HIGH COURT OF LESOTHO
MAKHAKHE 1st Applicant
MAHLAKENG - 2nd Applicant
NCHOCHOBA 3rd Applicant
MPHANYA 4th Applicant
TOLOANE 5th Applicant
MOPELI 6th Applicant
TSATSANYANE 7th Applicant
CHAKELA 8th Applicant
MASIKE 9th Applicant
PITSO 10th Applicant
RAMATHEBANE 11th Applicant
HLAELE 12th Applicant
EXECUTIVE COMMITTEE - BCP 13th Applicant
CONGRESS PARTY 14th Applicant
QHOBELA 1st Respondent
RALITAPOLE 2nd Respondent
KHIBA . 3rd Respondent
TSAKATSI 4th Respondent
KOLISANG 5th Respondent
PEKECHE 6th Respondent
MOEJANE 7th Respondent
MAPEFANE 8th Respondent
MONYALOTSA 9th Respondent
MOLUNGOA 10th Respondent
ADAMS 11th Respondent
CHAOLANA 12th Respondent
SEKOTO 13th Respondent
LECHESA 14th Respondent
MOEKETSI 15th Respondent
PHOOFOLO 16th Respondent
CHAKELA 17th Respondent
KOTELO 18th Respondent
SEKHESA 19th Respondent
HOOHLO 20th Respondent
KHOBOKO 21st Respondent
MATLALI 22nd Respondent
MANDORO 23rd Respondent
by the Honourable Mr. Justice M.M. Ramodibedi on the 6th day of July
involves a dispute between two committees each of which is claiming
to be the lawfully elected National Executive Committee
(NEC) of the
14th Applicant (BCP). As often happens in the history of political
parties in this country, it is a case based on
struggle in which no punches are pulled including, so it would seem,
blatant sacrifice to the truth for the attainment
of power. It is
thus the task of this court to sift through the maze of lies, truths
and half truths to get to the real bottom
of the matter and determine
where justice lies.
It is the
Applicants' case that they were elected on the 24th April 1999 at the
annual conference of the BCP while the Respondents
on the other hand
claim to have been so elected on the 25th April 1999. In their Notice
of Motion the Applicants have accordingly
approached this court for
in the following terms :
the rules of this Honourable Court pertaining to notice and service
be dispensed with and the matter be heard as (sic) of
a Rule Nisi be issued returnable on the date and time to be
determined by this Honourable Court, calling upon the Respondents
show cause, if any, why:-
shall not be interdicted forthwith from holding themselves out as
the National Executive Committee of the Fourteenth
Conference purportedly held on the 25th April 1999 at Sefika Hall -
Maseru as a conference of the fourteenth Applicant shall
declared unconstitutional and the proceedings conducted thereat
null and void and of no legal force and effect;
purported election of the Respondents to (sic) National Executive
Committee of the Fourteenth Applicant on the 25th April,
not be declared null and void and of no legal force and effect;
first to the eleventh Applicants shall not be declared the lawfully
elected and constituted members of the
National Executive Committee of the Basutoland Congress Party;
and/or their agents shall not be directed to desist forthwith from
unlawfully interfering with the administration
and property (movable
and immovable) of the fourteenth Applicant;
shall not be ordered to refrain from unlawfully interfering in any
manner whatsoever, with the Applicants in their
day to day running
of the affairs of the fourteenth Applicant;
and/or their Agents shall not be ordered forthwith to remove the
barricades and locks they have placed at the fourteenth
premises known as Khatisong at the Industrial Area, failing which
Applicants be authorized to employ lawful means
and remove same.
shall not be ordered to pay costs of this application;
shall not be granted such further and/or alternative relief.
prayers 1, 2 (a), (e), (f), and (g) operate with immediate
effect in an interim order pending the finalization hereof."
21st May 1999 I duly granted the Rule Nisi as prayed but declined to
grant the interim orders sought without having heard
the other side.
extended return date namely the 31st May 1999 when the matter came
before me for hearing I duly directed viva voce evidence
to be heard
on the following disputed issues:
of the two disputing NEC Committees of the 14th Applicant namely the
one elected on the 24th April 1999 and the one elected
on the 25
April 1999 is the lawfully elected committee?
transpired at the meeting held at Sefika Hall on the 24th April 1999
namely whether or not that meeting concluded its business
or not it was abandoned due to chaos or whether or not it was
lawfully adjourned to the 25th April 1999.
was the duly appointed Credentials Committee in respect of the two
the 13th and 14th Applicants resolve to bring this application?
be noted that I further directed that only those deponents who had
filed affidavits in the matter should give viva voce
evidence and in
response to this directive the Applicants called PW1 Thulo Mahlakeng
and PW2 Jack Mopeli. The Respondents on the
other hand called DW1
then to examine the evidence of these witnesses.
Mahlakeng is a practising attorney of this court. He testified that
the Annual Conference of the BCP that was held in
January 1999 was
adjourned to April 1999. Indeed I find that this is common cause and
accordingly I have no hesitation in finding
that the conference of
April 1999 was simply a continuation of the conference of January
importantly PW1 testified that in the adjourned conference he was a
member of the NEC of the BCP holding the position of Deputy
Once more this is common cause.
further unchallenged in his evidence and I accordingly accept that a
Credentials Committee was appointed for the Annual Conference
January 1999 comprising five people namely PW2 Jack Mopeli as
Chairman, Thabo Khosi, Nonkuleleko Zaly, Gosene Djama and Lebohang
Maruping. These members of the Credentials Committee were duly
appointed by the NEC of which, as earlier stated, PW1 was a member.
They were also confirmed by the Annual Conference of January 1999.
It is not
disputed that the Credentials Committee performed their functions for
the Annual Conference in January 1999 well and indeed
were made against the Committee. Such functions comprise the
screening and vetting of delegates to the Annual Conference
that only properly designated delegates from the Constituencies take
part in accordance with Article 14.1 of the party
provides as follows:-
"The Annual Conference of the party shall be entered by
delegates only. Every known and accepted branch will have delegates
at the Annual Conference of the party" (emphasis added).
to the unchallenged evidence of PW1 which I accordingly accept, the
Conference of January 1999 did not complete its business
included the election of NEC members. That was a specific agenda item
which was deferred to April Conference.
once more unchallenged in his evidence that no other person could
perform the same function that was performed by the Credentials
Committee. Indeed I find this proposition unanswerable. Otherwise it
would make the Credentials Committee a mockery.
further the evidence of PW1 that in order to perform its functions
and because it will be dealing with delegates to the Annual
Conference the Credentials Committee would need to have all
particulars of the delegates who are authorised to participate in the
Annual Conference. To this end every
fills LM13 form which is then sent to the party headquarters by the
constituency committee in question. The LM13 form contains
particulars of a delegate and it has to be signed by the delegate. It
is from LM13 forms that the Credentials Committee will be
"screen" the delegates. Indeed PW1 is unchallenged in his
evidence which I accordingly accept that prior to the
"well in advance", the Credentials Committee has a list of
delegates and that it is the function of the Credentials
prepare identification cards for the conference.
PW1 is unchallenged in his evidence that the Credentials Committee
that was elected in the adjourned conference of January
never disbanded. I accordingly accept this as a proved fact. Indeed
PW1 is unchallenged in his evidence that since the
conference of January 1999 was "merely in recess" there
would be no need for the NEC to reappoint another committee.
can be more logical. PW1 is adamant therefore that the NEC did not
reappoint any other people to the Credentials Committee
for the April
Conference. He has remained completely unshaken in this view and I
accordingly accept it as the truth.
It is the
evidence of PW1 that on the 24th April 1999 the conference of the BCP
was opened by the Chairman of the party Ntsukunyane
Mphanya at the
appointed venue at Sefika Hall at around 10 o'clock in the morning.
Delegates were present although he cannot remember
how many. The NEC
was also present in its quorum. In fact nine members of the NEC
including PW1 himself were present while in terms
of the constitution
of the party seven
of the NEC form a quorum. The Leader of the party namely the 1st
Respondent never attended the conference.
to the unchallenged evidence of PW1 which I accordingly accept, after
the conference had been declared open, it then proceeded
remaining business of the day namely two main items that were left
outstanding at the January conference and two minor
ones. The major
to the Constitution of the party.
of the NEC.
of the Elections Committee by the Conference.
tabling of the report of the Credentials Committee.
then the evidence of PW1 that the Conference started with the
amendment of the Constitution of the party. This was duly done
completion and so was the report of the Credentials Committee. Then
the Elections Committee was appointed by the Conference.
Elections Committee was in place the election of the NEC was then
conducted. PW1 is unchallenged in his evidence that
Committee "finished with the elections" and that "after
voting had been finished what was left was
counting of the votes."
It was at this stage at around 7 o'clock in the evening that one
police officer who was in charge
of the police force responsible for
at the conference announced that he had been requested by the 1st
Respondent "to disperse the people in the hall"
permit for holding the conference had expired at 6 o'clock. PW1
testifies that he then successfully pleaded with the
to allow the conference to finish the counting of votes because that
was the last item left. It would make no sense
to come back the
following day simply to read out the votes. According to PW1 the
counting was then done to completion and the
NEC was duly announced
in terms of which the 1st Applicant was elected as Deputy Leader, 2nd
Applicant as Chairman, 3rd Applicant
as Deputy Chairman, 4th
Applicant as Secretary General, 5th Applicant as Treasurer, 6th
Applicant as Publicity Secretary, 7th Applicant
as Deputy Publicity
Secretary, 8th, 9th, 10th and 11th Applicants as Members. These
members of the NEC were declared as having
been duly elected. The
leader of the party was not elected at the conference because up
until the April conference he was in terms
of the constitution
elected for five years. The leader in this case namely the 1st
Respondent had been so elected in January 1998.
This meant therefore
that his term of office was not affected by the April conference. Two
other ex officio members of the NEC
were also not affected by the
April conference in as much as they are appointed by their respective
associations which are wings
of the BCP and only become members of
the NEC by virtue of such appointments. They are the President of the
Women's League and
the President of the Youth League" (12th
to PW1 after the NEC had been announced, the conference was then
closed by the outgoing chairman Ntsukunyane Mphanya at
evening, there being no outstanding issues as at that time. Thus the
conference was not postponed or adjourned to the following
25th April 1999 as alleged by the Respondents. PW1 categorically
denies that the conference degenerated into chaos. He
that at about 7 o'clock in the evening a small group of some members
of the party led by the 14th Respondent (DW1)
attempted to force
their way into the conference hall because a certain Peo Moejane (7th
Respondent) had shouted from outside the
hall "hey men they have
already elected!!" apparently referring to the election of the
Applicants' NEC which had just
taken place inside the conference
hall. According to PW1 this commotion which took place outside near
the conference hall was immediately
stopped by the police contingent
in attendance and some private guards who had been hired by the NEC
and who were also armed with
rifles. PW1 is unchallenged in his
evidence, and I accordingly accept, that these people who wanted to
force their way into the
conference hall "never even entered"
the hall and that this "scuffle" did not affect the
PW1's evidence that later on when the conference had already been
closed the 1st Respondent then addressed the small group
who had been making noise outside the conference hall to disperse and
come back the following morning.
the 1st and 5th Respondents abstained themselves from the conference
PW1 testified that the 1st Respondent had not been
meetings for quite some time. The 5th Respondent, on the other hand,
Committee" when it was preparing for the January Conference, the
reason being that the report he had prepared was
rejected by the NEC
who felt it was removed from reality and was not a report on the
activities of the party. Once more this evidence
uncontroverted and I accordingly accept it as the truth.
further the unchallenged evidence of PW1 that between 8 and 9 o'clock
in the morning on the 24th April 1999 he personally
Lebohang Maruping and other people who were not members of the
Credentials Committee busy registering people and issuing
identity cards at the party headquarters. It is his unchallenged
evidence that they were not entitled to do that as that
function of the lawfully appointed Credentials Committee under the
chairmanship of PW2. That also applies to the Secretary
namely the 5th Respondent as that was "a glaring usurpation of
the powers of the Credentials Committee."
further testified that he came to know that the Respondents held
another conference on the 25th April 1999. He is adamant that
conference cannot lawfully be termed a conference of the BCP since it
was chaired by one Khotsang Mosheshoe who had not been
elected by the
Annual Conference in question and since delegates thereat were not
screened by the properly appointed Credentials
Committee chaired by
Jack Mopeli (PW2) to ensure that such delegates were properly
designated to take part in the conference in
accordance with the
party constitution. He significantly adds that these people who
attempted to screen the delegates in the absence
appointed Credentials Committee could not be able to do a proper
screening because the necessary documentation was with
the NEC and
the LM13 forms which are necessary for a proper screening were with
the Credentials Committee chaired by Jack Mopeli
(PW2). Once more
there was no suggestion that PW1 was lying in this regard and I
accordingly accept his version.
PW1 challenged in his evidence that the NEC of which he was a member
(13th Applicant) duly resolved to bring these proceedings
and so did the 14th Applicant. It is his evidence that the 1st
Respondent was not present at the meeting of the NEC that
bring these proceedings. It was then suggested to him by Mr. Mosito
for the Respondents in cross examination that any
meetings which were
not called by the Leader (1st Respondent) flew in the face of the
constitution of the party. PW1 vehemently
disagreed adding "there
is no such section." The witness was indeed proved right when
Mr. Mosito uncomfortably fiddled
through the party constitution for a
very long time but could not come up with the section. He finally
referred to Section 30.2
which, however, only provides as follows:
"The Leader or, in his absence, his deputy will be the chairman
of meetings of the executive committee. If those two are not
the committee will appoint its own chairman to chair that meeting."
At this stage Counsel put the following questions to PW1:
"Q: More specifically 1st and 5th Respondents say I must inform
you that they were never informed of such meeting.
A: I think they knew.
Q: Why do you say so?
A: I can recall a letter that was written to 5th Respondent telling
him that he has absconded himself in a number of meetings and
should show cause in the next meeting why he should not be removed
from the committee. That's why I say they knew."
Then followed a very strange and revealing question from Counsel:
"Q: That letter am I correct that it never indicated the agenda
in full? It only referred to disciplinary hearing?
A: True it was not an agenda for a meeting. It was just a letter
written to him."
judgment the question by Counsel was not only unwarranted but
decidedly improper in as much as Counsel was obviously in possession
of the letter in question hence his reference to the contents
thereof. It cannot then lie in the mouth of Counsel to dispute on
clients' behalf knowledge of the meeting in question. Indeed it
cannot be overemphasised that as an officer of the Court it
duty of Counsel to assist the Court in dispensing justice. It is not
the duty of Counsel to suppress or hide the truth.
If he does the
reiterated in cross examination that the Credentials Committee that
was appointed at the adjourned January Conference had not
changed as at 24th April 1999 Conference. He boldly challenged the
1st Respondent to produce the minutes of the NEC changing
committee. He adds quite categorically that the 1st Respondent has
never held a single meeting of the NEC since after the 1st
1999. He adds further "I know for a fact that the 1 st
Respondent attempted to call a meeting which aborted on two occasions
because he could not form a quorum. In attendance were himself, 5th
Respondent and 2nd Respondent." This was because the 1st
Respondent had attempted to suspend six members of the NEC leaving
him without a quorum to operate with. That this is so seems
from the evidence and I accordingly accept it as the truth. In fact
PW1 remained unchallenged in his evidence that 1st Respondent
left with 2nd Respondent and 5th Respondent only.
then suggested to PW1 that the members of the "new"
Credentials Committee are those that appear in paragraph 8
Answering Affidavit of the 1st Respondent namely Lebohang Maruping,
Lebohang Hatase, Ramabele Ramoriting and one Mr. Sentso.
was that Lebohang Maruping was a member of the Credentials Committee
appointed in the January Conference but he never
participated in the
Conference of the 24th April. Lebohang Hatase, Ramabele Ramoriting
and Sentso were never elected by the NEC
of which PW1 was a member.
further disputed Counsel's submission on behalf of the Respondents
that the "new" Credentials Committee were the ones
screened and vetted the delegates on the 23rd, 24th and 25 days of
April 1999. According to PW1 they could not be able to do
they had no LM13 forms which were kept by the Deputy Secretary
General, the late Rathala Ramolahloane, since as earlier
Secretary General had absconded. The Deputy Secretary General had
then handed over the LM13 forms and the list of delegates
to screen the delegates to the Credentials Committee that was
appointed at the January Conference. Accordingly PW1 denied
categorically that the list of delegates for the April Conference was
received by the 5th Respondent. He reiterated that by then
Respondent had deserted the office. He had never been in the office
for a whole year and that was precisely the reason
why at the January
Conference he wrote a report that was rejected because it was not
reflecting the party position.
indeed unchallenged in his evidence that in the absence of the
Secretary General the practice is that the Deputy Secretary
carries out his duty. I consider that this accords with logic and
common sense. PW1 testifies then that in the absence
of the Secretary
General it is the Deputy Secretary General who issues identity cards
to delegates as against LM13 forms. In the
same breath the Deputy
Secretary General is the one who gives a list of delegates to the
Credentials Committee in the absence of
the Secretary General. I have
no hesitation in accepting this proposition not only as a matter of
logic and common sense but also
as a matter of undisputed proved
practice in the party.
further suggested to PW1, on behalf of the Respondents, that it is
the responsibility of the Credentials Committee to ensure
qualifications stipulated in the constitution for delegates to
participate in the Annual Conference are complied with.
was very instructive namely that the Credentials Committee does not
decide whether or not a person qualifies. A decision
already been taken by the NEC in that regard when LM13 forms are
filled. The Credentials Committee does not approve that
qualifies or not. Whilst at the Conference door members of the
Credentials Committee simply allow delegates to enter on
the basis of
what they have been given by the NEC namely LM13 forms.
was not disputed that PW1 himself was a member of the Credentials
Committee of the party in 1995 and thus spoke from personal
experience. It was suggested to him that he had nothing to do with
the Credentials Committee that was involved with the January
Conference. Not only did he deny this but he also told the Court that
he in fact appointed the committee in his capacity as a member
NEC and that as such he participated in the appointment of the
committee by the NEC.
PW1 told the Court that he was present when the Deputy Secretary
General namely the late Rathala Ramolahloane gave
the LM13s to the
Credentials Committee in particular to the chairman thereof Jack
Mopeli (PW2). He remained unshaken in this version
and I accordingly
accept it as the truth, more especially since the 5th Respondent has
not filed an affidavit in this matter and
has accordingly not given
any evidence before me. I am
unmindful of the following question put to PW1 by Mr. Mosito in cross
"Q: My instructions from the 5th Respondent are that I should
inform you that he himself did receive the names of the prospective
delegates in terms of Article 25.20.
A: I am able to say Counsel's instructions are false because the 5th
Respondent as 1 have indicated earlier on never attended meetings
the Committee (NEC) in fact he left the Committee and said he was
going to fend for himself. And furthermore even when these
considered and given to the Deputy Secretary General by the NEC in
its sitting he was not there."
need hardly be emphasised that what a client says to his legal
representative in consultation is not evidence and I shall
accordingly refrain from elevating Counsel's questions to evidence in
the NEC acquired possession of the relevant documents PW1 told the
Court that it obtained same from the office of the
General as well as the office of the Executive Secretary. This also
applied to the list of delegates. PW1 further
informed the Court that
he had knowledge of this because he was working with the NEC.
then put to PW1 that the 14th Respondent "says" he was
into the conference on the 24th April 1999 together with the
following delegates: 'Mantoahae Ramakatsa, 'Mamoroesi Ratsatsanyane,
'Mapalesa Lechesa, 'Mampeli Macheli, Ntoahae Ramakatsa, Likeleli Vet
"and others." PW1's response was the following:
"I have read Lefu Lechesa's affidavit. It is the shortest of
them all. He only refers to himself and no other persons. I am
tempted to say this list is an afterthought. And furthermore I was
one of the chairpersons of this Conference. I know Mr. Lechesa
well. We are not only party members, we are colleagues and I never
received any complaint as one of party chairmen that he
testified that neither did the other people mentioned by Counsel make
myself read Lefu Lechesa's affidavit and agree that it is the
shortest of them all. Indeed he only mentions himself as having
chased out of the Conference on the 24th April 1999." He does
not say that any other person was denied access or chased
out of the
Conference. It is true he associates himself with the contents of the
1st Respondent but the latter, I observe, has
not given evidence
before me despite my ruling.
reiterated in cross examination that the Conference on the 24th April
1999 progressed beyond 6 o'clock in the evening and that
beyond the time stipulated in the permit obtained from the police. He
denied the suggestion by Counsel that by proceeding
beyond 6 pm the
"an illegality." In any event he reiterated his evidence in
chief that he was the person who spoke to the police
charge for an extension of time which was duly granted. This is not
challenged and there is accordingly no reason to
disbelieve PW1 in
Mosito for the Respondents then put the following instructive if not
revealing question to PW1:
"Q: My instructions are that the same Resolutions Committee that
was in place for the January 1999 Conference was to be still
Committee that will be charged with the functions of the Resolutions
Committee on 24th and 25th April.
A: That is bound to be correct. We are saying the April Conference
was the same thing as January Conference."
analogy how then can it be said that the Credentials Committee that
was appointed for the adjourned January Conference was changed
the April Conference especially since, as earlier stated, it
admittedly performed its functions well? I think PW1 is fully
justified in calling this "double standards." My impression
is that the Respondents are no doubt lying in this regard
cover themselves in having proceeded to convene yet another
"conference" of the party on the 25th April 1999.
about this later.
the bullish self help actions of the 14th Respondent (DW1) were laid
bare by none other than his own counsel Mr. Mosito himself
following question to PW1 in cross examination:
"Q: 14th Respondent will tell this Court that it was around the
same time (5 o'clock in the afternoon) that a word was passed
by one Lebohang Hlaele (12th Applicant) that the elections committee
had just been elected and that as a result of that
Respondent passed a word around that all those who have been denied
access or entry into the hall but who were delegates
should go in."
As if this was not damaging enough to his client's case Mr. Mosito
then significantly put the following question to PW1:
"Q: My instructions are that when this scuffle ensued from the
doorway those people outside the hall sought to push their
way in and
stones were thrown into the hall.
A: These instructions are false.
Court: Were there any stones thrown into the hall?
A: None my lord because we had at the doorway the security guards who
were hired from Eagle's Security and they were armed. We
many policemen around the door and the premises; therefore I cannot
imagine a group of disgruntled people throwing stones
at policemen. I
can't imagine seeing them being involved in a scuffle with policemen
at the door."
the Court in cross examination that the police contingent at the
conference fully cooperated with "the proper authority"
that he never received any report that 1st Respondent attempted "to
disrupt" the conference. He adds quite significantly
fact that would have been contempt of court on the part of the 1st
Respondent to attempt to close the conference because
on the 23rd
April 1999 in case No. CIV/APN/168/99 the Learned Chief Justice
ordered the 1st and 5th Respondents namely Molapo Qhobela
'Molotsi Kolisang to refrain from unlawfully interfering with the
conference in any manner. That Court Order is annexed to
affidavit of Thulo Mahlakeng (PW1) as annexture "TM2" and
because of its importance and significance to
this case it is
necessary to refer to its contents in full. In that case the
Applicants were the following people: 1st Applicant
2nd Applicant Ntsukunyane Mphanya, 3rd Applicant Thulo Mahlakeng
(PW1), 4th Applicant Sekoala Toloane, 5th Applicant
(PW2), 6th Applicant Ntja Nchochoba, 7th Applicant Lebenya Chakela,
8th Applicant Mohosho Mohosho, 9th Applicant Qoane
Applicant Basutoland Congress Party and 11th Applicant National
Executive Committee. The Respondents were 1st Respondent
Qhobela and 2nd Respondent 'Molotsi Kolisang.
perused the interim order granted by the Learned Chief Justice in
CIV/APN/168/99 and am satisfied that the Respondents Molapo
(now also 1st Respondent) and 'Molotsi Kolisang (now 5th Respondent)
were duly interdicted from (a) "unlawfully interfering
preparation for and the holding and proceedings of the Annual
Conference to be (sic) on the 24th
April 1999"; (b) the two Respondents were ordered "to
refrain from unlawfully interfering with first to fifth
preparations for attendance and participation at the Annual
Conference of Basutoland Congress Party to be held on the
25th April 1999 pending the determination of these proceedings";
and finally © the 1st Respondent and/or his
"interdicted forthwith from interfering with and harassing the
staff of the tenth Applicant in any manner whatsoever
finalization of this application."
certainly bear the provisions of the above mentioned Court Order in
mind in determining this matter.
to the evidence of PW1 then it was suggested to him in cross
examination that the NEC that was elected on the 24th April
unlawful because it did not have the secretaries mentioned in
Articles 28.15 to 28.24 of the party Constitution. PW1's
reply in a
nutshell was that these articles were duly amended and deleted by the
Annual Conference of the party on the 24th April
1999 because it had
been realised that the secretaries in question were in fact
technocrats and/or the party think-tank which were
not known at
constituency level but were only known by the NEC. Hence it was
resolved that from that stage onwards they could only
be appointed by
the" NEC. He testified further that in terms of Article 50 of
the Constitution of the Party the "skeleton"
of candidates to the NEC is proposed by constituencies and that the
Annual Conference will only elect those candidates
who have been
recommended by the constituencies themselves. In turn the
will have filled LM14 forms which is the "skeleton" or
proposed structure of the NEC. He added that there
is no other way in
which the Annual Conference can elect the NEC otherwise than in
accordance with the skeleton LM14 form which
was dully done in the
instant case. He significantly testified further that there was not a
single LM14 form that was received
that provided for the technocrat
secretaries in question.
convenience Articles 50.2, 50.3, 50.6 and 50.7 merit special mention
here in order to fully understand PW1's evidence. They
"50.2 The constituency conference, in its preparation for the
Annual Conference of the Party will propose names of people who will
stand for elections of the National Executive Committee at
Conference of the Party.
50.3 Each Constituency will propose a name, names and the
seat or office of the National Executive Committee, and those names
should be sent immediately after the conference together with
to the Secretary-General.
50.6 Appointments of constituencies shall be supported by the
decision of the Annual Conference of the Party.
50.7 When constituency delegations are issued to the Annual
Conference each delegate will be given a list of those who will
stand for election to the National Executive Committee who will have
been shown to qualify for membership to the committees of
Basutoland Congress Party."
rate in my judgment I consider that the fact that the Annual
Conference did not elect the technocrat secretaries can never
sufficient ground for invalidating the election of the members of the
NEC who were duly elected by the Annual Conference.
Any gaps would
always be filled in if and when necessary. As it is, however, I
accept PW1's version that the party Constitution
had been amended and
that accordingly the election of technocrats secretaries had been
done away with at the April 1999 Conference.
like to record at this stage that I have observed PW1 give evidence
before me. He faced long, tedious and repetitive cross
which Counsel contemptuously sought to enlarge the issues at every
turn. The Court had to give Counsel a stern warning
and in fairness
to him never once thereafter did he display any contempt towards the
Court. That is how it should be and this Court
sounds a warning to
legal practitioners in general to live up to the required ethical
standards in order to enhance the dignity
of the Court and hence to
inspire confidence in the members of the public.
to the evidence, PW1 remained on top of the cross examiner throughout
with his knowledge of the constitution as well as
the customs and
traditions of the party. No matter how hard counsel tried PW1
remained unshaken in cross examination. He impressed
me as a very
truthful witness and I have no hesitation in believing his entire
evidence which was at any rate
by PW2 in material respects. I should add that PW1 displayed no ill
feelings against anyone particularly the 1st and
5th Respondents for
whom he expressed great respect the former as his leader and the
latter as his colleague and "mentor."
party customs and traditions as evidenced by PW1 must be given effect
to appear in Article 31.5 of the constitution of
the party which
prescribes one of the duties of the NEC as follows:
"31.5 To see to it that customs, traditions and discipline in
the party are observed and to take disciplinary measures where
found the duties of the NEC under Article 31 as a whole very wide
indeed. They fully support PW1's evidence. They include
"31.1 To pursue the aims and objectives of the party shown in
Article 50 of this Constitution.
31.2 To execute the work and aims of the party that have been
directed by the Annual Conference of the party.
31.3 To assist in establishing constituencies, to guide as well as to
take care of the administration.
31.4 To see to it that the Constitution, Rules and Regulations of
administration in the party conferences are being followed.
31.10 To invent as well as to pursue the duties of the party that can
put into effect the aims and objectives of the party.
31.11 To consider as well as to accept or reject applications for
membership in the party.
31.12 At least once in every three months the NEC will meet to
consider temporary reports from the Secretary-General and the
on the state of the party."
then to the evidence of PW2 Jack Mopeli. As stated earlier he fully
corroborated PW1 in material respects. In particular
that at the January 1999 Conference of the Basutoland Congress Party
he was duly appointed to the Credentials Committee.
Members of this
Committee then elected him chairman. All this of course is common
cause. It is useful to mention also that PW2
was himself a member of
the outgoing NEC holding the position of Publicity Secretary.
It is the
evidence of PW2 that he has served as a member of the Credentials
Committee for several years since 1960. Since that time
he has served
about fifteen terms. He is indeed unchallenged in his evidence that
he is conversant with what the members of the
are expected to do.
confirmed PW1's evidence that the members of the Credentials
Committee who were appointed at the January 1999 Conference are
himself, Thabo Khosi (Secretary), Nonkuleleko Zaly (member),. Gosene
Djama (member), Lebohang Maruping (member) and Ramabele Ramoriting
who declined to take up the appointment. All this was not put in
issue in cross examination.
It is the
evidence of PW2 that his Credentials Committee duly screened and
vetted delegates to the January 1999 Conference and that
there was no
complaint from anybody. Once more this is indeed common cause.
further told the Court that he remained a member of the NEC and the
Credentials Committee right until the Conference of the
1999. He is unchallenged that he still held the position of chairman
of the latter Committee. It is his evidence that
no fresh Credentials
Committee was appointed for the April Conference. The Credentials
Committee that was appointed at the adjourned
January Conference had,
according to PW2, never been disbanded.
It is the
evidence of PW2 that it was the function of the Credentials Committee
of which he was chairman to vet and screen as well
as to allow
delegates into the Conference hall on the 24th April 1999 adding that
nobody else was authorised to perform this function,
not even 5th
Respondent or the Leader (1st Respondent) could do so. Lebohang
Maruping could also not do so as an individual apart
Credentials Committee that was appointed
January 1999. Nor could Lebohang Maruping perform the function with
the assistance of any people who were not appointed at the
the events of the 24th April 1999 PW2 told the Court that he together
with his Credentials Committee positioned themselves
inside the door
"next to the entrance hall of the Conference hall." At that
place there was also an office of the Executive
Secretary and his
clerk who were responsible to the office of the Secretary-General. He
is unchallenged in this respect.
to PW2 they ( the Credentials Committee) then started calling
constituencies' delegates to report themselves. Lebohang
absent. The Credentials Committee was aimed with LM13 forms in order
to do its job of screening and vetting delegates.
These forms were
from the constituencies. They were also armed with the record of the
office of the Secretary-General containing
the names of the
constituencies, the number of delegates in accordance with the
membership in each constituency, a list of officers
secretaries, treasurers and candidates of each constituency. They
also had in their possession identification cards
and pins for
displaying same "so that you are seen when you are seated that
you are a delegate." They also had the rubber
stamp of the
signature of the Secretary-General. Besides all these "the
office of the Secretary-General had all files from
It is the
evidence of PW2 that they had obtained all the material
above from the office of the Deputy Secretary-General the late
Rathala Ramolahloane before the preparation days of the
Conference namely on the 27th January 1999. PW2 significantly told
the Court, and I observed that he was not challenged
on this, that
when the conference went into recess or was adjourned in January 1999
so as to resume in April 1999 he kept the material
referred to above
in his custody as chairman of the Credentials Committee.
to the evidence of PW2 they then started screening and verting
delegates using the material mentioned above more particularly
forms. Everybody was subjected to screening and vetting including
"our leaders." Indeed PW2 adds "no one goes
having gone through the process." Even members of the NEC go
through the process of screening and vetting. Significantly
the Court that this process is standard practice. Indeed this is
corroborates PW1 that the 5th Respondent as Secretary-General had
given the NEC problems for a long time by not attending the
further testified that nobody raised any complaint about their
screening and vetting which they duly completed.
to PW2 there were 42 Constituencies in attendance at the April 1999
Conference compared to 71 that attended the January
There were 80 constituencies in all in the country. He duly
EX "A" which is a document bearing the heading "Delegation
1998/99 Conference. General Conference of the
BCP 28th, 29th, 30th
-31st January 1999. Chairman of the Credentials Committee."
Significantly this document is signed by
PW2 himself as chairman of
the Credentials Committee. The Secretary of the Credentials
Committee, Thabo Khosi, has also signed.
This is admittedly the
document which the witness PW2 and his Credentials Committee used to
mark the presence of the constituencies
at both the January
Conference and the April Conference. In order to avoid confusion he
ticked right to indicate the presence of
a constituency at the
January Conference while he marked "OK" for April
further told the Court that the 5th Respondent arrived at the office
of the Credentials Committee on the 24th April 1999 holding
which he said belonged to the delegates that he wrote while at the
party headquarters and he requested PW2 to call out their
that they could enter into the Conference Hall. PW2 then told the 5th
Respondent that those delegates should report themselves
Credentials Committee like all other delegates to which the 5th
Respondent "made an argument claiming that he is the
Secretary-General." PW2 "warned" him that he and other
members of the NEC were answerable to the Credentials Committee
(apparently for purposes of screening and vetting) when about to
participate in the Conference. In brief, the 5th Respondent refused
to accept PW2's instruction that the list he was holding must undergo
screening by the Credentials Committee of which he was chairman.
this stage the 5th Respondent turned away with his group of about 5
to 6 people and walked away. PW2 never saw him again,
went for good."
testifies further that he did not observe any scuffle within his
vicinity. He says, however, that at the end when they were
count the votes there were people who wanted to force their way into
the hall. He denies that there was fighting and stone
according to him the Conference was closed by the chairman
Ntsukunyane Mphanya (4th Applicant) after it had finished
business. Thus he denies the Respondents' suggestion that the
Conference disintegrated into chaos and anarchy or that it was
adjourned to the following day. Indeed he corroborates PW1 that the
election of the NEC comprising the 1st to 11th Applicants was
finished and that he retained his portfolio of Publicity Secretary.
PW2 testified in chief and indeed he remained unchallenged on this
that the Credentials Committee of which he was chairman
did not have
anything to do with the Conference that was held by the Respondents
on the 25th April 1999.
examination the following questions were put to PVV2 by Mr. Mosito
which, in my view, clearly indicate that at that stage
Respondents, or some of them, recognised the authority of PW2 and his
Credentials Committee as the only authority entitled
to do the
screening and vetting of delegates otherwise there would be no need
to report to him in the first place:
"Q: Do you know 14th Respondent, Mr. Lechesa?
A: Very well.
Q: Did you see him that day ?
A: Yes, I saw him.
Q: He says he reported to you and you denied him entry into the hall.
A: That is not true he reported himself and I said I issue you this
card (a greenish looking card) because the delegation from
constituency is already inside. He showed me a card (a pinkish
looking card) and I said these are not genuine cards. I then
him to hand me the card he was holding so that I should issue him
with a correct card. His choice was, he said, if I now
card so that I issue him a new card he elects to leave. This is the
truth that happened between me and him."
PW2 testified that many constituencies that had registered with the
5th Respondent at the party headquarters such
as the Constituency of
Qhalasi were allowed into the Conference after accepting screening
and vetting by the Credentials Committee
of PW2. The pink cards were
taken away and these delegates were reissued with green ones..
disputed the contents of paragraph 8.1 of the Answering Affidavit of
the 1st Respondent Molapo Qhobela that the 5th Respondent
delegates on the 23rd and 24th days of April 1999 at the party
headquarters with these words: "He would not be
able to do so
because he did not have any
in his hand." He significantly added that "all the
documents which were related to the Annual Conference were
over to the Credentials Committee in January 1999. There is no other
way in which he (5th Respondent) could be in possession
documents that talked about the same conference."
bearing in mind that the April 1999 Conference was only a
continuation of the adjourned January 1999 Conference, I think
PW2's evidence as set out in the preceding paragraph, makes sense and
accords with the dictates of logic and common sense.
corroborates PW1's evidence.
denied the suggestion that the officials of Mt. Moorosi Constituency
No. 67 did not attend the conference on the 24th April
1999. He is
adamant that they were introduced to him by one Mr. Mojaki. He was
then challenged to bring the LM13 form in respect
Constituency as well as all other constituencies which he duly did.
In my view the fact that PW2 had access to these documents
lend support to the evidence that they were in the custody of the
Deputy Secretary-General and therefore the Applicants'
NEC and not
the 5th Respondent as alleged.
particular PW2 denied the suggestion that Mr. Mojaki did not attend
the January Conference. According to PW1 Mr. Mojaki "personally"
told him he would attend the conference for 2 days but leave on
Saturday. He testified that the delegation of Mt. Moorosi
was as reflected in the LM13 form and not otherwise. He
further told the Court that he knew much about
Moorosi Constituency because he was once sent by the NEC to go and
intervene in a power struggle in that Constituency. Significantly
that power struggle involved the 14th Respondent (DW1) who is yet
involved in another power struggle in this matter. In my view
evidence establishes on probabilities the 14th Respondent (DW1) as a
power monger. Indeed it is common cause that even at
the April 1999
Conference he sought to wear two hats namely an official as Secretary
of Mt. Moorosi Constituency and an official
as candidate a
proposition which is not envisaged by Article 32.1 of the party
constitution. That Article provides as follows:
"The party constituency committee shall comprise of the
following: Chairman, Deputy Chairman, Secretary, Deputy Secretary,
Constituency Treasurer, Publicity Officer or Secretary, Deputy
Publicity Secretary, Parliamentary Candidate, Candidate of the
Constituency, Representative of the Women's League, Representative of
the Youth League and four Members."
heard and seen PW2 give evidence before me, my impression was that he
was a truthful witness. Like PW1 he withstood cross
well and was not shaken in,any way. I accordingly believe his
evidence in its entirety. His experience in the
party is very
impressive indeed having joined it as long ago as 1956. That
completed the Applicants' oral evidence in the matter.
evidence of DW1 Lefu Lechesa was that delegates reported and
registered at the party headquarters on the 24th April 1999. He
They reported to the Secretary-General namely the 5th Respondent. He
confirms that he himself had come as part of the delegation
Secretary of the Constituency Committee as well as in his capacity as
candidate of the Constituency. According to him he held
positions since 1988. He later contradicted himself and said this was
testified that upon completion of registration he and many other
delegates from different constituencies were called by the
Secretary-General (the 5th Respondent) to go down to the conference
hall at Sefika Hall. They were led by the latter who had, amongst
many records he was carrying, a list of all the delegates who had
registered at the headquarters. The 5th Respondent went to
DW1 was told later that day that he was Chairman of the Credentials
Committee. The two spoke to each other with the 5th
presenting the list of delegates to PW2. In his own words DW1 told
the Court that "it was at that juncture that
Mr. Mopeli (PW2)
could not agree with the Secretary-General that those delegates who
had registered at the headquarters would not
be allowed in the
conference unless they were registered with the said Mr. Mopeli."
subsequently retracted from this stand point and told the Court in
corroboration of PW2 that what the latter and the 5th Respondent
disagreeing about was not registration but the vetting of delegates
at the party headquarters and admission of same into the
The 5th Respondent was insisting that the list of delegates he was
carrying should be allowed into the conference without
and vetting by PW2 because they had
been vetted "by the Credentials Committee that was working with
the Secretary-General." PW2, on the other hand,
Secretary-General that the list he was bringing must be vetted by him
or must have been vetted by him."
stage DW1 left for home and came back at 11.30 a.m. when he
"presented" himself to PW2. Realising that this would
indicate he recognised the authority of PW2, he soon retracts from
this stand point and says he did not go directly to PW2 but
took up a
seat in the Conference hall for some fifteen minutes when someone was
sent to him and told him that PW2 wanted to see
him which he did. PW2
then asked him to produce his conference identity card and he
accordingly produced the pinkish card as opposed
to the greenish
card. He significantly adds in his own words "and as Mr. Mopeli
rightly stated yesterday he asked me to hand
over that card to him to
throw it away because according to him it was invalid. And he said he
was going to give me a valid card."
had refused to comply with PW2's instruction for screening and
vetting by him he left the conference "until late
afternoon" when he got to the doorway of the lobby.
his own Counsel Mr. Mosito in what circumstances he got there, he
testified that violence had just erupted.
like to digress a little at this stage to observe that there was no
at all during DW1's absence from the Conference hall. It is thus
amazing that he should resurface when, according to him,
just erupted" The overwhelming probabilities in my view are that
DW1 was the moving spirit in trying to force
matters and or whip up
violence. In this regard, it is necessary to bear in mind DW1's own
evidence. He says that he walked up
to the party headquarters where
he conferred with the 5th Respondent and told him that the elections
of the NEC were about to start.
He asked the 5th Respondent how far
he was with the "shuttle diplomacy" about the screening and
vetting of delegates
by PW2 and without waiting for a reply he (DW1)
told the 5th Respondent that he was going back to the Conference hall
to ask his
delegation and all other delegates "to go inside the
hall and benefit our right of electing the NEC." This he did. He
says then that almost spontaneously a large crowd of people surged to
the doors of the hall. Asked by his own Counsel where he
replied quite arrogantly "I was there almost infront leading the
people with Mr. Mofolo." He was then asked by
"Court: Leading the surge?
A: Yes my Lord."
testifies further that as they were about to enter the door someone
raised a metallic object weapon-like which looked like a
weapon and forced them back hitting Mr. Mofolo on the left arm
breaking it in the process. This was at the time a number
personnel were attempting to push DW1's group back denying them entry
into the hall. It was at this stage that DW1
testifies that gun fire
report was heard from inside the lobby.
say who was firing. It is further DW1's evidence that before
retreating a large crowd of youth were throwing stones over
of the wall through the open windows and through the doorway. It was,
according to him, a very violent situation. Yet
amazingly he had time
to stand next to the 5th Respondent instead of fleeing from the
violence. I certainly got the impression
as I watched DW1 give
evidence that he was exaggerating the violence. I am satisfied that
whatever violence there was, it was caused
by people who wanted to
enter the Conference hall by force without going through the
screening and vetting by PW2 and his Credentials
Committee. I am also
satisfied from the evidence as a whole that whatever violence there
was, it was quickly put down by the police
contingent and security
guards in attendance. In any event, as a matter of public policy this
Court would not allow anybody to
benefit from his own wrong-doing
such as violence aimed at disrupting other people's business.
to DW1's evidence then he told the Court that the 1st and 5th
Respondents pleaded with police officer Molise to close
conference. The latter "went and stood in the interior doorway
and shouted that the Conference be closed down." Asked
he was from police officer Molise, DW1 amazingly replied that he was
"on the doorway of the exterior entrance."
In any event it
is his evidence that police officer Molise came out and shouted again
that everybody inside the hall must come
out one by one. This could
have been 6.30 - 6.45 pm. He could not however deny that PW1 pleaded
with police officer Molise to give
them time as they were winding up
It was at
this stage, according to DW1, that the 1st Respondent asked the
delegation outside the hall "to disperse to enable
inside the hall to come out." The crowd did disperse.
denies that the Conference had finished its business when it was
closed on the 24th April 1999. This despite the fact that he
inside the Conference hall! He bases his denial on past experience
which I have no hesitation in rejecting out of hand.
It is with
respect nonsensical to suggest that Annual Conferences in different
years will take the same amount of time to complete
as if such
conferences are controlled by computer which of course is not the
DW1 told the Court that on the 25th April 1999 which was the day on
which the Respondents' NEC was elected he went to the
headquarters to call the Secretary-General and his Deputy to come
down to the hall so that the Conference could start. I
have no doubt
in my mind that DW1 was yet lying about the Deputy Secretary-General
because by then the latter had already passed
away. Thus the Court
put the following question to DW1:
"Court: Was he (the Deputy Secretary-General) still alive by
A: Oh! I am sorry my Lord. I was going to call the Secretary-General
and Mr. Pekeche."
examination DW1 told the Court that he did not participate in the
Conference of the 24th April 1999 and that naturally
he did not know
transacted in the ha!l or what committees were elected. He also did
not know what amendments were effected to the party Constitution.
that his group including himself caused trouble at the Conference. He
also denied the suggestion by Mr. Phafane for the
prior to DW1's group attempting to force their way into the hall
there was peace and tranquillity. According to
him, "there was
always high tension inside and outside the hall. There was no peace."
He was then asked the following
inevitable questions which clearly
exposed him as a liar:-
"Q: So you now know what was happening in the hall while you
were not present?
A: I know.
Q: I thought you and I had agreed that you know nothing about what
was happening inside the hall?
A: My answer is that 'yes', I don't know what was happening inside
the hall but that there was peace and tranquillity, 'no1 under
circumstances. Q: You either know what was happening or not. You
can't have it both ways.
A: I accept the proposition.
Q: Do you or do you not know what was going on in the hall? A: Yes I
indeed badly shaken by the above mentioned little exchange between
Counsel and himself. As I observed, he was never to recover.
further agreed in cross examination that the Credentials Committee is
a very important arm of the Annual Conference of the BCP
and that its
function of vetting is likewise an important aspect in ensuring
compliance with Article 14 of the party Constitution
namely that only
delegates who are duly qualified participate in the Conference.
Accordingly it was naturally suggested to him
that only the
Credentials Committee and no one else could exercise those functions
of the Credentials Committee. After a lot of
dilly dallying DW1
finally had to concede, yielding to pressure, that this was indeed so
adding "not even the Secretary-General
or any member of the NEC"
could perform the functions of the Credentials Committee. He thus
conceded that if on the facts
the 5th Respondent carried out the
functions of the Credentials Committee he would have acted outside
his powers. It was soon pointed
out to him that this is exactly what
the 5th Respondent did but he denied that the latter ever interfered
with the Credentials
Committee or that he turned himself into one.
Yet when it was put to him that the 1st Respondent had admitted in
paragraph 8 of
his answering affidavit that in fact the 5th
Respondent vetted delegates for the April 1999 Conference and that he
(DW1) had associated
himself with the contents of that paragraph DW1
wobbled from pillar to post so to speak and finally had to concede
that he was
lying to the Court.
further put to DW1 in cross examination that the so called
Credentials Committee headed by Lebohang Maruping had not been
appointed by the NEC of the BCP. After typically dilly dallying the
witness had to concede that he was not in a position to deny
further conceded as indeed he was bound to that his group was vetted
by the Credentials Committee headed by Lebohang Maruping
they refused to be vetted by the Credentials Committee chaired by PW2
and that the latter was quite prepared to let
them into the
Conference if they complied with his instructions relating to the
correct identity cards for admission.
then put to DW1 that when his group was denied entry because they
were not vetted by PW2 they decided to enter the Conference
force. His reply was a virtual admission of force in the following
"They did not force entry into the hall because they had refused
vetting by Mr. Mopeli (PW2) but because those at the door
them from going in."
further conceded that for the fifteen minutes he had spent inside the
Conference hall the Conference was proceeding peacefully.
further testified in cross examination that the Conference of the
25th April 1999 was chaired by one Khotsang Moshoeshoe. He
however that the latter was not chairman of the BCP. He was appointed
by. a resolution of the Annual Conference to chair
the Conference. He
correctly conceded once more however that in terms of the party
Constitution it is the chairman of the NEC who
chairs the Annual
Conference. That person was Ntsukunyane Mphanya (4th Applicant).
DW1's evidence that he associated himself with Annexture "QM4"
to 1st Respondent's answering affidavit indicating
that the latter
was elected along with others on the 25th April 1999 but as soon as
it dawned on him that the leader could not
validly be elected at that
Conference since his term of office had not yet expired, DW1
immediately contradicted himself and denied
ever saying the 1st
Respondent was so elected on the 25th April 1999.
question of LM 13 forms DW1 significantly could not deny in cross
examination that these forms were handed over to PW2's
Committee by the Deputy Secretary General the late Rathala
Ramolahloane prior to the January 1999 Annual Conference
they remained with that committee until the April 1999 Annual
experience both as a member of the bar/side bar and as a judge it is
not often that a witness will admit lying to the Court
admitted lying to the Court not once but repeatedly. That is
precisely how bad and dishonest this witness was. As I observed,
lied unashamedly and was evasive to the extreme. The record is indeed
replete with court warnings to the witness to answer questions.
the circumstances I have no doubt in my mind that it would be
dangerous to rely on the evidence of this witness where it stands
alone and I accordingly reject it unless such evidence is not
challenged or unless it is consistent with the evidence of PW1 and
PW2. I shall adopt the same approach in respect of all the deponents
to the Respondents' answering affidavits who failed to give
evidence as directed.
It is no
doubt convenient to start the Court's findings with the Credentials
Committee as it is central to the whole saga in the
matter before me.
It is indeed the parting of ways between the two factions disputing
before me. The parties before me are agreed
on one thing though
namely that the use of the Credentials Committee in the Annual
Conferences of the BCP is a custom or practice
of long standing. It
is a tradition whose object is to ensure that only qualified
delegates participate in the conference. In my
judgment such practice
has hardened into law binding upon all members of the BCP. It is for
this reason that as earlier stated,
one of the duties of the NEC in
terms of Article 31.5 of the Constitution of the party is "to
see to it that customs, traditions
and discipline in the party are
be recalled that in terms of Article 14 of the Constitution of the
party only delegates are qualified to participate in
Conference. This is where the functions of the Credentials Committee
become absolutely essential namely to ensure compliance
Article. Faced with the stark reality of the Article Mr. Mosito was
heard to argue somewhat glibly that this Article
and that PW2 or the Credentials Committee could not deny people entry
into the Conference hall because
that would be in violation of their
freedom to peaceful assembly guaranteed in Section 15(1) of the
Constitution of Lesotho. The
ingenuity of counsel has failed to
persuade me mainly for the following reason:-
15(1) of the Constitution of Lesotho specifically gives every
the right to choose to consent to be hindered in his enjoyment of
freedom of peaceful assembly with other persons. The full
thereof is as follows:-
"15(1) Every person shall be entitled to, and (except with his
own consent) shall not be hindered in his enjoyment of freedom
peaceful assembly, without arms, that is to say, freedom to assemble
with other persons."
I hold in principle that by agreeing to join the BCP all the members
of the party must be held to have acknowledged
that they would be
bound by the Rules and Regulations as well as the Constitution of the
party. In particular I hold that Article
14 of that Constitution is
binding on all the members. That is the sum effect of the contractual
nature of the relationship between
the BCP and its members for indeed
the relationship is contractual and the terms of such contract are to
be found in the party
Constitution as well as the Regulations.
Jockey Club of South Africa v Forbes 1993 (1) SA 649 AD at 654.
satisfied on the facts that the so called "delegates" or
people who were denied access into the hall were only those
refused to be screened and vetted by PW2 or his Credentials
Committee. I consider that they have got only themselves to blame
that they must be taken to have been hindered with their own consent
in as much as PW2 admittedly made it clear
that they could enter the Conference hall provided they complied with
his screening and vetting. He was even prepared to
issue them with
appropriate identity cards for that purpose but they simply declined.
taken into account the admitted fact that the Credentials Committee
that was lawfully appointed for the adjourned January
chaired by PW2 performed its functions well and was never disbanded.
This then immediately puts the bona fides
of the Respondents into
question in having made use of a different Credentials Committee for
the April 1999 Conference. I am satisfied
from the evidence before me
that the 1st and 5th Respondents had no quorum in the NEC to appoint
members of the Credentials Committee
that purportedly screened and
vetted delegates on the 25th April 1999. There is no evidence that
the Annual Conference confirmed
them. In any event even if they did
have such quorum I hold that they could not appoint another
Credentials Committee without first
having disbanded the existing
Credentials Committee chaired by PW2 after due notice.
view this is so because appointment to a committee is no doubt a
matter of status entitling the appointee to be heard before
removed therefrom. In this regard I am mainly attracted by the
following remarks expressed by Gauntlett AJA, as he then was,
dealing with a similar situation in Monaheng Rakhoboso v Simon
Rakhoboso C of A (Civ) No. 37/96 (unreported):-
"The result is that the subsequent purported appointment of the
respondent as headman, without a valid revocation of the appointment
of the appellant as acting headman, must itself be legally
remarks are apposite to the matter before me.
To sum up
then. It follows from the aforegoing that as a matter of overwhelming
probabilities as well as direct evidence of PW1
and PW2 which I
believe I have come to the conclusion that the Credentials Committee
chaired by PW2 for the meeting of the 24th
April 1999 is the lawfully
appointed Committee. It follows therefore that the Respondents'
Credentials Committee which purportedly
screened and vetted delegates
for the purported Conference of the 25th April 1999 is not the
lawfully appointed Committee.
meeting of the 24th April 1999 conclude its business?
convenient next to make findings in respect of the second disputed
issue viz what transpired at the meeting held at Sefika
Hall on the
24th April 1999 namely whether or not that meeting concluded its
business or whether or not it was abandoned due to
chaos or whether
or not it was lawfully adjourned to the 25th April 1999.
a matter of overwhelming probabilities and direct evidence from PW1
and PW2 which I believe I accept that the Respondents'
refused to be screened and vetted by the lawfully appointed
Credentials Committee chaired by PW2 on the 24th April 1999.
this is so, it follows
was always inevitable for them to falter as they undoubtedly did and
to unlawfully seek to force their way into the Conference
hall as the
evidence clearly establishes.
the evidence that the police contingent as well as the armed security
guards in attendance at the Conference of the 24th
April 1999 quickly
thwarted and put down any trouble that the Respondents's faction
attempted to cause in order to disrupt the
meeting. Accordingly I
find as a matter of overwhelming probabilities as well as direct
evidence of PW1 and PW2, which I believe,
that the meeting of the
24th April 1999 was not abandoned due to chaos nor was it lawfully
adjourned to the 25th April 1999. I
find that no one had any colour
of right to close the meeting in question without any recourse to the
Chairman thereof Ntsukunyane
remarkably similar case of Lesao Lehohla v National Executive
Committee of the Lesotho Congress for Democracy and 4 others
CIV/APN/160/98 (confirmed by the Court of Appeal in C of A (Civ)
No.19 of 1998), I had occasion to state the following :-
"I cannot understand how anyone, be it a member of the National
Executive Committee or not, could ever close a lawful meeting
any recourse to the Chairman. I cannot but imagine that the Chairman
would simply ignore him and proceed with the meeting.
This is exactly
what happened here. The delegation of the National Executive
Committee departed from the meeting. I think this
was a tactical
blunder which they may yet rue."
remarks apply with equal force to the instant matter.
contrary I find as a matter of overwhelming probabilities as well as
direct evidence of PW1 and PW2, which as earlier stated
that the meeting of the 24th April 1999 concluded its business and
duly elected the NEC.
the two disputing NEC Committees is the lawfully elected Committee?
turn to the Court's finding in respect of the disputed issue as to
which of the two disputing NEC Committees of the 14th Applicant
namely the one elected on the 24th April 1999 and the one elected on
the 25th April 1999 is the lawfully elected committee.
It is not
seriously disputed that but for the alleged chaos the meeting of the
24th April 1999 was a lawful one. Indeed it will
be recalled that
this was a continuation of the adjourned meeting of January 1999. In
that regard there can be no doubt that it
was lawfully convened and
as such competent to transact the business at hand including the
election of the NEC.
earlier stated I have also attached due weight to the fact that in
CIV/APN/168/99 the Learned Chief Justice interdicted the 1st
Respondents from "unlawfully interfering with the preparation
for the Annual Conference" of the 24th and 25th
Furthermore the Learned Chief Justice ordered the two Respondents
(1st and 5th) "to refrain from unlawfully
with first to fifth Applicants' (the present 1st to 5th Applicants)
preparations for attendance and participation at
Conference of Basutoland Congress Party (14th Applicant) to be held
on the 24th and 25th April 1999". Accordingly
I reject the
suggestion by the Respondents that the 1st to 5th Applicants were not
entitled to participate in the Annual Conference
of the 24th April
1999 because they had been suspended by the 1st Respondent. These
applicants clearly had an order of Court authorising
preparations and participation at the Conference. That is the stark
reality of the matter and in my view the Learned Chief
order presents an insurmountable hurdle for the Respondents. In any
event the suspension in question related to the Applicants'
membership of the outgoing NEC. It did not affect the Applicants'
right to stand for re-election as the Annual Conference which
supreme body of the party saw fit.
submitted on behalf of the Respondents that because the meeting of
the 24th April 1999 proceeded beyond 6 o'clock which,
so the argument
went, was outside the police permit then the whole transactions of
that meeting became an "illegality."
This submission is in
my view disingenuous and has merely to be articulated to be rejected.
I need hardly say more than the following
an ordinary natural reading of the police permit (Annexture "QM1")
in question shows that the meeting was to be
held from 24.04.99 at
0900 hrs to 25.04.99 at 06:00 hrs. Presumably this was in
anticipation of the fact that the Conference was
scheduled for two
days continuously. It means
that when the meeting of the 24th April 1999 proceeded beyond 6
o'clock in the evening it did not breach the conditions
permit. At best for the Respondents the permit was inelegantly drawn
and was so confusing as to time that it cannot be relied
probably explains why no criminal action was taken against the
there is no provision in the Public Meetings and Processions Act No.2
of 1993 invalidating resolutions which have been
arrived at by
meetings that have progressed beyond the time allowed in the police
permit. I have no doubt in my mind that if the
intended that to be the case it would have said so in clear terms
bearing in mind the importance of the right to
freedom of peaceful
assembly in a democratic society.
view the Public Meetings and Processions Act 1993 must be interpreted
restrictively that is to say not to unduly restrict
lawful assembly in a democratic society but to enable members of the
public to enjoy their democratic rights in accordance
15(1) of the Constitution of Lesotho which guarantees freedom of
peaceful assembly. The latter section must thus be
generously, purposively and meaningfully to bring about full
enjoyment of such rights.
true Subsection (2) contains limitations of the right of peaceful
assembly in the following instances:
the interests of defence, public safety, public order,
public morality or public health;
the purpose of protecting the rights and freedoms of other persons;
the purpose of imposing restrictions upon public officers.
be borne in mind however that in terms of subsection (3) the police
or indeed any person shall not be permitted to rely
limitations set out above except to the extent to which such police
or person satisfies the Court (the onus is on him) that
limitations or the thing done under the authority thereof does not
infringe the rights and freedoms guaranteed by subsection
(1) to a
greater extent than is necessary in a practical sense in a democratic
society. Indeed there lies the test and on this
test I consider that
there is no way the police would just walk in and close the
Conference merely on the ground that it had proceeded
o'clock in the evening. They would have to act reasonably and to
consider firstly whether the closing down of the Conference
necessary in a practical sense in a democratic society. Bearing in
mind that all that remained to be done at that stage was
of the votes such action would clearly not make practical sense in a
satisfied on the facts that the Applicants' meeting of the 24th
April, 1999 was no more than a lawful exercise by the Applicants
peaceful assembly. It is no wonder the police officer allowed them to
continue to finalise their business as indeed he
was entitled to.
follows from the aforegoing that as a matter of overwhelming
probabilities as well as the direct evidence of PW1 and PW2, which
believe, I have come to the inescapable conclusion that the NEC
Committee of the 14th Applicant that was elected on the 24th
1999 is the lawfully elected committee. The one that was elected on
the 25th April 1999 was not lawfully and validly elected.
13th and 14th Applicants resolve to bring this application?
satisfied as a matter of overwhelming probabilities as well as direct
evidence from PW1, which I believe, that the 13th and
resolved to bring this application.
I am not
unmindful of Mr. Mosito's submission that the 1st Respondent was not
given notice of the meeting and that consequently
that in itself
invalidates the meeting. I cannot accept this argument which in my
view is no more than the last kicks of a dying
horse. Nor do I think
that the South African cases cited by Mr. Mosito have any bearing on
the instant case. Those cases clearly
dealt with a different set of
circumstances and different statutes and or Ordinances pertaining in
that country. They were cases
dealing with the right of directors and
or shareholders of companies to company meetings where decisions
prejudicial to them were
Williamson and Another v Durban City Council 1977 (3) SA 342 at 348
Leon J (now judge of Appeal of the Court of Appeal of Lesotho)
expressed the following remarks with which I am respectfully in full
"Finally it is necessary to point out that generally the notice
(of meeting) must be read in the light of the powers of the
question, i.e. in this case in the light of its Rules of Order (see
Neale v Mayor of East London, 1935 E.D.L. 225 at p.232."
Article 30.1 of the Constitution of the BCP in the instant matter
makes it perfectly clear that the quorum of the NEC shall
by half namely seven (7) of the members thereof amongst whom shall be
two of the following - the leader, the Secretary-General
Chairman and that in their absence their deputies will constitute a
quorum to transact business with full powers of the
follows from the aforegoing therefore that in the absence of the 1st
Respondent from the meeting that resolved to bring these
the members of the NEC in attendance who admittedly constituted the
necessary quorum were fully competent to transact
business and the
resolutions they reached are valid. After all I can perceive no
prejudice and none was either pleaded or shown.
extent that this application seeks a declaration of rights it is
to refer to the following provisions of Section 2( 1 )(a) and ©
of the High Court Act 1978 :-
"2. (1) The High Court of Lesotho shall continue to exist and
shall, as heretofore, be a superior court of record, and shall
jurisdiction to hear and determine any civil or criminal
proceedings under any law in force in Lesotho;
its discretion and at the instance of any interested person, power
to inquire into and determine any existing future or contigent
right or obligation notwithstanding that such person cannot claim
any relief consequential upon the determination."
underlined the word discretion to highlight my view that the Court
has a discretion in the matter. It is however not an arbitrary
discretion but a judicial one that must be exercised fairly upon a
determination of all the relevant factors.
Lawrence Motlhokoa v St. Patrick's High School Managing Board and 7
others CIV/APN/17/98 I had occasion to state the following
"The question whether or not a declaration of rights should be
granted in terms of this section must therefore be examined
jurisdictional facts such as the requirement that the applicant must
have a direct interest in the matter and a clear right
existing, future or contingent) or obligation which becomes the
object of inquiry, must first be established.
the jurisdictional facts have been established the Court must then
decide whether on the facts, the case before it is a
proper one for
the exercise of its discretion.
Family Benefit Friendly Society v Commissioner For Inland Revenue
1995 (4) S.A. 120 AT 124"
these principles to the case before me I have no doubt in my mind
that for reasons fully set out above, the Applicants
have a direct
interest and a clear right in the matter. Similarly I am satisfied
that this is a fit case for the exercise of the
Court's discretion in
favour of the Applicants.
As far as
the claim for an interdict is concerned, I consider that the
Applicants have satisfied the requirements laid down in the
case of Setlogelo v Setlogelo 1914 AD 221 namely a clear right, an
injury actually committed or reasonably apprehended
and absence of
In this regard it is necessary to bear in mind the admitted averments
of Thulo Mahlakeng in para. 16.2 of his founding affidavit
deposes as follows :-
"16.2 In their beat (sic) to hold themselves out and masquerade
as the National Executive Committee of Basutoland Congress
Respondents are issuing circular letters to the party structures and
constituencies. This is not only causing confusion
but it is likely
(sic) lead to unwarranted clashes between the party members and the
Agents of the Respondents."
the 1st Respondent admits this in paragraph 17 of his answering
affidavit in the following words:-
17.2 Contents of this subparagraph are admitted. For the information
of this Honourable Court, I together with the elected National
Executive Committee, Respondents herein are under constitutional duty
to communicate with the constituencies. It is also interesting
note that the Applicants have failed to disclose that they are also
issuing illegal circulars."
Concise Oxford Dictionary defines the word "masquerade" as
in disguise", "assume a false appearance." Thus I am
driven to the inescapable conclusion that the Respondents
the wrongful acts complained of knowing fully well that they had no
colour of right to do so other than to cause "confusion."
Indeed one of such wrongful acts is the admitted fact that the
Respondents have also written a letter to the Independent Political
Authority (IPA) purporting to remove the party Representative namely
the 1st Applicant from that Authority (IPA).
Mosito submits that this part of the application falls to be
dismissed on the ground that there are "formidable"disputes
of facts. I do not agree. My impression is that the Respondents'
denial of the facts relied upon by the Applicants are not such
raise real genuine or bona fide dispute of facts. Thus for example
they do not seriously deny Thulo Mahlakeng's averment
15(1) of his founding affidavit that "the rightful National
Executive Committee of the party has not been able
to use the offices
ever since." In answer to this averment Molapo Qhobela states
the following inter alia, in paragraph 16(1)
of his answering
"Before the 24th and 25th April 1999 Conference all the National
Executive Committee were free to use the said office and
of the said office has never changed" (my underlining).
Applicants' case is not based on what happened before the 24th and
25th April 1999 but after those dates. Indeed having considered
themselves to have been lawfully elected on the 25th April 1999 it
was inevitable that they would occupy the offices. If they had
one would have expected them to
brought an application for interdict but they did not. Indeed it is
hard to imagine the Respondents holding themselves out
masquerading as the NEC as they admittedly did without taking full
control of the offices. The inference is therefore inescapable
circumstances of the case that they did.
event having held that the Applicants are the lawful NEC of the BCP I
consider that they are entitled to protection by way
Soffiantini v Mould 1956 (41 SA 150 at 154 Price JP stated the
"If by a mere denial in general terms a respondent can defeat or
delay an applicant who comes to Court on motion, then motion
proceedings are worthless, for a respondent can always defeat or
delay a petitioner by such a device.
It is necessary to make a robust, common-sense approach to a dispute
on motion as otherwise the effective functioning of the Court
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue of fact
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavits."
respectfully agree with these remarks which are apposite to the case
also attached due weight to the fact that Mr, Mosito for the
Respondents did not apply to cross examine PW1 on his version
issues in question. This notwithstanding the fact that, as earlier
stated, he sought to enlarge the issues at every turn
examination of PW1 and PW2. Accordingly I consider that this is a fit
case where the version of the Applicants must
be preferred to that of
Plascon-Evans Paints Ltd. v Van Riebeeck Paints (Pty) Ltd. 1984 (3)
S.A. 623 AD at 635 A.
all of the foregoing considerations therefore, I am satisfied that
the Applicants have made out a case for the relief sought,
say that in so far as prayers 2(a), (e) and (0 of the Notice of
Motion are concerned, the application is dismissed as against
Respondent Molapo Qhobela, the 5th Respondent 'Molotsi Kolisang and
the 15th Respondent Mpho Moeketsi for the following
1st Respondent's term of office had admittedly not expired as at the
April 1999 Annual Conference having been elected as the
the party at the 1997/98 Annual Conference. In terms of Article 30.3
of the Constitution of the BCP the leader of the
party is elected
for a term of five (5) years.
5th Respondent was admittedly elected as Deputy Secretary General at
the Annual Conference of the 24th April 1999. He is thus
a member of
the NEC of the 14th Applicant by virtue of such election.
15th Respondent was, as at the April 1999 Annual Conference, an ex
officio member of the NEC of the 14th Applicant in terms
28.13 of the constitution of the party by virtue of having been
elected President of the Women's League of the BCP
at the 1997/98
Annual Conference. As long as she remains in that position she is a
member of the NEC of the 14th Applicant (BCP).
of costs is a matter preeminently within the discretion of the Court.
Such discretion must however be exercised judiciously
after due consideration of all the relevant factors. It is not an
arbitrary discretion nor can it be exercised capriciously
taken all the relevant factors into account in this case in deciding
the question of costs. 1 have borne in mind the general
that costs follow the event. The matter, however, does not end there.
consider that for the purpose of harmony in the NEC an award of costs
the 1st, 5th and 15th Respondents as members of the Committee would
be inappropriate in the circumstances of this case.
It would no doubt
create unnecessary tension which can only be to the detriment of the
party. That must be avoided at all costs.
also borne in mind the fact that these three Respondents have enjoyed
substantial success in this matter.
5th and 15th Respondents must count themselves extremely lucky for
having escaped costs by the skin of their teeth. Others
their untoward behaviour of siding with the wrong-doers may not be so
avoidance of doubt there shall accordingly be an order in the
following terms :-
number 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20,
21, 22 and 23 are hereby interdicted from holding
themselves out as
the National Executive Committee of the Fourteenth Applicant;
Conference purportedly held on the 25th April 1999 at Sefika Hall -
Maseru as a conference of the fourteenth Applicant is
declared unconstitutional and the proceedings conducted thereat null
and void and of no legal force and effect;
The purported election of the Respondents to the National Executive
Committee of the Fourteenth Applicant on the 25th April,
hereby declared null and void and of no legal force and effect.
first to the eleventh Applicants are hereby declared the lawfully
elected and constituted members of the National Executive
of the Basutoland Congress Party;
numbers 2, 3,4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20,
21, 22 and 23 are hereby directed to desist forthwith
unlawfully interfering with the administration and property (movable
and immovable) of the Fourteenth Applicant;
numbers 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19,20,
21, 22 and 23 are hereby ordered to refrain from
interfering in any manner whatsoever, with the Applicants in their
day to day running of the affairs of the Fourteenth
Applicants are hereby authorised to employ lawful means to remove
any barricades and locks that may have been placed at the
Applicant's premises known as Khatisong.
numbers 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18,
19,20,21,22 and 23 shall pay costs jointly and severally
paying the others to be absolved.
of July 1999.
Applicants : Adv. Phafane
Respondents : Adv. Mosito
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