C of A (CIV) No.16 of 2001
The Minister of Law and Constitutional Affairs
Bofihla Nkuebe and 23 others
Coram: Steyn, P.
In essence this was an application brought by the I.P.A. to the High Court. The I.P.A. sought orders seeking the implementation of a number of decisions taken by the I.P.A. and which the Executive had refused or neglected to implement. The High Court having granted relief in respect of two of such decisions.
On appeal the I.P.A. Act was interpreted. The Court held:
In so far as the "media resolutions" were concerned the Court Appeal was of the view that it was procedurally unacceptable for the I.P.A. to rush to Court without first calling on the Executive to respond to its decisions and to afford them a reasonable opportunity to react to their as yet unsatisfied demands.
In so far as decisions affecting the Disaster Management Authority (D.M.A.) were concerned, there was no evidence to support the contention that the manner in which the D.M.A. was carrying out its duties, constituted "political patronage" as defined in the I.P.A. Act.
Appeal upheld with costs. The High Court's orders set aside. Application dismissed with costs.
C of A (CIV) No.16 of 2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
The Minister of Law and Constitutional Affairs 1st Appellant
The Minister of Information and Broadcasting 2nd Appellant
The Disaster Management Authority 3rd Appellant
The Attorney General 4th Appellant
Bofihla Nkuebe and 23 Others Respondents
HELD AT MASERU
CORAM: Steyn, P.
The twenty four (24) respondents in this appeal were the applicants who sought certain relief in the court below. Twenty-two (22) of them are natural persons representing certain political parties operating as such in the Kingdom of Lesotho. The other two respondents are, firstly, a political party who was a party to these proceedings in its own right, and secondly, a statutory body; i.e. the Independent Political Authority (the I.P.A.).
For purposes of brevity I will refer in this appeal to the respondents as the I.P.A., because not only is the 24th respondent the true litigant, but the decisions in respect of which relief is sought from the court, are decisions taken by the I.P.A.
The I.P.A. is a creature of statute. The Interim Political Authority Act 1998 (Act 16 of 1998), hereafter referred to as "the Act", was enacted to establish an authority to facilitate and promote the preparation for the holding of the next general elections and for connected purposes.
In section 3 of the Act, the I.P.A. is required to perform such functions as may be necessary to obtain the objectives referred to in section 4.
The objectives are defined as follows:
"4 The objectives of the Authority shall be to facilitate and promote, in conjunction with the Legislative and Executive structures in Lesotho, the preparation for the holding of general elections to be held within a period of 18 months from the date of commencement of this Act by-
creating and promoting conditions conducive to the holding of free and fair elections;
levelling the playing field for all political parties and
candidates that seek to participate in the elections;
eliminating any impediments to legitimate political activity;
ensuring that no person is victimised on account of his political beliefs;
eliminating any form of intimidation which has a bearing on the elections;
ensuring that all political parties and candidates are free to canvass support from voters and to organise and hold meetings, and for that purpose to have access to all voters;
eliminating political patronage of any kind; and
ensuring equal treatment of all political parties and candidates by all governmental institutions and in particular by all government-owned media, prior to and during the elections."
I will return to the significance of these provisions later in this judgment. It is however advisable to point to the fact that the legislature has given a specific focus to the objectives of the I.P.A. It created this instrument and has given it powers in order to enable it to facilitate and promote "the preparation for the holding of general elections."
The I.P.A. is given certain powers. Section 6 of the Act provides the following in this regard:
"6. The Authority shall have the following powers -
to request and obtain, subject to any other provision of this Act, all such information or, documents as may be necessary for attaining its objectives, from the relevant public institutions;
to review the Electoral Code of Conduct especially its enforcement mechanisms;
to take decisions on all matters relevant to its objectives and to ensure the implementation of such decisions by making recommendations to relevant structures;
to review the Independent Electoral Commission and make appropriate recommendations to the relevant public institutions on its structure and functions;
to review the Lesotho electoral system with a view to making it more democratic and representative of the people of Lesotho;
to recommend changes to existing laws, including the Constitution, to relevant public institutions in order to enable it to attain its objectives;
to take such lawful steps as may be necessary to exercise its powers; and
to take such lawful action as may be necessary to fulfil its objectives."
Section 14 provides that,
"The Executive shall be obliged to implement all decisions of the authority".
Under the heading "Relations with the Executive" section 19 says:
"Where the Authority [the I.P.A.] has to deal with the Executive, for purposes of attaining its objectives, it shall do so only through the Minister."
Minister is defined as meaning "the Minister of Law and Constitutional Affairs."
The I.P.A. brought an application for an order directing the appellants to comply with five of its decisions taken on the 25th of August 2000, 28th of September 2000, 5th of October 2000, 11th of October 2000 and 4th of December 2000. It is the decisions taken on the 5th of October and the 4th of December 2000 that require consideration by this Court. These two decisions were the subject of resolutions on; (1) access to the media by the I.P.A. and political parties registered with the Independent Electoral Commission (I .E.C.) and (2), political patronage by the Disaster Management Authority.
The relevant relief was sought in the following terms in the notice of motion filed on behalf of the respondents:
"1. Directing the 1st, 2nd and 4th respondents to comply with the decision of the Interim Political Authority dated 5th October 2000 ordering that:
that IPA be entitled to a minimum of a weekly slot on Radio Lesotho and periodic access to Lesotho Television .
All parties registered with the I.E.C. are
entitled to make official announcements oftheir Annual General Meetings and district pitsos over Radio Lesotho.
Directing the 3rd respondent to comply with the decision of the Interim Political Authority dated 4th December 2000 that:
The use, by the Chief Executive of the DMA, of Members of Parliament and their appointees in the distribution of relief food in violation of the provisions of the Disaster Management Act No.2 of 1997.
The use, by the Chief Executive of the DMA, of Members of Parliament and their appointees in the identification of sites for silos and water tanks in violation of the provisions of the Disaster Management Act No.2 of 1997.
The use of Constituencies, which are political entities, as the criteria for food distribution, in violation of the provisions of the Disaster Management Act No.2 of 1997.
The DMA should be stopped forthwith and return to the position of legality as defined in the Disaster Management Authority Act No.2 of 1997, and also observe the principle of Separation of Powers by desisting from using Members of Parliament in its operations."
Orders in accordance with the relief claimed in paragraphs 1 (a), 1 (d) and 2 (a) and 2 above were granted by the court a quo. It is the correctness of these orders that is challenged before us.
The Court a quo granted the relief sought in prayers 1 (a) and (d) (the media resolutions), in the belief that the appellants had consented to the granting of such orders.
This is clearly not the case. Whilst the Judge a quo correctly cites portions from the affidavit of the Minister of Communications; i.e. paras 5, 8 and 11, (incorrectly cited as para 9), he has taken the averments, which I cite below, out of context and without regard to the clearly expressed opposition by the appellants to the relief claimed in paras 1 (a) and (d) of respondents' prayers.
The paragraphs relied upon by the court a quo read as follows:
"As Minister of Communications and as a member of the Executive of Lesotho I am conscious of the provisions of section 4 (h) of the IPA Act 1998 Act no.16 of 1998 which has obliged the Executive to ensure equal treatment of all political parties and candidates by all governmental institutions and in particular government owned media prior to and during the elections. The Government of which 1 am a member is firmly committed to fulfilling the above legal requirement.
In the light of the Government's commitment, it is open to the IPA and all political parties to contact the Director of Broadcasting and to discuss with him the modalities as to how the request for equal opportunity on Radio Lesotho and Television could be accorded to all political parties.
I am rather surprised that IPA has thought it fit to rush to court with this demand. Neither me nor my Ministry nor any of its officials have ever refused to entertain any reasonable request by IPA or any political party."
The averments in para 8 do not constitute a consent to the relief claimed in paras 1 (a) and 1 (d). Indeed in para 17 the Minister makes it clear that the appellants oppose the granting of the relief claimed in prayer 1 of the Notice of Motion. He says:
"In any event this application at least in respect of prayer 1 in the notice of motion is premature. There is no valid cause of action because the applicants never allege, and in fact they cannot allege any refusal by Radio Lesotho and Television to give them reasonable access to such facilities." (Own emphasis.)
See in this regard also the allegations made in paras 9 and 10 of the Minister's affidavit which read as follows:
"Radio Lesotho is on the air for 24 hours. TV Lesotho, which operates on M-Net transmission facilities is on the air for a period of two hours every day from 1700hrs to 1900hrs. Due to the need for various programmes to be accommodated within that short time frame, it may not be possible to provide a regular slot in the television services. But government is determined to provide equal treatment to all political parties and equal access to them in the television services, commensurate with the availability of time and logistics. Government is prepared to even jettison some programmes during the election period, so that coverage could be given to all political persuasions.
It is open to the IPA to hold discussions with the Director of Broadcasting and to arrive at a workable solution to this problem.
Indeed the 1st respondent in his affidavit requested the Court a quo to dismiss the application as it "is destitute of any bona fides and indeed it is frivolous."
The Court a quo should therefore not have granted the relief sought in prayers 1 (a) and 1 (d) on the ground that appellants had consented to such an order.
I proceed to consider the relief claimed in these prayers and whether the respondents are entitled to the orders as prayed.
In its founding affidavit the I.P.A says that it made certain decisions including those which are the subject of this appeal and that these were "duly transmitted". It sets out what those decisions are and when they were taken. The allegation is then made that the respondents failed or neglected to comply with the decisions cited. These decisions, it contends, are binding on the appellants and because of their failure or neglect to comply with them, the I.P.A. decided to request the intervention of the Court "in order to ensure that the rule of law is observed by all persons and institutions in Lesotho".
It is to be noted that no particulars were furnished as to when, how and to whom these decisions were transmitted. More significantly, however, there is no evidence tendered as to any attempt by the I.P.A. to enquire from the appellants whether they
contested the validity of either of these two decisions and whether they were prepared to implement them. Nor is there any evidence that the appellants ever refused to do so. Indeed, it is apparent from the evidence of the 2nd appellant, that he certainly had not done so.
In this regard it should be noted that the I.P.A also made a decision on the 11th of October 2000. This decision according to paragraph 5 of the notice of motion, directed the appellants to comply with I.P.A. resolutions demanding the transformation of the (Leon) Commission "to a fully pledged truth and reconciliation commission with power to grant amnesty and order compensation........" To this decision the I.P.A.
received a prompt and unequivocal response on the 24th of October. The appellants made it clear in their letter in reply that this decision was outside the mandate of the authority and the decision was rejected as ultra vires.
As indicated above there is no evidence before us that the I.P.A. took any steps to determine what the appellant's attitude was concerning the two decisions in casu. Its response was to take a decision on the 6th of December 2000 asking the High Court to intervene and to enforce their decisions. This it proceeded to do by way of the notice of motion filed of record on the 12th of February 2001.
According to the evidence before us the appellants were never placed on caution that their failure to respond to the relevant resolutions was unacceptable and that unless
there was a response within a reasonable time, steps would be taken to seek their implementation through the institution of legal proceedings. Nor is it alleged that the delay was so lengthy as to infer that the appellants were deliberately thrawting the I.P. A. from achieving their legitimate objectives, and the facts do not warrant this as a reasonable inference.
In this regard I refer to the decision of this court involving two former members of the I.P.A.; i.e Fothoane and Sekonyela v the President of the Christian Democratic Party (unreported) C of A (CIV) no.48 of 2000 delivered on the 12th of April 2001. In the judgment the court says the following:
'There is no evidence on record that the Appellant's took any steps to protect their rights before launching their urgent ex parte application two months after they knew of the termination of their membership of the LP.A. Should they have apprehended jeopardy because of the possibility of official implementation by way of a gazette, one would have thought that they would first have sought an undertaking from the Minister, who had authority to authorize the public notification, that he would refrain from doing so until they had resolved their dispute. This they never did. Instead they rushed into court without notice and obtained orders which enabled them to delay the implementation of the decision of the respondent party to replace them as their representatives on the I.P.A."
These comments are clearly pertinent also in respect of the conduct of the litigation by the I.P.A. in the present case.
It is clear from the appellants' response to the notice of motion that they did not contest the right of registered political parties to the state controlled media and that the door was open for negotiations on these decisions of the I.P.A. There is no evidence before us that the I.P.A. ever attempted to exploit this opportunity.
It is an established principle of the law of contract in Southern Africa that save where the contract fixes the time for performance and mora arises from the contract itself (mora ex re), the contracting party who seeks to rely on the failure of the other party to perform in order to invoke contractual remedies, such as performance, must first place the other party in mora. See in this regard Breytenbach v van Wyk 1923 AD 541 at 549, West Rand Estates Ltd. v. New Zealand and Insurance Co. Ltd 1926 AD. 173 at 195 and Louw v. Trust - Administrateurs BPK 1971 (I) S.A. 896 at 903. See also the lucid exposition in Christie: The Law of Contract in South Africa, Third ed. 558 et seq., It is only after the other party is placed in mora that any enforceable right accrues and a fortiori any right to approach a court for relief. The considerations that underpin this principle would seem to me to apply also in a case like the present where there is a statutory obligation on the executive to respond to a demand from a body such as the I.P.A. This is the more so, when the ethos of the legislation is one of conciliation and facilitation.
I would also point to the fact that this court has on many occasions criticized the practice of litigants rushing into court without notice to the other side. For the most
recent decisions in this regard see e.g: The Commander L.D.F. and another v. Matete 1999 - 2000 L.L.R., 13 and Lesotho National Development Corporation v L.N.D.C. Employees and Allied Workers Union (Unreported) C of A (CIV) No.2 of 2001.
This criticism has in my view validity also in the present case. The I.P.A. was created with a view to the facilitation of free and fair general elections in Lesotho. The essence of facilitation is negotiation, not confrontational litigation. It is my firm view that the I.P.A. should not have resolved on the 6th of December 2000 to institute court proceedings in respect of two resolutions, the second of which had only been taken two days previously. (The decision calling for the stoppage of "partisan food distribution practices by the Disaster Management Authority" had only been taken on the 4th of December 2000). Similarly, although there appears to have been a delay of some two months in respect of the media resolutions before the decision to institute legal proceedings was taken, the mere failure to respond did not in the circumstances justify the institution of legal proceedings. It was procedurally unacceptable for the I.P.A. to do so without first calling on the appellants to respond to its resolutions and to afford them a reasonable opportunity to react to their as vet unsatisfied demands.
This court is fully cognisant of the importance of full and fair access by registered political parties to the communication structures controlled by the State for the purposes of free and fair elections. Should the executive fail or refuse to promote such access to political parties who qualify therefor, this court would, in so far as it is empowered to do
so, grant appropriate relief. At the same time it will only do so if it is satisfied that the
party seeking such an order has been refused such relief by the State, or that after due notice calling upon the State to do so, it has failed to respond within a reasonable time.
In my view the I.P.A. acted precipitately in not only resolving to have recourse to legal proceedings when it did so on the 6th of December 2000 but also when it issued proceedings out of this court on the 12th of February 2001. It is accordingly unnecessary to adjudicate upon the other contentions raised by the appellants under this heading.
It follows that the court erred in granting the relief it did when granting the orders sought in paras 1(a) and (d) of the notice of motion.
The I.P.A. and the Appellants owe it to the electorate to get their electoral house in order. They should, through a process of negotiation put in place mechanisms which will ensure that the provisions of section 4(h) of the Act are complied with. The legislature clearly envisaged that provision had to be made that by the time an election date is announced, arrangements would have been made for political parties and candidates to be given such access to government institutions, and particularly to government - owned media that would constitute "equal treatment". In this regard the 1st appellant is, in terms of section 19 of the Act, the channel through which the I.P.A. is to deal with the State. He has an obligation to act and to respond co-operatively to reasonable proposals from the I.P.A. directed at ensuring equal treatment for those who
qualify in terms of section 4(h) of the Act.
A genuine spirit of co-operation to achieve the objectives envisaged by the legislature is essential to ensure that it would be possible to certify that, also in respect of the treatment of political parties and candidates by government institutions and particularly the government - owned media, the general elections can be certified as free and fair.
It would not be consonant with good governance in this respect for the appellants to be supine and only to refer the I.P.A. to particular institutions. Good governance requires the executive, acting through the 1st appellant, to be pro-active to ensure a compliance with the provisions of the Act. The court trusts that there will be a bona fide commitment on the part of both the I.P.A. and the executive to achieve the desired outcome; i.e. equal treatment of all political parties and candidates particularly by the State- owned media.
I come to deal with the High Court's decision to grant the relief claimed in paragraphs 2 (a) and 2 (b) of the notice of motion.
The argument advanced by counsel for the I.P.A. in support of the High Court's decision was simply that the I.P.A. had the power to declare certain conduct political patronage. Once it had taken that decision, the executive was bound to implement it.
Mr. Mosito was driven to advancing this surprising argument because it is clear from the affidavit of Mr. Khomonngoe, the chief executive officer of the Disaster Management Authority, (the D.M.A.) that involvement of members of parliament in the work of the D.M.A. had nothing to do with political patronage and everything to do with the efficient discharge of its obligations. In this regard I cite the passages in his affidavit set out below - the contents of which were never challenged by the I.P.A.
He says that the duty of the D.M.A. was to feed people during times of famine caused by drought or other natural disasters. He goes on to say:
"We get our supplies from the donors and from government. To effect the distribution on an equitable basis I use the constituencies throughout the country. This has the advantage that as members of Parliament are elected by the people they have an intimate knowledge of the people of their constituency and their needs and desires. Furthermore a member of Parliament is also in a position to identify the most needy to whom the scarce resources are to be channelled. In a democratic setup like Lesotho it is the duty of the members of the Parliament to articulate the concerns of the people living in their constituency. I am of the view that a member of Parliament has the duty to serve his constituencies irrespective of the political persuasions."
This approach appears to be eminently sensible, and contains no element of "political patronage" as alleged.
In respect of the claim for relief in terms of prayer 2 (a) of the notice of motion 17 he says the following -
"It is a fact that I had asked members of Parliament to provide me with a list of persons to assist me to oversee the implementation of disaster management. I had to do this because members of Parliament being busy people will not have the time to oversee the distribution of relief. The persons who were appointed in this behalf were given food rations like any other needy person. Their role was not to dole out the food but to observe how the relief supplies are being distributed. Their duty simply lay in detecting any inadequacies or discrimination in the distribution of relief material."
Once again the response is prima facie entirely appropriate and the contention that this conduct of the D.M.A constituted "political patronage"remains unsupported by the uncontested facts.
In so far as prayer 2 (b) is concerned the deponent responds as follows:
"The major element creating disastrous situations in Lesotho is related to drought conditions. In its management we adopt a two pronged approach one of alleviation and another of preventative measures and to establish a state of preparedness to deal with any eventualities which may arise. I had received general instruction from the government that I should select sites for locating silos for storage of grain and the construction of water banks, an expression coined by Authority. The reference to water tanks is erroneous. The philosophy behind the construction of a water bank is to store and conserve water within a constituency which is at all times under the strict control and management of the Disaster Management Authority. We try to ensure that the
supplies are used very conservatively and on occasions which constitute a water emergency. It is a conservation measure more than anything else.
It has been standard practice of the Disaster Management Authority to seek the assistance of the District Secretary who is that Statutory Chairman of the District Disaster Management Team, the Principal Chiefs, the Village Disaster Management Teams and Village Development Councils as well as District Development Councils and finally the member of Parliament for that constituency to survey the relevant area and identify suitable plots where the above projects can be situated in a constituency.
I entirely fail to understand as to how in a country in which the system of government is based on parliamentary democracy that one can exclude people's elected representatives from any management of a disastrous situation."
I repeat that there was no challenge by way of reply to these averments by the deponent. They have therefore to be accepted for the purposes of the adjudication of whether such conduct constituted "political patronage" as envisaged in section 4 (g) of the Act or not. On this basis the I.P.A.'s contention that this conduct constituted political patronage cannot be sustained.
Mr. Mositio's submission that simply because the I.P.A. declares a particular act or practice political patronage this becomes political patronage even if it is not, is clearly untenable. The I.P.A. has no power to make declarations nor does it has power itself to declare what conduct is such so as to amount to political patronage in terms of section 4 (g). It is only if it can be established objectively that the aggrieved conduct constitutes
political privilege that it can be the subject of a decision by the I.P.A. To hold otherwise would lead to demonstrably absurd results.
It follows that the court a quo erred also in granting the relief claimed in prayers 2 (a) and 2 (b) of the notice of motion.
The court a quo, when granting the I.P.A. some of the relief claimed, made no order as to costs. Although the appellants appear to have been unnecessarily tardy in responding to the media resolutions of the I.P.A., such tardiness was in my view not of such significance as to justify a departure from the usual order that a successful party is entitled to its costs.
For these reasons the appeal succeeds with costs. The order of the court a quo is set aside. In its place it is ordered that the application is dismissed with costs.
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered in open Court this 12th October 2001
For Appellants - Mr Molynoux
For Respondents - Mr. Mosito