HIGH COURT OF LESOTHO In the matter between:
BCP 1st APPLICANT
CONGRESS PARTY 2nd APPLICANT
MBULI 1st RESPONDENT
LERATA 2nd RESPONDENT
PHAKISI 3rd RESPONDENT
ROTO 4th RESPONDENT
MANDORO 6th RESPONDENT
MOEJANE 7th RESPONDENT
THAANYANE 8th RESPONDENT
MOSHOESHOE 9th RESPONDENT
SEKOTO 10th RESPONDENT
TSAKATSI 11TH RESPONDENT
RALITAPOLE 12th RESPONDENT
QHOBELA 13TH RESPONDENT
OF SOCIETIES 1 4th RESPONDENT
GENERAL 15th RESPONDENT
by the Honourable Mr Justice S.N. Peete on the 17th January, 2002
16th February 2001 my Brother Ramodibedi J. granted an interim order
moved for ex parte It was couched as follows:
the Rules of this Honourable Court pertaining to notice and service
be dispensed with and the matter be heard as of urgency;
2. That a
Rule Nisi issue be returnable on the 26th day of February
calling upon the Respondents show cause (if any) why:-
to thirteenth Respondents shall not be interdicted from unlawfully
interfering in any manner whatsoever with the first Applicant in the
administration of the affairs of the second applicant pending the
determination of these proceedings;
to thirteenth Respondents shall not be ordered to desist forthwith
from holding themselves out as members of and/or the National
Executive Committee of the second Applicant;
purported election of the first to thirteenth Respondents as members
of the National Executive Committee of the Basutoland Congress Party
shall not be declared a nullity;
purported amendment of the Constitution of the second Applicant by
first to thirteenth Respondents and their followers shall not be
declared a nullity;
fourteenth Respondent shall not be ordered to remove and/or expunge
from her records the purported amendments and/or any document or
record lodged by the first to thirteenth
Respondents shall not be ordered to pay the costs of this application
on a higher scale, save that the fourteen and fifteenth Respondents
be so ordered only in the event of their opposing the orders sought
Applicants shall not be granted such further and/or alternative
prayers 1 and 2 (a) operate with immediate effect as an
Respondents must file their Answering papers, if any, on or
Friday 23rd February, 2001 "
appears from the record that the rule was returnable on the 26th
February 2001. For reasons not necessary to delve into this judgment,
it seems the rule was on 19th March 2001 confirmed by my Brother
Lehohla J. against some respondents who had not filed their answering
affidavits. But on the 24th July 2001, counsel for applicants and for
respondents agreeing, the final order was rescinded by this court and
the respondents were directed to file their answering papers within
14 days and the rule was revived and extended to the 13th August
2001. The rule was extended on several occasions till the 18th
October 2001 when it was again extended to the 8th November 2001 on
which date counsel began to address the court.
respondents have duly filed their answering affidavits to which the
applicants have replied.
Mosito, appearing for the respondents had filed in advance a notice
of application in terms of Rule 32 (7) of the High Court Rules 1980,
which reads as follows:-
(7). If it appears to the court mero motu or on the application of
any party that there is in any pending action a question of law or
fact which it would be convenient to decide either before any
evidence is led or separately from any other question the court may
make an order directing the trial of such question in such manner as
it may deem fit, and may order that all further proceedings be stayed
until such question is disposed of "
clear that this Rule applies to interlocutory matters in actions and,
as 1 later pointed out to Mr Mosito, the more relevant Rule seems to
be Rule 8(21) which reads:-
anything to the contrary contained in this Rule, interlocutory and
other applications incidental to pending proceedings may be brought
on notice accompanied by such affidavits as may be required and set
down at a time assigned by the Registrar or as directed by a judge. "
however not necessary to decide which of the two Rules ought to have
been relied upon, because Mr Mosito prudently decided to rely upon
the similar points in limine as raised by Mr Khachane Sekoto in his
answering affidavit. The points in limine are-
Whether the applicants are in law not non-suited by reason of
applicants' failure to join necessary parties in the nature of
persons reflected in Annexure "KS1" to the Opposing
Affidavit whose decisions applicants seek to have nullified,
Whether failure by 2nd applicant to file a resolution of 1st
applicant to bring these proceedings is not fatal.
Whether regard being had to the material disputes of fact raised in
this application, this Honourable Court is not entitled to dismiss
this application, more so where no application to
the matter to oral evidence has been sought, but a common sense
robust approach urged for by applicants.
Whether of conference once convened, can in law be postponed
otherwise than by its own resolution so to do."
in his well-prepared heads of argument made his submissions to which
Mr Mdluli for applicants responded. At the end of the addresses and
after due reflection thereon, 1 made an ex tempore decision on these
points and indicated that fuller reasons would follow in my main
judgment. These now follow.
point in limine raises an issue of joinder. Our Rule 10 (3) of the
High Court Rules (1980) reads:-
defendants may be sued in one action either jointly, jointly and
severally, separately or in the alternative whenever the question
arising between them or any of them and the plaintiff or any of the
plaintiffs depends upon the determination of
the same question of law or fact which, if such defendants were sued
separately, would arise in each action. "
ultimate test in this inquiry is whether the parties sought to be
joined (some 365 delegates) have a "direct and substantial"
interest in the matter, that is a legal interest in the subject -
matter of the litigation which may be affected prejudicially by the
judgment of the court - Henri Viljoen (Pty) Ltd vs Awerbuch Bros.
-1953 (2) SA 151 at 168-70 - See Erasmus - Superior Court Practice -
Bl-94 - footnote 3; Herbstein and Van Winsen - Civil Practice of the
Supreme Court of South Africa - 4th Edition page 172-177; Amalgamated
Engineering Union vs Minister of Labour - 1949 (3) SA 637; Harding vs
Basson - 1995 (4) SA 498 where van Reenen AJ had this to say:-
supreme court will exercise its discretion to order joinder of a
party, inter alia, to ensure that all persons interested in the
subject-matters of the dispute and whose rights may be affected by
the judgment of the court are before it to avoid a multiplicity of
actions and to avoid a waste of costs."
view the persons listed in "KS1" are party delegates
originating from sub-branch structures of the party and indeed are
representatives of the party's rank and file. The interest they have
is in my view political rather than legal and any order of court
cannot directly affect or prejudice that interest. They are not in my
view necessary parties. Dunlop SA Ltd vs Metal and Allied Workers
Union -1985 (1) SA 175 at 189 where it
that in an application by an employer to have a strike declared
unlawful, it was not necessary to join all the striking employees. To
join the 365 delegates would necessitate the inclusion even of all
the party members who elected them as delegates at grass-root level.
In my view the 13 respondents (all members of the disputed National
Executive Committee) can effectively safeguard any party interests.
Moreover if joined as respondents, the record would be burdened
unnecessarily with some 365 answering affidavits all confirming what
has been stated in Sekoto's affidavit. In the case of Basutoland
Congress Party and others vs Director of Elections -1997-98 LLR 518
cited by Mr Mosito - it was clear that other political parties had
direct and substantial interest in the holding of general election
and had the right to the heard before the election could be
postponed. In the final analysis, the particular circumstances of the
case have to be considered in determining whether the party sought to
be joined has a direct and substantial interest, and therefore a
necessary party. This point in limine is dismissed.
second point in limine, Mr Mosito submitted that the failure by 2nd
applicant to file a resolution of 1st applicant to bring these
proceedings is fatal. In these proceedings the 2nd applicant is a
voluntary association which has locus standi to institute legal
proceedings. (See Rule 13 (2) of the High Court Rules 1980 which
A partnership, a firm or association may sue or be sued in its own
and can act through its executive organs, namely the Annual General
Conference and the National Executive Committee (NEC) upon whom are
vested powers and functions as defined in its constitution.
Ordinarily, the NEC has power to make resolution to institute or
defend legal proceedings on behalf of the BCP.
founding affidavit Lebenya Chakela states:-
am the Deputy Secretary General of the applicant herein and I am duly
authorized and empowered by the National Executive Committee of the
Basutoland Congress Party at its sitting of the 13th February 2001 to
represent the Applicants herein, depose to necessary affidavits and
to secure affidavits and/or other testimonies from persons who may
positively swear to facts and events pertaining to this application.
response to this ex facie assertion of authorization, the answering
affidavit of Khachane Sekoto does not controvert this paragraph
issuably. In his paragraph 3 he merely says "the Applicants have
not filed a resolution authorizing the institution of these
proceedings" and in his para 8 he goes on to say "Deponent
cannot therefore truthfully say he is the Deputy Secretary General.
He is not." He questions the official status of
Chakela and says nothing about the resolution of the NEC. In my view
the respondents have failed to show that the institution of these
proceedings was not properly authorised - Bus Owners Association vs
Dharumpal - 1952 (3) SA 442 where Shaw J had this to say:-
officers of an association or a company or corporation,
persuant to resolution, are to be regarded as agents.....
necessarily interposed because a corporation (association) cannot act
in its own person or without the interposition of human agency. The
officers of an association, company or corporation do not, therefore,
act on behalf of a principal capable, without human assistance, of
went on to say at 445-C
my view there is no duty cast upon the Registrar to examine or
investigate the authority of the officers who sign a power of
attorney to sue on behalf of such a body."
view, the approach of Watermeyer J in Mall (Cape) (Pty) Ltd vs Merino
-Ko-operasie Bpk - 1957 (2) SA 347 is to be commented. It was there
held that where an artificial person, such as a company, commences
notice of motion proceedings some evidence must be placed before the
court that the applicant has duly resolved to institute the
proceedings and that the proceedings are instituted at its instance.
Though the best evidence that the proceedings have been properly
authorized would be provided by an affidavit made by an official of
a copy of the resolution, such form of proof is not necessary in
every case. Each case must be considered on its own merits and the
court must decide whether enough has been placed before it to warrant
the conclusion that it is the applicant which is litigating and not
some unauthorized person on its behalf; and where the respondent has
proffered no evidence at all to suggest that the applicant is not
properly before court, minimum of evidence will be required from
applicant - Thelma Court Flats (Pty) Ltd vs McSwigin -1954 (3) SA 457
at 460 A; SWA National Union vs Tjozongoro and others-1985 (1) SA 376
view, Gaunttlett JA. appositely put it when he stated:-
depends on what a respondents' own answer to the authority is. If it
is a bare denial, or otherwise not such as to cast particular doubt
upon the applicant's assertion of authority, a court will generally
not be inclined to uphold the defence that the defence is not proven.
It all depends on the affidavits as a whole" -Wing On Garments
(Pty) Ltd vs LNDC 1999-2000 - LLR 72 at 74."
point in limine is dismissed.
third point in limine, Mr Mosito submits that the application is so
bristling with material disputes of fact such that the court should
dismiss this application more so since the applicants' attorneys have
not filed any application to refer the disputed matters to oral
evidence but "have urged
1] for a
robust common sense approach."
behoves me to refer to Rule 8 (14) our High Court Rules 1980. It
in the opinion of the court the application cannot properly be
decided on affidavit the court may dismiss the application or may
make such order as to it seems appropriate with a view to ensuring a
just and expeditious decision. In particular, but without limiting
its discretion, the court may direct that oral evidence be heard on
specified issues with a view to resolving any dispute of fact and to
that end may order any deponent to appear personally or grant leave
for him or any other person to be subpoenaed to appear to be examined
and cross-examined as a witness, or it may order that the matter be
converted into a trial with appropriate directions as to pleadings or
definition of issue, or otherwise as the court may deem fit."
should be contrasted with Rule 6 (2) (g) of South African Uniform
Rules of Court (promulgated in January 1965) which reads as follows:-
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to it seems meet with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the aforegoing, it may direct
that oral evidence be heard on specified issues with view to
resolving any dispute of fact and to that end may order any deponent
to appear personally or grant leave for him or any other
be subpoenaed to appear and be examined and cross-examined as a
witness or it may refer the matter to trial with appropriate
directions as to pleadings or definition or issues, or otherwise."
view in Lesotho much more discretion is bestowed upon our court by
Rule 8 (14) and proper meaning and emphasis need to be placed upon
the words I have underlined. The discretion is much wider than that
apparent from the South African Rule 6 (2) (g); that the applicants
have not made a formal application "for referral to oral
evidence" - in fact Mr Mdluli for the applicant insists the
matters allegedly in dispute are peripheral and imaginary - does not
deprive the court of its discretion to direct that oral evidence be
heard on specified issues with a view to resolving any dispute of
fact, for example what events precipitated the withdrawal of Mr
Makhakhe's NEC and delegates from the Co-op College Hall on the 27th
January 2001. It can be noted here that my Brother Ramodibedi J. also
directed oral evidence to be heard on specified issues in Makhakhe vs
Qhobela - CIV/APN/205/99 (dated 6th July 1999) when dealing with
almost similar prayers.
read through the affidavits of the applicants and of the respondents,
the necessary information on these matters cannot in my view be
sufficiently gleaned from the papers. In exercise of my discretion I
therefore directed oral evidence to be heard on issues hereunder
had convened the Annual General Conference of the Basutoland Congress
Party on the 26-27th January 2001 at Cooperatives College Hall?
there exist any "parallel" National Executive Committee of
the BCP after the judgment of Ramodibedi J. CIV/APN/205/99 delivered
on 6th July 1999?
the persons listed in "KSI" have LM8 credentials on the
26th January 2001?
the agenda of the Conference include the election of a New NEC and
amendments of the Constitution?
the entry into the college grounds and hall by the persons
KSI peaceful or vi et armis?
the conference of Applicants proceed outside the hall on the 27th
there any official opening postponement of the Annual General
Conference on that day?
view viva voce evidence on these issues seemed appropriate towards
ensuring a just and expeditious decision. In any event I do not think
that when applicants launched their application they foresaw that any
serious dispute of fact would arise - Nkhabu vs Minister of Interior
1993-94 LLR 486. In exercise of my discretion, I therefore directed
that applicants and respondents call each a witness to relate to the
events of the 27th January and to respond to issues specified. I also
ordered that police officers who were on duty at Co-op College
grounds be called to testify about the events of the 27th January
2001.1 refer to their evidence below.
regards the fourth point in limine I decline to decide it at this
stage because it will fall for final determination at the end of the
day when final submissions are duly made and a final decision is to
be made by the court.
these proceedings before judgment it came to the notice of the court
that the affidavit of Hape Tsakatsi and what it contained had not
been fully addressed. Paragraph three of this Affidavit raised a
fundamental issue that the first applicant did not possess the
necessary locus standi (under the party constitution or under common
law) to espouse the claim of the office-bearers of the January 2000
NEC consisting of the following:-
Makhakhe Sekoala Toloane Thulo Mahlakeng Ntja Nchochoba Sekoala
Macheli Lebenya Chakela Molomo Malebanye Jack Mopeli Moeketsi
Tsatsanyane Jeremane Ramathebane Nkareng Masike Qoane Pitso Macheli
It is not
in dispute that the replying affidavit of Mr Lebenya Chakela did not
issuably address this point perhaps this being due to inadvertence on
the part of new attorneys of record. Mr Mdluli for the applicant had
no plausible explanation for this save to say that his own record did
not contain the affidavits of Lerata Lerata and Hape Tsakatsi date -
stamped by the Registrar of this Court on the 2nd April 2001 even
though they appear as having been received by the then applicant's
attorney, Mr Matooane. This court however took these affidavits as
part of the record. It was imperative that that the points raised in
limine by Tsakatsi's affidavit should be considered by the court; the
point of locus standi of the BCP NEC (January 2000) is an issue very
fundamental to this case.
therefore duly requested counsel to address it on this issue. The
court could not accede to Mr Mdluli's application to reply to this
affidavit because (a) the applicants' attorneys had ex facie received
these affidavits and they had either inadvertently or negligently
failed to respond to them timeously when Mr Chakela filed his
replying affidavit and (b) the issue raised in Mr Tsakatsi's
affidavit was purely and essentially one of law.
also be here noted that Mr Mosito had previously addressed this issue
in his argument before court and had referred the court to the case
of Ntombela vs Shibe- 1949 (3) SA 586; Lewin- Law of Meetings -page
195; Bamford, The Law of Partnership and Voluntary Association-
Mosito- upon request of the court later again traversed the issue
once more stressing that the NEC of the BCP has no authority or locus
standi under the constitution of the BCP to espouse the claim of the
NEC office bearers in any case when those personal rights are
assailed or usurped by other people. He cited Lewin (supra) where the
learned authur at page 195 says.
person is elected to an office under the constitution of a voluntary
association like a church or a club, his right to the office is a
personal one, and if someone wrongfully usurps the office, the
the holder to claim a declaration that he is entitled to hold the
office is a personal one against the usurper, and he must sue an
individual, not in his capacity as an office-bearer of, and as such
representing, the voluntary association. Where the declaration in
such an action shows that the defendants acting in concert have
deprived the plaintiffs personally of the offices they each hold,
from which they derive the right, acting jointly to regulate the
affairs of the association, action can properly be brought by
plaintiff jointly against the defendants jointly. "
case of Ntombela (supra) Hathorn J had this to say:-
my view, if a person is elected to an office under the constitution
of a voluntary association like a church or club, his right to the
office is a personal one and, if someone wrongfully usurps the office
and prevents the holder of it from performing his functions, the
right of the holder a personal one against the usurper, and he must
sue as an individual. Similarly, where there are a number of duly
elected officers who in combination have the right to conduct the
affairs of the association, then, if their offices are usurped by
other individuals who wrongfully claim to hold the offices and
wrongfully conduct the affairs of the association, the rights which
have been infringed are personal rights, and legal proceedings are
properly taken by the persons concerned, as individuals. "
probably the legal position in the South African common law. The
South African authorities either as decided cases or works of jurists
are of persuasive import and may - not should - be applied in Lesotho
in determining appropriate cases. Circumstances and practice in
Lesotho should also be taken into account.
constitution of the BCP today is a document which has been operating
since 1969 (Reg. 10/69). In the original document - and I dare say
even today - the drafters seem not to have envisaged institution of
legal proceedings by the party. We have therefore to refer to the
Societies Act 1966 and the Rule 13 of the High Court Rules, which
vest the power or right to sue upon a voluntary association. This
power or right derives from the common law principle that an
association which possesses universitas personarum can sue in its own
name in order to fulfil its objects and protect its interests. See
Bantu Callies Club (Aka Pretoria Callies Football Club) vs Motlhamme
1978 (4) SA p. 486; Morrison vs Standard Building Society - 1932 AD
constitution of the BCP however does not contain a clause on how the
party can institute legal proceedings. It stands to reason that the
National Executive Committee properly constituted does not derive
from this constitution any power to institute legal proceedings sua
nomine. But logical inference indicates that if an association can
under law sue or be sued, the National Executive Committee as the
high executive organ elected by the popular annual conference of the
party is the only organ or entity in the party structure which can
protect the interests of the party in the interim pending the holding
of the party conference. If say, BCP is sued by a third party, I do
not think it is mandatory that the institution of legal proceedings
should await the sanction and resolution of the national party
conference. The constitution of an association must be interpreted
and purposively in order not to defeat the functioning and objects of
the voluntary association. Default judgments would be ordered against
the party ad infinitum for undefended matters and injustice would
occur. I therefore hold that the National Executive Committee of the
BCP - de fact or de jure - can institute legal proceedings on behalf
of the party.
question pertinent is whether the NEC can espouse the rights of its
office bearers - personal as they may be - without these bearers
being cited as necessary parties. Here one must distinguish
situations as where, take for example, a treasurer of the NEC is, say
defamed as being a thief - certainly the NEC has no right to espouse
such an action; where, however the NEC as a collective entity is
sought to be usurped or ousted, it can legitimately defend its
position. Instances of cases where the constitutionality or
legitimacy of the Committee is being challenged, come to mind; or
where the BCP is being sued upon a breach of contract, the NEC can
defend such contractual claim in court proceedings. Practice and
convenience demands however that in all cases where the office
bearers are sought to be usurped or ousted, they should be cited in
their personal capacities - this being necessary because any judgment
which the court may make will prejudice their rights as
they have not been cited as co-applicants in these proceedings, it is
important to refer to the affidavit of Lebenya Chakela. It reads at
first applicant is the current National Executive Committee of the
Basutoland Congress Party which was elected in January 2000 and duly
registered with the Registrar of Societies. I annex hereunto a
certificate from the record of the Registrar of Societies reflecting
the Committee and I mark it "AA ". "
question is : despite being cited in "AA" as office bearers
of the NEC as they before this court. I think they are not. They have
merely been referred to in this paragraph. It would be wrong for this
court to assume this without their intervention or substitution. Mr
Mdluli's argument is that the rights being assailed or usurped are
not personal but collective in the sense that it is the authority of
the whole NEC that is being challenged or impugned. This impels us to
reconsider the substance of the relief claimed in the notice of
motion and the allegations in the affidavit of Chakela that the first
applicant on 13th the January 2001 NEC resolved that the present
proceedings be instituted upon the basis that the respondents were
usurping their functions as an NEC on the morning of 27th January
2001 at Co-op College Hall by taking over -and they say with impunity
- the convening of the party annual conference. The sequence of
events at Co-op College Hall was therefore investigated fully
court. Issues of credibility came into play. Who convened the party
Conference at Co-op College for the 27th January 2001. Was it the
respondents? Facts - admitted - indicate that the January 2001
conference was not convened by the respondents but by the first
applicant. If the first applicant ignomiously deserted the conference
on that day, what does the Party Constitution say? If this
constitution is silent about this - it has no rules or regulations,
obviously one has to look at the common law. In the conduct of any
meeting, there must be chairman and a proper quorum of credentialed
delegates. Now at the conference that commenced after the exit of Mr
Makhakhe and his people, who remained? Were there any credentialed
delegates present to constitute themselves into a conference or a
constitutional meeting? Was the conference at Co-op College ever
officially opened amidst the confusion that then prevailed? Did the
respondents have the right to continue with the conference that was
on the brink of collapse?
are sadly important questions that have to be answered in an inquiry
whether the authority of this NEC was usurped or assailed. One is
left to ponder and what would have happened if Mr Makhakhe and his
followers did not leave the hall? Would a vote of no confidence been
proceeded on? Would a stick fight have ensured? It all leaves me
cold. The constitution of the BCP is very silent.
ensued is that two "Conferences" proceeded simultaneously
but with different agendas. The question again is which was a proper
agenda? What should have been done when the convened Conference
seemed to be aborting? If there were genuine grievances against the
then NEC these could have been ventilated within the conference once
officially opened. Unfortunately, the court is told that the
respondents and their followers were being excluded from the
Conference on the sole ground that they were not or no longer
recognized members of the BCP. I recognize the their prevailing
predicament. My Brother Maqutu J. in CTV/APN/340/00 had recently
advised that the membership issue be ventilated at the very oncoming
conference. This issue of membership, had - for reasons best known to
the court not been placed on the agenda at the Co-op College Hall
Conference on the 27th January 2001.
empathise with my Brother Maqutu J. when so recommended. He was
indeed genuine and said so with utmost sincerity. This was however
not heeded by the incumbent NEC who proceed to the January 2000 and
elected a new NEC which now excluded Mr Qhobela as leader. My views
about this later.
will come later in this judgment, I have, after due consideration of
all the facts as alleged upon affidavit and from viva voce evidence,
found that on the morning of the 27th January 2001, the January 2000
NEC was jettisoned under the circumstances to be addressed.
present application for intervention, the court must of necessity be
fully conscious of its paramount duty to bring a just and expeditious
decision to this matter. It seems it is the law that any person who
can allege prove a direct and substantial interest in the judgment
which the court might make, can intervene with the leave of court in
any proceedings before judgment is delivered. To a lay man it may
sound absurd that a person without "kobo-ea-bohali" may
unceremoniously intervene in proceedings in which he was not
originality cited. But under law, the court has a very wide
discretion in matters of intervention. The court seeks to avoid a
situation where there can occur multiplication of proceedings in the
sense that res judicata does not come about, and to avoid wastage of
costs and ultimately to obviate an occurrence of abuse of court
process in which substantially the same issues of fact and law are
again traversed. There must, as a matter of public policy, be a
finality to legal proceedings, because this will prevent self help
I have a
discretion to exercise judicially at this stage of the proceedings. I
have to bear in mind that the court should not exclude from the
proceedings parties whose rights or interests the ultimate judgment
may affect. All that needs to be established is a right prima facie
which may be prejudiced. If the intervening applicants are not
granted leave to intervene, they have all the right to institute in
their own capacity afresh application before this court and to again
traverse the long track we have hithertofore convered.
intervention by the office-bearers of the NEC can only be by leave
granted by this court. This application was made Mr Mdluli at the
very late stage of proceedings - but which is derived from Rule 12 of
our High Court Rules. What has to be considered is whether the
provisions of this Rule have been complied with i.e. whether it is an
irregular process which must be struck out.
decided case of Minister of Local Government vs Siswe 1991 (1) SA 677
states that intervention is a procedure that imports natural justice
in that it requires and permits the affected party to be heard - audi
alterant partem The non-inclusion of a part who has a direct and
substantial interest can violate this natural law principle.
inquiry the court must be satisfied upon the papers that there exists
a prima facie case that applicants seeking to intervene have a direct
and substantial interest in the subject matter of these proceedings
which may be prejudiced by an order or judgment of the court.
then decided to withdraw his answering affidavit in the intervention
proceedings and confined himself to certain points of law. He firstly
submitted that BCP had not been joined as a party in the intervention
application. The heading of the intervention application cites "The
National Executive Committee and One". The BCP had been cited as
the second applicant in the main application and it is only
that "one" referred to "The Basutoland Congress
Party." I don't think that it is proper to say that BCP has not
been cited though inelegantly. The application interlocutory as it is
seems to have been hurriedly and inelegantly prepared and, as we have
it, only Mr Makhakhe has filed a founding affidavit stating that
avoidance of unnecessary repetition I have been authorized and
empowered to make this affidavit on my behalf and on behalf of the
intervening applicants herein. "
clear that the other 12 applicants have not filed any supporting
affidavits confirming this authorization. The present application to
intervene is however incidental and interlocutory to the proceedings
before the Court and Rule 8 (21) states that-
anything to the contrary contained in this Rule, interlocutory and
other applications incidental to pending proceedings may be brought
on notice accompanied by such affidavits as may be required ..."
been held that an interlocutory or incidental matter can be decided
without affidavits if such is an appropriate course especially to
conserve costs - Selepe vs Santain Insurance Co. Ltd 1977 (2) SA
1025; Chelsea Estates & Contractors vs Speed-o-Rama 1993 (1) SA
Mullins J. said
is no doubt that this is an interlocutory application. Furthermore in
many interlocutory applications there is no need to file affidavits.
I also do
not think that notice in terms of Rule 12 certainly needed to be
supported by an affidavit. All that the Rule requires is that the
application must be on notice to all parties. Nor does Rule 12
provide for any form of reply. Respondents were quite entitled to
give notice of intention to oppose the application for intervention.
But in considering this application the court must have regard only
to the pleadings already filed and cannot consider any fresh matter
introduced by way of evidence on affidavit or in any other manner -
Viljoen vs Federated Trust Ltd - 1971 (1) SA 750.
view all that is necessary under our Rule 12 application is to give
notice that the applicants wish to be granted leave to intervene in
the proceedings before judgment. If perhaps, this was a principal or
originating application perhaps, and the other applicants were
excluded the position could be different Selikane. I hold therefore
that applicants 2nd to 13th applicant are not non-suited in that they
have not filed supporting affidavits; their affidavits in the first
were not necessary in lodging an intervention application.
nothing about prayer 3 which seeks to stay these proceedings because
it was later withdrawn by Mr Mdluli. It was unwarranted as well as
then argued that Rule 12 had not been complied with in that no proper
notice was given to the respondent. In the absence of express
stipulation of time period under Rule 12, notice should mean a
"formal intimation or warning" actually delivered
(Vengetsamy vs Scheepers-1946 NPD 84.) Interlocutory and other
applications incidental to pending proceedings are not intended to be
brought by way of formal notice of motion in the same way as
applications initiating proceedings -Yorkshire Insurance Co. Ltd vs
Reuben - 1967 (2) SA 265 where it was held that "notice"
under Rule 12 does not mean "on notice of motion" ... "all
that is required is a notice advising the other party that an
application will be brought." In these proceedings the notice
was by all means made at very short notice but it cannot be struck
out as an irregular process.
lastly brought it to the notice of the court that in the notice of
motion Mr Phoofolo's address had been cited as that of the
instructing attorney. It was not signed by him, though, but by Mr
Mdluli who endeavoured to explain that he had chosen to adopt Mr
Phoofolo's address merely for convenience for receipt of process. Mr
Phoofolo had previously been counsel for the respondents some time in
2000 and had
certain correspondence to applicants over the membership issue.
Conflict of interest would arise if he had actually signed the notice
of motion; he has not; conflict therefore does not arise. I take this
matter as being non-consequential.
of intervention, the court has a very wide discretion under common
law - Hertz vs Empire Auctioneers and Estate Agents -1962 (1) SA 558,
provided that the intervening party can establish a prima facie legal
interest which is direct and substantial. See also Sheshe vs
Vereeniging Municipality 1951 (3) SA 661.
any technical or procedural grounds in this case the applicants
seeking to intervene are not granted leave to intervene in this case,
any order which this court would give would be a brutum fulmen
because they would not be bound by that judgment and they might
resist it without being in contempt. Amalgamated Engineering Union vs
Minister of Labour 1949 (3) SA 637 at 660; and, as I have already,
stated they have all the personal right to initiate proceedings
against respondents upon similar facts and law.
considered this application for intervention I have come to the
decision that even though they filed no supporting affidavits in
their own behalf, the applicants are not non-suited on that account
because the filing of affidavits was in fact and in law not
necessary. I also find that from the
and viva voce evidence adduced before this court, the applicants as
office-bearers of the January 2000 NEC have a direct and substantial
interest in the proceedings before the court. I accordingly exercise
my discretion in favour of granting leave that the thirteen
applicants intervene as co-applicants in these proceedings.
As I have
already stated, I granted leave that police officers None and Lenka
be warned to appear to be examined and cross examined as witnesses.
These officers gave their evidence under oath; other witnesses, as we
shall see presently, also gave evidence under oath. They disagree on
certain material issues e.g. forcible entry through the gates and
into the hall. Certainly, then someone is telling the truth, and
another not. I have to weigh each testimony against certain proven
facts and ascertain the probabilities and improbabilities.
Thamae Lenka, the Officer Commanding -Central Charge Office - and a
holder of an LLB degree - gave evidence on oath about the events at
the Co-op College grounds on the 27th January 2001. He informed the
court that a permit had been secured by Basutoland Congress Party to
hold its Annual General Conference at the Co-op College Hall. He did
not know who had personally made the application. He says that upon
his arrival he found many people already inside the fence; then one
Jack Mopeli approached him and reported that though the conference
was theirs, some intruders were also on the grounds and were
at the hall entrance. He asked Mopeli "Are those the people not
supposed to be on the grounds?" He replied "Others are
not." He says he again asked Mopeli "How are we supposed to
identify the intruders? Do you have any court order singling out the
people who are not supposed to be there?" Mopeli: "No man,
it is well known because the courts have long declared on this!"
Lenka: "I do not see any copy of what you are talking about. Do
you have a list of persons you wish me to remove?" Mopeli:-"No"
says he did not ask him to produce the list of his own people
accredited to the conference. The crowd at the grounds were
intermingling, singing aloud wearing their party coloured garments
-black, green and red. He says he could see that Mopeli was losing
patience at his inaction but the latter was failing to identify
people he wished ousted.
11am the Conference (scheduled to begin at 10 am) had not started and
he decided to refer the problem to the Assistant Commissioner of
Police (ACP) None at the Central Charge Office and Mr Tšeliso
Makhakhe, Mr Sekoala Toloane, and Mr Mahlakeng were asked by him to
go and see Mr None.
when he knocked off duty at 1 pm, the problem had not been solved.
cross examination by Mr Mdluli, for the applicants, he admitted that
when he arrived at the College grounds, things seemed not to be going
well. Mopeli had explained that he was the party secretary and had
been granted permit for the BCP Annual Conference; he agreed that it
could not be possible that two permits had been granted to the two
groups for the same venue and time; he explained that under the
Meetings and Proceedings Act No.2 of 1992 police had power to vary
time or venue of the meetings - probably to avoid possible clashes of
the congregants. While it was being insisted by Mr Makhakhe and
Mopeli that the intruders be evicted, it was clear that Lenka did not
take action because he did not know who to take out. Mopeli and his
people were losing their patience ultimately causing Mr Mahlakeng to
call the police ("Manashenale")
maintained this stance even when Mr Mosito was cross examining him
and explained that no people confronted or fought each other. He
denied that the NEC of the BCP ever requested that the hall be
evacuated in order that Credentials Committee could do its job; it
was unfair to say that the police were playing delaying tactics:
"what interest would we have?" he asked. If they had been
given list they had requested, Lenka states he could have acted right
away; but he had neither been shown a court order or a list of
called was the Assistant Commissioner of Police Haretsebe None who
confirmed that a permit had been granted to the Basutoland Congress
Party for the holding of its Annual Conference at Co-op College on
the 27th January 2001 possibly by the Senior Superintendent Mahao of
the Central Charge Office.
the Court that on the 27th January 2001 Mr Tšeliso Makhakhe
and his committee arrived at the Charge Office and complained that
his police at college grounds were not doing their job properly in
failing to evict the intruders. He told them that to facilitate the
police in their job they ought to have provided the police with a
list of persons entitled and those not so entitled to attend the
conference. Failing to provide the list made the police job harder
because they could not by themselves identify those who were
complained that the police were refusing to tell everyone to leave
the hall and college grounds. The ACP None says he then requested
that Mr Makhakhe - being the leader- should speak to the people who
would listen to him more favourably than they would heed the police.
He advised Mr Makhakhe that any confrontation or intervention by the
police would lead to a chaos possibly resulting in bloodshed.
Assistant Commissioner of Police says he did not accompany Mr
Makhakhe and his encourage back to Coop College at 12 noon when they
he then radioed Senior Inspector Letuka warning him to expect Mr
Makhakhe who was coming to speak to the people in the hall asking
them to vacate. He said Letuka later radioed back to say the hall
occupants had ignored Mr Makhakhe's plea and were carrying on their
business without incident.
says Mr Makhakhe did not come back to him again that day; we know now
that a complaint was made to the Commissioner of Police a week later
after the conference.
cross examination by Mr Mdluli, ACP None maintained the stance that
if a list had been produced, this would have assisted the police in
evicting those who were not entitled to be at the Conference that
cross examination by Mr Mosito, ACP None refuted the allegation that
he had promised that the police contingent would be reinforced if the
people refused to heed Mr Makhakhe's plea; it was not the role of the
police to evict people from the Coop College hall because there was a
permit for the BCP Conference; the rightful delegates could have
easily been listed and the rest "flushed out". On that day
and occasion, no list was forthcoming; the applicants expected the
police to do work which they had to do themselves. In fact under the
party constitution Article 14.8 empowers the chairman of conference
to "expel" members of the public (who are not members of
the party) who cause trouble at conferences.
called was Senior Inspector Mpatloa Letuka - a police officer of 14
years service, two years as a senior inspector. He informed the court
that he arrived at the Coop College Hall at 12 noon taking over from
Superintendent Lenka. He found people mingling and singing. He says
he was then approached by Mr Tšeliso Makhakhe, Mr Sekoala
Toloane and other party officials and they told him that the time for
the opening of the Conference had arrived and asked him to tell the
people occupying the hall to go out "so that the Conference
could begin". They told him that the people who were then
occupying the hall did not belong to their Conference.
cellphoned Assistant Commissioner of Police None at the Central
Charge Office and briefed him about the situation. ACP None then
informed him that Mr Makhakhe and his people had already been to see
him at the Charge Office. Assistant Commissioner of Police None then
instructed him not to intervene in the conference by way of removing
any persons from the hall or grounds unless they were disorderly. He
instructed him to enter the College Hall and listen to what Mr
Makhakhe would be saying to the hall occupants. On entering the hall,
he spotted Mr Makhakhe standing conspicuously in the hall and was
holding a portable loudspeaker and was requesting everyone should go
out so that the annual conference could begin. He was speaking quite
audibly and was repeating this announcement several times; he was
however ignored and people did not go out and remained seated.
he then saw Mr Makhakhe and his people going out of the hall and
ultimately going out through the college gates; they then returned
and gathered under a tree where several announcements were made, one
of which was that the conference was now to be held outside under the
tree because there were problems with the hall; he invited people to
come nearer so that business could begin. As he waited there he
received a report that people were throwing guns over the college
security fence. He went to check, but found nothing to substantiate
view the people in the hall continued with their business just as Mr
Makhakhe did with his people under the tree; he also states that
there occurred no physical confrontation between the two groups.
stage he says some LDF patrol unit arrived at the college just to
check that there was peace and order at the Co-op College.
on to say that at one stage that afternoon the hall occupants then
came out singing; they passed by Mr Makhakhe's people and then went
back into the hall. All were beaming with happiness. There was no
friction at all. At about 5.30 the meeting under the tree was told by
its leaders that its business was at end and they could disperse.
Mr Sekoala Toloane then approached him saying he wished to lock the
hall doors because the conference was over; when Letuka brought
it to his
attention that there were people inside the hall, Mr Toloane answered
"The hall has been booked by us and were liable to all charges
and we do not wish to incur further expenses."
of hall keys even reached the college management who expressed
surprise that their hall was being occupied by people who had not
obtained permission or hired the said hall. Letuka says he told Mr
Toloane that he could not forcibly grab the keys from whomsoever had
them. Letuka then says the hall occupants then came out and went
through the gates and one of them then informed him that they were
going to camp at Sefika Hall for the night.
cross examination by Mr Mdluli, Letuka stated that he was not aware
of any factions within the BCP; he had learned that the annual
conference had been organised by the BCP and stressed that he could
not remove anyone from that place unless they were violating the law.
It was not his role to remove any people because the conduct of the
conference was not his business.
that he ever intervened between an warring groups at anytime.
Mosito's questions, he stated that he came following Mr Makhakhe and
did not hear his opening statements in the hall. It was put to him
that Mr Makhakhe came into the hall with Jack Mopeli and others
Jack Mopeli loudly announced "Leader is about to speak" and
the people fell silent.
I was not in the hall yet
: After he had spoken, Mr Makhakhe then left the hall Followed by
I heard him invite all people to leave the hall so that the
conference could start afresh
that under the tree Mr Makhakhe and Mr Mahlakeng both addressed their
people, and the meeting progressed though he could not hear to tell
what was being discussed by the attendants.
put directly by Mr Mosito that since Mr Makhakhe's order or request
was quite unlawful, the hall occupants were not expected to obey such
order or request. Letuka then replied "It depends upon their
evidence of these three police officers several points can be
on the 27th January 2001 there was an annual conference convened by
BCP and that a permit had been obtained therefor.
there were two groups of congregants on the college grounds
the hall was occupied for the whole of that day by people other than
Mr Makhakhe's, who, it is accepted, had obtained a permit and hired
the college hall.
supplications to the police by Mr Makhakhe to have those people
evicted were not fruitful - police all the while demanding lists of
people to be evicted or a list of the accredited delegates.
Assistant Commissioner of Police None's intervention led to Mr
Makhakhe's entry into the hall where he asked the occupants to leave
the hall so that screening could be done before the conference could
some of hall occupants just ignored Mr Makhakhe and, so it
continued with the business of their meeting.
Makhakhe and his followers then convened their conference and
conducted business of the day under a tree but outside the College
was no satisfactory evidence that there occurred any physical
confrontation between the two groups.
Whether forcible or not, it was clear that other people occupied the
college hall originally booked by the Makhakhe's NEC who were made to
conduct their business outdoors while the occupiers conducted their
business in the hall.
come to the evidence of Mr Mahlakeng who happens to be an attorney
admitted and practising before this Court since 1984; he is also the
Chairman in the National Executive Committee of the Basutoland
Congress Party having been elected at the Conference of January 2000.
He has previously been the president of the BCP Youth League.
could give evidence, Mr Mosito rose to submit that they object to Mr
Mahlakeng giving evidence because somewhere in the court papers he
had signed some Court process e.g. notice of set down as attorney of
record. Even though Mr Mdluli later filed proper process, some
comment needs to be made about this issue to remove all doubt.
law an attorney or counsel acting for a party is not an incompetent
witness but it is undesirable that he should give evidence on
which is a matter of controversy since this might indicate a degree
of partisanship incompatible with his duty to the court - see Caccia
vs Muller 1929 CPP 77; Middleder vs Zipper No. 1947 (1) SA 545;
Hendricks vs Davidoff 1955 (2) SA 369; Elgin Engineering vs Hillview
Motor Transport 1961 (4) SA 450; Hoffman & Zeffertt -The South
African Law of Evidence 4th ed - p 378.
case Mr Mahlakeng is the holder of the portfolio of Chairman of the
National Executive Committee (first applicant) of the Basutoland
Congress Party (2nd Applicant). The rationale behind the caution as
stated in the abovequoted cases is that an attorney duly admitted is
principally an officer of the Court to which he owes a sacred
professional duty to be truthful and candid at all times; as a
litigant who gives evidence before the court, such an the attorney
risks violating that sacred duty in an attempt to motivate his case.
I think no more needs to be said, except to say that Mr Mahlakeng was
competent witness in this matter bearing what has been said above in
evidence, Mr Mahlakeng told the court that he had been elected as
Chairman of the National Executive Committee (NEC) of the Basutoland
Congress Party at the Annual General Conference held at Sefika Hall
in Maseru on the 24th April 1999. This April conference was the
continuation of the annual conference of an earlier one held in
January 1999 at Sefika Hall had not it completed its business on the
agent. He told
that at the April Conference 1999 certain amendments were made to the
party constitution, the most important of which were amendments
increasing the tenure of office of the NEC from one year to two, and
one reducing the tenure of office of leader of the party from five
years to two. He explained that the purpose and rationale behind
these amendments were first to render the leadership more accountable
to the conference on a more frequent footing and to give the elected
NECs more time to implement the party policies. It is common cause
that a National Executive Committee (predecessor to the present first
applicant) was elected after these amendments to the constitution
the court that, despite the amendments, the NEC elections were again
held in January 2000 because - so it seems - the amendments were only
belatedly registered at the Law Office on the 14th December 1999.I
may interpose here to note that even after the election the NEC in
April 1999 Mr Molapo Qhobela was still recognised as the then current
leader of the Basutoland Congress Party having been previously
elected leader of the BCP in 1997 or 1998 for five years..
that at the January 2000 conference Mr Tseliso Makhakhe was elected
leader of the Party with Mr Sekoala Toloane as his deputy; Mr
Mahlakeng as Chairman and Mr Nchochoba as his deputy; Mr Sekoala
Macheli as Secretary General and Mr Lebenya Chakela as his deputy; Mr
Molomo Malebanye as Treasurer; Mr Jack Mopeli as Publicity Secretary
deputy Mr Moeketsi Tsatsanyane. The following were ordinary members
Messrs: Macheli Macheli, Jeremane Ramathebane, Nkareng Masike, Tooane
Pitso. It is clear that Mr Molapo Qhobela was no longer the leader of
this NEC of January 2000. He had been displaced by Mr Tseliso
Mahlakeng states that it is this NEC which convened the January 2001
conference and according to him, there was no other NEC of the BCP.
He goes further to state that at the Sefika Hall on the 25th April
1999, another NEC was elected under the leadership of Mr Molapo
Qhobela but maintains that the High Court - per my Brother Ramodibedi
J in Tseliso Makhakhe and others vs Molapo Qhobela and others
-CIV/APN/205/99 - effectively nullified the election of the
respondents to the National Executive Committee of the BCP and
declared that the applicants were the lawfully elected and
constituted members of the National Executive Committee of the
Basutoland Congress Party. He states that even though the respondents
appealed against this decision of the High Court, the said appeal was
later withdrawn. This seems a matter of common cause.
explained the primary functions of the NEC in the BCP vis-a-viz the
holding of the annual conference: A annual calendar of events is put
in place; circulars are made to all constituencies; party structures
are invited to elect and submit the prospective delegates to the
and this exercise to be completed before the 30th November of the
the court that a permit had been secured from the police for the
holding of the Annual Conference at Cooperatives (Co-op) College hall
for the 26-27th January 2001.
that a party caucus had been held at the college hall on the night of
the 26th January 2001 and this proceeded without incident -except
that some people went to Mosikong-oa Thaba offices of the BCP during
that evening but that these were dispersed by the police who had been
alerted. He says that on 27th January 2001 the Annual General
Conference was due to kick off at 10 am at the Coop College Hall.
Upon arriving at 6 am at Co-op College he found a group of people at
the inner gate; on approaching he saw Mr Jack Mopeli and Mr Moeketsi
Tsatsanyane of the Credentials Committee inside the yard and were
attempting to prevent certain people from entering; amongst these
people was Mr Khotsang Moshoeshoe; he heard the latter shout "Don't
enter by force"- and that the group relented.
he heard one policeman who was then inside the yard call Mr Khachane
Sekoto to come into the yard and the two conferred for a few minutes.
It was at this juncture that one person called Roto pushed the gate
open and all others then streamed in. He described the police
ambivalent and prevaricating as "they seemed to be having their
own agenda" - and could not take a decisive action.
he then cellphoned his leaders Mr Makhakhe and Mr Toloane and briefed
them about the situation. He thereafter drove to Mr Toloane's house
and fetched him to the Coop College grounds. Upon arrival they found
Messrs Sekoala Macheli, Macheli Macheli, Qoane Pitso and they all
proceeded to the College hall. Upon entering they proceeded on to the
stage and observed that the hall was now being occupied by some of
the people whom he had seen entering through the gate. He explained
that the College hall keys had been given to them on the previous day
and the hall doors had not been locked that morning after the all
Mr Makhakhe then arrived and was briefed about the situation then
prevailing. They at once approached Superintendent Thamae Lenka -the
police officer - in charge at the grounds. He says they asked Mr
Lenka to order the people inside the hall to go out in order that the
conference could begin.
Mr Lenka told them that they should wait so that he could make an
informed decision and that he also was demanding a list or court
order of the people to be evicted. He says the situation was a bit
tense on that day such that - as he put it - a fight even later broke
out and one Motloheloa Monne was hit with a knob-kerne on the chest
group which came out of the hall.
Lenka then advised them to proceed to the Maseru Central Charge
Office and there to see Assistant Commissioner of Police (ACP) None.
At the Charge Office, the Assistant Commissioner of Police told them
that before the people in the hall could be evicted, Mr Makhakhe had
to go into the Coop College Hall and there address all present and
request them to leave the hall. He says Assistant Commissioner of
Police gave them the assurance that if the occupants did not comply,
the police contingent would be reinforced.
returned to the college grounds they found Senior Inspector Letuka
now in charge and they briefed him about their discussions with
Assistant Commissioner of Police None.
Senior Inspector Letuka then followed them into the hall where they
found Messrs Sekoto, Moshoeshoe, Thaanyane and others already on the
stage. He goes on to say that they went on to the stage and Mr
Makhakhe then loudly spoke using a loudspeaker requesting all the
people therein to leave the hall so that the Conference could begin
after proper screening of delegates had been done at the gates. He
says some people rose and went out some but people remained seated
and after Mr Makhakhe repeated his request, it was clear that they
were refusing to leave the hall.
Mahlakeng insisted that Mr Makhakhe never declared the Conference
open -that function belonging to the Chairman. Mr Mahlakeng contended
that it would be "nonsensical" for the leader to declare
the Conference open and then march out. He says any meeting that
proceeded inside after they had left the college hall was not a BCP
Annual Conference but a renegade one. He described it as a "circus".
they then complained to Letuka who told them that he was not going to
evict those people from the hall because there were no lists which he
could use. He says that after screening their own delegates, they
decided to hold their annual conference at another spot under a tree
in the forecourt of the College hall; he says that being Chairman of
the NEC he opened the conference and dealt with the agenda. He points
out that they did not elect any new National Executive Committee,
because the elections of a new NEC are only due in January 2002.
Mahlakeng maintains that what Mr Sekoto says in paragraph 5 of his
affidavit to the effect that they convened and constituted themselves
into a party conference is clearly unconstitutional because since
they were not delegates whose credentials had been approved by the
NEC they could not constitute themselves into an Annual Conference
which could elect a new National Executive Committee of the Party and
amend the Constitution of the Basutoland Congress Party as they did.
He says Mr Sekoto's meeting or convocation was not a legitimate BCP
Mosito's cross examination Mr Mahlakeng agreed that the agenda of the
Conference of April 1999 was a continuation of the conference held
earlier that year in January 1999 at the Sefika Hall and that Mr
Molapo Qhobela had continued as leader of the BCP because he had been
elected for 5 years in July 19971. As already stated Mr Molapo
Qhobela's leadership was "terminated" at the annual party
conference 23rd January 2000. The constitutionality of this step is
another matter which is formally not in issue in these proceedings.
More about this later.
then exhibited to him a green coloured document entitled "Lengolo
la Motheo la Lekhotla la Mahatammoho" and to which Mr Mahlakeng
responded by saying the BCP constitution is usually headlined "Molao
oa Motheo oa Lekhotla la Mahatammoho. " It was put to Mr
Mahlakeng that this document contains the constitutional amendments
made in April 1997 - to which Mr Mahlakeng replied.
this document bears no indication that it was ever registered in
1997, I will not admit that it was lawfully registered in 1997."
after the late Dr Ntsu Mokhehle broke away from the Lesotho Congress
Party and formed the Lesotho Congress for Democracy (LCD)
again showed him the original Constitution of the BCP.
This is the copy of the original document of the Constitution of the
I do not know this document. I only know the ' 'Matalenyane'' a green
pocket user friendly constitution
The portfolios of Technocrat Secretariat was introduced into the
constitution in 1997 when the amendments were made on the 25th April
1999 with immediate effect
was already in the officialdom of the BCP in 1997.I do not know
Mahlakeng stated that he knew only the amendments which changed the
tenure of office of the leader and of the NEC (Article 30.3 of the
that though these the amendments which they made on the 24th April
1999 they did not have immediate effect because they were only
registered belatedly in December 1999. When shown the signature of Mr
Ramolahloane in a covering letter addressed to the Registrar General,
dated 7th August 1997, Mr Mahlakeng replied-
cannot say anything about the authenticity of Mr Ramolahloane 's
cross examination continued on the following day Mr Mahlakeng in
response to Mr Mosito's questions informed the court that at the
gate, Mr Sekoto was hurling insults saying "Bo manyonyoba bana;
nyoa' mabona bana.....conference rea e nka kajeno. "
that even though this insolent conduct was prejudicial to peace and
tranquillity, he did not take much notice because he has heard worse
insults in his time! "It is the rough and tumble of our party
politics" he says.
You are fabricating.....
Why did you not state this in your affidavit?
It would be unbecoming to mention such insults in my affidavit.
If it happened, why not state it.
It was not central or relevant to the issue.
put to Mr Mahlakeng that Lenka was never confronted with the
allegations he was now mentioning; to which Mr Mahlakeng insisted
that Lenka never demanded a list. He agreed however that he did not
hear all the testimony of Lenka because he was at all times not
present in court. He again could not explain why it was not put to
Lenka that the people forcibly pushed the gates. He insisted that
havoc broke loose after the policeman had asked Mr Sekoto to enter
and the police took no definite action to prevent them.
The pushing in was not put to Lenka? Answer: It may be so. It was not
relevant. Question: Lenka says he wanted to see the list? Answer: He
was not telling the truth. Question: There was no breach of peace.
Lenka had a biased motive to lie about this. They all wanted to give
an unfair advantage to Mr Qhobela and to abort our Conference and to
end up with a bogus conference.
These aspersions were not put to Lenka that he had an agenda and his
own programme of action. You did not state all these in your founding
also asked by Mr Mosito why, if Mr Lebenya Chakela had the hall keys
all the time, it was not put to Letuka that it was nonsensical for Mr
Toloane to approach Letuka saying they wished to close the hall. To
this he relied "I think this is not relevant."
could not explain why it was not put to Assistant Commissioner of
Police None that he made a promise to reinforce his police contingent
at the College grounds if Mr Makhakhe's behest was not heeded.
it was not put, it was because it was not relevant", he says. Mr
Mosito proceeded to ask:-
Mr Makhakhe did in fact open the conference and then asked the
intruders to go out.
That is not true at all. I remember Letuka only saying Mr Makhakhe
made an announcement and was followed by other
Mr Makhakhe and his people marched to the main gates and made a
U-turn. There was no screening done.
deny this. Screening occurred and took about 15 minutes outside the
put to Mr Mahlakeng that he was fabricating to say that in the
college grounds a certain Motloheloa Monne was even assaulted with a
knob kerrie on the chest by one of the hall occupants who wanted to
disrupt even the conference convened outside the hall, and that this
had not been put to Letuka.
If not put, it was not relevant.
Mahlakeng contends that whilst he heard Letuka say that all was
peaceful and tranquil, at Co-op College Hall this was not correct.
proceeded to put it to him as follows:
The party leader had no power to order people to leave the hall?
do not react to a legal submission. What was in the hall was not a
then proceeded to the issue of membership in the party.
put to Mr Mahlakeng that according to the party constitution and
procedures, a person who wished to become a new member of the BCP
filled a Form LM1, paid M1.00 subscription at the sub-branch level
and that the Form LM1 and the M1.00 are then dispatched to the
Constituency committee which in turn transmits them to the NEC
headquarters. Mr Mahlakeng agreed but added that all LM1 Forms are
finally screened at the NEC under Article 6.7 of the constitution
before a membership card can be issued. Once a member, renewal had to
be effected before the 30th November of the current year and that
renewal is still processed through the NEC. Accordingly to Mr
Mahlakeng renewal process is not completed at the sub-branch level.
If, for no good reasons, a member fails to renew his membership
before the 30th November, the membership lapses automatically.
regards the credentials of the delegates, Mr Mahlakeng stated that an
LM8 Form had to be filled - not LM13 as Mr Mosito suggested -and that
no one can go to the Annual General Conference of the BCP without
first having been screened by the NEC. He denied that LM8 is for
Youth League delegates. Mr Mosito then listed about 15 types of LM
procedures e.g. LM1 (membership) LM2 (membership card) LM3 -
affiliation Card (by union or other bodies) LM4 - Lengolo la
kamohelo; LM5 - letter of transfer; LM6 - Delegation of
Parliamentarians; LM7- Womens League Delegation; LM8 - Youth League
Delegation etc. Mr Mahlakeng insisted that the issue of party
membership was not on the agenda for the January 2001 Conference
(despite my Brother Maqutu J's recommendations in CIV/APN/340/2000).
According to Mr Mahlakeng, my Brother Maqutu J. never made an order
that the renewal of membership be placed on the agenda for the
January 2001 annual conference.
At the January 2001 Annual Conference, the election of the NEC was
due to be held because its term was expiring having been elected in
Our NEC had been elected in January 2000. These people elected the
NEC not because of effluxion of time but because they have clearly
that stated they had lost confidence in us!
The elections of the NEC in January 2000 were unconstitutional?
That issue is res judicata after the CIV/APN/430/00.
re-examination, Mr Mahlakeng maintained his assertion that in January
2001, the term of his NEC had not expired because it had been elected
23rd January 2000 for two years. It would hold office until January
Maholela Mandoro was then called by Mr Mosito to testify upon the
events of the 27th January 2001 at Co-op College. He described
himself as a pedigree member of the Basutoland Congress Party. He has
held several portfolios in the Party structures as a member of Branch
Committee and Constituency Committee in Maseru. In 1999 he was
elected a Maseru delegate to the Annual General Conference of the BCP
where he was appointed to the Resolutions Committee. At present he is
the Publicity Secretary (Propagandist) of the National Executive
Committee of the Basutoland Congress Party.
informed the court that he is familiar with all constitutional
documents of the BCP including the original constitution of the party
which was registered in 1969 (No. 10/69). This original document was
later amended in 1993 and in 1997.
the court that in April 1997 a new Secretariat (Think Tank) was
introduced into the Constitution of the party and was elected by the
Conference but that after April 1999 this "Think Tank" was
by the NEC under Article 29 of the Constitution.
not in dispute that the April 1999 conference was a continuation of
the main conference held earlier that year at Sefika Hall which had
not completed its business. It was furthermore not in dispute that
the items that remained for the April Conference were (a) amendments
to the Constitution of the BCP and (b) election of the Credentials
Committee (c) election of the Elections Committee and (d) election of
no dispute that on the 24th April 1999 at Sefika Hall an Annual
General Conference of the BCP was held at which (a) certain important
amendments were made to the Constitution of the Basutoland Congress
Party and (b) a National Executive Committee was elected.
Article 30.3 as amended reads :-
e Kholo kaofela e tla khethoa lilemo tse peli, setho sefe kapa sefe,
ho kenyelletsoa le Moetellipele"
whole National Executive Committee including the leader shall be
elected to hold office for two years." (My underline)
this amendment, the NEC of BCP (excluding the leader) traditionally
and under the constitution held office for one year and the leader
held office for five years. By all means, the new amendments were
drastic and changed the status quo.
also not in dispute that another conference was held on the 25th
April 1999 at which other amendments were made on the Constitution
undoing the previous day's amendments and reinstating the leader's
five years in office. These changes were the subject matter in
CIV/APN/205/00 in which my Brother Ramodibedi J. nullified both the
election of the NEC and amendments on the Constitution made on the
25th April 1999. Mr Mandoro explained that prior to April 1999, the
Secretariat or Think Tank was part of the NEC and was elected by the
General Conference. According to him, the constitutional amendments
made on the 24th April 1999 took effect immediately and the NEC
elected on the 24th April 1999 would now hold office until January
2001. This runs counter to what Mr Mahlakeng contended when he stated
that the NEC elected on the 24th April 1999 held office until January
2000, and that the NEC which organised and convened the January 2001
Conference had been elected on the 23rd January 2000 again at Sefika
Hall and not the NEC elected on the 24th April 1999.
common cause that the amendments to the party constitution made on
the 24th April 1999 were only registered at the Law Office on the
14th December 1999.
to Mr Mandoro the NEC elected on the 23rd January 2000 was completely
unconstitutional because such NEC elections only became due in
January 2001 in accordance with the new amended constitution.
As far as
the General Conference at Co-op College on the 27th January 2001 was
concerned, he says he did not attend officially because his Maseru
Constituency No. 32 had not been represented. He attended out of his
deep zealousness and staunch support to the Basutoland Congress Party
- he also went there more to sing political songs and dance to them
that when he arrived at the outer gates of Co-op College grounds he
met Mr Tsatsanyane and Mr Mopeli. There was happiness alround and
people were singing the party songs.
that later that morning Mr Makhakhe - whom he took as deputy leader -
arrived and entered the hall accompanied by singing supporters. He
says Mopeli then loudly announced "The leader is now to speak"
after which Mr Makhakhe said greetings to all and formally opened the
conference, wished them success and then loudly said "Those who
"kobo-ea-bohalf should leave the hall." He says Mr Makhakhe
then went out followed by about 40 people and walked to the gate and
then returned to hold his own conference under the tree outside the
Mandoro says he then realized that on that day something was amiss
about the happenings at Co-op College Hall and realised that Mr
Makhakhe and his committee were afraid to face the music before the
general conference. He says since 1999, discord had been simmering in
the party circles over the financial affairs and the assets of the
BCP. He says Mr Makhakhe and his NEC were afraid to "face the
music" in the conference hall.
that at Co-op College hall no violent incident occurred on the 27th
then referred him to various LM Forms of the BCP and he explained
that even though the LM Forms were not specially created by the
constitution of the Party, he was certain that LM8 was a Youth League
Delegation Form and not for Constituency Delegation. In his view LM13
was the current form for delegates to the Conference and not LM8.
According to Mr Mandoro the several LM8 Forms attached or annexed as
"HH" were haphazardly and improperly filled.
cross-examination by Mr Mdluli he denied that he was embellishing his
evidence with exaggerations. He agreed that since the April 1999 it
was clear that in his beloved Basutoland Congress Party there existed
two groups each claiming legitimacy as leaders of the party. He
conceded that in several cases the High Court had often recognised Mr
Makhakhe's group as the lawful NEC of the BCP (see CIV/APN/205/00.)
conceded that in 2000 there arose an acute problem over the renewal
of the party membership after the decision of my Brother Maqutu J. in
CIV/APN/340/00 (dated 20th November 2000) and this resulted in the
launching of an application CIV/APN/13/01 which unfortunately and
regrettable (still pending before this court).
to him, at all Annual General Conferences of the BCP the election of
the National Executive Committee is always the last item on the
agenda and he reasons therefore that this practice should have been
followed on the 24th April, 1999. He could however not say with all
certainty whether the NEC was elected before or after the amendments
on the constitution were made because he personally did not attend
the conference proceedings on the 24th April 1999.
to him, the Annual General Conference of the 27th January 2001 could
be properly convened only by the NEC that had been elected in April
1999. He did not recognise the January 2000 NEC as shown in
"AA", as a constitutional body of the BCP. This NEC
Leader : Sekoala Toloane
: Thulo Mahlakeng
Chairman : Ntja Nchochoba
General : Sekoala Macheli
Secretary General : Lebenya Chakela Treasurer : Molomo Malebanye
Secretary : Jack Mopeli
Publicity Secretary : Moeketsi Tsatsanyane Members : Jeremane
then referred him to a specific resolution of the Conference made on
the 27th January 2000 to the effect that the Conference "had
lost confidence" in the NEC and was therefore electing a new NEC
- and put it to him that an existing NEC was therefore being voted
out of office.
evidence of Mr Mandoro is important in that it raises the fundamental
question i.e. the constitutionality of the election of the
Executive Committee on the 23rd January 2000. That also raises the
issue of locus standi of the first applicant to be a party in these
Article 30.3 as amended reads:
e Kholo kaofela e tla khethoa lilemo tse peli, setho sefe kapa sefe,
ho kenyelletsoa le Moetellipele. "
Cautionary note at the end reads :-
MOTHEONG ONA KANTLE HO METHEOEA MAFUMAHAL1 LE BACHA LEKAROLOEA BONE,
LI FETISITSOE LA HO QETELA KE SEBOKA SE SEHOLO SA LEKHOTLA LA
MAHATAMMOHO KA LA 24 th[MESA 1999."
appears to me that on the 24th April 1999 the BCP Conference passed
no special resolution or dispensation that the NEC elected on that
day would not be affected by the amendments approved by the party
conference. Let it be noted that a conference being the supreme organ
of the BCP can express its intentions by passing a resolution
expressing that intention.
therefore became very important to determine whether on the 24th
April 1999 and as matter of fact, the then National Executive
Committee of the BCP was elected by the General Conference before or
after the amendments to the constitution were made. This necessitated
a special scrutiny of the Minutes of the General Conference of the
24th April 1999. I therefore ordered that these Minutes be searched
for and produced before the court.
recess of the few days this court was informed that the Minutes of
the Annual General Conference held on the 24th April 1999 are
missing-apparently the BCP offices were burgled and documents were
stolen in 1999. By consent, Mr Mahlakeng was recalled to testify on
the issue of what occurred at the conference on the 24th April 1999
at Sefika Hall.
informed court that in April 1999 he was the deputy chairman of the
NEC and that Mr Molapo Qhobela was still leader of the BCP since
January 1998 when had been then elected to hold office for five
conference of the 24th April 1999 four items (carried over from the
January 1999 Conference) namely: proposed amendments of the
constitution, report by the Credentials committee, election of the
elections committee, election of the National Executive Committee
were on the agenda.
candidly confirmed that according to the practice of the BCP general
conferences, the election of the NEC is always the last item on the
agenda mainly because such elections are a tedious exercise. As
always on the 24th April 1999 the NEC was elected after the
amendments to the constitution had been made. One of the amendments
read as follows:
"Komiti e Kholo kaofela e tla khethoa lilemo tse peli, setho
sefe kapa sefe, ho kenyeletsoa le Moetellipele. "
members of the National Executive Committee-inclusive of the
leader-shall be elected for two years. "
that this was radical amendment by all means because it curtailed the
tenure of office of the leader and increased that of the NEC.
Mahlakeng then went on to say that despite the amended article 30.3
the NEC elected on the 24th April 1999 held office for only nine
months till January 2000 when another NEC-the present first
applicant-was elected at the Annual General Conference.
that before the January 2000 conference Mr Molapo Qhobela was still
the official leader the BCP but was not elected leader at that
because he did not run for the elections having distanced himself
from the then current NEC after the judgment of my Brother Ramodibedi
J. in CIV/APN/205/99 - dated 6th July 1999.
the April 1999 NEC continued to function until January 2000 under the
old constitution as unamended moreso because the amendment were only
registered on 14th December 1999.
only briefly cross examined Mr Mahlakeng to confirm that on the 24th
April 1999, the NEC was elected only after the amendments to the
constitution had been passed by the conference. It is also clear that
at this latter conference of April 1999 at Sefika Hall, no resolution
was taken by the conference to suspend the coming into operation of
the newly amended Art 30.3. The crucial questions then are:
was the effect of the new Article 30.3 of the BCP Constitution on the
new NEC elected on the 24th April 1999 at the end of the Conference?
was the constitutional validity of the election of another NEC on the
23rd January 2000 in view of the new Article
the new January 2000 NEC have the constitutional authority to convene
the annual conference for the January 2001 at Coop College Hall?
quite clear that the general meaning of the amended Article 30.3 is
that after its passing the officer bearers of the NEC of the BCP
could only be removed from office only on the expiry of a term of two
years at a biennial general Conference. See Padayichie vs Paradai NO.
and Another - 1994 (1) SA 662 where it was held that the duly elected
committee should remain in office until the holding of such biennial
conference. The election of the NEC may be done only in conformity
with the terms of Constitution. In my view where the Constitution -
the contractual foundation in the party - dictates that the election
of NEC can only be held biennially, any election of the NEC which is
held before two years have elapsed cannot be constitutionally valid
by stretch of any imagination. It has not satisfactorily been made
clear to this court why, despite the new Article 30.3, the election
of the NEC was held the 23rd January 2000. It has been
authoritatively stated that the constitution of a voluntary
association constitutes a contract amongst the members Bamford-Law of
Partnership and Voluntary Associations (19820) p25; Constantinides vs
Jockey Club of SA 1954 (3) SA 35 (c), it therefore means that the
members of the BCP had agreed through their conference that the NEC
hold office for two years.
that the delegates to the January 2000 concurred in the
non-observance to the Article 30.3 of the Constitution cannot
validate a premature election of the NEC. Khan vs Louw- 1951 (2)
view, the Annual General Conference of the Basutoland Congress Party,
supreme organ as it is, is itself bound to comply with its party
constitution as it stands amended or until amended. It is not
omnipotent ox above the constitution of the Party. It must be
properly constituted because it is representative of the rank and
file; it must obey the constitution because the constitution is the
contractual foundation of the party.
finding that the holding that the election of the National Executive
Committee in January 2000 may seem to have violated the provisions of
Article 30.3 of the party constitution, does not however appear to be
the end of the matter. In civil proceedings, the court may only grant
a relief which has been sought by a party in its summons, application
or counter-application. In these proceedings, the respondents upon
receiving the interim court order, duly filed their notice of
intention to oppose but elected not to make any counter-application
under Rule 8(16) attacking or questioning the locus standi of the NEC
elected in January 2000 (i.e. the present first applicant) to convene
and hold the Annual General Conference on the 26-27th January 2001.
Mr Mosito on the other hand chose to submit that since there could be
no vacuum in the governance of
the de facto existence of the National Executive Committee was
recognized by the respondents. The issue of constitutional validity
of the NEC of January 2000 the therefore becomes again merely
academic in these proceedings - and I therefore make no definite
decision on that important but fundamental issue.
Mdluli, for the applicant, has submitted in the main that the locus
standi of the first applicant is not in doubt especially after the
judgment of my Brother Maqutu J. in CIV/A/340/2000 in which the
learned judge dismissed with costs an application one prayer of which
read(c) That the election of the National Executive Committee
during the above- mentioned annual conference (i. e.
January 2000) should not be declared null and void: "
dismissing the application, the learned judge made no definitive
finding in regard to the constitutional validity of the election of
the National Executive Committee elected on the 23rd January 2000
upon the reasoning that:-
had been an undue delay in challenging the proceedings and the
elections that took place on the 23rd January 2000 at the Annual
General Conference; and
restoring the old National Executive Committee (of April 1999) which
would have virtually the same members as the present one (except for
three out of fifteen members) would be a futile exercise (brutum
submits that dismissal of the application preserved the de facto
status quo ante existence of the January 2000 NEC and that this
latter NEC was competent to convene and hold the January 2001 annual
affidavit Mr Lebenya Chakela at paragraph 2 states that the first
applicant is the "current National Executive Committee of the
Basutoland Congress Party which was elected in January 2000 and duly
registered with the Registrar of Societies. "
answering affidavit of Mr Khachane Sekoto does not issuably
controvert this averment and in fact addresses itself only to
paragraph 19 onwards of Mr Chakela's affidavit. Mr Sekoto merely
submits that Mr Chakela cannot claim to be the Deputy Secretary
General because he was not elected to be one in the conference of
January 2001 at Coop College Hall.
the merits of this application, it seems clear that by coming to Coop
College Hall on the morning of 27th January 2000, the respondents
aware of and recognized the fact that an annual general Conference of
the BCP had been convened and, according to them, by the NEC which
had been elected on the 24th April 1999 at Sefika Hall and it now
seems they did not recognize the existence of the NEC elected in
January 2000. The events of the 27th January 2001 at Coop College
must be viewed against the constitution of the BCP. It must be
reiterated that the Annual General Conference, supreme body it is, is
still bound to comply with the existing provisions of the party
constitution until these are amended. It is not disputed that the
first applicant, being the current NEC of the party, had convened
this annual conference at Co-op College. Anyway there was no other
NEC of the BCP at the material time which could have made
arrangements for the conference under the constitution of the party.
applicants allege that they were jettisoned out of the conference
hall by the respondents and their followers who then had staged a
sit-in. The respondents on the other hand allege that the applicants
deserted the conference hall and held their own outside the hall
under a tree. The pertinent issue is whether the respondents -
rightly or wrongly - had proper credentials as delegates. Article
14.1 of the party constitution states that "the conference shall
be attended by delegates only". It stands to reason that under
the BCP constitution only delegates with credentials can constitute a
party conference. It is necessary to determine whether the persons
who remained in the hall could properly constitute themselves into a
party conference, which could make amendments to the party
and elect a National Executive Committee as it did on that day.
events of the morning of the 27th January 2001 were again a
culmination of internecine leadership and membership dispute within
the Basutoland Congress Party. Since April 1999, the party seems to
have been split into two and the respondents systematically withdrew
their allegiance and support to the NEC that had been elected on the
24th April 1999. This resulted in them being unable or failing to
renew their membership in the party timeously. The decision of my
Brother Maqutu J. in CIV/APN/340/00 dated 30th November 2000 did not
ameliorate the already deteriorating and worsening situation within
the party. Thus it is quite clear that when the annual conference was
held in January 2001, most of the respondents had in fact not as yet
renewed their membership as required by Article 8.5 and hence could
not be delegates in the proper sense. The respondents argue that
renewal of membership is done only at sub-branch level. There is
merit in this contention, but the applicants state that most of the
respondents lost their membership to BCP because they had not renewed
the same by the 30th November 2000. I do not decide this issue. It
would be wrong to say or even to assume that the respondents can
maintain that they were delegates with credentials without negating
or belying the historical facts just narrated. It seems more probable
that the respondents -I regret to say - went to the Coop College
grounds on the morning of the 27th January 2000 intent on
in the conference that had been convened by the first applicants. The
respondents did not have in their possession either LM8 or LM13 to
show as their credentials the court was not shown any. That the
respondents had been unjustly excluded from the party structures by
the first applicants is a matter which should have been decisively
determined long before the conference of January 2001 was held; the
issue is sadly still pending before this High Court. This is a very
sad, sad situation where the crucial party membership is being
bandied about. In my view this intransigent conduct directly impinges
upon the individual's political freedoms under the Lesotho
Constitution (sections 16 and 20). But as Maqutu J. commented it is
for the BCP as a political party to put its house in order; and the
learned judge went on to say that the National Executive Committee,
under any pretext, has no right to unilaterally exclude or deprive
other members from the ranks of the party. A political party should,
in other words be nobody's fiefdom but a public domain. A political
party - though seemingly a voluntary association-is an important
institution recognized by our 1993 Constitution of Lesotho and
democratic and natural law principles must be guaranteed at all times
in the governance of a political party.
case the respondents believed that they had been unjustly deprived of
their membership in the party, they felt that they had the moral
right to participate in the annual general conference; it should
however be stated that since theirs is a voluntary association, the
legality or otherwise of
acts on the 27th January 2001 must be gauged against their party
constitution and upon nothing else.
of the issue is whether the respondents, when according to them, the
applicants had deserted, had the right under the Constitution of the
party to constitute themselves into a party conference, amend the
Constitution (Art. 16) and elect the National Executive Committee of
the party. (Art 46 and 51)
26 of the Party Constitution reads:-
e mong le e mong o tla tlatsa fomo ea borumuoa ka letsoho la hae ha a
ea sebokeng se seholo sa selemo. LM8
li tla hlalosa morumuoa e mong le e mong ho mo fa boemo bo
lebeletsoeng ho morumuoa e mong le e mong sebokeng.
li tla tlatsoa ka bobeli kopi e 'ngoe e tla leba Ntlo-kholo, e
Lifomo e tlaba LM6, LM7, LM8, LMJ3, LM18 boemeli ba mekhatlo e
ipopeletseng ho Lekhotla. "
view a member of the Basutoland Congress Party, regardless of how
long standing and stalwart, cannot participate as a delegate at the
Annual General Conference on the 27th January 2001 at Co-op College
Hall unless he had proper credentials. It is principally a question
to me that the people who gathered in the hall on the 27th December
2001 did not have any credentials to support their delegation; to the
annual conference convened by the first applicant. KSI is a mere list
of persons and does not satisfy the requirements of Article 26.1 of
the Constitution which reads:-
e mong le e mong o tla tlatsa fomo ka letsoho la hae ha a ea sebokeng
se seholo. LM8"
probability, the people who assembled in the Coop College Hall did
not have such forms because of the wrangling within the party. This
was the most unfortunate state of affairs to have existed within the
BCP as a political party. In the leadership war, the rank and file in
the party seem to have been made to forfeit their membership under
been stated that the annual general conference at Co-op College Hall
had been convened by the first applicant. The court directed that
viva voce evidence be called on certain specified issued the crucial
whether the respondents thereupon gained access into the College
grounds forcibly viet armis and remained in the hall despite being
requested to leave hall by Mr Tšeliso Makhakhe.
Mahlakeng's evidence was mainly to the effect that early that morning
he had arrived only to find Mr Sekoto and Mr Moshoeshoe at the gates
insisting to be let through. He states that Mr Sekoto was allowed in
by the police officials and others just rushed in. The tense
situation followed because the police contingent there present was
unwilling to evict the intruders because there was no list of such
people nor was any court order presented to them. This necessitated
Mr Makhakhe and some of his committee members to go to the Central
Charge office to seek the assistance of the Assistance Commissioner
of Police None. ACP None's response was that Mr Makhakhe should
return to the College Hall and request the people not entitled to
beat the conference to leave hall.
evidence shows Mr Makhakhe proceeded to the Coop College hall and was
accompanied by Senior Inspector Letuka - who told the court that, -
Makhakhe stood at distinct spot. He was holding a portable hailer. He
was saying "Everyone should go out of the hall so that the
conference can begin "
repeatedly making this announcement, no one seemed to go out They
about a few minutes he left the hall in the company of his followers,
proceeded to the gate and then returned and assembled under a tree
.... This meeting under the free lasted till about 4pm that day after
conclusion of its business"
Inspector Letuka says that hall he realized that another meeting
progressed in the College hall simultaneously. He says everything was
peaceful and tranquil. This is however disputed by Mr Mahlakeng who
told the court that the atmosphere was quite tense and in fact at one
stage his colleague one Motloheloa Monne was hit with a knob-kerrie
on the chest by one of the respondents' followers. I find in favour
of the fact there was no physical violence on that day-otherwise
Senior Inspector Letuka could have witnessed such an occurrence. I do
not believe that Letuka, Lenka or ACP were biased in favour of
respondents and condoned any illegality at College grounds. What is
of greater importance is whether the respondents - without proper
delegation processed under the Constitution- could validly constitute
themselves into a party annual general conference. As I have already
pointed out this question can only be meaningfully addressed by
recognising that during 1999 the
and applicants had gradually drifted apart and that this resulted in
the respondents and their followers being unable or failing to renew
their membership in the BCP (see Qhobela and Another vs Basutoland
Congress Party - C. of A. No.8 of 2000) and it is not in dispute that
some of the respondents were not attending the meetings of the
National Executive Committees elected in April 1999 and in January
2000. Since the membership issue in the BCP has ever since remained
in limbo and has up to this moment remained unresolved, it is hard to
comprehend how in the circumstances then prevailing the respondents
could have renewed their membership in accordance with the provisions
of Article 8.5 which fairly translated reads:
of membership shall be made every year through payment of membership
fee/subscription before 30th November of the year. Any member who
shall be unable to pay the membership fee before the 30' November of
any year without good reason shall lose his membership rights in the
Party, and his name removed from the books. "
proceedings, the court is not being asked to determine the
reasonableness or otherwise of this Article or whether the
respondents were unjustly deprived all avenues to vindicate their
case. Nor is it necessary to decide whether the renewal is done at
the sub-branch or head office level. It is more equitable to hold
that once a card holding member
his membership fee at sub-branch, his membership is probably thereby
renewed. It does not require the formal approval of the National
Executive Committee like in the case of a fresh application (Article
the respondents and their followers renewed their membership within
their own party structures which boycotted the first applicant and
of this case indicate that an annual general conference had been
validly convened by the first applicant, and that the respondents and
their followers sought to participate in the said the said conference
without credentials processed by the first applicant, it is the
evidence that the chairman of conference along with other members of
the first applicant (NEC) had left the hall before the conference
began and that the first applicant and respondents held two separate
meetings that proceeded simultaneously at the college grounds.
to the applicants, the conference in the hall was never officially
opened by Mr Makhakhe. Mr Makhakhe did not however give evidence
Interestingly, could Mr Makhakhe then as leader officially open the
conference? The functions of a chairman in a meeting were aptly
discussed in Berman vs Chairman, Cape Provincial Council 1961 (2)
SA412 at 416 where de Villiers A.J. said-
some regard is to be had to the nature of the functions of chairman
of meeting in general. At any formal meeting the maintenance of order
is essential: the transaction of the business of
meeting would be impossible without it. "
conference at the Co-op College hall have been opened amidst such
confusion and tension? Probabilities point to the negative.
Indicators point to an irresistible conclusion that Mr Makhakhe and
his followers, in seeing that they could not use the hall then being
occupied by some of the respondents, decided to hold their conference
outside the hall.
case, the first applicant and their followers seem to have left the
Coop College hall before the conference was officially opened so
there was no adjournment or postponement to think of. That a new
conference began after Mr Makhakhe left the hall is confirmed by the
fact that a completely new agenda was put in place i.e. amending the
party constitution and electing a new NEC which excluded all members
of the first applicant. Indeed the strange events of that day compare
rather closely to those which occurred at Sefika hall on the 24-25
April 1999 except that in January 2001 the "two"
conferences conducted their businesses simultaneously within the same
also quite clear that the conference conducted in the hall without
the proceeded presence of the NEC which had convened the conference.
Article 14 of the party constitution reads:
The annual general conference shall be attended by delegates only.
Every recognized branch shall have a delegation to the annual general
conference of the Party.... "
Moreover, the following "shall" attend the general
members of the National Executive Committee.
view the word "shall" in article 14.2 is merely directory
and not peremptory. Furthermore, the facts of this case make it
imperative to decide before everything else whether the "conference"
in the college hall was validly constituted. I find myself unable to
hold that the meeting inside the hall constituted the annual general
conference that had been convened by the first applicant -functions
of the first applicant. I am not convinced that the people who
attended the meeting inside the hall had proper credentials under
Article 14 of the party constitution. This does not mean that they
had no documentation whatsoever. They could have been in possession
of forms or documents which had however not been, processed by the
first applicant.(Art 26.3)
occurred inside the Coop College hall is perhaps captioned by the
affidavit of Mr Khachane Sekoto who states therein that after Mr
Makhakhe had declared the conference open and requested those without
proper credentials to leave the hall, says Mr Makhakhe then left the
hall and never returned. After about 30 minutes the first resolution
was passed declaring that:-
The conference has lost confidence in the National Executive
Committee and it resolves to amend Article 30.3.
that amendment, the Conference resolves to elect another (National
Executive) Committee which shall strive to achieve party unity,
increase of party membership, and to prepare for the coming
be recalled that Article 30.3 as amended had the effect of reducing
the tenure in office of leader to 2 years and increasing that of the
NEC to two years. The former regime of one year for NEC and five year
for leader was restored by amending the said Article 30.3, and a new
NEC consisting of the following was thereupon elected;
Leader : Dr Khauhelo Ralitapole
: Hape Tsakatsi
Chairman : Khachane Sekoto
: Khotsang Moshoeshoe
Secretary General : Martin Thaanyane
General : Peo Moejane
: Maholela Mandoro
Propagandist : Lira Adam
As we can
observe these are the respondents in the present main application in
their reverse order.
not clear whether the new NEC was being elected because the biennial
elections were then due or because the then current NEC was being
voted out of office after a vote of no confidence. It is not
necessary to decide this if a primary decision is made regarding the
constitutional authority of the meeting inside the hall to do certain
acts and conduct the proceedings as an annual general conference of
the BCP. Reality of the situation sadly indicates a volatile scenario
where the two hostile camps in the BCP confronted each other within
the College grounds.
to Senior Inspector Letuka he did not hear Mr Makhakhe opening the
conference but he says he heard Mr Makhakhe requesting those not
entitled to be present in the conference to leave so that the
conference could begin. In their neutrality, the police contingent
did nothing to persuade the people to comply with Mr Makhakhe's
request. Mr Mosito put it to the Senior Inspector Letuka that Mr
Makhakhe's request was an unlawful one perhaps in that he did not
have authority to so request. The constitution of the party would
come into operation once the conference had been declared open.
According to ACP None, he had requested Mr Makhakhe to address the
people in the hall and to ask them to leave the hall so that proper
screening could be done. The conference was not being adjourned or
postponed because it had not yet started.
to Mr Mahlakeng, the police were prevaricating and failed to take
decisive steps to remove the so called intruders and this resulted in
them visiting ACP None. He goes on to say that when Mr Makhakhe
returned to the Coop College Hall, he went into the hall and
requested everyone to leave the hall and its gates in order to permit
sreening to be done at the main gates. He says that some people rose
up and followed Mr Makhakhe out of the hall and through the gates
while others - whom he recognized as respondents - remained seated.
It was clear that they were refusing to go. Mr Mahlakeng contended in
his evidence that it would none sensical for Mr Makhakhe to open the
conference and then desert or abandon it unceremoniously as he is
alleged to have done.
they decided to convene their conference outside the hall because the
respondents and their followers were adamnant in refusing to leave
the hall. He says - as chairman - he opened that conference under the
tree. He says the meeting inside the hall was not the BCP annual
general conference but "a circus" or a charade. He says
that what Mr Sekoto says in his paragraph 5 of his affidavit namely
There being no chairman and/or his deputy, the conference after about
30 minutes decided to convene and elected persons to conduct the
conference. ...Mr Khotsang Moshoeshoe was elected chairman of the
said conference. He was deputized by me." - is completely
unconstitutional because the people who remained in the hall were not
delegates and could therefore not be able to constitute themselves
into a BCP conference. He says all acts done by the gathering such as
elections of a new NEC and amendment of the constitution were all a
nullity, in that Articles 16 and 51 were not complied with. He goes
on to say that since, as from January 2000 there was no NEC of the
BCP other than theirs, the annual conference could not have been
legitimately convened by other body or committee at Coop College on
the 27th January 2001.
however clear from Mr Mahlakeng's evidence that despite the earnest
exhortation by my Brother Maqutu J. in CIV/APN/340/99 that the
membership issue in the BCP be discussed at the forthcoming annual
general conference, this issue was not on the agenda for the January
2001 conference. This seems to be the most unfortunate part of this
case but one about which this court can do nothing! He categorically
goes on to state that his NEC did not fall to be elected at the
January 2001 conference.
At the January 2001 conference the election of the NEC was due
because its term of office was expiring having been elected at the
January/April 1999 conference.
Our NEC was elected in January 2000. They said they had lost
confidence in us and not because of the effluxion of time.
In January 2000, the elections of the NEC of BCP were held
That matter is res judicata ~ CIV/APN/340/00.
to Mr Mahlakeng the term of office of the NEC did not expire in
January 2001 because his NEC had been elected in January 2000.
of questioning in these proceedings indicated that the respondents
were now directly attacking and testing the constitutional validity
of the NEC elected in January 2000; The respondents have however not
made any counterclaim on this issue.
amendment to the constitution to be effective and enforceable inter
partes it is not necessary that such amendment be registered
(Morrison vs Standard Building Society 1932 AD 229) It has also
become clear that after these amendments were passed, no resolution
was made by the conference suspending their operation or coming into
to Mr Mandoro the Co-op College Conference on the 27th January 2001
was convened by the National Executive Committee of April 1999
pronounced constitutional by my Brother Ramodibedi in
- Mr Mandoro seems not to recognize as vahdly elected, the NEC
elected on the 23rd January 2000. He agrees however that after the
judgment of the 6th July 1999 (per Ramodibedi J. (supra) there
existed no parallel National Executive Committee in the BCP. Upon
this basis it is difficult to find how the respondents and their
followers (hitherto denied membership - rightly or wrongly) could
have secured credentials for the Conference scheduled for the January
2001. If they did not have any credentials as approved by the
Credentials Committee, how then could they constitute themselves into
conference in the Co-op College Hall? It seems to me that the
desparate course of action chosen by the respondents participate at
over the conference at Co-op College Hall on the 27th January 2001
cannot be justified under the party constitution as it stands and as
Leon JA in Qhobela & Another C.of A (CIV) No.8 of 2000 said:-
they were dissatisfied with the manner in which the Secretary General
or any other official was performing his or her functions and
discharging his or her duty their remedy was to seek relief from the
High Court - what they were not entitled to do was to act
unconstitutionally by taking the law into their own hands and acting
in flagrant violation of the constitution. "
did not recognize the NEC elected on the 23rd January 2000 the
present respondents could have urgently sought an interdict from the
High Court upon ground that this NEC was elected in violation to
Article 30.3 of the party constitution. This they did not do. In my
view, however, and despite the apparent delay, respondents were still
entitled to challenge even in these very proceedings the locus standi
of the first applicant to organize and convene the January 2001
annual general conference of the BCP. They however did not file any
counter application as they were entitled to do under Rule 8(16) of
the High Court Rules 1980, when in fact the evidence of Mr Mandoro
directly attacks the constitutional validity of the NEC elected in
as this unconstitutionality may seem, this court cannot and should
not intervene- mero motu - in the proceedings of a voluntary
association on the mere ground that non-compliance with (or violation
of) the provisions of the constitution has occurred without
allegation and proof of prejudice. (Jonker vs Ackerman and Another-
1979 (3) SA 575). Any constituency of the BCP could rightly complain
that there had been a flagrant violation of the constitution of the
party itself - SWA National Union vs Tjozongoro and others - 1985 (1)
reiterate, in the present proceedings the court is not being asked to
decide whether the January 2000 NEC could validly convene the annual
general conference. There is no such allegation or a point raisesd in
limine in the answering affidavit of Mr Sekoto. The allegations,
serious in my view, made by Mr Mandoro in his oral evidence before
this court are not supported by any counter application and the court
is unfortunately unable to grant relief in that regard.
purposes of completeness of record, it should be noted that when Mr
Mahlakeng was later recalled to testify as to the sequence of events
at the April 1999 conference and he candidly admitted that the
amendments to the constitution were passed before the election of the
Executive Committee. It is not necessary in these proceedings to
decide upon the correctness of Mr Mahlakeng's reasons for holding the
NEC elections in January 2000 (just nine months after the amendments
submissions based on his well-prepared heads of argument, Mr Mosito
contended that the issue of the constitutionality of the January 2000
NEC was not res judicata as claimed by Mr Mdluli. I tend to agree
with Mr Mosito who also cited the case of Sechele 1985-88 LAC 297 at
301 where the requisites under the res judicata principle were
discussed. I agree with Mr Mosito that despite the prayer 1 (c) in
CIV/APN/340/00 seeking to nullity the election of the NEC on the 23rd
January 2000 my Brother Maqutu J. dismissed the application and
leaving this very important issue undecided stated that to nullity
that NEC of January 2000 that "would be an exercise in futility"
and left this matter and that of membership to be sorted out by the
on coming conference of January 2001. We know that nothing has been
done after that.
also argued that where an organ has no manifest jurisdiction to do
what it purports to do the court will interfere -Mr Mosito did not go
as far as to say- mero motu. In my view however a distinction has to
be made between a flagrant violation of an Act of Parliament and
non-compliance with the provisions of a constitution of a voluntary
association. In the former case, the court can take cognizance of a
of a statute but in the case of non-compliance with a constitution of
a voluntary association, one has to begin upon a premise that a
constitution of a voluntary association is a contractual foundation
of the association and one between its members (Bamford (supra) p.
132); then if a provision of such a contract has been violated, this
must be alleged and proved in the usual way. See also Jonker vs
Ackerman 1979 (3) SA 575 where it was held that non-compliance with
the rules of a voluntary association is ordinarily not sufficient
justification for a court to intervene in the proceedings of such an
contended that the amendment made upon Article 30.3 of the
constitution (without any special resolution expressing an intention
to the contrary) operated with immediate effect and the biennial
elections to elect a BCP NEC could not be held until two years had
expired after Jan/April 1999 conference. He therefore submitted that
the election of the NEC on the 23rd January 2000 was "an
outright illegality.'" But, despite the substance of this
argument, sight must not be lost of the fact that in these
proceedings before me there is no counter-application upon which
these submissions are based and, in my view, the court cannot and
should not adopt them mero motu All 1 can say is that in my view
matter is not res judicata and indeed may be adjudicated in separate
proceedings. 1 will not say anything more to prejudice such
perused all the papers in this application and having heard all
evidence viva voce on certain specified issues and having hears
submissions from both counsel I find that the following factual
1. On the
24th April 1999 certain amendments were passed by the annual general
conference of the Basutoland Congress Party at Sefika Hall, and that
one amendment on article 30.3 increased the tenure in office of the
National Executive Committee from one year to two years and reduced
that of the leader from five to two years,
despite the amendments abovementioned a new NEC was elected on the
23rd January 2000 - some only nine months after the said amendments.
was no resolution made by the party conference either on the 24th
April 1999 or on the 23rd January 2000 suspending the coming into
operation of amended Article 30.3 of the party constitution.
as at January 2001 there was no "NEC" of the BCP existing
parallel to the NEC elected on the 23rd January 2000.
constitutional validity of the January 2000 NEC has not been
challenged save in CIV/APN/340/00 where Maqutu J. in November 2000
left the matter undecided but at the same time exhorting the matter
including that of membership to be discussed at the oncoming annual
general conference due to be held in January 2001.
NEC elected in January 2000 organized and convened the BCP annual
conference on the 27th January 2001 at Co-op College Hall.
7. On the
morning of the 27th January 2001 the first applicant and its
supporters assembled at the Co-op College grounds.
8. On the
same day, place and time some of respondents and their followers also
congregated at the Co-op College grounds, and some already were in
the College hall.
that day, after having been to see ACP None at the Central Charge
Office concerning some intruders who were alleged not to be entitled
to attend the conference, Mr Makhakhe using a loudspeaker loudly
requested those in the College Hall to leave so that the Conference
] 0. Some
of the respondents and their followers who were then occupying the
hall refused to leave the hall.
Makhakhe, his NEC and followers then left the hall and later convened
their conference under a tree outside the hall.
addressing the people in the hall, credible evidence shows that Mr
Makhakhe did not officially open the conference but requested people
to leave the hall so that proper screening of delegates could be done
at the outer gates.
13. It is
most improbable that the respondents and their followers were in
possession of proper credentials regard being had to the bitter
history of feud and conflict between the two groups. (See SWA
National Union (supra) at p.387)
14. It is
difficult to come to a finding that the respondents and their
supporters were delegates with proper credentials without belying the
the first applicants and their followers exited the hall, the people
inside the hall then constituted themselves into a party
being no regular chairman and/or his deputy, the Conference after 30
minutes decided to convene and elected persons to conduct the
completely new meeting or conference thereby came into being with its
own completely new agenda and business.
the factual issue whether Mr Makhakhe officially opened the
conference, the probabilities point to the negative upon the
reasoning that no sensible person could deliberately declare a
conference open and then leave the said conference and convene his
Though the atmosphere a Co-op College was tense, I believe the
respondents when they say that no violence occurred - probably so,
because of the visible presence of the police contingent at the
19. It is
not in dispute that the annual general conference on the 27 January
2001 was organized and convened by the first applicant who seem to
have enjoyed at least a de facto recognition.
conference convened within the Co-op College Hall was not properly
constituted and possessed of credentials as delegates in terms of the
constitution of the party the important Articles being the following:
Annual Party Conference shall convene once a year in December or
January:date and place shall be selected by the National Executive
Annual Party Conference shall be attended by delegates only ....
delegate shall fill in the form with his own hand when going to
attend the Annual Party Conference LM8 ".
conclusion I come to in this proceedings is a very sad one indeed
-and a most difficult decision I have had to make. Upon the facts I
find proven, I hereby confirm the rule nisi granted by this court on
2001 with costs on the ordinary scale. I also order that the 13
applicants who intervened in these proceedings bear the costs
occasioned by their joining. The Order on costs also exonerates the
14th and 15th respondents.
Applicants : Mr Mdluli For Respondents: Mr Mosito
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