CIV\APN\304\91

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

LIJABATHO
FOOTBALL CLUB Applicant

v

LESOTHO
SPORTS COUNCIL

&

13 OTHERS
Respondents

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 9th day of March, 1992

The Court
heard arguments in the above application on 2nd March, 1992. The
application was dismissed.

The
following are the reasons for the dismissal of this application:

Mr.
Mohapi for the 1st respondent relied on contents of a document filed
on 14th October 1991 on behalf of the 1st respondent and
styled
"Notice pursuant to Rule 8(10)(c)". Rule 8(10) reads :

"Any person opposing the grant of any order sought in the
applicant's notice of motion shall;

3. if
   he intends to raise any question of law without any answering
   affidavit, he shall (sic) deliver notice of his

   
   

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intention to do so, within the time aforesaid, setting forth such
question". (Underlining and "sic" relate to redundancy

in the text).

None of
the respondents has filed any opposing affidavit. Thus in throwing
the light on factors to be taken into account in order
to understand
the nature of the 1st respondent's opposition Mr. Mohapi for the 1st
respondent repeatedly referred to the applicant's
affidavit.

Relying
on facts alleged in the applicant's affidavit at paragraph 3 Mr.
Mohapi submitted that it is common cause that the 1st respondent

authorised a body called LEFA (Lesotho Football Association) to run
and organise football games in this country. However in
CIVVAPN\209\91
the High Court declared that authorization null and
void. The applicant had participated in football games organised by
LEFA before
this body was declared null and void.

It is the
understanding of the applicant that such a declaration has the effect
of nullifying all that LBFA did prior to being declared
an illegal
body.

It seems
that while originally the 1st respondent had divested itself of the
administrative powers to LEFA the 1st respondent changed
its mind and
wanted to resume its exercise of

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administrative
powers over all the organisation of football games in the country.
LEFA sought an interdict against the 1st respondent
before Kheola J,
but was finally unsuccessful.

The
applicant seeks to obtain a declaratory order in terms of prayer 4(c)
in the notice of motion wherein this Court is asked to
declare the
play of the matches and participation of the applicant in those of
the matches set out in Bokang Segoete's affidavit
null and void.

An
incidental factor set out in the affidavit which Mr. Monaphathi
assured the Court that it is not the motive force behind seeking
the
relief stated is that, of the 8 games the applicant played under the
management of sports by LBFA only 2 were won by the applicant.

However
Mr. Mohapi for the 1st respondent pointed out that in order to
succeed in this application the applicant ought to show prejudice
but
has failed to do so. In reply Mr. Monaphathi indicated that it is not
always necessary that the Court would only be moved to
make a
determination by reason of prejudice stated. He was of the view that
the important thing is the interest a party has in
the matter. Thus
the applicant's interest in the matter suffered prejudice in that the
applicant played games under unlawful administration.

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The Court
was referred to Section 2(c) of the High Court Act 34\84 laying down
that the High Court shall have

"in its discretion and at the instance of any interested person,
power to inquire into and determine any existing future or
contingent
right or obligation notwithstanding that such person cannot claim any
relief consequential upon the determination;......."

In my
view the applicant's difficulty is that it has not shown what
relevance the relief sought has on its future right.

Furthermore
the applicant has not averred or established any factual basis to
enable this Court to grant the declaration sought
regard being had to
the fact that declarations are matters for the Court's discretion.

One of
the important factors for persuading the Court to make a declaration
sought is the determination that the case is a proper
one. It is the
applicant's duty to show what proper circumstances moved it to make
the application. The Court has seen nothing
in the papers to show
that this is a proper case for the exercise of the Court's discretion
in the applicant's favour. The only
unexpressed motive seems to me to
be that the applicant sought this application as the excuse for
avoiding relegation from the
"A" Division to lower ranks.
Thus the reason advanced that the applicant has suffered prejudice,
hence it approached

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this
Court, merely disguises this real excuse.

I accept
Mr. Mohapi's submission that it is not enough to say that because a
party is an affiliate then whatever is decided affecting
the mother
body affects it, then that constitutes its interest. Interest in the
legal sense requires the affected party to show
prejudice that is
actual or potential hence the insistence in law that a declaration
should affect the future and not the past
interest.

It was
for this reason that the Court invited both Counsel to say whether
there are no parallels between this case and C. of A.
(CIV) No.5 of
1985 The Law Society of Lesotho vs the Hon. Prime Minister of Lesotho
and Another (unreported) at p. 52 where in
effect the Court of Appeal

".....declared that the appointment of the Honourable Mr. Acting
Justice Peete an acting judge was made in contravention of
the
State's duty to guarantee the independence of the Courts in terms of
Section 16(6) of the Human Rights Act 24 of 1983".

yet
despite such declaration the Judgments the Honourable Mr. Acting
Justice Peete delivered remained in place. Both Counsel agreed
that
they were not aware of any judgment that was sought to be upset
because the judge who had delivered it had been "unlawfully"

appointed.

6

I wholly
endorse Mr. Mohapi's submission that in applications of the kind I am
seized with it is required of the applicant to avoid
speculative,
abstract, hypothetical or academic questions. The applicant must have
some right which falls to be inquired into and
determined. The
applicant must satisfy the Court that it is a person interested in an
existing, future or contingent right or obligation
and the
circumstances are such that the case is a proper one for the exercise
of the discretion conferred on this Court.

Failure
by the applicant to satisfy the above requirements is a material
defect which entitles the Court to dismiss the application
for lack
of cause of action.

I have
viewed with regret that despite its obvious lack of substance this
application was granted ex parte and the applicant obtained
a rule
nisi which it sat on for months on end despite the precarious
position in which the 1st respondent was placed. The 1st respondent

as Mr. Mohapi stated on 24th February 1992, was unable to organise
the league or run football games as it should have despite that
the
season for these games had long started. Meantime the applicant had
nothing to lose while the real interest of the respondents
and, I
should say, of the sports loving public is placed in unredressed
jeopardy. The magnitude of the public interest far outweighed
the
ill-conceived interest

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that the
applicant imagined. From this point of view it is not difficult to
appreciate that the inconvenience suffered by the 1st
respondent
which serves the football lovers - a very seizable proportion of the
Lesotho public was far in excess of the imagined
and not real
prejudice suffered by the applicant. For this reason alone the
applicant ought not to have been granted the rule ex
parte.

In future
the Court seized of a similar matter should be astute enough to
require of the applicant to pay security for the other
parties' costs
before granting a rule and should insist on alternative claim for
damages to avoid a party having a chip on its
shoulder insisting on
having the undeserved pound of flesh. Nosy Parkers would think before
bringing applications of this kind
to Court, if so-called rules nisi
are not indiscriminately sought and obtained and proper regard is
paid to the fact that even
though they are temporary in operation
they affect the rights of the other party who was not heard at the
granting of such rules.
Thus to that extent the operation of a rule
nisi is a negation of the audi alteram partem precept. It is
important that unless
it is shown that irreparable loss would be
suffered by the applicant and the issuance on notice would enable the
respondent to
defeat the very purpose for which the rule was issued
ex parte the Court should refuse to issue it and insist on notice to
the
other side. Even where it issues it, it should do

8

so
sparingly and restrain itself with discipline in order to pay proper
regard to the existence, if any,

"of factors of such urgency, or of well-grounded apprehension of
perverse conduct on the part of a respondent who if informed

beforehand that resort will be had to the assistance of Court, that
the course of justice stands in danger of frustration unless

temporary curial intervention can be unilaterally obtained"See
Republic Motors vs Lytton Road Service Station 1971(2) SA at
518.

The Court
of Appeal has demurred at the trend obtaining in our Court where a
rule nisi is there for the picking no matter what the
circumstances.
It is about time the authority of the Court of Appeal was heeded.

The rule
is discharged with costs.

JUDGE

For
Applicant : Mr. Monaphathi

For 1st
Respondents: Mr. Mohapi