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CIV/APN/78/91
IN THE HIGH COURT OF LESOTHO
In the Application of:
'MAMAKHABANE MAKOTOKO 1st Applicant
'MAITUMELENG MAFOSO 2nd Applicant
'MATEBOHO TJABO 3rd Applicant
'M&PALESA LEFOTHOANE 4th Applicant
APPEAL PITSO 5th Applicant
and
EMMANUEL MPAHANE 1st Respondent
KHERA MOFOLO 2nd Respondent
'MAMOSA MOLAPO 3rd Respondent
'MATHAPELO BOOTS 4th Respondent
SELIKANE PULUMO 5th Respondent
I.R. SENEKANE 6th Respondent
ERNEST PAKISO MOEKETS 7th Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 13th day of February 1992.
On 15th March, 1991, the applicants obtained, against the Respondents, an ex-parte order framed in the following terms:
"1. That a Rule Nisi be and is hereby issued calling upon the Respondents herein to show cause, if any, on Monday the 8th day of April, 1991 at 9.30 in the forenoon, or as soon thereafter as the matter may conveniently be heard why:
The 1st to 5th Respondents shall
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not be interdicted from holding themselves out as members of the Executive Committee of the Leribe Poultry Co-operative Limited.
The 1st to 6th Respondents shall not be ordered to hand over, forthwith, to the applicants all the property of the said co-operative.
The purported election of the 1st to 5th Respondents as members of the Executive Committee of the said cooperative at a meeting held on the 28th December, 1990 shall not be declared void and of no force or effect.
The 6th Respondent shall not be ordered to pay, in his personal capacity, the costs of this Application and, in the alternative, the 1st to 5th Respondents shall not be ordered to pay such costs jointly and severally with the 6th Respondent,
The Applicants shall not be granted further or alternative relief."
The order was duly served on the Respondents on 20th March, 1991. Although the Attorney-General has not been cited as a party in these proceedings, his office, represented by Mr.T. Mohapi, has, on behalf of the 6th and the 7th Respondents, who are public officers, intimated intention to oppose confirmation of the order. The 1st to 5th Respondents have not filed any notice of intention to oppose. It may safely be assumed, therefore, that they are prepared to abide by whatever decision will be arrived at by the court. Affidavits were duly filed by the applicants on one side and the 7th Respondent on the other side.
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When on the return day, 8th April, 1991, the matter came for hearing, the court was told by both counsels that the parties had reached a settlement in that the rule was to be confirmed save that the question of costs was to be deferred to a date to be arranged with
the Registrar of the High Court. The Rule was accordingly confirmed in terms of prayers (a) (b) and (c) thereof.
When on 12th September, 1991 the matter came for argument on the question of costs, the court was told that the applicants did not insist that the 1st to 5th and the 7th Respondents should be ordered to pay costs. They insisted, however, that only the 6th Respondent, who had acted against the instructions of the Registrar of Co-operatives, should be ordered to pay costs de bonis propriis and at the scale of attorney and client.
It was argued, on his behalf, that in no way did the 6th Respondent act against the instructions of the 7th Respondent. There was, therefore, no justification for the order that he should pay costs as insisted by the applicants.
It would appear that on 16th October, 1990 the 7th Respondent who is the Registrar of Co-operatives wrote a letter in which he expressed
concern about the co-operative Societies' failure to hold regular general meetings for the
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election of executive committees. The letter was addressed to Leribe Poultry Co-operative Society limited and copied, inter alia, to the 6th Respondent who was instructed to assist the society to arrange for a general meeting at which a new executive committee would be elected.
Pursuant to the letter of the 7th Respondent, the 6th Respondent addressed a letter of 23rd November, 1990 to Leribe Poultry Co-operative Society limited proposing that a general meeting for the election of its new executive committee be held on 28th December, 1990. The Society took the view that it was its sole right to arrange when to hold the general meeting for the election of a new executive committee. The 6th Respondent's proposal that the general meeting be held on 28th December, 1990 was unprocedural and, therefore, unacceptable. To that effect the society addressed a letter of 5th December, 1990 to the 6th Respondent.
However, on 11th December, 1990 the 6th Respondent wrote another letter in which he insisted that the general meeting for the election of the new executive committee should be held on 28th December, 1990. By its letter of 12th December, 1990, the Leribe Poultry Co-operative Society Limited informed the 6th Respondent that on 13th December, 1990 its executive committee had sat and decided to hold a general meeting for the election of a new committee on 18th January, 1991.
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Well, if it were true that on 13th December, 1990 the executive committee of the Leribe Poultry Co-operative Society limited did sit and decide to hold a general meeting for the election of the new committee, it remains a mistry to me how the decision which had not yet been taken could be known on 12th December, 1990.
Be that as it may, it would appear that on 28th December, 1990, the general meeting at which the 1st to 5th Respondents were elected as members of the new executive committee of the Leribe Poultry Co-operative Society Limited was held as the 6th Respondent had earlier proposed. Indeed, the 7th Respondent subsequently addressed, to Leribe Poultry Cooperative Society Limited, a letter dated 23rd January, 1991 in which he stated, inter alia, that it was his considered view that the new executive committee had been lawfully elected on 28th December, 1990.
However, it would appear that the applicants subsequently made certain representations to the 7th Respondent, As a result of those
representations, the 7th Respondent agreed with the Applicants, whom he referred to as a "committee," that the latter should, on 13th February, 1991 meet and decide, on a convenient date, to hold a general meeting for the election of a new executive committee. The agreement between the applicants and the 7th Respondent was communicated
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by the latter's letter of 6th February, 1991 addressed to Leribe Poultry Co-operative Society Limited and copied, inter alia, to the 6th Respondent.
It is worth noting that although in his letter of 6th February, 1991, the 7th Respondent referred to applicants as . "a committee",
he did not, in so many words, say the executive committee that had been elected on 28th December, 1990 and subsequently approved by him had ceased to exist. It seems, therefore, that the 6th Respondent, rightly or wrongfully considered the committee elected on 28th December, 1990 still in existence, at leased until another committee could be elected in compliance with the instructions given by the 7th Respondent in his letter of 6th February, 1991.
It is common cause from the affidavits that prior to the meeting of 13th February, 1991, the 6th Respondent caused the applicants to hand over to the executive committee of 28th December, 1990, the property of the Leribe Poultry Cooperative Society Limited. On 13th February, 1991, the applicants did hold a meeting as proposed by the 7th Respondent in his letter of 6th February, 1991. The 6th Respondent went to the meeting, introduced the executive committee that had been elected on 28th December, 1990 and instructed the applicants to hand over whatever property of the Leribe Poultry Co-operative Society limited still remained
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in their possession. The applicants refused/neglected to do so. They, instead, instituted the present proceedings for relief as aforementioned.
I have already found that the 7th Respondent's instructions as per his letter of 6th February, 1991 did not make it clear that the committee that was elected on 28th December, 1990 and subsequently approved as lawful by him had ceased to exist. That being so, it must be accepted that when on 13th February, 1991 he acted as though the committee of 28th December, 1990 was still in existence, the 6th Respondent cannot, be said to have acted against the instructions of the 7th Respondent.
Assuming the correctness of my finding, I have no alternative but to discharge prayer l(d) of the interim order with costs.
B.K. MOLAI
JUDGE
13th February, 1992.
For Applicants : Mr. Sello
For Respondents: Mr. Mohapi.
