Law Society of Lesotho v Right Honourable Prime Minister Pakalitha Mosisili N O and Others (Constitutional Case No. 2/04)

Media Neutral Citation: 
[2004] LSHC 82
Judgment Date: 
17 June, 2004




In the matter between:













Delivered by the Honourable Mr. Justice B.K. Molai on the 17th June, 2004

On the 27th May 2004 the Law Society of Lesotho (hereinafter called the Law Society) brought an urgent application against the Prime Minister and the Principal Secretary for Justice (collectively referred to as the government) who by law have to be represented by the Attorney General as third Respondent.

The application was for an Order in the following terms:

  1. Declaring the directive issued by the first respondent's Cabinet, dated 10th May 2004, to the effect that the use of lawyers in the Local Courts should not be allowed, as null and void for being contrary to the Constitution and Proclamation 62 of 1938 and the decision of the Court of Appeal in C of A (CIV) 3/2002.

  2. That second respondent be restrained and interdicted from implementing the directive dated 10th May 2004.

  3. Directing that the said Cabinet directive dated 10th May 2004 be set aside.

  4. That second respondent be directed to pay costs of this application.

The President of the Law Society Zwelake Mda made an affidavit on behalf of the Law Society. The Law Society in terms of Section 4 of the Law Society Act 1983 has title to sue. Consequently we should go into the merits of this application.

It appears the memorandum dated 10 May 2004 from the Government Secretary addressed to the Principal Secretary Justice, Human Rights and Rehabilitation and the Deputy Attorney General Ref. No. CAB/DEC/11 12 fell into the hands of the Law Society. It is annexed to the application and marked "ZM1." It is therefore necessary to quote it in full, and its contents are the following:



At its meeting on Tuesday 4th May 2004 under "Matters Arising."

Cabinet directed that the law regarding the use of interpreters in court should be amended to reflect that in situations where all the affected persons in a case i.e. the judges, the Lawyers, the prosecutors, the plaintiffs, the defendants and the witnesses, were Sesotho speakers there should be no need for an interpreter.

Cabinet further directed that the use of lawyers in the Local Courts should not be allowed.

The Law Society contends that this directive in "ZM 1" from Cabinet issued on the 10th May 2004 violates both the Local and Central Courts Proclamation 62 of 1938 (as amended) and the Constitution.

The reaction of government to this document is captured succinctly in the words of the Principal Secretary for Justice Mr. Paul Motholo in the opposing affidavit of the respondents where he says:

"Annexure ZM 1 to the founding affidavit is an internal and confidential document not yet meant for public consumption. Applicant has unlawfully got hold of the said document and should not be allowed to rely on it to found its cause of action."

Government view is that this is "purely a policy decision that has to be implemented in accordance with the law." Government is still seeking advice


from the Attorney General's Office. "While it may be correct that the decision may be implemented, there is no basis for assuming that it will be implemented as it is or at all." Government takes the view that the Law Society should have first taken up the matter with the Attorney General.

The Law Society replies by referring to its letter to the Attorney General dated 24th May 2004. In that letter it is stated "The Law Society is further aware that the Cabinet directive has already been circulated to the Presidents of the Local Courts for implementation. The Law Society has no option but to resort to legal measures to set aside this unconstitutional directive." From the aforegoing, it is clear that the Law Society did not even give the Attorney General three days to reply before bringing this application. This time within which the Attorney General was expected to reply was unreasonably short.

Government does not deny in its affidavit to the legal position as put by the Law Society. They only object to the way the Law Society proceeded.

The way the Law Society approached this matter does attract legitimate criticism. This is because the Law Society is a statutory body with special duties in the administration of justice. It was its duty to advise, criticize and persuade all role players such as the courts, government and Parliament. Its duty is also to suggest and advise these organs of the State where and how to improve on existing and future laws. To advise and object effectively, the Law Society has a duty to give the authorities time to reflect on what the Law Society is saying. On this occasion the Law Society was too impatient. Section 4 (a) of the Law Society Act 1983 puts its objects as being:


"to consider, originate and promote reforms and improvements in law; to consider proposed alterations and to oppose or support the same;"

It seems to us that even in an emergency government and its organs must be given time to respond to proposed reforms and alterations to the law or to any objections the Law Society might make. In this case it seems the advice or objection that the Law Society is giving or making is acceptable - what is unacceptable is the undue haste and method of approaching this issue.

Respondents have argued the Law Society in this case invites the court to give an advisory opinion on an abstract legal proposition and cited National Coalition of Gay and Lesbian Equality v Minister of Home Affairs 2002 (2) SA 1. Respondents have also said none of the rights or interest of the members of the Law Society are being violated or threatened - they have referred us to Ferreira v Levin N O & Another 1996 (1) SA 984 (a). Consequently there is no live or justiciable issue. The court is being urged to avoid the Constitutional issue raised by the Law Society, respondents cite S v Mhlungu & Ors 1995 (3) SA 867.

In the light of past events this cannot be correct. Cabinet decisions in respect of the Local Courts, have caused problems in the administration of justice. See Makesi & 85 Others v Attorney General & 3 Others 1999 - 2001 LLR 740. The issue here is audience before the Local Court, which is the main professional function of advocates. The decision of the Cabinet definitely affects and threatens the interest of the legal profession. Consequently this cannot be correct, see Pharmaceutical Society v Dickson (1968) All ER 686


at pages 700 to 701. In this case the court cannot avoid the legal and constitutional issue raised by the Law Society.

In matters of such seriousness the courts expect government to face issues with complete candor and to avoid any waste of time. Lord Jauncy in Ex-parte T.C. Coombs & Co. [1991] AC 283 at page 289 added that governmental authorities:

"must only hide behind a cloak of confidence when this is absolutely necessary and not as a matter of course."

We see no reason for ignoring the merits and maintaining that the Law Society should not have known of this decision. What is now at issue are the merits of this application.

It would not be remiss to briefly go through the history of the appearance of legal practitioners before the Local Court.

What Cabinet decided in its meeting of the 4th May 2004 when it "directed that the use of Lawyers in the Local Courts should not be allowed", is nothing new. Cabinet is in fact repeating what was originally in Section 20 of the Native Courts Proclamation 62 of 1938 to the effect that:

"No advocate or legal practitioner may appear or act for any party before a Native Court."

By 1950, the word "Native" had become objectionable to indigenous Africans as it had developed a disrespectful meaning. Therefore the title of the Native Courts Proclamation of 1938 was changed to Local and Central


Courts Proclamation 62 of 1938 (as amended). Section 20 thereof after amendment provided:

"Every person who is charged with a Criminal offence in the Central or Local Court shall be permitted to defend himself before the Court in person or by legal practitioner of his own choice..."

These words in the amended Section 20 were adopted word for word by Section 9 (2) (d) of the Constitution of Basutoland of 1965. This wording appears unchanged in Section 12 (2) (d) of the Constitution of 1966, and Section 12 (2) (d) of the current Constitution which has also left the wording unchanged. That being the case, the Law Society is correct when it says any person who is charged with a criminal offence has a right in terms of the Constitution to use the services of a legal practitioner if he wishes to do so.

The Court of Appeal was interpreting the Constitution as it understood it when it said even in civil proceedings where legal practitioners did not appear previously they should appear. The Local Courts have ceased to be small claims Courts since the 9th May 1995 when government took a decision to increase the civil jurisdiction of the Local Court from the ceiling of M500.00 to a maximum of M10,000.00. The Local Court in 1995 found itself having a civil jurisdiction higher than that of the Resident Magistrate. Its Monetary jurisdiction was in 1995 equal to that of the Chief Magistrate. See the case of Makesi & 85 Others v Attorney General & 3 Others 1999 - 2001 LLR 740 pages 742 and 754. It is the government, which changed the nature of the Local Courts from what it was previously. Clearly therefore the Local Court is no more a small claims Court.


Therefore the Court of Appeal's judgment in Attorney General v T. 'Mopa C of A (CIV) No. 3 of 2002 has a lot to justify it, apart from the constitutional interpretive function that the Court of Appeal has exercised in that judgment. Gauntlett JA in that unreported judgment of Attorney General v 'Mopa at page 12 paragraphs 22 and 23 dealing with the right of representation in Local and Central Courts said:

"It does not follow that a litigant in Lesotho has no entitlement to legal representation. As this court stressed in Rantuba (supra) in the first place that is an ancient cherished common law right. We reject the contention that the Constitution had tacitly abrogated that common law right ... The protection lies in the provision for a right of fair hearing in civil proceedings. That entitlement will not automatically found a claim under the Constitution to legal representation in all cases. It will, however do so, when the requirements of a fair hearing in turn make legal representation appropriate."

It would seem therefore that only a Constitutional amendment would be required to change what the Court of Appeal has done. The problem of forbidding legal practitioners from appearing in the Local Court will therefore not be that simple.

In any event the Constitution provides that there should be no discrimination between people. It would be discriminatory for people with claims of Ml0,000.00 to be legally represented before the Magistrate Court but not in the Local Court. It seems therefore hard to find fault with the decision of the Court of Appeal on representation by legal practitioners in civil proceedings before the Local Courts.


Government says it would follow the law in the implementation of this issue of legal representation before the Local Courts - consequently the Law Society was wrong to be apprehensive. It is not easy to take comfort in this assurance by the government. In the case of Makesi & 85 Others v Attorney General & 3 Others (Supra) at page 751, it seems clear that the Minister of Justice of the day did not act lawfully when he increased the criminal jurisdiction of the Local and Central Courts in 1995 without the written concurrence of the Chief Justice as required by Section 10. To make matters worse this increase of jurisdiction by the Minister of Justice was never published in a government gazette as all legal instruments are supposed to be.

The jurisdiction was increased over the objections of the Chief Justice contrary to Section 10 of the Local and Central Courts Proclamation 62 of 1938. While this court cannot encourage the impatience of the type mentioned above that the Law Society has displayed, it is unable to say the Law Society had no justification to act as it did, because of what happened in Makesi & 85 Others v Attorney General over the jurisdiction issue. In any event the Law Society as a statutory body of the type it is - cannot be treated as the general public.

This court is a bit perturbed that issues that affect the courts can be informally raised as matters arising and policy decisions taken thereon in that manner. Policy decisions cannot and should not conflict with the constitution because the constitution is the Supreme law of the State. In fact Cullinan CJ in Swissbourgh Diamond Mines (Pty) Ltd & 5 Others v The Military Council of Lesotho & 8 Others 1991 - 96 LLR 1481 at page 1697 put the doctrine of separation of powers in Lesotho as follows:


"It is not a matter of the supremacy of Parliament nor of the executive; neither is it a matter of supremacy of the judicature. None of them is supreme. It is the rule of law which is supreme, ensuring that each power is exercised within its proper limits."

This judgment was confirmed by the President of the Court of Appeal in Attorney General & Another v Swissborough Diamond Mines & Others 1991 - 96 LLR 27 at page 33 where the President of the Court of Appeal said of the Human Rights Act of 1983:

"It is enacted to express in a codified form the fundamental premises and parameters of a civilized society based on the rule of law; it enacts a form of statutory discipline against which executive and legislative action has to be measured."

These words also capture the essence of constitutionalism. The invasion by the Minister of the judiciary's province over the issue of the Local Courts in 1995 could well be a violation of the constitution because he interfered with the area of the judiciary contrary to the Constitution and Section 10 of the Local and Central Courts Proclamation 62 of 1938. It seems even the delegated legislation under Section 10 might be violating the constitution with which it must be reconciled as an old law in terms of Section 156 (1) of the Constitution.

The three years chaos that occurred from 1995 when the Local Court found itself with a jurisdiction greater than that of the Resident Magistrate as a result


of the interference of the Minister of Justice with the Courts should be a lesson. This confusion had to be rectified by enhancing the jurisdiction of the Magistrate Courts generally by the Subordinate Court (Amendment Act of 1998. It follows therefore that small claims courts (if they are one day found to be necessary) - after consultation with the judiciary will have to be established by another law. The Local Courts, which bring justice to the people and have a jurisdiction greater than that of the Magistrate Courts in family matters can only be made into Magistrate Courts, now that their jurisdiction has been generally increased. If that happens - the current jurisdiction of the Magistrate Court similarly will have to be modified to accommodate this change.

This undertaking by government to follow the law - and its awareness that its decision to exclude lawyers from the Local Courts is fraught with problems is a positive sign. Government has to be sensitive to other branches of the state before it makes policy decisions or considers legislation. Consequently it has to consult them and invite their inputs. Where this has not been done chaos has resulted.

It seems to us that the fact that the decision to exclude legal practitioners violates Section 20 of the Local and Central Courts Proclamation 62 of 1938 and the Constitution is not contested. The rest of the ancillary prayers are premature in the light of what has been said above. What is deplorable is the failure of the Law Society to give the Attorney General enough time to reply and the failure of the Law Society to recognize its legal status and duties under Section 4 (a) of the Law Society Act of 1983 which are weighty, - and cannot be ignored by the State. The court must show what it feels through and


appropriate order as to costs. The rest of the ancillary prayers are not necessary, this court therefore declares:

  1. That the directive issued by Cabinet in its minutes of 4th May 2004 and passed on to the Principal Secretary for Justice Human Rights and Rehabilitation and to the Deputy Attorney General, by minute dated 10th May 2004 is contrary to Section 12 (2) (d) of the Constitution and Section 20 of the Local and Central Courts Proclamation 62 of 1938 (as amended).

  2. There will be no order as to costs.


I agree :



I agree :



For Applicant : Mr. Phoofolo

For Respondents : Mr. Putsoane