C of A (CIV) No. 26 of 2001
The National Executive Committee of the
Lesotho National Olympic Committee & 10 Others v
Paul Motlatsi Morolong
The Respondent Paul Motlatsi Morolong brought an application against the Appellants in the High Court of Lesotho for an order, inter alia, declaring the elections of the National Executive Committee of the Lesotho National Olympic Committee held on 1st April 2001 invalid and of no legal force and effect. He also prayed that all persons elected on that date as office bearers be interdicted from exercising the functions of their respective offices.
The High Court granted the application as prayed hence the appeal before us.
In our view a dispute of fact arose on the fairness or otherwise of the elections in question. It is our view that, on the facts, and this being motion proceedings designed to secure final relief, the version of the Respondent should have been accepted on the authority of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634-35. On this ground alone the appeal should succeed.
The appeal succeeds on a further ground of non-joinder in as much as the Respondent failed to join interested parties such as the individual
office holders who were elected on 1st April 2001. The Respondent should therefore have been non-suited on this ground alone.
In the result the appeal is upheld with costs both in this Court and in the court below.
The order of the court a quo is set aside and there is substituted for it the following order:
"The Application is dismissed with costs."
JUDGE OF APPEAL
C of A (CIV) No. 26/2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
The National Executive Committee Of
The Lesotho National Olympic Committee 1st Appellant
Lesotho National Olympic Committee 2nd Appellant
Lesotho Darts Association 3rd Appellant
Lesotho Squash Association 4th Appellant
Lesotho Sports Medicine Association 5th Appellant
Lesotho Baseball Association 6th Appellant
Lesotho Volleyball Association 7th Appellant
Lesotho Basketball Association 8th Appellant
Lesotho Netball Association 9th Appellant
Special Olympic Committee of Lesotho 10th Appellant
Lesotho Softball Association 11th Appellant
Paul Motlatsi Morolong Respondent
Held at Maseru
CORAM: Ramodibedi J.A.
These proceedings, which have come before us by way of an appeal, originated in an application made on a certificate of urgency in the High Court for orders framed in the following terms:-
"1. Dispensing with the rules of court concerning forms, notices and service of process due to the urgent nature of this matter;
A rule nisi issue returnable on a date and time determinable by this Honourable Court calling upon Respondents to show cause if any, why
the elections of First Respondent held on 1st April 2001 shall not be declared invalid and of no legal force and effect;
All persons elected on 1st April 2001 as office-bearers of Ist Respondent shall not be interdicted from exercising the functions of their respective offices pending finalisation of this matter;
The office bearers of First Respondent who were in office as at 31st March 2001 shall not continue to remain therein pending finalisation of this matter;
Second Respondent shall not be directed to hold fresh elections of the First Respondent within thirty (30) days from the date of finalisation of this matter;
The Respondents shall not be served with this application and put to such terms as the Honourable Court may decide as to the filing of process and the hearing of this matter;
Directing Respondents to pay the costs thereof;
Granting Applicants further and/or alternative relief.
Prayers 2 (b) & (c) to operate with immediate effect as an interim order."
In due course a rule nisi was issued and on the return day the Court a quo held that the conference of the 1st April 2001 contested in the application was "marred with (sic) malpractices and irregularities" and that accordingly it was unconstitutional. As I understand the judgment a
quo the application was granted as prayed. That decision is the focus of the present appeal.
The relevant facts in this appeal are quite simple and, I think, I can safely state them this way. On 1st April 2001 the Lesotho National Olympic Committee (2nd Appellant) held its annual general meeting at Maseru Sun Cabanas where the following people were elected:-
President : Matlohang Moiloa-Ramoqopo
Vice President-Admin : Monethi Monethi
Vice President-Finance . Sam Mphaka
Secretary General : Mofihli Makoele
Vice Secretary General : Zongezile Dlangamandla
Treasurer : Takatso Ramakhula
P.R.O. : General Sentle
Members : Mokebe Maketela
: Tlali Rampooana
: Nkalimeng Makhube
It is perhaps necessary to mention that there is a slight dispute of fact between the parties as to whether Tlali Rampooana was elected as an ordinary member (on Appellants' version) or as Vice-Secretary General (on Respondent's version). According to the Appellants' version, the person elected as Vice-Secretary General was one Zongezile Dlangamandla. In my view, nothing really turns on this dispute of fact but for the record it requires to be mentioned that the list of elected people shown above is the one supplied by the Appellants who were respondents in the Court a quo. It is hardly necessary to say that this
approach is predicated on the fact that it is now trite law, for which no authority is strictly required, that where a dispute of fact arises in motion proceedings the version of the respondent should be accepted as correct.
It should be noted at the outset that the Respondent (who was the Applicant in the Court a quo) stood as a candidate for the office of President. As is obvious from the above-mentioned list of elected persons, he lost and, I should add, in a gracious manner. It is common cause that he even "actually congratulated" the newly elected President 'Matlohang Moiloa Ramoqopo "for beating him to the presidency of the second Respondent." This much he admits unequivocally. Nor does he dispute that "at no stage whatsoever either before, during or after the said meeting and elections" did he contest the constitution of the elections.
What is more, it emerged for the first time in the opposing affidavit of Monethi Monethi on behalf of the Appellants that the Respondent had in fact chaired the election meeting in question and that as the outgoing President and chairman of the meeting, it was actually within his powers "to ensure that no irregularities were committed." He is thus, in my view, guilty of non disclosure of material facts considering the fact that he was the Applicant in an ex parte application for a declaratory order and interdict.
Against the above-mentioned background it no doubt seems incomprehensible that the Respondent subsequently launched an application for prayers fully set out above in which he now sought to nullify the entire elections in questions citing, in paragraph 8 of his founding affidavit, "substantive and procedural irregularities, malpractices, improprieties, illegalities and acts bothering (sic) on if not outright fraud."
What is further incomprehensible to me in the conduct of the Respondent is the fact that he launched the application in question after he had not only recognized the new committee members as apparently having been lawfully elected (he concedes that he even introduced them to all the delegates, observers and members of the media) but significantly after he had admittedly solicited their votes and support when he subsequently sought to contest the elections of the President of the Association of National Olympic Associations of Africa (ANOCA) in June, 2001. This much he concedes in his replying affidavit.
Significantly the Appellants who, as will be recalled, were respondents in the Court a quo, denied the allegation that the elections in question were marred by any irregularities and/or malpractices. It was their version as clearly set out in paragraph 7 of the opposing affidavit of
Monethi Monethi that the elections "were conducted freely, fairly and in accordance with the second Respondent's constitution." In my view therefore a point of dispute arose on the fairness or otherwise of the elections in question. Regrettably the learned Court a quo made no finding on this issue. Instead it decided the matter on paper notwithstanding this material dispute of fact. In so doing it clearly erred and this Court then becomes at large to interfere.
It is settled law (Rule 8 (14) of the High Court Rules 1980) that an applicant who proceeds by way of an application as opposed to an action runs the risk of his application being dismissed by the Court in the event of a dispute of fact arising. In the latter situation the Court has a judicial discretion to do one of the following:
to dismiss the application or
to direct that oral evidence be heard on specified disputed issues or
to order the matter to be converted into a trial.
The learned Court a quo adopted none of the above-mentioned options but instead it granted the application in circumstances where the version of the respondents (now Appellants) should clearly have been preferred to that of the applicant (now Respondent) on the celebrated authority of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) at 634 -35. There can be no doubt, in my view, that the Respondent's conduct in chairing the election meeting and recognising the newly elected committee members as fully set out above was, for that matter, consistent with the Appellants' version that the elections in question were not only free and fair but were devoid of any irregularities that could have affected the result thereof.
It follows from the aforegoing considerations that I would uphold the appeal with costs on this ground alone.
There is another reason why this appeal must succeed. It is the question of non-joinder. In paragraph 4.4 of his opposing affidavit Monethi Monethi puts the point crisply in the following terms :-
"4.4 The Applicant has not joined parties he should have joined and has joined those he should not have joined The applicant has not joined the individuals whose election he seeks to nullify. The third Respondent is not an affiliate of the second Respondent The second Respondent is affiliated only by association
4.5 The Applicant has deliberately withheld facts from this Honourable Court which he should have disclosed so as to enable it to properly exercise its discretion whether or not to grant the interim order sought
4 6 The Applicant should have known or at least foreseen that there would be a serious dispute dispute (sic) in this matter and should not have proceeded on an urgent and ex parte basis "
I observe at the outset that this allegation of non-joinder is not met in point of substance. It must therefore stand as an uncontroverted fact. In any event the point sticks out like a sore thumb when one has regard to the list of elected persons referred to above. None of those people was joined in the application despite the fact that it was their very election that was sought to be nullified. The prejudice they stood to suffer is self evident and requires no further elaboration.
Regrettably the learned Judge a quo failed to address the issue of non-joinder of individual committee members and merely contented herself with the following conclusion:
"there was no need to have cited individual Associations as 2nd Respondent is made up of all its associations as shown under Annexture "BB" annexed to the opposing affidavit."
In so doing the learned Judge a quo clearly erred in my view in as much as the real issue was not whether or not individual associations were joined but that individual committee members were not joined in view of the fact that annulment of their elections would affect them prejudicially.
In my view, three examples will no doubt suffice to illustrate the prejudicial nature of the Court a quo's approach to the issue of non-
joinder. Firstly, Nkalimeng Makube's election was declared "unconstitutional" by the court notwithstanding the fact that he was not joined as a party to the proceedings and was therefore not heard. Secondly, Zongezile Dlangamandla, who was also not joined, was treated in the same manner and thirdly, Takatso Ramakhula received similar treatment by the Court a quo and yet he too was not joined. Indeed, to round off this point, it is true to say that the elections of all the individual committee members elected on 1st April 2001 were declared unconstitutional notwithstanding the fact that they were not joined as parties to the proceedings.
The question of non-joinder of interested parties is one that has perturbed this Court for a long time. For example more than seventeen years ago in Masopha v Mota 1985-89 LAC 58 (decided on 28 January 1985) this Court took the point of non-joinder mero motu and set aside the High Court order which had annulled a marriage where the woman whose marriage was at issue had not been joined as a party. In the process this Court laid down the following guideline:-
"This case illustrates the need to consider and identify those who can be affected by the result of proceedings and to ensure that they are party to the proceedings."
Three sessions later, that is to say on 25 July 1986, this Court again strongly deprecated the practice of non-joinder of interested parties in Matime and Others v Moruthoane and Another 1985-89 LAC 198 at 200 in the following words:
"This (non-joinder) is a matter that no Court, even at the latest stage in proceedings, can overlook, because the Court of Appeal cannot allow orders to stand against persons who may be interested, but who had no opportunity to present their case."
In Basotho Congress Party & Others v Director of Elections and Others 1997-98 LLR & LB 518 at 531 this Court once more expressed itself on a similar point of non-joinder in the following terms:-
"In the first place appellants were not the only parties involved in the election. It is inconceivable that a Court could have considered postponing the election without at least involving the other parties in these proceedings and giving them an opportunity to be heard. The appellants should therefore have been non-suited on this ground alone."
These remarks are apposite to the instant matter which, in my view, deserves similar treatment. Nor does the matter end there.
The following findings and order of the court a quo call for further comment:
"On the basis of the irregularities shown above, the court finds that the conference of the 1st April, 2001 was unconstitutional as the
proceedings were marred with (sic) malpractices and irregularities. In the result, the Application succeeds with costs."
With respect, the learned court a quo committed two elementary errors in the passage quoted above.
Firstly, as is evident from the Respondent's prayers fully set out above, it was not his case that the entire conference of the 1st April, 2001 be declared unconstitutional. By way of recapitulation, it will be recalled that he merely asked for a declaratory order to the effect that the elections of the National Executive Committee of the Lesotho National Olympic Committee (First Appellant) were invalid and of no force and effect. It is self evident therefore that by setting the entire elections at naught as it did the court a quo went beyond the prayers sought for by the Respondent. With respect, that approach was erroneous. It is indeed trite law that a litigant cannot be granted relief which he or she has not sought.
Secondly, it is a matter of regret that the "irregularities" relied upon by the court a quo were not raised by the Respondent in his founding affidavit (paragraph 8 thereof). The court gleaned them, as it were, from the Appellants' opposing affidavits. Put differently, the basis of the learned Judge a quo's judgment and order is not the alleged irregularities in the founding affidavit but what is contained in the course of the reply
relating, if I may add, to extraneous issues for which the Appellants were not specifically called upon to deal with.
This Court has stressed more than once that it is wrong to direct the attention of the other party to one issue and then attempt to canvass another as the Respondent was allowed to do here. See for example Frasers Lesotho Limited v Hata-Butle (Pty) Ltd 1999-2000 LLR & LB 65 (LAC) at 68. 'Malerotholi Josephine Sekhonyana & Another v The Standard Bank of Lesotho Ltd 1999-2000 LLR & LB 416 (LAC) at 420-421. See also Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107-108. Administrator. Transvaal And Others v Theletsane and Others 1991 (2) SA 192 (A1 at 196B - 197D.
In AG v Michael Tekateka & Others C of A (CIV) No.7 of 2001 (unreported) this Court once more expressed itself in the following terms which require repetition here:-
"It is trite that an applicant must make out his or her case in the founding affidavit and that a court will not allow an applicant to make out a different case in reply or still less, in argument."
Indeed it requires to be stressed that in motion proceedings, as in this case, it is to the founding affidavit to which the court will look to determine what the complaint is. As a general rule, an applicant must
stand or fall by his petition and the facts alleged therein. The court is confined to resolving the dispute on the issues raised in the founding affidavit and must not have regard to extraneous issues and unproved facts. See for example, Director of Hospital Services v Mistry 1979 (1) SA 626 (A) 635F-636A.
In view of the conclusions at which I have arrived in this matter, it is strictly unnecessary to deal with any of the other grounds of appeal relied upon by the Appellants,
For these reasons it seems to me to follow inexorably that the appeal should succeed. It is accordingly upheld with costs both in this Court and in the Court below. The Order of the Court a quo is set aside and there is substituted for it the following Order:
"The application is dismissed with costs."
JUDGE OF APPEAL
JUDGE OF APPEAL
I agree: J.
JUDGE OF APPEAL
Delivered at Maseru on the 12th Day of April 2002
For Appellants: Adv K.K. Mohau
For Respondents: Mr. M. Ntlhoki