Intersection between s 20 and s66 (4) of the Lesotho Constitution, whether a civil society organisation entitled to participate in the selection of members of the Independent Electoral Commission. Held that it was not.
IN THE COURT OF APPEAL OF LESOTHO
CONSTITUTIONAL CASE NO.26/2020
In the matter between:
CENTRE & 2 OTHERS APPELLANTS
THE COUNCIL OF STATE AND 62 OTHERS RESPONDENTS
CORAM: Dr Mosito, P
Dr Musonda, AJA
Van der Westhuizen, AJA
HEARD: 12 October 2020
DELIVERED: 31 October 2020
JUDGMENT 28 OCTOBER 2020
P T Damaseb AJA
‘1. Every citizen of Lesotho shall enjoy the right-
2. The rights referred to in subsection (1) shall be subject to the other provisions of this Constitution.’
The constitutional backdrop
‘1. There shall continue to be an Independent Electoral Commission consisting of a chairman and two members who shall be appointed by the King acting in accordance with the advice of the Council of State.
3. In its advice to the King under subsection (1), the Council of State shall submit to him the names of three persons selected from a list of not less than five names.
4. For the purpose of enabling the Council of State to select the names of persons to be submitted to the King under subsection (3), the Council shall request all registered political parties in accordance with the procedure agreed by them to jointly propose to the Council, within a period of thirty days from the date specified by the Council, a list of not less than five names’
Brief factual matrix
The High Court’s approach
‘an application made under subrule (1) shall be on notice of motion accompanied by an affidavit stating explicitly the circumstances which justify a departure from the ordinary procedure’.
The High Court made clear, having dealt with each of the points of law raised by the respondents, that the ‘points of law raised herein are upheld’.
‘(W)here it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the cause which should be followed.’
P T DAMASEB
ACTING JUSTICE OF APPEAL
DR KE KANANELO
PRESIDENT OF THE COURT OF APPEAL
DR P MUSONDA
DR J VAN DER WESTHUIZEN
Counsel for the Appellants: Mr. MS Rasekoai assisted by Mr. CJ Lephuthing and Mr. K. Ndebele
Counsel for the Respondents: Advocate S.T Maqakachane and Mr. Q. Letsika
The Lesotho Constitution, proviso to s 22(2)(b).
LAC (2000-2004) 57 and Ntsihlele & Others v IEC and Others C of A (Civ.) no. 57/2019 para .
2000 (2) SA 1 (CC) (2000) (1) BCLR 39;  ZACC 17 para 21; from the U.S.A, see, eg: Zobrest v Catalina Foothills School Dist 509 U.S 1 (1993) at 8 and Namibia, see Kauesa v Minister of Home Affairs and Others 1994 NR 102 (HC) (1995) (1) SA 51; Road Fund Administration v Skorpion Mining Co. (Pty) Ltd 2018 (3) NR (SC) 829 para .
Compare: Baxter, L. 1984. Administrative Law. Juta: Cape Town at p. 444
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