CIV/APN/240/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

BASOTHO
NATIONAL PARTY APPLICANT

AND

PRINCIPAL
SECRETARY OF MINISTRY OF

LAW,
PARLIAMENTARY AND

CONSTITUTIONAL
AFFAIRS 1ST RESPONDENT

CHIEF
ELECTORAL OFFICER 2ND RESPONDENT

ATTORNEY-GENERAL
3RD RESPONDENT

ENOCH
LELEMA 4TH RESPONDENT

SENEKALE
TJOTSANE 5TH RESPONDENT

MPHO
MALIE 6TH RESPONDENT

KHACHANE
LEVY SEKOTO 7TH RESPONDENT

SHAKHANE
MOKHEHLE 8TH RESPONDENT

NTJA
NCHOCHOBA 9TH RESPONDENT

NTSUKUNYANE
MPHANYA 10TH RESPONDENT

PASHU
MOCHESANE 11TH RESPONDENT

TEBOHO
KHOATHANE 12TH RESPONDENT

MAKATLA
MAKATLA 13TH RESPONDENT

THABISO
MELATO 14TH RESPONDENT

EDWIN
SELIKANE 15TH RESPONDENT

MATTHEWS
MOHASOANE 16TH RESPONDENT

MABALA
MAQELEPO 17TH RESPONDENT

JOSEPH
MOHLAKOLA 18TH RESPONDENT

TSELISO
MAKHEKHE 19TH RESPONDENT

SEKOALA
TOLOANE 20TH RESPONDENT

PEO
MOEJANE 21ST RESPONDENT

TJEOANE
SEKAMANE 22ND RESPONDENT

MAMOSHEBI
KABI 23RD RESPONDENT

DAVID
MOCHOCHOKO 24TH RESPONDENT

TSOTANG
MOKOTSO 25TH RESPONDENT

SEABATA
LEKHABANE 26TH RESPONDENT

B.E. TAU
27TH RESPONDENT

VINCENT
MASENYETSE 28TH RESPONDENT

MOLAPO
QROBELA 29TH RESPONDENT

MALAISA
MAHOSI 30TH RESPONDENT

DR.
DEBORAH RADITAPOLE 31ST RESPONDENT

Before
Cullinan C.J., Molai J. & Kheola J. on 2nd June, 1993. For the
Applicant: Mr. B. Sooknanan

2

For the
1st, 2nd and 3rd Respondents:

Deputy
Attorney General

Mr.
K.R.K. Tampi & Mr.

L.
Letsie, Crown Counsel

For the
4th to 31st Respondents : Mr. L. Pheko

JUDGMENT

Cases
referred to:

1. De
   Villiers v Louw (1930) A.D. 426;

   
   

2. Olufsen
   v Klisser (1959) 3 S.A. 351;

   
   

3. Attorney-General
   v Matlakeng & Anor. CIV/APN/63/89 Unreported;

   
   

4. Mota
   En Andere v Moloantoa En Andere ( 1984) 4 S A. 757 .

   
   

CULLINAN
C.J.

Subsequent
to the holding of National Assembly Elections on 27th March, 1993, 28
petitioners, the 4th to the 31st respondents inclusive
in this
application, all members of the applicant Basotho National Party,
lodged election petitions, in 28 of the 65 constituencies
in the
Kingdom. The Court of Disputed Returns (that is, as will be seen, the
High Court), sat to hear the first petition yesterday
morning. The
petition did not proceed, as this present application was placed
before the High Court. The applicant seeks an order
partly in the
following terms:

"1. (a) That a Rule Nisi be issued calling upon the Respondents
to show cause, if any, on a date and time to be determined
by the
above Honourable

3

Court
why:-

(i) The Election Petitions viz from CIV/APN/182/93, to
CIV/APN/209/93, inclusive, should not be stayed pending the
finalisation
of this application.

(ii) The ballot envelopes in relation to the cases mentioned at 1 (a)
(i) shall not be forthwith released by any of the Respondents
(that
is, the first three respondents) into the custody of the Registrar of
the High Court for safekeeping pending the finalisation
of this
application.

(iii) The ballot envelopes after superficial inspection by Applicant,
Registrar and Second Respondent shall not be released to
the custody
and care of the Second Respondent pending the hearing of the election
petitions referred to in 1 (a) (i) above.

2. That
   Order 1 (a) (i) and 1 (a) (ii) apply with immediate effect.

   
   

4

2. That
   this Honourable Court should ... dispense with the rules of Court
   because of urgency. ..."

   
   

The
application was brought ex parte on an urgent basis. The respondents
to the 28 election petitions had not been joined as respondents
in
this application. The Court considered that they were interested
parties and ordered that they be so joined. The issues involved
were
clearly of national importance and the Court declined,particularly in
view of the prayer for interim relief, to hear the matter
ex parte.
The Deputy Attorney-General Mr. Tampi for the first three
respondents, and Mr. Pheko representing all the other respondents,

were prepared, at short notice, to argue the matter without filing
answering affidavits.

The basis
of the application is contained in the following extracts from the
founding affidavit sworn by the President of the applicant
Party.:

"4. It has come to the knowledge of Applicant the ballot
envelopes for all the Twenty-nine Constituencies under dispute have

been removed from the care and custody of the Chief Electoral Officer
to the care and custody of the Principal Secretary of the
Ministry of
Justice and Prisons after the twenty-nine cases had been filed in.
Court."

5

"8. I verily aver that the ballot envelopes concerning the
elections of March 1993 had already been tampered with in that
there
has been a general "re-packing" of ballot papers in all the
Districts of Lesotho. Evidence can be led in this regard
at the
hearing hereof with the permission of this Honourable Court.
Affidavits in this regard are not available at this moment
due to the
urgency of this application. However, it is submitted that the proper
forum for this exercise would be the Court of
Disputed Returns.

9. I aver that in the light of the above illegal exercise by the
Government, Applicant is concerned that the purpose for the removal

of the ballot envelopes from the office of the Chief Electoral
Officer to the office of the Principal Secretary of Law Parliament

and Constitutional Affairs at the Government Complex is sinister and
is likely to prejudice the scrutiny that is called for in
various
election petitions by the candidates of Applicant."

Mr.
Sooknanan for the applicant has submitted that the deponent intended
to refer to the sealed packets forwarded to the Chief Electoral

Officer, rather than any "ballot envelopes". Further, he
has informed the Court that paragraph 4 above contains a
typographical
error in that reference was intended to be made, as is
indicated by paragraph 9, to the Principal

6

Secretary
of Law, Parliamentary & Constitutional Affairs, that is, the
first respondent.

Section
69 of the Constitution reads in part thus:

"69. (1) The High Court shall have jurisdiction to hear and
determine any question whether - .......

1. any
   person is validly nominated or designated as a Senator under section
   55 of this Constitution:

   
   

2. any
   person has been validly elected as a member of the National
   Assembly; or

   
   

3. the
   seat in Senate or the National Assembly of any member thereof has
   become vacant.....

   
   

5. Parliament
   may make provision with respect to -

   
   

1. the
   circumstances and manner in which and the conditions upon which any
   application may be made

   
   

7

to the High Court for the determination of any question under this
section; and

2. the
   powers, practice and procedure of the High Court in relation to any
   such application, ........ (Italics supplied)

   
   

With
regard to sub-section (5) above, specific provision was made under
the National Assembly Election Order, 1992 (No.10 of 1992)
("the
Order") relating to the provisions of section 69(1)(b) of the
Constitution, and also section 69(1)(c) (as to a
seat in the National
Assembly - see section 147 of the Order). The words "election"
and "election petition"
are defined in section 2(1) of the
Order thus:

""election" means:

1. a
   general election of members of the national Assembly; or

   
   

2. in
   relation to a particular constituency, an election or by-election
   to elect a member to represent the electors of the constituency
   in
   the National Assembly,

   
   

and includes the proceedings relating to the nomination of
candidates." (Italics supplied)

""election petition" means a petition presented to the
Court of Disputed Returns in accordance with chapter 8."

8

Chapter 8
(sections 100/112) of the Order is entituled "Election
Petitions". Thereafter sections 100, and 101 and section
104 (in
part) of the Order read thus:

"100.
The High Court is the Court of Disputed Returns for the purposes of
this Order.

101. (1) An election relating to a particular constituency or the
return of a particular candidate at an election may be disputed
by a
petition to the Court of Disputed Returns in accordance with this
Chapter and not otherwise.

2. Only
   the following persons have standing to present an election petition
   to the Court of Disputed Returns:

   
   

1. an
   elector whose name appears on the electoral list for the
   constituency concerned;

   
   

2. a
   candidate, or a person claiming to be entitled to have been a
   candidate, at the election;

   
   

3. The
   Attorney General."

   
   

"104.(1) The Court of Disputed Returns must conduct the trial
of an election petition in open court.

2. In
   determining the petition, the Court:

   
   

1. is
   to be guided by the merits of the case without regard to legal
   forms or technicalities; and

   
   

2. is
   not required to apply the

   
   

9

rules of evidence.

2. At
   the trial of an election . petition, the Court has power

   
   

1. of
   its own motion or on the application of a party to the petition, to
   compel the attendance of witnesses and the production
   of documents;

   
   

6. At
   the trial of the petition, the Court may order a scrutiny of the
   ballot papers used at the election and may make such other
   ancillary
   orders for the determination of the petition as it considers
   appropriate.

   
   

105,(1) If the Court of Disputed Returns orders a scrutiny of votes,
all ballot papers used at the election are to be scrutinised.

4. If,
   at a scrutiny of votes, it is proved that a tendered ballot paper
   was a valid vote, any party to the petition may apply to
   the Court
   for an order under subsection (5).

   
   

4. On
   the hearing of an application under subsection (4), the Court may
   make an order directing that the tendered ballot paper be
   added to
   the poll and counted." (Italics supplied)

   
   

In view
of the definition of the word "election" in section 2(1)
and the use of the words, "claiming to be entitled
to have been
a candidate", in section 101(2) (b), it would seem that
nomination proceedings may be disputed by election petition.
It is
not necessary to decide that aspect. What is clear is that

10

under the
Order, when it comes to disputing the returns made at an election,
this can only be done by way of a petition in respect
of the return
of a particular candidate, in a particular constituency, "and
not otherwise". If the returns of 28 candidates
in 28
constituencies are disputed, as is the case with the election held on
27th March, 1993, then 28 election petitions must be,
and were in
fact filed. There is no other way to impugn the elections in the
various constituencies. It cannot, for example, be
done by way of a
general application to the High Court, as in the present application.

Mr.
Sooknanan submits that the present application does not dispute any
return as such: that can only be done by election petition
to the
Court of Disputed Returns, that is, within 30 days after the end of
the election period, which time limit, he observes,
has long since
expired. I observe that 28 returns are being disputed by election
petitions, of which the Court of Disputed Returns
is presently
seized, having set down the first of those petitions for hearing
yesterday morning. Whatever may be the form of the
present
application, the purpose thereof must be examined. Surely the purpose
thereof is to support the 28 petitions, namely to
dispute the 28
returns? That is the very issue with which the Court of Disputed
Returns is seized and over which the High Court,
as such, has no
jurisdiction.

Mr.
Sooknanan submits that the applicant does not seek a scrutiny, but
merely a "superficial inspection" of the packets

11

originally
delivered to the Chief Electoral Officer. But that also is an aspect
of which the Court of Disputed Returns is seized.
As Mr. Pheko points
out, section 104(6) provides that the Court of Disputed Returns "may
make such other ancillary orders
for the determination of the
petition as it considers appropriate". There is, for example,
the power to make an order under
section 105(5). Indeed the wide
ranging powers under section 104 indicate the quasi-inquisitorial
aspect of the Court's duty hearing
an election petition, which is not
in the nature of any other civil matter inter parte, and that the
Court may act meru motu in
the execution of such duty. As I see it,
upon the hearing of an election petition, the Court of Disputed
Returns is obliged, like
any other court, to consider whether or not
any documents are being produced from proper custody. That applies a
fortiori to the
production by the Chief Electoral Officer of the
sealed packets delivered into his custody.

It will
be seen that in paragraph 8 of the founding affidavit it is conceded
that the allegation of tampering and "re-packing"
is a
matter for the Court of Disputed Returns "as the proper forum".
I agree. I cannot then see how it can be said that
the question of
whether or not the seals on the packets delivered to the Chief
Electoral Officer have been broken, is not also
a matter for that
Court.

I have
been concerned to ascertain whether or not the High Court has any
inherent jurisdiction in the matter. It will be

12

seen that
section 69 of the Constitution confers jurisdiction upon the High
Court as such, rather than the Court of Disputed Returns,
but I do
not see that anything turns on that, as under section 100 of the
Order, the High Court is constituted the Court of Disputed
Returns,
for the purposes of the Order. What is important is that section
69(5)(b) of the Constitution empowers Parliament to make
provision
with respect to the powers of the High Court in relation to any
question whether "any person has been validly elected
as a
member of the National Assembly." The Constitution took effect
on 2nd April, 1993, however, whereas the Order came into
operation on
10th June, 1992. Nonetheless, section 156(1) and (2) of the
Constitution provides thus:

"156. (1) Subject to the provisions of this Constitution, the
existing laws shall continue in force and effect on and after
the
coming into operation of this Constitution and shall then have effect
as if they had been made in pursuance of this Constitution,
but they
shall be construed with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring them
into
conformity with this Constitution.

2. Where
   any matter that falls to be prescribed or otherwise provided for
   under this Constitution by Parliament or by any other
   person or
   authority is prescribed or provided for by or under any of the
   existing laws (including any amendment to any such
   law made under
   this section), that prescription or provision shall, as from the
   coming into operation of this Constitution,
   have effect (with such
   modifications, adaptations, qualifications and exceptions as may be
   necessary to bring it into conformity
   with this Constitution) as if
   it had been made under this Constitution by Parliament or, as the
   case may be, by the

   
   

13 other person or authority."

The
effect of those provisions is that the Order has effect as if it had
been made under the Constitution by Parliament. As I see
it,
Parliament was empowered by the Constitution to make provision for
the High Court's powers in the matter and this it has done
under the
Order. In determining "any question whether -.... any person has
been validly elected as a member of the National
Assembly", the
High Court is therefore very much a creature of statute and its
powers are delineated in the Order, that is,
as the Court of Disputed
Returns.

I do not
say that the High Court has no inherent common law powers in
electoral matters. It will be seen that under section 34 of
the Order
a case may be stated to the High Court, as such, in the event of
dissatisfaction with the Chief Electoral Officer's ruling
in the
matter of registration of an elector; again, section 144 of the Order
provides for an application to the High Court, as
such, for an order
e.g. requiring a person to cease engaging in conduct that constitutes
an offence under the Order. Those provisions,
however, do no more
than confer a specific statutory jurisdiction upon the High Court in
electoral matters and throw no light on
the existence or otherwise of
any inherent jurisdiction. In the case of De Villiers v Louw (1)
decided in 1930, Curlewis J.A observed
at p.430

14

".... it is well to bear in mind that a Court of law can have
jurisdiction in connection with an election petition only in
so far
as jurisdiction has been conferred upon it by the Electoral Act, and
that the power either of the court below or of this
Court to deal
with an election petition in the first instance or on appeal, and the
extent of that power, must be found within
the four corners of the
Act. The provisions of the Act clearly indicate that the trial by a
Court of law of an election petition
cannot be regarded as a trial of
any ordinary action before a Court, but as something special and
distinct."

Those
dicta of course concern the court's jurisdiction in hearing an
election petition as such. They were adopted by Harcourt A.J
in the
case of Olufsen v Klisser (2) at p.354, to which case reference was
made by this Court in the case of Attorney-General v
Matlakene__&
Anor. (3) at p. 8 (and see pp.17/18). Harcourt A.J. observed at p.354

"Now it is quite clear from the decision of Courts both in this
Province and the Appellate Division that the Judges of this
Court
have jurisdiction solely within the four corners of the Act in regard
to matters regarding the elections.

This was pointed out more than once in the judgment of the Appellate
Division in the case of De Villiers v. Louw (1), and the reason
for
that was indicated to be that the Legislature, in transferring the
supervision of elections from itself to the Court, must
be taken to
have granted to the Court no more of its jurisdiction than is
expressly conferred by the Act."

Nonetheless,
while the High Court was established by statute, it has, as a
superior court of record with unlimited

15

original
and appellate jurisdiction, developed an inherent common law
jurisdiction, which can only be derogated from by express
provision.
In this repect in 1984 a Full Bench of the Orange Free State
Provincial Division of the Supreme Court (per M.T. Steyn
J.) in the
case of Mota en Andere v Moloantoa en Andere (4) held (the judgment
is in Afrikaans but see the headnote at p.764) that,

"the case did not fall within the ambit of statutory election
law and that regard had to be had to the electoral common law
or
"common law of Parliament", which electoral common law
consisted, at least in part, of the imported English electoral
common
law."

It may be
therefore that there is an inherent jurisdiction in other matters
preparatory to the actual election. It may be that e.g.
mandamus
might lie in certain cases. I see no need to decide that aspect, for
when it comes to the present application, it clearly
relates to the
"question of whether - .... any person has been validly elected
as a member of the National Assembly",
and the High Court's
powers in the matter, have been expressly provided for by Parliament,
namely that any such question, or any
matter ancillary to such
question, can only be determined by the High Court sitting as the
Court of Disputed Returns, upon an election
petition.

There are
narrower issues of jurisdiction. Firstly, the first prayer seeks a
stay of proceedings in the Court of Disputed

16

Returns.
That is a issue for that Court: I cannot see that the High Court
would have jurisdiction in the matter.

Secondly,
section 95 and section 97 (in part) of the Order read thus:

"95. The Chief Electoral Officer must:

1. retain
   in a place of safe custody the packets delivered to that Officer in
   accordance with section 64, 84 and 94 and containing
   ballot papers,
   ballot envelopes and counterfoils of used ballot papers until the
   election can no longer be questioned;

   
   

2. then,
   unless in the meantime a court of competent jurisdiction otherwise
   directs, arrange for those packets to be destroyed."

   
   

"97.(1) A person must not:

1. open
   a sealed packet of ballot papers or ballot envelopes referred to in
   section 94(1) (a)-(f) or a sealed packet of counterfoils
   of used
   ballot papers; or

   
   

2. inspect
   or allow another person to inspect ballot papers, ballot envelopes
   or counterfoils removed from such a packet,
   

   
   

except under the authority of an order of a court of competent
jurisdiction.

2. A
   court of competent jurisdiction may grant an order under subsection
   (1) if it is satisfied by evidence on oath that the inspection
   of a
   particular ballot paper, ballot envelope or counterfoil is required
   for the

   
   

17

purpose of:

1. prosecuting
   a person for an offence against this Order; or

   
   

2. determining
   an election petition."

   
   

It will
be seen that, apart from the prosecution of election offences, the
High Court, sitting as the Court of Disputed Returns,
has
jurisdiction to order the opening of a sealed packet containing
specific election material "for the purpose of ..... determining

an election petition." Mr. Sooknanan submits that his client
does not seek the opening of any packet, but merely the inspection
of
the seals thereon. But, as I see it, the Chief Electoral Officer is
the lawful custodian of the relevant electoral material,
who is
statutorily obliged to retain it "in a place of safe custody".
Mr. Tampi submits, and I agree, that the High Court
has no power to
order the Chief Electoral Officer to even produce the sealed packets
for external inspection. It may only do so
under section 97, sitting
as the Court of Disputed Returns, upon the hearing of an election
petition, for the purpose of determining
such petition. I cannot then
see how the second prayer can be granted. There is simply no
jurisdiction in the High Court to confer
custody of the relevant
electoral material upon the Registrar.

Neither
can the third prayer be granted. I make no finding on the founding
affidavit. The evidence involved is a matter for

18

the Court
of Disputed Returns. I simply make the observation that the latter
Court may only order the production of the electoral
material in the
course of an election petition. Meanwhile I cannot see that there is
any power in the High Court to order the inspection
of the material
by the applicant or the Registrar. Neither is there power to order
the Chief Electoral Officer to conduct an inspection:
he is the
statutory custodian of the material, until produced under the
provisions of section 97.

There is,
incidentally, a further aspect which vitiates the application. The
underlying purpose of the application is, as I have
said, clearly to
dispute the 28 returns involved. That, as I see it, is a matter for
the 28 petitioners and not the political Party
of which they are
members. There is no averment that the application is representative
in nature. The deponent of the founding
affidavit, who has himself
filed an election petition, would have locus standi in the matter of
the electoral material relevant
to such petition, but there is no
averment as to representation of the other petitioners.

Apart
altogether from that aspect, for all the reasons stated, I consider
that there is simply no jurisdiction in the High Court
to entertain
this application. I have refrained from dealing with the merits of
the application, as I do not wish in any way to
prejudice the
determination of the issues involved before the proper forum, namely
the Court of Disputed Returns.

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For the
present I would dismiss this application with costs.

Delivered
at Maseru This 2nd Day of June, 1993.

B.P.
CULLINAN

CHIEF
JUSTICE

I CONCUR

B.K.MOLAI

JUDGE

I CONCUR

J.L.
KHEOLA

JUDGE

CULLINAN
C.J.: The Order of the Court therefore is that the application is
dismissed with costs.

B.P.
CULLINAN

CHIEF
JUSTICE