National Executive Committee of the Basutoland African Congress and Another v Mandoro (CIV/APN/69/2004)

Case No: 
CIV/APN/69/2004
Media Neutral Citation: 
[2004] LSHC 38
Judgment Date: 
2 March, 2004

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CIV/APN/69/2004

IN THE HIGH COURT OF LESOTHO


In the matter between


NATIONAL EXECUTIVE COMMITTEE OF THE 1st APPLICANT

BASUTOLAND AFRICAN CONGRESS

BASUTOLAND AFR1CAN CONGRESS 2nd APPLICANT

And

MAHOLELA MANDORO RESPONDENT


JUDGMENT


Delivered by the Hon. Mr Justice G. N. Mofolo On the 2nd March. 2004


I did on 2 March, 2004 deliver judgment in this matter indicating that my reasons will follow. Here are my reasons:-


The applicant approached this court for an order in the following terms. namely:-


  1. Dispensing with the Rules of Court pertaining to modes and periods of service of notice and process on the grounds of urgency of this matter;

  2. That a Rule Nisi issue calling upon the Respondent to show cause on a date to be determined by this Honourable Court why the following Order shall not be made a final Order of Court.


    1. Interdicting the Respondent from issuing any notice whatsoever in connection with the Annual Conference of the 2nd Applicant due to be held not later than the first week of March, 2004 in accordance with an Order of this Court in CIV/APN/13/04 as he has no mandate of the 1st respondent, pending finalization of this application;

    2. Interdicting The Respondent from making any preparations in connection with the Annual Conference


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of the 2nd Respondent due to be held not later than the first week of March, 2004 in accordance with an Order of this court in CIV/APN/13/04 as he has no mandate from the 1st Applicant pending finalization if this application;


  1. Declaring as null and void and of no constitutional force And effect Respondents' circular letter dated 19th January, 2004 regarding the Annual Conference of the 2nd applicant due to be held not later than the first week of March, 2004 in accordance with an order of this court in CIV/APN/13/04.


The application was opposed.


The Founding Affidavit to the application was deposed of by Tsie B Pekeche to the effect that:-


I do hereby make oath and say that:-


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I am an adult Mosotho male and the substantive Deputy Secretary-General of the Basutoland African Congress while I am also presently Acting Seeretary-General of the Basutoland African Congress, cited as the 2nd Applicant and in that capacity I am authorized to depose to this affidavit on behalf of the applicants.


2.

The facts deposed to herein are, unless the context denotes otherwise, within my personal knowledge and/or arise from documents to which I have a direct access, and I verily believe same to be true and correct.


3.

The 1st Applicant is The National Executive Committee of the Basutoland African Congress, P.O. Box 739, Maseru.


3.1.1 For purposes of the present application the physical address of the lst and 2nd Applicants shall be the address of Applicants' Counsel.



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4.

The 2nd Applicant is the Basutoland African Congress; a political organization registered as such under 16/2002 in the Societies Register, Maseru and having the status of a legal persona.


5.

The Respondent is Maholela Mandoro, an adult Mosotho male and Secretary-General of the 2nd Applicant, presently employed by The Lesotho Telecommunications Authority at L T A, Thetsane Industrial Estate, Maseru.


These paragraphs have been recited because they are central to this application. Mr. Ntlhoki for the respondent has adopted his own approach to the application by raising points in limine as follows:-


  1. Breach of the Rules or Practice Directions

  2. Lack of Urgency.

  3. Non-exhaustion of domestic Remedies

  4. Non-disclosure of material facts.

  5. Manifestation of bad faith towards The Court.

  6. Absence of proper resolution

  7. Impropriety and impracticability of the order sought. .X. Hearsay. 9. Non-joinder


This application was launched on 27 February, 2004 it being claimed that the conference was to be held on 5-7 March, 2004. Preparations that go into the calling of a General Conference are wide and far-reaching, very costly in time and money and it becomes necessary to have arrangements well in advance. Equally, where the holding of a conference is to be stopped, an applicant is to proceed with speed so as not to involve participants in unnecessary costs and anxiety. I am of the view that the application had elements of urgency and that much as courts frown on applications being made urgent when in fact they are not, at the same time rulings deprecating urgency where there is none are not to be taken advantage of I am of the view that the application merited urgency and that there was no breach of rules and practice directions.


Regarding 3 above, I don't know what Mr Ntlhoki means by exhausting domestic remedies in accordance with the constitution of the second applicant. As Mr Ntlhoki addressed the court, I saw him paging


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through what seemed to be a constitution and the court remarked that he was to make the constitution available to court. It was not made available as so often happens where documents do not form part of the originating papers. This was bound to happen and the court had a heated debate with Mr Ntlhoki in this regard saying more often than not he proceeded by taking points in limine without much a do. He submitted he had acted similarly with regard to a case that went on appeal.


If he was referring to Malebo v The Attorney-General C of A (CIV) No. 5 of 2003 delivered on 7 April, 2004, he was terribly mistaken. In this case it was said Mr Ntlhoki had raised a defence that was not 1steaded, a defence which was not 1steaded having been raised in the judgment of the High Court per Ramodibedi J (as he then was) at p.3 of the judgment. And the Appeal Court dismissed the appeal for the reason that........... I am of the view that the "requirements which would entitle appellant to argue an impleaded defense were not satisfied.' (p.7 of the judgment).


The point of departure between Mr. Ntlhoki and this court was that while in law a point in limine can be taken at any stage of the proceedings, there had to be some basis in that a point of law cannot be taken in vacuo.


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To give an example, in trial actions a defendant must enter appearance and 1stead and it is after 1steading that he can, e.g, counterclaim. It goes without saving that in applications while a point of law can be raised at any time in course of proceedings it must nevertheless be 1steaded. It cannot be 1steaded, in my view, unless there is an opposing or answering affidavit. Had Mr. Nilhoki in the instant application 1steaded the point of law, he would have been able to annex the constitution making it unnecessary to furnish one separately from the proceedings. All that is called for is a neat, inclusive and accessible application.


As for the need to exhaust local remedies, it would seem the right to seek; judicial review might be suspended or deferred until the complainant has exhausted domestic remedies which might have been created by the government legislation though, as Baxter in his Administrative Law (1984 publication) p.720 this is not automatic for, as said in Golube v Oosthuizen, 1955 (3) S A I (T) per De Wel J quoted with approval by Ogilvie Thompson AM in Welkom Village Management Board v Leteno 1968 (1) SA 490 (A) and see also Msomi v Abrahams No 1981 (2) SA 256 (N) 261 A.


'The mere fact that the Legislature has provided an extra-judicial right of review or appeal is not sufficient to imply an intention that recourse to a court


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of law should be barred until the aggrieved person has exhausted his statutory remedies '


It would also seem to me according to judgment in Jockey Club of South Africa v Feldman, 1942 AD 340 251-2; Leteno's case above and Lenz Township Co (Pty) v Lorenzo No, 1961 (2) SA 450 (A), 1955 A-D, 458E-459A in respect of private organizations, the right of judicial review will only be deferred if such intention is clearly evident from the terms of agreement between the complainant and the association concerned. In the instant application I have not been appraised of such terms of agreement between the complainant and the Basutoland African Congress. Be this as it may, I am of the view that until the suspended leader Mr Molapo Qhobela has moved somehow to have the suspension against him lifted or removed, his right to be heard or make representations concerning the 2nd applicant or in any way interfering with functions of the lst respondent cannot succeed or be entertained by this court.


As for non - disclosure of material facts, I take the point (4.2 of points of law raised) to mean that applicants did not disclose the fact that at the time of launching the application the leader Qhobela Molapo was under suspension for it is common cause that at the material time he was so suspended. Resolution of 15 November 2003 is proof of this (annexure "BACT") in that the special conference having noted maladies affecting the party's machinery, persistent non-attendance of the working committee by the leader Molapo Qhobela, fraudulent amendment of the party's constitution and the erosion of the party's fortunes and image, it had been resolved that he be:


  1. Suspended as party leader from any privileges and functions attendant thereto, until the sitting of the next AGM;

  2. That he be accordingly charged and appear before the party's disciplinary committee;

  3. That the Registrar-General of Societies be informed and kindly requested to rectify the situation;

  4. That the Deputy leader, Dr Khauhelo Raditapole shall, ad interim, act as Party Leader


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  1. That all correspondence and circulars to constituencies. be issued by the Secretary-General.

  2. That all the Party's property currently in the possession of The Deputy Secretary-General be returned to the Secretary-General. The NEC is empowered to do all that will be necessary for the return of such.

In an earlier application before me (CIV/APN/13/04), it was conceded on behalf of the leader Molapo Qhobela that he had been suspended and the reason for the calling of conference to challenge the suspension and rectify the situation. At the time of launching this application there had been no rectification of Mr. Molapo Qhobela's suspension for the suspension had neither been lifted nor set aside, and I fail to see how, in the present application, since the status quo remains the same, the application can succeed. Both the leader and deputy Secretary were shorn of their powers by resolution of 15 November, 2003. Despite this, both the suspended leader and his Deputy Secretary put on a brave face pretending their powers are in 1stace. It is a stance a court well instructed cannot tolerate.


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The Oxford dictionary - 10lh Ed, meaning of 'suspend' is: halt temporarily, debar temporarily from a post, duties, etc, as a punishment -and according to clause 1 above, the leaders privileges and functions were put on hold meaning he could not function as a leader. And yet it is the same Molapo Qhobela who, despite the suspension, chaired a meeting of the National Executive Committee of the 2nd Applicant in which a special resolution was passed to the effect:-


  1. The Basutoland African Congress should apply for an urgent interdict against Moholobela Mandoro, etc (present respondent)

  2. Tsie B Pekeche should be authorized to depose to the Founding Affidavit.

  3. The following should form an action group in respect of the said legal action:


Molapo Qhobela, Adv. G. M. Kolisang,Peo Moejane, B Pekeche and Tokonye Kotelo. The resolution was signed by Mr Molapo Qhobela. Again, Mr Molapo Qhobela appears to have curiously given certain instructions on 15/05/04 saying:


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  1. In my capacity as President and Chief Executive of the BAC -

etc. etc.

  1. ______________

He also lists people who attended meeting of 08/02/04 and signs as Leader/Convener and Chairman, NEC. Regarding Mr. Molapo Qhobela and the Deputy Secretary Mr. Pekeche, their participation flies in the face of Special Conference Resolution of 15/11/03 above. There can be nothing more mind-boggling and contemptuous of orderly procedures. I am of the view that since the meeting was called and chaired by a person who had no authority or standing, the meeting and any resolutions passed are a nullity. It follows that whatsoever documents either Mr Molapo Qhobela or Mr. Pekeche signed in these proceedings are a nullity. Since I have nullified the proceedings, I do not think it is necessary to consider other points in limine taken. Suffice it to say that there is 1stenty of authority in the steps I have taken as exemplified by Baxter above where he says power is not conferred upon 'the administration' generally for any power conferred may be exercised by the office-holder or body upon which it is conferred alone and


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if someone purports to exercise the power, the latter's act is simply ultra and invalid (p. 426).


On Mr. Molapo Qhobela's suspension power was conferred on Dr. Raditapole and it is her who exercises power as Leader and Chairman of Basutoland African Congress. By the same token, whatsoever may have been the functions of the Deputy Secretary Mr. Pekeche, these were taken away from him and 1staced on the General Secretary the respondent by resolution of the lst applicant. Mr. Mandoro and the respondents' functions have not been restricted or curtailed and to interpose Mr. Pekeche was to arbitrarily usurp the Secretary-Generals' powers. In any event, Mr. Pekeche was put in 1stace and given a mandate by an organ which had no authority to do so. Once Mr. Molapo Qhobela was suspended he had no functions to perform, could not superintend or supervise BAC committee or its structures.


Professor Baxter above has also said in order to exercise powers conferred, officials must hold them validly. Neither Mr. Molapo Qhobela nor Mr. Pekeche had powers conferred on them and it follows that they did not hold office validly. As for co-opting members, it has been said where a


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body has to act expeditiously and some of its members reside at great distance, it may dispense with the requirements of summoning those who will not be able to attend and may function with those members who are available to form a quorum - see Roberts v Chairman Local Road Transportation Hoard (2) 1980 (2) SA 480 (I) 479A-501D, CF Young and I adies Imperial Club Ltd (1920) 2KB 523. I make the point that I do not think 4.5 of points in limine was properly taken.


This application has not succeeded for the reason that the leader Mr. Mohapo Qhobela and his Deputy Secretary Mr. Pekeche had no mandate or power to act as they did for, evidently, there cannot be two bulls in one kraal lest they kill each other. It is for these reasons that the application was dismissed.


As to costs, Mr. Ntlhoki has urged the court to award costs on a higher scale to show the court's displeasure of the contemptuous and defiant attitude of, in particular, the suspended leader Mr. Molapo Qhobela. While it is true that Mr. Qhobela's attitude does not inspire respect for lawful strictures, in some respects applicants have been more or less successful.


Besides, although the respondent was largely successful, this court wasn't particularly happy with the approach adopted in the application.


Accordingly, costs will be costs as between party and party, and on an ordinary scale.


G.N. MOFOLO

JUDGE


For the Applicant : Mr. Mapetja

For the Respondent. Mr. Ntlhoki


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