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Khathang Tema Baitsokoli and Another v Maseru City Council and Others.

Country/Territory
Lesotho
Type of court
National - higher court
Date
Apr 20, 2005
Source
UNEP, InforMEA
Court name
Court of Appeal of Lesotho
Judge
Gauntlett
Grosskopf
Smalberger.
Reference number
CA (Civ) 4/05 CONST/C/1/2004
Language
English
Subject
Legal questions
Keyword
Constitutional law Vending
Abstract
The High Court in the Baitsokoli (street-vendors) case, in which the applicant street vendors sought relief against a municipality eviction order contending that their “right to life” – guaranteed under section 5 of the Constitution of Lesotho – was being violated in that the eviction from the street pavements where they plyed their wares endangered their means of livelihood hence their right to life, held that “the right of life” guaranteed under section 5 of the Constitution of Lesotho does not include a socio-economic right like “livelihood”. Hence the present appeal. The Appeal Court observed that the affidavits however do not establish a threat to actual survival arising from the relocation of the stalls, imminent or gradual, as the appellants assert. In argument before it, the case for the appellants instead rests most centrally on the proposition that the traders' rights to a livelihood was imperilled, and that the right to life under Lesotho's Constitution encompasses these rights, relying on Indian and Bangladeshi case law in that respect. The essential question for determination is, therefore, whether the right to life in Lesotho encompasses the right to a livelihood. If that proposition fails, so does the claim made by the traders. The protection accorded by the right relates to life in the ordinary sense of human existence (as the Full Bench of the High Court expounded in its judgment). Lesotho has dealt with what are generally described as socio-economic rights (or "green rights") in a way which is distinct from the treatment of fundamental rights (or "blue rights"). This is to provide separately for a chapter in the Constitution (chapter III) entitled "Principles of State Policy". One of these (s.29 (1)) is that "Lesotho shall endeavour to ensure that every person has the opportunity to gain his living by work which he freely chooses or accepts". The appeal is accordingly dismissed.
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