HIGH COURT OF LESOTHO
RADITAPOLE 1st APPLICANT
QHOBELA 2nd APPLICANT
MOEKETSI 3rd APPLICANT
KOLISANG 4th APPLICANT
MOTANYANE 1st RESPONDENT
MPHANYA 2nd RESPONDENT
BASUTOLAND CONGRESS PARTY 3rd RESPONDENT
CONGRESS PARTY 4thRESPONDENT
POLITICAL AUTHORITY 5th RESPONDENT
ATTORNEY GENERAL 6th RESPONDENT
CHAKELA 7th RESPONDENT
by the Honourable Chief Justice Mr. Justice J..L. KHEOLA on the 16th
day of August. 1999.
an application for an order in the following terms: 1. Dispensing
with the ordinary rules and modes of service of this
the Respondents to file their opposing papers (if any) on or about
the 19th day of July 1999 before 4.30p.m.
Rule Nisi be and is hereby issued returnable on the 22nd day of July
1999 at 9.30 a.m. calling upon the Respondents to show
any) why -
purported Meeting of the National Executive Committee of the Fourth
Respondent in which a decision was taken to remove first
from fifth Respondent shall not be declared null and void and of no
force and effect.
purported decision to recall first Applicant from the membership of
the Interim Political Authority shall not be declared
null and void
and of no force and effect.
purported gazettement deleting the name of first Applicant (being
Legal Notice 74 of 1999) shall not be declared null and
and of no force and effect.
purported swearing in of the seventh Respondent shall not be
declared null and void and of no force and effect.
shall not be declared that first Applicant remains a member of the
Interim Political Authority.
respondent shall not be interdicted and/or restrained from holding
himself out as a member of the Interim Political Authority
representing fourth Respondent.
shall not be granted such further and/or alternative relief as this
Honourable Court may deem meet.
shall not be ordered to pay costs hereof jointly and severally the
one paying, the other being absolved, the first,
fifth and sixth
Respondents paying only in the event of opposing hereof.
1 and 2 operate with immediate effect as interim Court Orders.
common cause that at all material times to this application, the
fourth respondent is and has been a member of the fifth respondent
terms of section 5 (1) (b) of Act No. 16 of 1998. The fourth
respondent was represented in the fifth respondent by two members.
The first applicant was one of such members. It is also common cause
that she was elected as one of the two chairpersons of the
6th July, 1999 the second respondent wrote Annexure "KDR1"
which was addressed to the first respondent. In it the
respondent informed the first respondent that in terms of the
judgment of the High Court in CIV/APN/205/99 delivered on
July, 1999, the committee which was the second respondent as its
Secretary General is the rightful committee. The second
went further to request the first respondent to give effect to the
decision of the National Executive Committee of the
of replacing the first applicant with the seventh respondent as a
representative of the fourth respondent in
the fifth respondent.
clear that the first respondent complied with the above request. In
Legal Notice No.74 dated the 8th July, 1999 the first
deleted the name of the first applicant and substituted that of the
seventh respondent as the representative of the
fourth respondent in
the fifth respondent.
founding affidavit the first applicant alleges that Annexure "KDR1"
was written without having first given her
an opportunity to be heard
prior to her purported removal. She alleges that she was never called
upon by either of the two (2)
contesting committees of the fourth
respondent to show cause (if any) why she should not be removed from
the fifth respondent.
second, third and fourth applicant also confirm that they were never
invited to a meeting at which a decision was taken by the
Executive Committee of the fourth respondent that the first applicant
be removed from the fifth respondent. The first
that the second, third and fourth applicants are members of the
National Executive Committee of the fourth respondent.
She avers that
the decision to remove her is flawed having been taken without
affording some of the members of the N.E.C. an opportunity
consider such a serious issue as they were entitled so to do.
answering affidavit the second respondent avers that the first
applicant is deliberately withholding material facts from
She knows that she was called on several occasions to appear before
the third respondent but she refused. She is also
refraining from telling the Court that "KDR1" is but a
sequel or a mere follow-up to a letter written to
respondent on the 5th May, 1999. He submits that in fact her
application is not urgent in that she knew in May, 1999
that she was
being replaced from I.P.A. but decided to sit back and do nothing
until two months later. A copy of the letter is
marked Annexure "AA".
If I may
be allowed to digress at this juncture I wish to point out that
Annexure "AA" is a letter written to the first
in Maseru. It was copied to the fifth respondent. There is nothing to
show that a copy was given to the first applicant.
It is therefore
not correct to say that the first applicant knew in May that she was
to be replaced. She could not have known because
she was not served
with a copy of Annexure "AA". There is no evidence that a
copy of Annexure "AA" was hand
delivered to her or posted
to her at her usual address. The same applied to Annexure "KDR1".
It was also addressed to
the first respondent and copied to the
Executive Secretary - I.P.A. There is no evidence that the first
applicant received a copy
of Annexure "KDR1". The mere fact
that she was one
two chairpersons of the fifth respondent does not necessarily mean
that she knew every letter addressed to I.P.A. An affidavit
Executive Secretary of I.P.A. would probably show whether the first
applicant knew anything about Annexures "AA"
Without such evidence the respondents have failed to prove that the
first applicant knew the about the above
annexures and therefore
deliberately refused to attend the meeting at which her removal from
the fifth respondent was decided.
Annexure "CC" a certain Mr. G.R. Ramolahloane who was the
Deputy Secretary General of the fourth respondent wrote a
the first applicant inviting her to a meeting of the NEC of the
fourth respondent. It is not clear how the letter was
her. If it was posted to her or hand delivered the writer of the
letter must say so in an affidavit. This letter is
dated the 30th
another Annexure "CC" dated the 3rd March, 1999. It was
addressed to members of the fourth respondent. It was
them in Maseru. It is not stated where in Maseru they would be found.
Again there is no evidence that any member of
the NEC received
applies to Annexure "EE".
second respondent alleges that as proof that the first applicant knew
that she was called to appear in the meeting of N.E.C.
and that she
refused, is the fact that she held a caucus at T.Y. where she
ridiculed the N.E.C. for having called her to appear
before it. In
her replying affidavit the first applicant has denied this
allegation. It could be alleged that there is a dispute
of fact on
this point. However that is not the case because the second
respondent's allegation is vague. He does not explain how
he came to
know what the first applicant said at the T.Y. caucus. Was he present
at the caucus and heard her say what she is alleged
to have said? If
he was not at the caucus who told him what she said? Why does he not
disclose the name of his informer who was
probably present at the
caucus? Without the answers to the above questions the allegation has
little or no evidential value.
submissions Mr. Mosito, counsel for the applicants, has raised three
issues for determination by the Court. They are:
the audi alteram partem principle applicable in the case of the
withdrawal of the first applicant from the fifth respondent
fourth respondent acting through third respondent?
the first applicant given a hearing prior to her withdrawal from
fifth respondent by the fourth respondent?
a meeting held by the third respondent in which a decision was
taken to remove the first applicant in the absence of second
fourth applicants valid, and capable of producing of the legally
regard to the first issue whether the Audi alteram partem principle
was applicable Mr. Ntlhoki, attorney for the respondents,
that the Audi alteram partem was applicable. The problem which his
clients had was that the first applicant was stubborn
and refused to
appear before the National Executive Committee of the fourth
respondent. I have already dealt with this issue above.
It seems to
me that the respondents failed to prove that the letters or notices
inviting the first applicant were properly delivered
to her. It is
interesting to note that the second respondent alleges that the first
applicant had been ignoring their invitations
to her; why did he not
register all the letters addressed to her or have them hand delivered
directly to her? What the Court needed
was proof of service.
Mosito submitted that the respondents have annexed three letters to
answering affidavit as proof that the first applicant was called for
issue of her withdrawal from I.P. A. was going to be addressed. Those
letters are Annexures "CC" on pages 79
and 80 of the record
and Annexure "EE" on page 83 of the record. He submitted
that the statements in the three letters
written by one G.R.
Ramolahloane are, in the absence of an affidavit by Mr. Ramolahloane
confirming their truth, clearly hearsay
and inadmissible to prove the
truth of their contents. He relied on the words of Ackermann, J.A. in
Nqojane v. National university
of Lesotho 1985-1989 L.A.C.369 at 383
where the learned Judge said:
"If the council had in fact formed the opinion in question the
simplest way of providing it would have been to prove the minutes
the meeting at which such opinion was formed or recorded or,, in the
absence of minutes, a person present at the meeting could
deposed to the formation of such opinion. There is no such proof in
the present case. It is, however, permissible for respondent
this opinion as a matter of inference from all the admitted or proven
facts or unchallenged averments on the papers.
statement in the first paragraph of Mr. Putsoane's letter dated 9
November 1984, that:
'The Council of the National University of Lesotho has considered a
report of the Non-Academic Staff Appointment Committee regarding
employment at the University. It was noted that you have been found
guilty of the charges made against you in the letter of
Is, in the absence of an affidavit by Mr. Putsoane confirming its
truth, clearly hearsay and inadmissible to prove that council
considered the report mentioned or even that the Non-Academic
Appointments Committee had made such a report. It might conceivably
be possible to infer from the letter (which appellant admitted
receiving) that the council had resolved to dismiss the appellant.
How cogent this inference is I shall consider later."
light of the decision in Nqojane's Case - supra - there can be no
doubt that Annexures "CC" and Annexure "EE"
hearsay evidence and inadmissible because Mr. Ramolahloane has not
deposed to an affidavit to the truth of the contents of
abovementioned annexures. There is no admissible evidence proving
that the first applicant was invited to those meetings.
Ntlhoki submitted that the letters were not hearsay because they are
the letters by the fourth respondent. They were not letters
Ramolahloane. I do not agree with this submission because in
Nqojane's Case - supra - the letters were those of the National
university of Lesotho written by Mr. Putsoane. They were not his
personal letters. Nevertheless the letters were found to be hearsay.
letters addressed to the second, third and fourth applicants were
also hearsay for the same reasons given above.
result the rule is confirmed with costs.
Applicants - Mr. Mosito
Respondents - Mr. Ntlhkoli
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