretation. Where there are two possible interpretations of such a provision, the courts should prefer the interpretation that is lenient and favourable to the individual. To put this principle in Milne JP'a words in S v Brandsmar & Another 1963 (1) SA 261 at263H.


"It is quite clear that in a penal matter of this kind the more lenient interpretation of the two reasonably acceptable ones should be favoured, unless to give that more lenient one would be contrary to the clearly manifested intention of the legislature."


See also Malebanye v Goliath 1974 - 75 LLR 276 page 280.


68. It seems to me therefore that the LEC acted ultra vires, unreasonably and in a manner unauthorized by statute when the LEC imposed a penalty and a hefty estimated consumption charge in terms of its letter of 23rd October, 2003. Whatever might have been the merits of the disconnection of applicant's electricity supply - as applicant had allegedly committed a criminal offence applicant should have been charged of the offence under Section 42 (2) of the Electricity Act of 1969 so that he could defend himself like other alleged criminals before he is punished.


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69. Consequently in terms of Regulation 22 (1) if the LEC finds it has sufficient evidence that accused has contravened Regulations 15 and 17 of 1970 it has to press charges. If accused is convicted and continues after conviction to contravene the regulations, applicant in addition to the sentence imposed, shall in addition thereto be liable to a further penalty not exceeding M10.00 per day while the contravention of the regulations continue.


70. Regulation 22 (1) implies that applicant's supply should continue after conviction unless on other grounds it should not, but if the contravention continues he should pay M10.00 per day until the contravention stops.


It is ordered that:


  1. The penalty of Ml,000.00 and the estimated consumption charge of M5226.90 be and are hereby set aside as ultra vires of the Electricity Act of 1969 and its Regulations.

  2. The respondent (LEC) is directed to deal with the alleged applicant's contravention of the law in terms of the criminal provisions of Section 42 (2) of the Electricity Act of 1969 if the LEC believes it has sufficient evidence to press charges.

  3. The respondent (LEC) is directed to restore applicant's supply of electricity provided applicant


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has complied with the terms of Section 31 (2) of the Electricity Act of 1969.


  1. That the applicant's application, in so far as it claims that Respondent cannot disconnect applicant's supply, unilaterally on the grounds specified in Lesotho Electricity Act of 1969 read together with Electricity Regulations 1970) fails - as it is misconceived and should be dismissed.

  2. Respondent (LEC) is directed to pay the costs of this application.

W.C.M. MAQUTU

JUDGE OF THE HIGH COURT


For Applicant - Mr. Thoahlane

For Respondent - Mr. Mathaba


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