HIGH COURT OF LESOTHO
FOTHOANE 1ST APPLICANT
SEKONYELA 2ND APPLICANT
- CHRISTIAN DEMOCRATIC
(NANABETSANE RAMOKUENA) 1ST RESPONDENT
RAMONE 2ND RESPONDENT
DEMOCRATIC PARTY 3RD RESPONDENT
LITSOANE 4TH RESPONDENT
THOOLA 5TH RESPONDENT
MINISTER OF LAW AND
AFFAIRS 6TH RESPONDENT
ATTORNEY-GENERAL 7TH RESPONDENT
delivered by the Honourable Mr. Justice G.N. Mofolo on the 7th day of
applicants Phai Fothoane and 'Mamokoto Sekonyela applied on an urgent
basis to this court for an order in the following terms:
the normal periods and modes of service be
a Rule Nisi be issued returnable on a date and time to be determined
by this Honourable Court calling upon the respondents to show cause
(if any) why:
(a) The removal of applicants from the Interim Political Authority
shall not be declared null and void and of no force or effect.
(b) The gazettment of the 8th and 6th respondents shall not be
declared as null and void and of no force and effect.
© The subsequent appointment of the 5th and 6th respondents in
the Interim Political Authority shall not be declared null and void
and of no force and effect.
(d) Applicants shall not he re-instated as representative of the
Christian Democratic Party in the Interim Political Authority.
and/or alternative relief.
prayer 1 operate with immediate effect. The application was opposed.
reading of 1st applicant's affidavit, he gives the unmistakable
impression that his and the 2nd applicant's task was at all material
times to represent the interests of the 3rd respondent and that they
did represent these interests
and reporting to the 1st respondent at all material times of their
participation in the proceedings of the Interim Political Authority
(see paragraphs 7 - 9 of the Founding Affidavit).
to these allegations the 1st respondent has, in his Founding
Affidavit , categorically denied them. At Paragraph 6 he denies
'Deponent ever gave me any reports at all since his appointment
aforesaid, Deponent took himself to be above everybody including the
very party that put him there ---' At paragraph 7 after denying he
continues '— I went to Deponent's place to get an update as the
party was in the dark as to the developments in I.P.A. She then asked
me about models and I gave her instructions as to which model the
party wanted.' At paragraph 9 1st respondent says when 1st applicant
gave an interview to Mo-Afrika he had no mandate to do so for he had
not consulted the executive committee or the 1 st respondent. At
paragraph 10 1 st respondent says when the Prime Minister had called
Party Leaders the deponent had not informed the party of the meeting.
The tenor of 1st respondent's response is that he had to go to 1st
applicant to be updated of 1PA proceedings.
court does not know and the applicants have not informed the court of
the means and channels employed by the applicants to regularly report
their activities to the 1st respondent.
record of proceedings before me, it would seem that the applicants
were sworn in as members of the Interim Political Authority on 9
December, 1998 ostensibly following recommendation by the 3rd
respondent for sub-section (2) of
of the Interim Political Authority Act, 1998 reads:
to section 8 and 9, members referred to in subsection I shall be
appointed by their respective political parties.
court's view, if applicants were appointed by their party it follows
that 3rd respondent can remove them from IPA. In fact section 5
subsection (3) reads A political party may, at any time, in writing,
withdraw its representative from the Authority and such a
representative shall forthwith cease to be a member.
reason for the withdrawal of a representative from the IPA is given
as, vide section 10
member is absent or is otherwise unable to perform his duties, the
party that appointed him may appoint a person to act in that position
for that period.
Mosito for the applicant has raised three issues for determination by
this court and these are:-
a member of IPA have a right to a hearing prior to his withdrawal
therefrom by his political party?
applicants heard in this case before purported withdrawal?
© Was their withdrawal from IPA not null and void?
(a) above, although statutorily it would appear members of IPA are in
the same class as common law employees and can be withdrawn on the
whim of a political party so long as a political party has done so in
writing or for reasons contemplated in section 10(3) of the IPA Act,
above, the attitude of courts and no less this court is that
notwithstanding that the withdrawal is statutohly authorised, since
the statute does not exclude the need to be heard, a member must be
heard before his membership is terminated. The hearing would of
course be by the very political party which appointed the member to
the IPA. Human being are never to be treated like hose but are to be
treated fairly and with respect before their rights are taken away.
important inquiry which arises is; were applicants heard before they
were removed from IPA, by whom? According to annexure 'A' applicants
were invited to Ha Tlali (Makhaleng constituency) by members of
Makhaleng. It would appear the invitation was by Chairman of
Makhaleng Constituency. 1st applicant has said the invitation was by
a chairman and moreover there was no agenda. In the first place, the
invitation had nothing to do with applicants in that applicants being
members of the IPA are responsible to the 3rd respondent and not to a
constituent member of the 3rd respondent. Secondly, applicants were
not given a glimpse of what they were invited for in the form of an
agenda in order to prepare themselves for the meeting.
to Standing Orders and Rules of Procedure at Party Meetings of 6 the
3rd respondent, Rule 11.2 is to be effected that: business shall be
proceeded with in accordance with agenda unless otherwise decided by
This is a
peremptory requirement for the validity of a meeting. As the court
understands the rule, an agenda must accompany notice of meeting for
a meeting to be valid. In the meeting members may include matters not
appearing on the agenda for
questions other than those appearing on the agenda, shall be debated,
provided that the meeting may by resolution agree to discuss a matter
not included on the agenda.
makes an agenda a pre-requisite of meetings prohibiting discussions
on matters that don't appear on the agenda. While only matters on the
agenda can be debated, by resolution other matters not included on
the agenda can be discussed.
there was no agenda as required by laws governing the 3rd respondent,
it stands to reason that as there was nothing to discuss in the
so-called meeting of 25 May, 1999, there was no meeting at all.
Annexure 'A' of 21 May, 1999 violated rules of the 3rd respondent and
cannot be allowed to stand.
1 do not
know the purport of annexure 'B' dated 29 May, 1999; in any event it
has nothing to do with annexure 'A' I st applicant at paragraph 13
says annexure 'ET and 'C were 'purported to be notices to ourselves
informing us of our
from IPA—--' In answer to the 1st applicant, 1st respondent has
said that applicants know that 'the issue of their performance and
possible removal from the IPA was in the agenda for the said meeting
which he decided not to attend —--I pause here to ask, which
meeting? Well, if it was meeting of 25 May, 1999 1 have already said
that this was no meeting. 1st Applicant has said at paragraph 12 of
his affidavit that he received annexure 'A' on 21 May, 1999 and
annexure B' on 31 May, 1999 clearly after the 29 May, 1999 and 1st
respondent's response in this regard is, total silence; his failure
to answer of course amounts to an admission. What use was it, then,
to receive an agenda after the meeting?
to the 1st applicant, their withdrawal was made by one constituency
namely, Makhaleng whereas the 3rd respondent has 3 constituencies
constituency being that of 1st applicant
" " that of 2nd applicant
" " that of 1 st respondent.
be seen that applicants' withdrawal from the IPA was made by a
constituency applicants are not responsible to. To this anomaly the
1st respondent has said at paragraph 12 of his Opposing Affidavit:
The meeting that was called was a properly convened meeting. We were
being called by our own base, that is the founder constituency and in
any event the meeting had been called in consultation with the
Makhaleng constituency is not the 3rd respondent. In any event if it
was in consultation with the 3rd respondent it would be expected that
minutes of the executive committee would have been tabled or
submitted by the executive committee of the 3rd respondent failing
which for the Secretary of the 3rd respondent to have confirmed by
affidavit that there was such consultation.
I do not
know in what capacity Agatha Patala wrote a letter of 29 May, 1999.
In any event, unlike what 1st respondent said, she has not said that
in recalling applicants from the IPA it was in consultation with the
executive committee or she was authorised by it.
value of natural justice Prof. Baxter in his Administrative Law at p.
538 quoted Magarry, J. In.John v. Rees (1970) Ch. 345.402 who said:
'— the path of the law is stricken with examples of open and
shut cases which, in the event, were completely answered; of
inexplicable conduct which was fully explained, of fixed and
unalterable determination that by discussion, suffered a change
I am not
aware that the 1 st respondent availed himself of an opportunity to
call applicants before him to explain their inexplicable conduct
which would have been fully explained and by discussion, their
conduct suffered a change. The 1st respondent did not avail himself
of such an opportunity because applicants were not responsible for
conduct attributed to them. This is a strange country and the people
are strange in that, belonging together, matters which would divide
them are not brought to the fore in a spirit of friendliness and
comradeship. Prof. Baxter at p.539
reminds us of the remarkable expression of audi alteram parten as a
process value in the Instruction of Ptahhotep, from the 6th Dynasty
(2300 - 2150 B.C.), which bears repetition:
'If you are a man who leads,
Listen calmly to the speech of one who pleads;
Don't stop him from purging his body
Of that which he planned to tell.
A man in distress wants to pour out his heart
More than that his case be won.
About him who stops a plea
One says: 'why does he reject it?'
Not all one pleads for can be granted,
But a good hearing soothes the heart.
and judges are not that heartless as some think. Applicants plea was
not rejected, they were not given an opportunity to be heard and that
by a doubtful body and certainly not by the 3rd respondent or through
court has no hesitation in granting this application and accordingly
the rule is confirmed with costs to the applicants.
Applicants: Mr. Mosito
Respondents: Mr. Phafane
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