Introduction
This article analyses how Lesotho’s nascent legality jurisprudence can be enhanced with lessons from a much more developed South African legality jurisprudence. This is set against the backdrop of an emerging trajectory in Lesotho to utilise the modern conception of legality to enhance the judicial review of the exercise of public power. The principle of legality is emerging as the most critical device of modern-day constitutionalism.Footnote 1 As an offshoot of the hallowed and time-honoured doctrine of the rule of law,Footnote 2 legality still obliges public functionaries to source their actions in law.Footnote 3 It has evolved to demand much more than formal compliance with the law or the black letter of the law.Footnote 4 It is no longer sufficient that legislative, administrative and executive actions are grounded in law; such actions must also be justifiable in light of the broader constitutional values.Footnote 5 Like accountability, legality demands that the actions of public functionaries be justifiable in the broad sense.Footnote 6 This is an innovation of contemporary constitutionalism. Orthodox constitutionalism has primarily focused on restraining government activity, hence its label in some literature as “negative constitutionalism”.Footnote 7
Conversely, the new constitutionalism – styled “positive constitutionalism” – still limits government activity, but its newly developed devices, such as legality and accountability, impose positive obligations on public officials to justify their actions within the broader constitutional framework. South African constitutionalism is emerging as the prototype of this new model.Footnote 8 Hence, the South African Constitution is styled “post-liberal”.Footnote 9 This is because, while it upholds the liberal principles of constitutionalism, such as the rule of law, separation of powers, equality, constitutionality and respect for fundamental rights, it also transcends these traditional liberal tenets. It places positive obligations on the state through innovative devices such as legality, rationality, justification, accountability and justiciability of social and economic rights.Footnote 10 Therefore, the principle of legality is inherent in a constitutional model based on justification, such as the South African model.Footnote 11
In Lesotho, legality has, until recently, not been developed beyond its classical conception as a narrow ground of judicial review of administrative decisions. Legality has been conceived as one of the traditional three heads under which an administrative decision can be reviewed. Courts in Lesotho have tenaciously followed the three grounds of judicial review set out in the time-honoured decision of the House of Lords in Council of Civil Service Unions (CCSU) and Others v Minister for the Civil Service.Footnote 12 Therein, the House of Lords authoritatively stated the three heads under which administrative action can be reviewed: illegality (unlawfulness), irrationality (unreasonableness) and procedural impropriety. By illegality, the court meant that “the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it”.Footnote 13 Courts in Lesotho have followed CCSU as the blueprint for the country’s judicial review jurisprudence. This comes as no surprise, considering that, as a former British colony, Lesotho’s public law has consistently been based on British constitutional principles since its independence in 1966.
Even though the country has always had a written constitution since the return to constitutional democracy in 1993, with a supremacy clause,Footnote 14 the organization of state institutions and the fundamental constitutional ethos have always been British-based – a view unanimously shared in academic literature and judicial pronouncements in Lesotho.Footnote 15 One of the most critical features of this constitutional tradition, based on the British doctrine of parliamentary sovereignty,Footnote 16 is that the “intention of the parliament” is sacrosanct.Footnote 17 The courts’ role when scrutinizing legislation is narrower: it is limited to the mechanical and formal exercise of understanding and seeking to effectuate the intention of the parliament. Courts seldom inquire into the substantive aspects of the legislation, such as its morality and rationality.Footnote 18 The cornerstone of this approach is the doctrine of ultra vires, which permits courts to set aside the actions of public officials if they exceed the scope of the empowering legislation.Footnote 19 The courts in Lesotho subscribe to this approach. The ultra vires doctrine has been the fulcrum of judicial review in Lesotho.Footnote 20 This model of judicial review, which is limited to investigating parliament’s intentions, is weak.
However, a tectonic shift is underway: recent decisions of the superior courts in Lesotho appear to have ended this longstanding approach, and the principle of legality is now the guiding principle of that approach. There is a discernible series of leading decisions by the superior courts that have expanded the approach to judicial review, thrusting the doctrine of legality to the centre of judicial review in the country. This approach is apparent in decisions such as Principal Secretary, Ministry of Foreign Affairs and International Relations v Maope,Footnote 21 All Basotho Convention v Speaker of the National Assembly Footnote 22 and the recent decision of the High Court (sitting as the Constitutional Court) in All Basotho Convention v The Prime Minister.Footnote 23 These cases rely to a great extent on South African constitutional jurisprudence on the principle of legality. This approach should be commended for its contribution to the development of Lesotho’s constitutional jurisprudence. It keeps the Constitution of Lesotho (the Constitution) abreast with modern trends in constitutional law. The judiciary in Lesotho is often known for its reticence and conservatism, and the superior courts cite the outdated nature of the Constitution as their reason for not being more progressive.Footnote 24 These recent decisions on the principle of legality are among the few cases where the superior courts in Lesotho have been positively influenced by general public law developments and, in particular, constitutional law. While this is a laudable development for constitutional law in Lesotho, the extent to which South African jurisprudence can inform Lesotho’s approach to this subject remains a matter of controversy.Footnote 25
The article is divided into three substantive parts. The first part reconceptualizes the notion of legality and the state of art in its development. The second part focuses on South Africa as the country from which Lesotho imports the modern concept of legality. The third part analyses how the doctrine has “migrated” to Lesotho, its possible prospects, challenges and development.
Methodological considerations
This article studies constitutional designs in two neighbouring southern African countries: Lesotho and South Africa. Hence, it is a comparative study that requires comparative constitutional law methodological tools. Comparative constitutional law is emerging as the most critical area of constitutional studies.Footnote 26 In an increasingly globalized world, the cross-pollination of constitutional values between and among constitutional designs is inevitable. As an offshoot of general comparative law, comparative constitutional law proceeds from the candid acceptance that constitutional law develops through the “migration” of certain universal values and doctrines. Although it is widely accepted as both a method and a substantive subject of constitutional studies, comparative constitutional law is not without controversy. Legal families, in general, and constitutional designs, in particular, have been in the crosshairs of colonization everywhere. As Joireman notes, “[e[ffective colonisation in Africa demanded a legal system to both maintain control of a country and resolve disputes within it. Everywhere the colonial metropoles established their own systems of law”.Footnote 27 Hence, as a result of this “legal imperialism”,Footnote 28 the study of comparative constitutional law has by and large been criticized for studying how prominent legal families have performed across the world with utter disregard for indigenous legal systems. In former colonies like Lesotho, which operate under both the received Roman-Dutch common law and customary law, disproportionate attention has been given to developing the received common law, often at the expense of indigenous law.Footnote 29 Notwithstanding these downsides, the comparative legal method remains one of the best ways of studying law. It is widely accepted that one of the prime purposes of comparative legal methods is to improve one’s own legal system. The comparative legal method helps to understand better the history, traditions, values and future development pathways of a constitutional design.Footnote 30 In contemporary times, there are multiple drivers of comparative constitutional law, including the global spread of democratic values, the universalism of human rights and the increased propensity to harmonize rules in areas such as trade, among others.Footnote 31 This has rendered the comparative legal method very popular among constitutional researchers, judges and practitioners.Footnote 32 Some constitutions, like South Africa’s, have even made it a constitutional imperative. Section 39 of the Constitution of the Republic of South Africa empowers courts to “consider foreign law” when interpreting the Bill of Rights.Footnote 33
The comparative constitutional law method is a composite idea: it entails multiple methodical approaches to the study of law in general and constitutional law in particular. Jackson intelligibly divides them into five categories.Footnote 34 However, three approaches are relevant to this study: classificatory, historical and universalistic. The first, the classificatory approach, organizes legal systems into “legal families”, such as common law and civil law.Footnote 35 For instance, Lesotho and South Africa are common law countries that use Roman-Dutch common law. Ironically, their constitutional designs are markedly different: Lesotho is based on the Westminster system, while the new South African design intentionally abandons Westminster’s precepts.Footnote 36 The second category, the historical approach, is “concerned with understanding the development of constitutional law or constitutional systems over time”.Footnote 37 Under this approach, the idea is to study how the two systems being studied have evolved. They may have similar or dissimilar histories, but the scholar must know their historical realities.
The third category, the universalistic approach, acknowledges that specific transcendental and universal values are applicable universally.Footnote 38 Therefore, these values can be easily “migrated” from one constitutional typology to another.Footnote 39 Kommers’s description best captures its thrust: “principles of justice and political obligation that transcend the culture-bound opinions and conventions of a particular political community”.Footnote 40 These principles evolve across jurisdictions. In constitutional studies, this transcendentalism is more pronounced.
These three approaches are relevant to the study of the migration of constitutional precepts between these two countries. The two countries share many similarities: they belong to the same common law family (Roman-Dutch law), are geographically proximate (Lesotho is an enclave within South Africa) and have significant cultural and economic ties, among other commonalities.Footnote 41 However, historically, the constitutions of these two countries have developed in diametrically divergent routes. Lesotho’s constitutional design has been heavily influenced by British design since its independence from Britain in 1966, and the present South African Constitution serves as the lodestar for the country’s transformation from apartheid to the new democratic dispensation. Among its transformative features is the intention to depart from the classical Westminster conceptions, such as parliamentary sovereignty. In developing this constitution to realize its transformation purpose, courts in South Africa have impressively developed universalistic principles, such as legality, the rule of law, accountability and human rights, among others. Their approach to these doctrines has been the allure of courts in other countries like Lesotho.
Conceptual framework: re-visiting the notion of legality
The orthodox approach
The requirement that the exercise of public power must comply with legal prescription has always been at the centre of public law.Footnote 42 It is justified by two constitutional doctrines – the rule of lawFootnote 43 and parliamentary sovereignty.Footnote 44 In its classical formulation, the rule of law emerged as the antithesis of discretion and arbitrariness.Footnote 45 While the doctrine has advanced greatly in recent times – to the extent of including meta-legal mattersFootnote 46 – its basic formulation is usually credited to the English constitutional authority, Dicey.Footnote 47 He formulated the rule of law as a doctrine that exalts (a) the supremacy of the ordinary law against arbitrariness, (b) equality before the law and subjection of all to the jurisdiction of the ordinary courts and (c) respect for fundamental rights.Footnote 48 The first aspect – which obliges public functionaries to base their decisions on a law of general application – is the one that inspires the modern-day notion of legality. Today, the judiciary continues to observe this symbiotic relationship between the rule of law and legality. As noted by the Constitutional Court of South Africa in Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council,Footnote 49 “a fundamental principle of the rule of law, recognised widely, [dictates] that the exercise of public power is only legitimate where lawful … this principle of legality is generally understood to be a fundamental principle of constitutional law”.Footnote 50
In like manner, in the famed case of R (on the application of Miller) v Secretary of State for Exiting the European Union,Footnote 51 the UK Supreme Court adverted to the natural relationship between the rule of law and the modern-day notion of legality. The court observed that initially, sovereignty was reposed in the crown, which exercised virtually all the powers of the state based on prerogative. However, the powers of the “crown were progressively reduced as parliamentary democracy and the rule of law developed”.Footnote 52
Another basis for the doctrine of legality, which is not entirely different from the former, is the enduring principle of parliamentary sovereignty.Footnote 53 Although the principle is rooted in British constitutional theory, its waves have rippled worldwide.Footnote 54 Its relics persist in the former British colonies, even those with written constitutions.Footnote 55 In most cases, the constitutions of former British colonies are little more than codifications of British constitutional conventions. The doctrine provides, amongst others, that parliament is the sole lawgiver, and the judiciary’s role is to implement the intention of parliament.Footnote 56 The role of the court is narrow: it cannot scrutinize the content of the law made by parliament but can only review those actions that go beyond the law as promulgated by parliament. This approach is anchored in the notion of ultra vires. Allan captures this instructively, thus: “[t]he defenders of the ultra vires doctrine, locating the basis of judicial review in legislative intent, have emphasised the importance of parliamentary sovereignty”.Footnote 57 In modern constitutional democracies, the newfound justification for this doctrine is that parliament is the elected branch of government; therefore, the courts must yield to its intentions.Footnote 58
The ultra vires principle became the single most important device through which the courts enforced the legality of public decisions.Footnote 59 Deferring to the notion of parliamentary sovereignty, the courts were always loath to tamper with the “intention of parliament”. In Johannesburg Consolidated Investment Co v Johannesburg Town Council,Footnote 60 the court held that the overriding justification for judicial intervention is the doctrine of ultra vires – the doctrine that power (vires) must be exercised within the confines of the law established by parliament.Footnote 61 The height of this judicial deference was expressed in Ndlwana v Hofmeyr, where the court confirmed that “[i]nasmuch as Parliament is now, since the passing of the Statute of Westminster, the supreme and sovereign law-making body in the Union, the Supreme Court has no power to pronounce upon the validity of an Act of Parliament duly promulgated and printed and published by proper authority”.Footnote 62 This judicial attitude was fairly prevalent across jurisdictions. The UK House of Lords held a similar view as recently as 1993 in R v Lord President of Privy Council, Ex parte Page.Footnote 63 The court said: “The fundamental principle is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases … this intervention … is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred”.Footnote 64
This orthodox view of legality places the courts in a significantly weaker position than the other two branches of government – parliament and the executive.Footnote 65 The courts of law ultimately became too pedantic and formalistic in their approach to legality. They developed what Hoexter calls a “tendency to rely on technical or mechanistic reasoning instead of substantive principle and to prefer formal reasons to moral, political, economic or other social considerations”.Footnote 66 The ultra vires approach was primarily negative – it focused solely on restraining public officials from exceeding their formal powers. Hence, as a ground for judicial review, legality was couched negatively as “illegality”, mainly concerned with what public functionaries “must not do”. Thus, legality is cast as an “obverse facet of the ultra vires doctrine”.Footnote 67
The contemporary approach: legality as a principle of justification
Consequently, the orthodox approach to ultra vires has come under immense criticism in contemporary public law discourses.Footnote 68 The orthodox approach is losing currency in many jurisdictions because its foster mother, the doctrine of parliamentary sovereignty, is equally losing its influence in many countries.Footnote 69 The intention of parliament is no longer the only consideration when assessing the validity of public functionaries’ decisions. In South Africa, for instance, the court in Baloro v University of Bophuthatswana most aptly explained this new approach.Footnote 70 The court noted that today’s courts are different from those under the old dispensation, as they are “now confronted by a rapid oscillation from the positivist jurisprudence founded on the sovereignty of Parliament to a jurisprudence based on the sovereignty of the law contained in the Constitution with a justiciable bill of rights”.Footnote 71 This newfound role of the courts has effectively meant that the old frontiers of the judiciary’s role have been pushed significantly outwards.Footnote 72 The courts are now empowered to protect the constitution’s higher values. Hence, modern-day legality is a potent instrument that the courts use to ensure that all public powers are not only sourced in law but also justifiable in the broader constitutional scheme.Footnote 73
Mureinik characterizes this change as a shift from a culture of authority to a culture of justification.Footnote 74 A culture of authority is primarily a pedantic legal culture, where the enquiry ends upon determining whether the public functionary has been authorized to perform the act in question. If the answer is in the affirmative, the enquiry ends. Conversely, in a culture of justification, the enquiry does not end with the question of “authority to act”; it goes further. Public functionaries must also provide sufficient substantive reasons for any of their decisions.Footnote 75 This approach is best exemplified by the House of Lords decision in R v Secretary of State for the Home Department, ex parte Simms. Footnote 76 The facts of this case are intriguing and warrant a summary. In this case, prisoners who were serving life sentences for murder claimed that they had been the victims of miscarriages of justice. To reopen their cases, they sought to conduct oral interviews with journalists who had shown interest in their plight. The prison authorities were not prepared to allow such interviews to take place unless the journalists signed written undertakings not to publish any part of the interviews. In doing so, the prison authorities relied on the secretary of state’s policy in exercising his powers under section 47(1)(c) of the Prison Act of 1952 (the Act). The Act and the prison rules gave the secretary of state broad discretionary powers to ensure prison discipline and order. The main question was whether the prison policy was ultra vires the Act and the rules. The House of Lords confirmed that the principle of legality is “operating as a constitutional principle”.Footnote 77 Lord Hoffmann defined the principle thus:
“[T]he principle of legality means that parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”Footnote 78
This approach frames the modern-day notion of legality as the embodiment of justification. Therefore, rationality is the heartbeat of the new approach to legality. The decisions of public functionaries are not only evaluated in terms of their formal and mechanical legality; they must also be rationally connected to the objective that the action seeks to achieve. Rationality is, therefore, the minimum threshold for exercising public powers. In the search for the content of rationality, courts have distinguished reasonableness from rationality because rationality, and not reasonableness, is an incident of legality.Footnote 79 In Democratic Alliance, the court underscored the much-needed conceptual distinction thus: “[i]t is useful to keep the reasonableness test and that of rationality conceptually distinct. Reasonableness is generally concerned with the decision itself”.Footnote 80 On the other hand, the rationality test, in general, demands a rational connection between the exercise of power and the purpose for which the power was granted; the reasonableness test requires weighing the options available to the decision-maker and determining whether the decision-maker chose the best option.Footnote 81 Accordingly, the Constitutional Court of South Africa stated the following in Pharmaceutical Manufacturers Association: “It is a requirement of the rule of law that the exercise of public power by the Executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement”.Footnote 82
Therefore, it seems that the legality principle has evolved from its orthodox conception as a formal and mechanical principle of public law based on the common-law doctrine of ultra vires to a more expansive and formidable constitutional doctrine that is instrumental in holding functionaries accountable for the exercise of public power.Footnote 83 Indeed, this new approach does not come without its own risks. The primary concern is that, by empowering the courts to demand justification from the other branches of government, the modern conception of legality may inadvertently grant the courts unintended supremacy over the other branches of government.Footnote 84 While the justification of public decisions is a welcome development in contemporary constitutional thought, care should always be taken to guard against the undue expansion of judicial power, as that will distort the much-desired balance among the main branches of government.Footnote 85
An overview of the development of legality in South Africa
The story of the development of legality cannot be separated from the broader story of public law in South Africa. During the apartheid era, most public law principles were overshadowed by the prevailing doctrine of parliamentary sovereignty, which prioritized the legislative intent – the intention of parliament – as the most essential aspect of public law.Footnote 86 Most, if not all, precepts of public law were rendered subservient to it; legality was no different. It received homage in the ultra vires doctrine and the rule of law. It “formed the basis of the judicial control of administrative action”.Footnote 87 As Milne AJ stated in Estate Geekie v Union Government,Footnote 88 “[i]n considering whether the proceedings of any tribunal should be set aside on the ground of illegality or irregularity, the question appears always to resolve itself into whether the tribunal acted ultra vires or not”.Footnote 89 So, the question of legality invariably involved an enquiry into whether a public functionary had transgressed the legal boundaries created by parliament.
Although the courts were restricted to operating within the narrow scope of interpreting the intention of parliament, they always created avenues to expand the operationalization of that intention. The courts regularly imputed legislative intent through presumptions and other canons of legislative interpretation, even where it was not stated categorically.Footnote 90 For instance, the courts readily presumed that parliament could not grant powers to be used for ulterior motives or vaguely and uncertainly.Footnote 91 As far back as 1935, the court in R v Shapiro and Another Footnote 92 said that “statutes do not empower the authorities to make regulations so uncertain that people will not know how to comply with them or whether they are subject to them or not. So if a regulation is found to be void for uncertainty, that is one way of arriving at the conclusion ‘that it is ultra vires’”.Footnote 93 Be that as it may, the reality of the matter is that, during the pre-democratic era, “the courts simply became more deferential and more formalistic”Footnote 94 in their application of the notion of legality.
It is now common cause that when the country transitioned to a new constitutional dispensation, starting with the interim Constitution of the Republic of South Africa, public law experienced a paradigm shift.Footnote 95 The South African Constitution, rather than Parliament, became supreme. The notion of legality was similarly rejuvenated, receiving a boost from being a mere common-law principle to becoming a formidable constitutional construct. This development happened very early in the constitutional development of the republic, under the interim Constitution, and was affirmed by the Constitutional Court in Fedsure. When the court reaffirmed the longstanding common-law principle of lawfulness – that “the exercise of public power is only legitimate where lawful”Footnote 96 – the court further stated that it “seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law”.Footnote 97 This injunction seems to have provided the basis for the conception of legality in South Africa’s post-democratic constitutional dispensation.
In its subsequent decision in President of the Republic of South Africa and Others v South African Rugby Football Union and Others,Footnote 98 the Constitutional Court developed legality further. The court was confronted with the vexed question of whether the president’s decision constituted an administrative decision. The court found that the president’s decision did not constitute an administrative action; therefore, the exacting requirements of procedural fairness for just administrative action, as outlined in section 33 of the South African Constitution, did not apply to the president’s decision. However, the court warned that the enquiry does not end there. The principle of legality applies “as it does to all power exercised in terms of the constitution. The President must also act in good faith and must not misconstrue the nature of his or her powers”.Footnote 99 Thus, legality emerged as a safety netFootnote 100 – a kind of catch-all principle for the exercise of public power that may not qualify as “administrative action” in terms of the South African Constitution and the Promotion of Administrative Justice Act.Footnote 101
The principle of legality was further developed in Pharmaceutical Manufacturers Association when the Constitutional Court confirmed that rationality is a minimum threshold for legality. The court said: “Decisions must be rationally related to the purpose for which the power is given otherwise they are in effect arbitrary and inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the exercise of public power by the Executive and other functionaries must, at least, comply with this requirement”.Footnote 102
Thus, rationality has been thrust to the centre of the legality enquiry. Therefore, the enquiry about legality is three-fold. The first enquiry is whether the exercise of power is sourced in law. The second one is whether there is a legitimate objective that the decision seeks to attain. Thirdly, the decision must be rationally connected to the purpose for which the power has been given. This enquiry is both substantive and procedural. The enquiry about the legitimacy of the purpose is substantive.Footnote 103 It draws the courts into assessing the merits and demerits of public functionaries’ decisions, which they have always been loath to do. The courts in South Africa are still battling this balance between deference and interference.Footnote 104 However, care is always taken to distinguish rationality from unreasonableness.Footnote 105 With reasonableness, the enquiry is “whether there are less restrictive means of achieving the same result. Proportionality is not applicable to rationality review”.Footnote 106 The enquiry about the relationship between the decision and the purpose for which the power was given is clearly procedural as it is not concerned with the substance of the decision.
While it is now fairly settled that “non-administrative”Footnote 107 decisions are reviewable in terms of the principle of legality,Footnote 108 there is a discernible uncertainty about whether the same principles of procedural fairness applicable to administrative action are applicable to decisions susceptible to judicial review based on legality. In SARFU,Footnote 109 the court intimated that the president’s decision to appoint a commission of inquiry was not an administrative action and, therefore, “the procedural fairness requirement for just administrative action demanded by section 33 of the Constitution is not necessary”.Footnote 110 The same view seems to have influenced the court in Masetlha v President of the Republic of South Africa. Footnote 111 The court stated that while the president’s decision to dismiss the head of intelligence was subject to the requirements of legality, it would be improper “to constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action”.Footnote 112
However, the court adopted a somewhat contradictory view in Albutt v Centre for the Study of Violence and Reconciliation. Footnote 113 This case concerned the power of the president to grant a pardon under section 84(2)(j) of the South African Constitution. The question for determination was whether the president is required to afford the victims a hearing before exercising the power to grant a pardon. The court answered the question in the affirmative: “the decision to exclude victims of the crimes in respect of which pardons were sought under the special dispensation process was irrational”.Footnote 114 The court further stated that “[t]he victims of these crimes are entitled to be given the opportunity to be heard before the President makes a decision to grant pardon”.Footnote 115
Despite disagreements regarding the doctrine’s procedural aspects, the doctrine of legality in South Africa is comparatively advanced. Legality is emerging as the most critical device of constitutionalism in the new dispensation. It has aspects that are yet to solidify, such as the rationality test, its implications for the separation of powers and its procedural aspects.Footnote 116 Hopefully, these aspects will be developed on a case-by-case basis.
The importation and development of legality in Lesotho
Public law in Lesotho, particularly constitutional law, is fundamentally based on English constitutional theory due to the country’s colonial legacy.Footnote 117 The country attained independence in 1966 with a constitution that was based on British constitutional theory. The Independence Constitution was suspended in 1970. When the country returned to constitutional democracy in 1993, the 1966 independence constitutional model was adopted almost verbatim in the new Constitution. Therefore, the constitutional design – including the executive, parliamentary structure and practice, judicial practice and civil service, to mention just a few – is moulded on the British model.Footnote 118 This is despite the country having a written Constitution with a supremacy clause. Like many former British colonies,Footnote 119 the Constitution has mostly codified British constitutional conventions. This paradigm was captured aptly by Maqutu J in Law Society of Lesotho v Ramodibedi, thus: “[i]t seems to me that the present constitutional dispensation is a continuation of a tradition that Lesotho has inherited from Britain. Time and time again when constitutional problems arise Britain is our first reference point”.Footnote 120 At one point, courts in Lesotho insisted that the doctrine of parliamentary sovereignty was part of Lesotho’s constitutional theory. In cases such as Khaketla v The Honourable Prime Minister Footnote 121 and Tsang v Minister of Foreign Affairs,Footnote 122 the superior courts in Lesoho used the doctrine of parliamentary sovereignty to justify deference to the executive and the legislature.Footnote 123
Although the two cases were decided before the 1993 Constitution – the period in which the 1966 Constitution was suspended – it was palpably incorrect for the courts to reckon that parliamentary sovereignty was part of Lesotho’s Constitution when the country opted for constitutional supremacy upon independence in 1966. This anomaly was soon corrected by the Court of Appeal in Attorney General v Swissbourgh Diamond Mine and subsequent decisions, stating that parliamentary sovereignty is not part of the constitutional tapestry of Lesotho, but constitutional supremacy is.Footnote 124 In Swissbourgh, the Court of Appeal laid to rest the protracted debate about the applicability of parliamentary sovereignty thus: “the doctrine of parliamentary sovereignty, which had its origin in English law … never properly became part of the common law of South Africa or Lesotho and that it had merely been imposed and maintained as a matter of political expediency”.Footnote 125 Nevertheless, despite the correctly stated position that constitutional supremacy, and not parliamentary sovereignty, is the touchstone of Lesotho’s Constitution design, public law development has been inspired by developments in England.Footnote 126 The principle of legality is no exception. For the most part, the operative doctrine in Lesotho has been the ultra vires principle, in terms of which the courts are narrowly concerned with whether the public functionary has overstepped the legal boundaries set by the lawmaker.Footnote 127 As Hoexter contends, “[t]he doctrine … is tied to constitutional fundamentals associated with the Westminster system … The legislature is the supreme lawmaker, while the function of the courts is to apply the law made by it”.Footnote 128 The doctrine of ultra vires – whose essence is that the courts must search the intention of Parliament, and no more – has been the basis of judicial review in Lesotho. In Khaketla v The Honourable Prime Minister,Footnote 129 the court confirmed that “however unjust, arbitrary or inconvenient any legislation may be, it must be given its full effect. It is not the province of the Court to scan its wisdom or policy, and the Court must take the statute as it finds it”. This has been the prevailing judicial policy in Lesotho.Footnote 130 The position was restated in Sekhonyana v Prime Minister of Lesotho and Others where Maqutu J said:
“Despite the existence of the Constitution, nothing is firmly settled. Parliament can adjust the powers of the Government’s exercise of both prerogative and existing statutory powers. It is for this reason that in this area of politics no penalties have been provided in the Public Inquiries Act of 1994. If Parliament wanted the Courts to interfere it would have made its intention clear in that respect. What the Applicant is asking the Court to do is to interfere with the relations between an elected government and Parliament.”Footnote 131
This approach was based on the orthodox thought in which the courts were restrained and deferred to the two political branches.
It is imperative to note that courts in Lesotho have always been weary of the distinction Hoexter draws between “judicial review in the administrative law sense” and “judicial review in the constitutional law sense”.Footnote 132 Judicial review in the administrative law sense refers to the power of courts to review and set aside administrative decisions using the broad common law grounds of judicial review, including illegality, irrationality and procedural impropriety. For this review, the courts in Lesotho have broadly followed the House of Lords decision in CCSU. Footnote 133 In cases such as Sopeng v Minister of Interior and Another,Footnote 134 the Court of Appeal implied audi alteram partem rule into the discretionary power granted by the Urban Government Act of 1983 to act against councillors. The court quashed the termination of councillors’ membership of the council. The court held that procedural fairness (audi rule) is implied whenever power is granted to the public functionary.
On the other hand, constitutional law review refers to the setting aside of legislation or state actions by applying higher constitutional norms, such as provisions of the constitution or constitutional doctrines like the rule of law, separation of powers and human rights, among others. Before 1993, courts were pre-eminently using administrative law review to set aside administrative decisions. There is one prominent case, Swissbourgh,Footnote 135 which was decided during the transition but under the pre-constitution dispensation, where the Court of Appeal used the Human Rights Act of 1983 as a statute sui generis, to set aside retrospective legislation, the Revocation of Specified Mining Leases Act of 1992,Footnote 136 by the then military junta. Following Swissbourgh, courts in Lesotho have quashed legislation and other state actions using the constitutional provisions and other constitutional doctrines with relative ease. In like manner, in Seeiso v Minister of Home Affairs,Footnote 137 the court used constitutional norms – freedom of peaceful assembly as enshrined in section 15 of the Constitution – to invalidate a minister of home affairs directive prohibiting a meeting of chiefs and their subjects.
In both strands of judicial review – administrative review and constitutional review – one doctrine that has not, until the recent discernible wave of decisions by the superior court, been applied is the doctrine of legality in its modern incarnation. Three recent decisions of the superior courts in Lesotho have anchored this paradigmatic shift. These cases will be analysed seriatim. The first case to import the South African conception of the principle of legality was All Basotho Convention v Speaker of National Assembly. The case resulted from peculiar political circumstances. The leaders of three political parties – the All Basotho Convention, the Basotho National Party and the Reformed Congress – had fled Lesotho and were exiled in South Africa. They claimed that their lives were endangered in Lesotho because of the hostile relations they had with the government of the day and the army. Therefore, they could not regularly attend the parliamentary sittings as contemplated by the Constitution. About 12 other members of the opposition started not attending the sittings of the House in solidarity with their leaders.
All of them eventually missed one-third of the House’s sittings, thus contravening section 60(1)(g) of the Constitution. Section 60(1)(g) provides that a member of the National Assembly shall vacate office if, “in any one year and without the written permission of the Speaker of the National Assembly, he is absent from one-third of the total number of sittings of the House of which he is a member”. The speaker wrote to these members of the opposition, calling upon them to individually show cause why she should not, by operation of section 60(1)(g) of the Constitution, pronounce that they had vacated their seats in the House and why she should not proceed with informing the Independent Electoral Commission that vacancies existed in the National Assembly for purposes of starting the process of filling them. The opposition approached the court seeking to interdict the speaker on the grounds that the speaker lacked such powers under the law. They argued that section 69(1) of the Constitution confers upon the High Court jurisdiction to hear and determine any question concerning the vacancy of any seat in the Senate or the National Assembly. They placed much reliance on the doctrine of legality.Footnote 138 The speaker contended that, by virtue of her position under the Constitution and common law, she was best suited to declare a vacancy in the House.Footnote 139
The court was persuaded by the legality argument, namely, that the relevant sections of the Constitution do not empower the speaker to declare a vacancy in the National Assembly. In its reasoning, the court relied heavily on the emerging jurisprudence of the Constitutional Court of South Africa.Footnote 140 The court said: “The requirement for the speaker to demonstrate that she acted pursuant to a particular enabling law is inescapably also imposed by the principle of legality test. This is a traditionally common law concept that has gained recognition in democratic constitutions and, therefore, is enforceable”.Footnote 141 Interestingly, the court did not discuss in detail the nature of the Lesotho Constitution and how, like the Constitution of South Africa, it facilitated the smooth operation of the contemporary concept of legality.Footnote 142
The court also invoked the doctrine of legality in the Maope case. The Court of Appeal was presented with a situation in which the respondent was Lesotho’s ambassador and permanent representative to the UN. When the government changed in 2017, the ambassador and others whom the previous government had deployed were recalled. They challenged their recall, citing the infringement of their contracts. The government argued that the constitutional and statutory powers and functions vested in the executive to appoint and recall diplomats are not administrative in nature and, therefore, are not subject to judicial review. The court dismissed the government’s argument and held that:
“The exercise of all public power is subject to constitutional and statutory control. Thus, even constitutional and statutory decisions by the Executive to recall diplomats otherwise than in terms of their contracts of engagements, can be and have been challenged in our courts. In my opinion, [the] Executive’s exercise of powers and functions can be reviewed on the basis of the principle of legality or rationality that stem from the rule of law.”Footnote 143
In Maope, the court stated that the basis for invoking legality was the rule of law. The doctrine of the rule of law is not explicitly provided for in the Constitution of Lesotho. However, the courts in Lesotho have readily invoked it as a fundamental feature of the country’s constitutional edifice.
The most recent case where the High Court of Lesotho, sitting as the Constitutional Court, applied the legality principle was All Basotho Convention v The Prime Minister. The case concerned the purported prorogation of Parliament by the prime minister in terms of section 91(3) of the Constitution. The section provides that where the Constitution requires the king to perform any act in accordance with the advice of the prime minister and the king fails to perform that act, the prime minister may perform such an act. Consequently, such an act will be deemed to have been performed by the king. On 20 March 2020 at 18:00, the prime minister wrote to the king, advising him to prorogue Parliament, citing the COVID-19 pandemic as the reason for such prorogation.Footnote 144 In the letter advising prorogation, the prime minister indicated that if the king did not comply with the advice by 21:00 the same day – which was effectively a three-hour ultimatum – the prime minister would invoke section 91(3) of the Constitution and prorogue Parliament himself. Indeed, the king did not comply, and the prime minister consequently went ahead and prorogued the Parliament the same day.Footnote 145
The application of legality in this case is intriguing because section 91(3) of the Constitution empowers the prime minister to act if the king does not take the advice. However, the court invoked the principle of rationality to assess the legality of the prime minister’s decision. The court found that the decision failed the rationality test, a key aspect of legality, and declared the prime minister’s decision to prorogue Parliament unconstitutional. In arriving at this decision, the court placed much reliance, once again, on developing the principles of legality and rationality in South Africa. The court thereafter concluded that: “[W]hen the Prime Minister exercises his executive powers in terms of the Constitution, his exercise of those powers is constrained by the principles highlighted above and most significantly, for the purpose of this case, by the principle of rationality”.Footnote 146
The case has thrust rationality, which is an incident of legality, to the centre of constitutional theory in the country. Henceforth, it is no longer sufficient to base a decision solely on an empowering law; such power must also pass the rationality test, as the court has noted. The South African Constitutional Court, in Albutt, instructively laid out the rationality test. In this regard, the court held that public functionaries have broad discretion in choosing the means to achieve constitutionally or legislatively permissible objectives. Courts would be slow to interfere with the choice of such means: “courts may not interfere with the means selected simply because they do not like them or because other more appropriate means could have been selected”.Footnote 147 However, if the decision’s rationality is called into question, “courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved”.Footnote 148 The court made the caveat that the enquiry is not whether there are others but the rational connection between the selected means and the purpose the action sought to achieve. Hence, the fulcrum of the rationality test is the connections between the means and the purpose for which the power was granted. A similar approach was followed in Law Society of South Africa and Others v President of the Republic of South Africa and Others. Footnote 149 This is the case in which the president’s participation in the regional decision-making process and his own decision to suspend the Southern African Development Community Tribunal operations were declared unconstitutional on the ground of irrationality, among other grounds.
It is apparent, therefore, that rationality, an aspect of legality, is now a constitutional construct and a firm precept of Lesotho’s public law, in general, and constitutional law in particular. In All Basotho Convention, the court correctly laid out the rationality standard thus: “The decision [must] be rationally related to the purpose for which the power was given”.Footnote 150 In this case, the court placed considerable emphasis on the justification provided by the prime minister, which was that Parliament was being prorogued due to Covid-19 and the three-hour ultimatum given by the prime minister to the king. Ultimately, the court determined that the prime minister had acted irrationally.Footnote 151
Conclusions and the possible development of legality in Lesotho
The contemporary wave of decisions of the superior courts in Lesotho has thrust the doctrine of legality to the centre of constitutionalism in Lesotho. This new pattern emphatically represents a shift from the orthodox position where legality was an incident of the doctrine of ultra vires: as a narrow common law ground for judicial review. Legality is now a firm ground for constitutional review. This shift has certainly been inspired by developments in legality review in South Africa. It is expected that, in the future, the South African legality jurisprudence will continue to be a trailblazer for Lesotho. Currently, the legal framework in Lesotho remains at a rudimentary stage. The All Basotho Convention v Speaker of the National Assembly and Maope cases only reaffirmed that legality is an aspect of the Constitution of Lesotho. The principle was considerably advanced in All Basotho Convention v The Prime Minister, where the court was confronted with what may be styled “a real legality question”: where the public functionary applied the law as it was but still failed the legality test. The court invoked the rationality test – an incident of legality – precisely as the South African Constitutional Court has applied it. In particular, the court relied on the Constitutional Court’s dictum in the Democratic Alliance case, which states that rationality is the “minimum threshold requirement applicable to the exercise of all public power by members of the executive and other functionaries”.Footnote 152 Hence, with this emerging pattern, public functionaries in Lesotho will, in future, not only rely on the black letter of the law to exercise their power. A second requirement is evolving as their duty to determine the extent to which power is justifiable. Public officials will have to ensure that power is used for the purpose for which it was conferred.
The court in All Basotho Convention v The Prime Minister further explained the basis for importing the contemporary conception of legality into Lesotho. The court stated that there are two avenues through which the principle of legality can be established in Lesotho. The first one is the hallowed notion of the rule of law. Stripped of its modern complications,Footnote 153 the rule of law classically refers to the use of laws of general application, as opposed to arbitrary decision-making. The Constitution of Lesotho does not expressly state that the rule of law is a foundational value of the Constitution. However, the superior courts in Lesotho have been readily willing to interpret it as part of the broader schematization of the Constitution.Footnote 154 For instance, in Jobo v Commander, Lesotho Defence Force,Footnote 155 the High Court said:
“The concept of ‘the rule of law’ is universally accepted and recognised by all civilised nations it applies to all organs and it transcends to all organs of state – [the] Legislature, the Executive[,] the Judiciary and to all organs and institutions create by the Constitution. Rule of law is inviolable and applies to all citizens of Lesotho regardless or rank, status or power. Anyone who disrespect or disobeys the rule of law, and exercises public power and at his own discretion does so at his own risk [sic].”Footnote 156
Another basis for the principle of legality in Lesotho is the concept of constitutional supremacy, as outlined in section 2 of the Constitution.Footnote 157 The principle of constitutional supremacy not only entails a narrow validating rule for other norms in a constitutional democracy, but it also embodies a constitutional value that promotes restraint and justification for the exercise of public power.Footnote 158 The court in All Basotho Convention v The Prime Minister has comprehended this dual nature of constitutional supremacy. It correctly reasoned that the Constitution’s supremacy clause “embodies the doctrine of the rule of law whose constituent element is the principle legality and accountability. This principle is also a basic feature of the Constitution”.Footnote 159
It remains to be seen, though, how the judiciary in Lesotho will address the procedural aspects of the principle of legality in the future. As demonstrated above, South Africa continues to grapple with the question of whether procedural fairness is part of the principle of legality.Footnote 160 In Lesotho, the Court of Appeal in President of the Court of Appeal v The Prime Minister Footnote 161 has already hinted that the prime minister’s exercise of executive power to advise the king to appoint a tribunal to investigate the president of the Court of Appeal is subject to the principle of procedural fairness.Footnote 162 On the strength of this decision, it is not unimaginable that the courts in Lesotho will demand some measure of procedural fairness as an aspect of the principle of legality in the future. Indeed, as the court correctly observed, “procedural fairness is a highly variable concept which must be decided in the context and the circumstances of each case and … the one-size-fits-all approach is inappropriate”.Footnote 163 It is therefore expected that while legality review may not necessarily be based on exacting procedural requirements like normal administrative law review, courts in Lesotho, on the strength of South African legality jurisprudence and local cases, such as the president of the Court of Appeal, use procedural fairness as a tenet of the legality view.
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