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CIV/APN/8/92

IN THE HIGH COURT OF LESOTHO

In the Application of:

BASOTHO NATIONAL PARTY Applicant

and

MAJOR GENERAL ELIAS PHISOANA

RAMAEMA 1st Respondent

MILITARY COUNCIL 2nd Respondent

CHIEF REGISTRATION OFFICER 3rd Respondent

ATTORNEY-GENERAL 4th Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the 27th day of March. 1992.

On 10th January, 1992, the applicant herein filed, with the Registrar of the High Court, a notice or motion in which it moved the court, on an urgent basis, for an order framed in the following terms:

"1. That the first, second and third Respondents be and are called upon to show cause, if any, before this Honourable court on the ....day of .... 1992 why an order should not be made in the following terms:-

1. Government Notice Number 193 of 1991 should not be declared to be illegal and of no force and effect.

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2. the registration of electors from 18th December, 1991 to 27th December, 1991 pursuant to Government Notice Number 193 of 1991 should not be reviewed and set aside.

3. Order 28 of 1991 should not be reviewed and the consequences and the effect of the said order set aside.

4. the third Respondent should not be interdicted from continuing with the registration of electors and not be directed to take all necessary steps within his power to prevent the continuation of the same.

5. The Respondents shell not be ordered to pay costs of this application.

6. The Applicant should not be granted further or alternative relief as the court may deem fit.

2. That prayer l(d) above operate with immediate effect pending the final determination of this application."

The application was moved, ex parte, before me on the same day, 10th January, 1992, when I granted it only in terms of prayer 1 of the notice of motion i.e. not in terms of prayer 2 thereof. The ret0th Januaurn day was fixed as 27th January, 1992. The order was, on 1ry, 1992, duly served upon the Respondents who, on 24th January, 1992, intimated intention to oppose its confirmation. Affidavits were duly filed by the parties.

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It is, perhaps, significant to mention, at this stage, that after several postponements the matter was eventually placed before me for argument on 9th March, 1992. I then noticed that two documents styled "Notice of Amendment" and "Applicant's Replying Affidavit" had been filed with the Registrar of the High Court on 6th March, 1992. The notice of amendment reads, in part:-

"Please take notice that applicant hereby intends to apply for amendment of the court order granted on the 10 th day of January, 1992 to read as follows:-

That the first, second and third Respondents be and are called upon to show cause, if any, before this Honourable Court on the day of ....1992, why an order should not be made in the following terms:

1.1 Government Notice 193 of 1991 should not be declared to be illegal and of no force and effect,

1.2 The registration of Electors from 18th December, 1991 to 27th December, 1991 pursuant to Government Notice Number 193 of 1991 should not be reviewed and set aside.

1.3 Order No.1 of 1992 should not be reviewed and the consequences and the effect of the said Order set aside.

1.4 Any acts done from 16th December, 1991 by the Respondents in relation to the Registration of Electors shall not be set aside as null and void.

1.5 The third Respondent should not be interdicted from continuing

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with the registration of electors and not be directed to take all necessary steps within his power to prevent the continuation of the same.

1.6 The Respondents shall not be ordered to pay costs of this application,

1.7 The applicant should not be granted further or alternative relief as the court may deem fit."

There is no indication that the two documents viz. "Notice of Amendment" and "Applicant's Replying Affidavit" were ever served upon the Respondents. Indeed, Mr. Tampi who represents the Respondents in this matter informed the court that he was told about the two documents as he was on his way to the court on the morning of 9th March, 1992.

When asked under the provisions of which rule the "notice to amend" was made, counsel for the applicant was unable to refer the court to any specific rule save to say the court had a discretion to allow the amendment. True enough rule 59 of the High Court Rules 1980 empowers the court with a discretion to condone failure to comply with the provisions of the rules. It reads:

"59. Notwithstanding anything contained in these Rules the court shall always have discretion, if it considers it to be in the interest of justice, to condone any proceedings in which the provisions of these rules are not followed,"

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It is, however, trite law that such a discretion must always be exercised judicially and not whimsically. It is significant to observe that notice to amend is provided by rule 33 of the High Court Rules 1980, It reads, in part:

"33(1) Any party desiring to amend any pleading or document, other than an affidavit filed in connection with any proceeding, may give notice to all other parties to the proceeding of his intention so to amend,

2. Such notice must state that unless objection in writing is made within fourteen days to the said amendment, the party giving the notice may amend the pleading or document in question accordingly,

2. If no objection in writing be so made, the party receiving such notice shall be deemed to have agreed to the amendment.

2. (a) If any objection be made within the said period, the party wishing to amend, shall within seven days of the receipt of such objection apply to court, on notice to all other parties that he will apply to court for leave to amend.

2. Such notice shall state the date when the application will be heard which date must be not less than ten days from the date on which the notice is given. The applicant shall at the same time set down the matter for hearing on such date.

5. Whenever the court has ordered an amendment or no objection

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has been made within the time specified in sub rule (2), the party amending shall deliver the pleading or document as amended within the time specified in the court's order or within seven days of the expiry of the time prescribed in sub-rule (2) as the case may be.

5. When an amended pleading has been delivered in terms of this rule, the other party shall be entitled to plead thereto or to amend consequentially any pleading already filed by him within fourteen days of the receipt of the amended pleading or within such time as the court may have ordered if such be the case ......."

The notice to amend the notice of motion, filed by the applicant simply did not comply with the provisions of rule 33 of the High Court Rules 1980 and was, for that reason, an irregular process. In,my view the court could not properly entertain such an irregular process. However, by consent of the parties the following amendment of the notice of motion was, in terms of the provisions of sub-rule (9) of rule 33 of the High Court Rules, supra, allowed;

"Paragraph l(c) of the notice of motion be amended to read: "Order No. 1 of 1992" instead of "Order No. 28 of 1991"."

The interim order I granted on 10th January, 1992 is logically amended accordingly.

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It is common cause that in January 1986, the Military toppled the civilian rule in Lesotho. The Electoral Act 1968. the Ministers of State Order 1971 and Parliament Act 1983. which formed the basis of a civilian rule, were repealed. The Legislative and Executive powers were vested in his Majesty the King. However, in 1990/ the King was divested of the Legislative and Executive powers which were then vested in the 2nd Respondent by the enactment of the Lesotho Order, 1990. It was in fact another coup de'tat.

Shortly thereafter, the National Constituent Assembly Order 1990 which repealed the Lesotho Order 1990 was enacted. It is the basic law or the "Constitution" of Lesotho, so to speak. The Executive and the Legislative powers were, in terms of the provisions of sections 9 (2) and 12 of the National Constituent Assembly Order. 1990 vested in the 2nd Respondent.

With the intention to return the country to a civilian rule, the 2nd Respondent enacted, on 16th December, 1991, the General Registration of Electors Government Notice Number 193 of 1991 which provided:

"There shall be a general registration of electors in any one or more constituencies which shall commence as from the 18th December, 1991 and shall continue for a period of 4 months,"

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I shall deal with the title of this Legislation later in in the judgement.

If the Military decided that before returning the country to a civilian rule, general elections should be held, it can safely be assumed that the intention was that such elections should be fair. It is, however, worth noting that the General Registration of Electors Government Notice Number. 193 of 1991 made no provisions of how and by whom the registration of electors Was to be made. Nor did it provide who were the people qualified to register as electors. Although the notice provided for people to register as electors in constituencies there was no law dividing the country into such constituencies. In my view the legislation was not conducive to a fair general election for the proposed National Assembly Elections.

It is not really disputed that following the enactment of the General Registration of Electors Government Notice Number. 193 of 1991 enumerators were placed in various parts of the country where, on 18th December, 1991, people started applying for registration as electors for the National Assembly Elections by filling in forms which were presumably supplied to the enumerators for the purpose. On 19th December, 1991, the applicant addressed to the 1st Respondent as the Head of the Lesotho Government, Annexure "A", a letter

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in which it queried the legality of requiring people to register as electors for the national assembly elections without first passing an electoral law that would serve as a guideline for the exercise. It was apparently as a result of Annexure "A" that on 23rd December, 1991, the 2nd Respondent enacted, with retrospective effect from 16th December, 1991, the Registration of Electors Order. 1991 which purported to provide guidelines for the registration of electors and matters incidental thereto.

The Registration, of Electors Order. 1991 had, however, no provision to validate registration of electors carried out under the previously enacted General Registration of Electors. Government Notice Number. 193 of 1991 by which people were, as it has already been stated, required to register as electors for the National Assembly Elections in non-existent constituencies and without any legal guidelines or Electoral laws. The Registration of Electors Order. 1991 was to that extent defective. The form used for applications to enrol as electors in the proposed National Assembly Elections was itself defective in a number of respects e.g. contrary to the provisions of S.7 (b) of the Registration of Electors Order. 1991. according to which only those people who had attained the age of 21 years were qualified to register as electors, the form made provision for people whose age was above twenty (20) years to apply for registration as electors.

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Furthermore, the form made provision for electors to apply for registration in constituencies which, as it has already been pointed out earlier, were non-existent. There was, therefore, a real danger of unqualified people registering as electors for the National Assembly Elections. As proof thereof, "Mampeli Mothepu and Lazarus Mothepu deposed to supporting affidavits in which they averred that the latter, who was born on 13th February, 1973 and had, therefore, not attained the age of 21 years on 23rd December, 1991 managed to apply for registration as an elector for the National Assembly Elections. Consequently the applicant instituted, on 10th January, 1992, the present proceedings for relief as aforesaid.

The Respondents conceded that the General Registration of Electors. Government Notice Number. 193 of 1991 and the Registration of Electors Order. 1991 enacted, respectively, on 16th December, 1991 and 23rd December, 1991 (with retrospective effect from 16th December, 1991) had a number of defects. They could not, therefore, provide proper guidelines for the proposed fair National Assembly Elections. However, the 2nd Respondent has, on 24th January, 1992, enacted the Registration of Electors (Temporary Provisions) Order. 1992 which operated retrospectively from 16th December, 1991 and made adequate provisions for guidelines for registration of electors for the proposed National Assembly Elections.

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In this regard, it must be observed that S. 23 of the Registration of Electors (Temporary) Provisions) Order, 1992 repealed the Registration of Electors Order 1991. S.6 made provision for general registration of electors with effect from 18th December, 1991 for a period not exceeding 4 months. SS.3,4 and 5 made provisions for the appointments of the Chief Registration Officer, Electoral Officers and enumerators who were duly appointed (with retrospective effect from 16th December, 1991 by the appointment of Registration Officer, Legal Notice Number 26 of 1992 of 28th January, 1992, the appointment of Electoral Officers Legal Notice Number 1992 of 5th February, 1992 and the appointment of Enumerators Legal Notice Number 31 of 1992 of 5th February, 1992, respectively. S.8 (1) made provision for the declaration of registration areas which were duly declared by the Declaration of Registration Area Legal Notice Number 36 of 1992. of 13th February, 1992. S.7 made provision for qualification of. electors. S.22 validated the invalid acts e.g. registration of electors carried out under the Registration of Electors Government Notice Number 193 of 1991

It is also significant that the Registration of Electors (Temporary Provisions) Order. 1992 also provides for the checking of applications for registration by the Electoral officers who are empowered to accept or refuse such applications. In the event of an application being refused,

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the applicant concerned is to be advised of the reasons therefor. A list of such applications is to be prepared and made available to authorised representatives of political organisation (S.17). In terms, of the provisions of S.18 of the Order, the Chief Registration officer is enjoined to compile a general register of electors and such register is to be open for public inspection. Any person who is aggrieved by the refusal to register him as an elector or who has been wrongly registered or whose name has been removed from the register can appeal, in terms of the provisions (S. 19) of the Order, to the Chief Registration Officer for appropriate remedy.

The Respondents averred, therefore, that by the enactment of the Registration of Electors (Temporary Provisions) Order, 1992 and its subsidiary legislations, the interim order obtained by the applicant on 10th January, 1992 had become unnecessary and should be discharged.

In my view the Regitration of Electors (Temporary Provisions)Order, 1992 and its subsidiary legislations provide the necessary guidelines for a fair national assembly election. The only question for the determination of the court is whether or not the Registration of Electors (Temporary Provisions Order. 1992 had the effect of validating the registration of electors carried out before its

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enactment.

In the contention of the applicant, the Registration of Electors (Temporary Provisions) Order, 1992 did not and could not validate the registration of electors carried out before its enactment. To hold the contrary would imply, for instance, that even unqualified people allowed, by the enumerators who were "let loose" throughout the entire country, to complete application forms for electors would have validly registered as electors for the proposed National Assembly Elections. On their part, the Respondents disputed the contention of the applicant and argued that the Registration of Electors (Temporary Provisions) Order. 1991 did have the effect of validating the registration of electors carried out before its enactment.

It must always be borne in mind that following the 1990 coup de'tat the basic law or "constitution" in Lesotho is the National Constituent Assembly Order, 1990 of which S.12 gives the 2nd Respondent the plenary power to legislate. It was clearly in terms of the provisions of S.12 of the National Constituent Assembly Order,1990 that the 2nd Respondent enacted Registration of Electors Order,1991 and the Registration of Electors (Temporary Provisions) Order, 1992 of which S.22 reads:

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"22(1) Any act or thing done or any appointment made or any form used, as from the 16th December, 1991 and before the coming into operation of the Order, and which may be done, made or used in terms of the provisions of this Order, is hereby validated and declared to have been lawfully done, made or used.

2. Any act or thing done or forms used, with regard to the registration of electors but which do not conform to all the requirements as provided for in this Order, as from the 16th of December, 1991 and before the coming into operation of this Order, is hereby validated and declared to have been lawfully done, made or used."

For their argument that the Registration of Electors (Temporary Provisions} Order.1992 had the effect of validating the registration of electors carried out before its enactment, the Respondents relied on several decisions including the decision in Collins v. Minister of Interior, 1957(1) S.A. 552 where Centlivrs, C.J. had this to say at p.565.

"If a Legislature had plenary power to legislate on a particular matter no question can arise as to the validity of any Legislation on that matter and such legislation is valid whatever the real purpose of that legislation is."

On the part of the applicant, it was, however, contended

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that the Registration of Electors (Temporary Provisions) Order, 1992 was an electoral law and as such an executive/administrative act. The modern trend was that an executive/administrative act was subject to judicial review. Heavy reliance for this contention was made to the case of Patriotic Front - Zapu v.Minister of Justice 1986(1) S.A, 532 where Dumbutshena, C.J. had this to say at p. 542:

"In my view, the arbitrary exercise by the Executive .... is nowadays subject to judicial review."

It is worth noting that in Patriotic Front - Zapu v. Minister of Justice, supra, the learned Chief Justice was dealing with an Electoral Proclamation enacted by the State President pursuant to an act of Parliament in terms of the provisions of the constitution. The Proclamation was, therefore, truly an executive act. In the present case the Registration of Electors (Temporary Provisions) Order. 1992 was enacted by the 2nd Respondent as the Legislative authority in this country, in terms of S. 12 of the National Constituent Assembly Order. 1990. The decision in Patriotic Front - Zapu v, Minister of Justice, supra, is, in my view, distinguishable from the present case and no authority that the Registration of Electors (Temporary Provisions) Order, 1992 enacted by the Legislature of this country is an executive/administrative act subject to review by the courts.

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It is significant to observe that S.22 (1) of the Registration of Electors (Temporary Provisions) Order. 1992 validated only what could be done in terms of the provisions of this order. However, the provisions of subsection (2) of section 22 of the Order seems to have contradictory effect in that it purported to validate even what did not conform with the requirements of this Order. I agree with the applicant that in the light of the provisions of S.22 (2) of the Registration of Electors (Temporary Provisions) Order. 1992 there is a danger of validating the registration of people who have not attained the age of 21 years and, therefore, unqualified to register as electors for the National Assembly Elections. However, the Registration of Electors (Temporary Provisions) Order 1992 is, in my finding, enacted by the Legislature pursuant to the provisions of the basic law or "constitution". It is not an administrative act. Assuming the correctness of my finding, it seems to me that only the Legislature can repeal or set aside the offending subsection (2) of S.22 of the Registration of Electors (Temporary Provisions) Order. 1992. The courts of law have no jurisdiction to do so. It may perhaps be pointed out at this juncture that in terms of the provisions of S. 13(2) of the National Constituent Assembly Order. 1990 all the laws enacted by the 2nd respondent are to be styled "Orders", signed and published in the gazette by the 1st Respondent. Although enacted by the 2nd Respondent, signed and published in the

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gazette by the 1st Respondent, the Registration of Electors Government Notice Number 193 of 1991 is styled "Notice".

Notwithstanding its misnomer, there is no doubt in my mind that the Registration of Electors Government Notice Number 193 of 1991 was enacted by the 2nd Respondent in accordance with the provisions of S.12 of the National Constituent Assembly Order. 1990 and should have been styled an "Order", Likewise as an act of the Legislature in this country only the Legislature can repeal or set it aside. The courts of law simply have no jurisdiction to do so.

As regards the form which is completed in the applications for registration of electors, it is common cause that it is defective in many respects. 1 have given serious consideration as to whether or not the registration of electors which has taken place from 18th December, 1991, and before the enactment of the Registration of Electors (Temporary Provisions) Order. 1992 can properly be declared null and void by the court on the ground that there is a danger of unqualified people having registered as electors for the National Assembly Elections because of the defects in the form.

It is worth noting that in terms of the proviso to S.15 (1) of the Registration of Electors (Temporary Provisions)

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Order,1992 the 1st Respondent is empowered Co amend the form as may be necessary. Indeed, by the Registration of Electors (Temporary Provisions) (Amendment of Schedule) Notice. 1992, the 1st Respondent has effected the necessary amendments. I am alive to the fact that in terms of S.1 of the Registration of

Electors (Temporary Provisions) (.Amendment of Schedule) Notice, supra, the date on which the notice is to come into operation is yet to be announced. Admittedly, the date may or may not be announced before the completion of the whole exercise of registering electors for the National Assembly Elections.

However, what has weighed heavily in my mind is the fact that ss.17, 18 and 19 of the Registration of Electors (Temporary Provisions) Order 1992 make provisions for domestic remedies to check and disallow registration of unqualified people as electors for the National Assembly Elections. Assuming there has been irregularities, feared by the applicant, in the registration of electors prior to the enactment of the Registration of Electors (Temporary Provisions) Order, 1992. it must always be borne in mind that the registration process is still going on. Until the final stage of the process has been reached the remedies provided by the Registration of Electors (Temporary Provisions) order, 1992, particularly S.19(2) thereof, are available to the applicant who is always at liberty to make use of them. Only

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in the event of the domestic remedies giving final adverse decision can the applicant, in my view, resort to the courts of law. As Solomon, J.A. succinctly put it at p. 236 of

Shames v. S.A. Railways and Harbours 1923 A.D. 228:

"....until a final decision had been given adverse to him there is no necessity or justification for him to have recourse to the ordinary courts of law. That is a course which is reserved to him as a last resort when he has exhausted all the remedies which the Act of Parliament has placed at his disposal."

On the authority of the above cited decision in Shames v. S.A. R & H 1923 A.D.228 the answer to the question I have posted, viz. whether or not the registration of electors which has taken place from 18th December, 1991 and before the enactment of the Registration of Electors (Temporary Provisions) Order. 1992 can properly be declared null and void by the court on the ground that there is danger of unqualified people having registered as electors for the National Assembly Elections because of the defect in the form, must, therefore, be in the negative.

By and large, I am convinced that this application ought not to succeed and I would accordingly discharged, with costs, the interim order as amended, granted on 10th January, 1992,

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B.K. MOLAI

JUDGE

27th March, 1992.

For Applicant : Mr. Govender

For Respondent : Mr. Tempi.