CIV/APN/102/81IN THE HIGH COURT OF LESOTHO In the matter of :BERNARD THOKOA ApplicantandLERONTI MOHLATHE 1st RespondentDAVID MARUPING 2nd RespondentTHABISO MATHAHA 3rd RespondentM. MAFITOE (MRS) 4th RespondentMATHUNYANE TSEHLO 5th RespondentMARTIN LESEMA 6th RespondentLEETO LEPHOTO 7th RespondentMPHASI RAMAILI 8th RespondentTHERESIA TLAPANA (MRS) 9th RespondentTHERESIA MOKHESENG 10th RespondentKHATISO LIPHOTO 11th RespondentMAAMA TAU 12th RespondentL. M. MOHAPI 13th RespondentA.S. MAHLELEBE 14th RespondentM. KOTELE 14th Respondent BARCLAYS BANK INTERNATIONALD.C.O. 15th RespondentJUDGMENTDelivered by the Hon. Mr. Acting Justice B.K. Molai on the 18th August, 1981
On the 1st July, 1981 the Applicant in this case filed with the Registrar of this Court an Ex-parte application calling upon the Respondents to show cause, inter alia, why :"(a) Respondents should not be restrainedfrom appropriating or in any way using the funds of the Non-Academic Staff Association that are kept with the Barclays Bank, Maseru branch.(b) Respondents should not be restrained from interfering with the affairs of the Non- Academic Staff Association and holding themselves out as the Executive Committee of the said Association.2/ (c)
-2-(c) Respondent 1 to 15 should not be directed to pay the costs of this application,(d) Respondent 16 should not be directed to pay costs of this application in the event of opposition.2. That prayer (a) and (b) operate as aninterim interdict with immediate effect."In support of this application the Applicant filed an affidavit in which he disclosed, in part, that :-1-"(a) I am the Acting Secretary-General of the Non- Academic Staff Association otherwise known as the Non-Academic Staff Union. This is the body that represents the non-academic staff of the National University of Lesotho.(b) I am making this application duly authorized by the Executive Committee of the Non-Academic Staff Association. See letter marked Annexure "A" hereunto annexed.-3-(a) Pursuant to a resolution of a meeting called by the 2nd, 3rd, 5th and 7th Respondents (who were members of the Committee) elections were held on the 16th March, in which all Respondents were elected as new members of the Executive Committee of the Association.(b) The said Respondents called such meeting without my knowledge as the Secretary- General of the Association and also without consultation with the rest of the other eleven Committee Members.-4-(a) In terms of Clause 19 of the Constitution on the Non-Academic Staff Association Constitution, the term of office of this3/ Committee
-3-Committee of which I am acting Secretary-General should end at the Annual General Conference to be held during the last weekend of January or at a Special General Meeting called for that purpose. See Constitutuion marked Annexure "B" hereunto attached.(b) On the 7th April, 1981 a Special General Conference in terms of Clause 19 of the Constitution was convened and it was resolved that elections should not be conducted until a full financial account of the Association has been given to the members by the 5th Respondent who was Treasurer of the Association. See minutes marked Annexure "C" hereunto annexed.(c) Contrary to the resolution of the Special General meeting mentioned above, the 2nd, 3rd, 5th and 7th Respondents proceeded to conduct elections mentioned in paragraph 3(a) of this affidavit.(d) All the 15 Respondents claim they have now taken over the Association and now form a new Committee.(e) On the strength of this claim the Respondents are operating the account of the Association at the Barclays Bank and the Manager of the said Bank declined to freeze the account of the Association pending outcome of this matter. See letter marked Annexure "D" hereunto attached.-5-I verily believe that the meeting held by the above mentioned Respondents was un- constitutional and the subsequent elections held in pursuance thereof null and void because it was contrary to Clauses 34(c) and 29 of the Constitution which require that4/ the Secretary-General
-4-the Secretary-General shall arrange for all meetings of the Executive Committee and the Conference and further that the Executive Committee shall conduct business only when there is a quorum of five (5) members.-6-I verily believe that the Respondents in the premises are wrongfully and unlawfully using the funds of the Association and that the Respondents are not members of the Committee of the Association as they hold themselves to be and therefore they should be restrained.I granted the application as prayed and accordingly issued a Rule Nisi returnable on the 20th July, 1981.While the 16th Respondent did not oppose the Application, Respondents 1 to 15 opposed it.Acting on behalf of Respondents 1 to 15 the 2nd Respondent filed a Replying Affidavit couched in the following terms :-1-"I am duly authorised by letter by the Executive Committee of the Non-Academic Staff Union of the National University of Lesotho to represent the Respondents herein with the exception of Respondent number 16 (SIXTEEN), the said letter is attached hereto marked annexure "A". It is not true and a deliberate intention to mislead the Court for Applicant BERNARD THOKOA to allege in paragraph 1 (a) of his affidavit under reply that he is the Acting Secretary General of the Non-Academic Staff Association of the National University of Lesotho. He was suspended by the General members of the Non-Academic Staff on the 3rd April 1981 and he has never held any5/ official
-5-official position since his suspension until out-voted completely during the general elections held by the said Association on the 16th April, 1981, photo-copy of the minutes of the General conference held on the 3rd April 1981 is attached hereto marked annexure "B"-2-With regard to paragraph 3 (a) of Applicant's affidavit, it is absolutely false for Applicant to allege that the 2nd Respondent, 3rd, 5th and 7th held elections on the 16th March. It is correct that 2nd, 3rd, 5th and 7th Respondents were members of the Executive committee, it is also false that any elections were held on the 16th March. The elections were held on the 16th April 1981, nomination day being on the 6th April 1981, see annexure "B" .(b) The meeting held on the 3rd April 1981 wasconvened by a petition by the 41 (forty-one) general members of the Association dated the 1st April 1981 directed to the Executive Committee that the meeting must be held on the 3rd April 1981, the meeting being called in terms of Chapter 4, S.20 of the Constitution on page 2 of the Constitution, the petition was signed by 41 general members of the Association and Applicant was directed by 2nd Respondent to prepare for the said meeting, the said petition is attached hereto marked annexure "C" and Respondents' directive to Applicant concerning the arrangements for the said meeting convened by general members of the Association is marked annexure "D"-3-Forms for nomination were duly circulatedon the 7th April 1981, photo-copy of the saidform is attached hereto marked annexure "E",6/ ballot
-6-ballot forms for elections were held on the 16th April 1981, photo-copy of the said ballot forms for nominated people in pursuance of annexure "E" is attached hereto marked annexure "F".-4-It will be noticed from annexure "F" that Applicant was not nominated for any portfolio outlined in the said annexure nor for the position of Secretary General or Assistant Secretary.-5-The results were published on the 21st April 1981, that is of the elections held on the 16th April 1981, the returning officers were J M HLALELE and S S MASASA who conducted the elections, the 15 members of the Executive committee who are now the 15 Respondents were duly elected to the respective positions indicated on page of publication of the general elections marked annexure "G" and attached hereto. Ad para- graph 3 (b) of Applicant's affidavit, it is denied that the said meeting was called by the Respondents as has already been shown, the general members petitioned for that meeting, and the petition was in terms of the constitution authorising them so to do and the petition also indicated the agenda. On receipt of the petition which had handed to Applicant, 2nd Respondent directed Applicant to arrange for the meeting already convened by the general members for discussion of the agenda mentioned in the said petition.-6-Regarding paragraph 4 of the Applicant's affidavit the contents of 4 (a) are admitted in so far as they refer to the length of term of office of any executive committee is concerned, but the dates may be extended
-7-in terms of annexure "B" of Applicant's affidavit being the constitution.-7-With regard to 4 (b) of Applicant's affidavit,the meeting was unconstitutional, Applicantwas not directed to call any generalconference or special docnference, moreoverin terms of annexure "B" hereof the general members had already suspended Applicant andothers on the 3rd April 1981 nor was therea Chairman constitutionally elected as 2ndRespondent was not at the meeting, nor didhe convene it or direct it to be convenedas he was not informed of it, nor was therea petition for the meeting to be called, allthose who were said to be present at themeeting of the 7th April 1981, who had beenpreviously members of the Executive Committeenamely P N QOBOSHEANE, B S THOKOA, R MELATO,A S NQOJANE, B W LETHUNYA, T E SEJANE, LMOTAFANYANE had in fact already been suspended,the whole lot of them on the 3rd April 1981 in termsof annexure "B" by the general members at ameeting which was petitioned for by general membersin terms of annexure "C" and which said conferencewas properly petitioned for in terms of Chapter4. S.20 of the Constitution marked annexure "B"in Applicant's affidavit.-8-Applicant and other members who attended the meeting of the 7th April 1981 had already been advised by the Chairman that they had been suspended on the 3rd April 1981, the memo advising them of the suspension is attached hereto marked annexure "4", in terms of clause 19 the alleged special general meeting was not constitutionally convened. Ad paragraph 4 (c) of Applicant's affidavit, the allegations thereof are denied as has already been shown. With regard to 4 (d) of Applicant's affidavit 2nd Respondent avers that the 15 Respondents referred to were properly elected in terms of8/ the constitution
-8- the constitution.With regard to 4 (e) of Applicant's affidavit 2nd Respondent avers that the respondents operated the said account lawfully in terms of the constitution and that the 16th Respondent correctly rejected the demands of the Attorneys for Applicant as outlined in the letter marked annexure "D" in Applicant's affidavit,-9-With regard to paragraph 5 of Applicant's affidavit in terms of clause 34 (a) 1, the Chairman shall preside over all meetings of the executive committee and conferences and in terms of clause 29 (c) there shall be a quorum of five members, one of whom shall be a legally constituted chairman; in terms of annexure "C" of Applicant's affidavit referring to the unconstitutional meeting of the 7th April 1981, vide section 50 of the constitution, although there was a quorum there was no legally constituted chairman, apart from the fact that the executive committee members thereat were suspended as already mentioned. Vide section 50 of the constitution.-10-WHEREFORE by reason of the aforegoing, the Respondents humbly point out that the allegations of Applicant as contained in the affidavit have no substance and accordingly the Respondents humbly pray that the rule nisi be discharged with costs."In reply the Applicant filed a Replying affidavit in which he averred :-1-Ad Para 1I deny that I was suspeneed by the General Members of the Association at a meeting of the9/ 3rd April 1981
-9-3rd April because to my knowledge as a Secretary-General and a member of the Executive Committee there was no such a meeting and if there was, it was unconstitutional as it did not comply with Articles 28 (c) and 34 (c) of the Constitution. The elections heldon the 16th April 1931 in pursuance thereof were null and void.-2-Ad Para 2 (a)I deny that it is "false" but admit thatit is incorrect that the purported electionswere held on the 16th March and I accordinglyagree that they were held on the 16th April,1981.Ad Para 2 (b)I accept as true the Contents of Petition marked Annexure "C" in Respondent's Replying Affidavit. I also accept as true the Petition was made in terms of Article 20 of the Constitution, but I deny that the meeting whose minutes appear as Annexure "B" in Respondent's affidavit was the meeting in pursuance of the said petition. The fact is that arrangements made by me a Secretary- General in consultation with the other Executive Committee members for a meeting as requested by the Petitioners, were disrupted by the 5th and 11th Respondents. As a result no General Meeting took place on the 3rd April 1981 and in consequence thereof a Special Meeting in terms of Article 19 was convened. This is the meeting mentioned in paragraph 4 (b) of my founding affidavit.-3-Ad Para 3The Executive Committee (excluding 2nd, 3rd, 5th and 7th Respondents) did not associate themselves with any preparations for the purported elections mentioned in. this10/ paragraph
-10-paragraph as they regarded such elections as invalid.-4-Ad Para 7I deny that the meeting of the 7th April 1981 was unconstitutional as the Executive Committee had a duty to convene a meeting after attempts to call a meeting in compliance with the petition had failed as explained in paragraph2 of this affidavit. I also say that a decision to suspend me and the other nine (9) membersof the Executive Committee or the "whole lot of us" was not validly taken in the purported General Meeting mentioned in Annexure "B" of Respondent's Replying Affidavit as such step was not in the agenda of the said meeting.-5-It is not true that R. Mokhuts'oane and B.W. Lethunya (who are members of the Executive Committee) were present at the meeting as appears in Item 1.1 of Annexure "B" of Respondent's Opposita Affidavit.The allegation I am making is within my knowledge in that a decision was taken by the Committee in the presence of the aforesaid R. Mokhuts'oane and B.W. Lethunya to cancell a meeting that was arranged as per request mentioned as Annexure "C" in Respondent's Replying Affidavit. I subsequently ascertained from the aforesaid R. Mokhuts'oane and B.W. Lethunya whether they did attend a meeting as appears in Annexure "B" and they assured me that they did not.-6-I deny that there was no "legally constituted11 Chairman in the meeting of the 7th April 1931 mentioned in Annexure "C" of my founding affidavit. There was constituted a Chairman11/ who was
-11-who was co-opted in terms of Article 28 (j) of the Constitution as soon as 2nd Respondent (who was elected Chairman) dissociated himself from the rest of the Executive Committee.-7-WHEREFORE, by reason of the foregoing I verily believe that the allegations of the Respondent as contained in his Replying affidavit have no substance and accordingly. I humbly pray for confirmation of the Rule Nisi as granted with costs."It appears from papers filed with this Court that there exist, at the National University of Lesotho, a voluntary association for the Non-Academic Staff, commonly known as NASA, brevitatis causa. NASA(herein- after referred to as "the association") has a constitution by which it is governed. This case therefore falls to be decided on the constitution of that association.In terms of Clause 22 of the Constitution the supreme governing body of the association is the conference. Clause 18 of the Constitution defines the conference as the Annual General Meeting or the Special General Meeting of all paid up members of the association. Under the Provisions of Clause 19 of the Constitution the Annual General Meeting takes place in the last week of every January. It was contended by the Respondents and not disputed by the Applicant that the date may however be extended. The Special General Meeting is convened whenever business of the association calls for.12/ Clause 20
-12-Clause 20 of the Constitution provides that the Special General Meeting or, to use the words of the Constitution, Special Emergency Meeting shall be summoned on the motion, inter alia, of a signed petition by forty (40) of the members in good standing, addressed to the Executive Committee, In terms of Clause 22(h) the conference has or elects an Executive Committee one of whose main responsibilities under the provisions of Clause 28 is to carry out the day-to-day business of the AssociationAs I see it, the position here is that there are two factions of some of the members of the Association. One represented by the Applicant and another by the 2nd Respondent. Each of the two factions claims to be the constitutionally elected Executive Committee. The decision in this case therefore pivots around the determination as to which of the two groups is, on the balance of probabilities, the constitutionally elected Executive Committee.It is common cause that on the 1st April, 1981 a petition (Annexure "C" of the 2nd Respondnet's Replying affidavit) signed by 41 of the members of the Association and calling for a Special Emergency Meeting of the Association in terms of Clause 20 of the Constitution was addressed to the Executive Commiteee of which members appear to have been, among others: Maruping, Thokoa, Tsehlo, Melato and Mokhutsoane, In his Replying Affidavit the 2nd Respondent has attached Annexure "B", a document purporting to be the minutes of a General Meeting of the Association held on the 3rd April, 1981. I will deal with the Constitutionality of this meeting later in the course of this judgment as it was bitterly contested both in the papers filed with this Court and in arguments before me.13/ What is
-13-What is of importance about Annexure "B" of the 2nd Respondent's Replying Affidavit at this juncture is that it reflects the following persons as being some of the members of the Executive Committee: Maruping, Mokhutsoane, Tsehlo, Mathaha, Lephoto and Lethunya. That they were members of the Executive Committee was, indeed, not denied by the Applicant in his Replying Affidavit. What he disputed ad para 5 of his reply to the 2nd Respondent's Replying Affidavit was the allegation that Mokhutsoane and Lethunya attended the meeting of the 3rd April, 1981.In his affidavit the 2nd Respondent averred that Mokhutsoane and Lethunya were among the Executive Committee members who had attended the General Meeting of the 3rd April, 1981. To prove his averment the 2nd Respondent filed Annexure "B" which prima facie appeared to be genuine minutes of that meeting. On the face of Annexure "B" Mokhutsoane and Lethunya appear to have been among the members of the Executive Committee who attended the meeting of the 3rd April, 1981, If Applicant now says Mokhutsoane and Lethunya did not attend the meeting as proved by the 2nd Respondent he is, in my view, raising a new issue which he must also prove on a balance of probabilities. As proof of his allegation that Mokhutsoane and Lethunya did not attend the General Meeting of the 3rd April, 1981 Applicant merely contended himself with a bold statement that :"I subsequently ascertain from the aforesaid R. Mokhutsoane and B.W. Lethunya whether they did attend a meeting as appears in annexure "B" and they assured me that they did not." (ad para 5 of Applicant's Replying affidavit)14/ This was a
-14-This was a highly contested issue raised by the Applicant. He had no personal knowledge of what Mokhutsoane and Lethunya had told him. They were available and Applicant could have easily called upon them to file their affidavits to prove what he claims they had told him. This he had failed to do and instead chose to make this bold statement and rest. This he cannot be permitted to do. The onus of proving, on a balance of probabilities, that Mokhutsoane and Lethunya did not attend the meeting of the 3rd April, 1981 as alleged by the 2nd Respondent was clearly on the Applicant. In my view, he has failed to discharge this onus satisfactorily. In the premises, I come to the conclusion that the probabilities are that Mokhutsoane and Lethunya did attend the General Meeting of the 3rd April, 1981.It may be observed that later during the course of the meeting of the 3rd April, 1981 a resolution directing that ten (10) members of the association, including the Applicant, Mokhutsoane and Lethunya be suspended, for their alleged duplicity in the misuse of the funds of the association, was, rightly or not, passed by 78 against 5 votes. (Annexure "B" of the 2nd Respondent's Replying Affidavit). Their suspension was clearly a penalty purportedly authorised by Clause 47 of the Constitution which reads :"Upon a finding of guilt, the Executive Committee shall award either of the following penalties : (i) Caution, (ii) Reprimand, (iii) A fine not exceeding five rand, (iv) Partial or total suspension from membership, (v) Removal from office, or (vi) Termi- nation of membership."It may however be argued that the penalty was un- constitutional in as much as it had been awarded by the conference and not the Executive Committee.15/ The suspension
-15-The suspension also appears to have been unconstitutional for the reason that the constitutional preliminary procedure had not been followed before awarding it. Thus a desciplinary action should have been initiated by filing a charge which specified the clause of the constitution alleged to have been violated; the Executive Committee should have determined whether the charge was sufficient to warrant hearing; and the members should have been afforded the opportunity to be heard - see Clauses 45 and 46. Mokhutsoane and Lethunya may well have deplored them unconstitutional passing of the resolution to suspend them during the course of the General Meeting on the 3rd April, 1981. However, that in itself does not mean that they did not attend the meeting of which the minutesprima facie show that they did. Nor did the un- constitutional suspension of the members render the General Meeting itself unconstitutional.I will now proceed to deal with the question of the constitutionality of the meeting of the 3rd April, 19S1. It appears from Annexure "D" of the 2nd Respondent's Replying Affidavit that on the 1st April, 1981 the 2nd Respondent, as the Chairman of the Association wrote to the Applicant, as the Secretary-General, directing the latter to arrange for a Special General Meeting on the 3rd April, 1981 pursuant to the petition handed to the Chairman by the Applicant earlier on that same day i.e. the 1st April, 1981. The venue of the proposed meeting was to be at the Netherlands Hall from 1.00 p.m to 2.00 p.m. The Applicant did not dispute that following the petition of the 1st April, 1981 he was directed by the 2nd Respondent to arrange for the General Meeting of the 3rd April, 1981.16/ He admitted
-16-He admitted that the meeting of the 3rd April, 1981 did take place but argued that it was not held in pursuance of the petition of the 1st April, 1981. The reason he advanced for this was that he as the Secretary-General and in consultation with other members of the Executive Committee arranged for a different Special General Meeting.It becomes clear from this that the Applicant and some members of the Executive Committee, excluding the Chairman, took it upon themselves to hold their own meeting to decide on a different date for the holding of the Special General Meeting of the Association. They were thus up to defying the directives of, and desociating themselves with, the constitutionally elected Executive Committee Chairman whose only sin could have been nothing but his efforts to implement the wishes of the members of the Association for a conference under the Provisions of Clause 20 of the Constitution. Their meeting, without the Chairman, could not however have been constitutional for Clause 34 (i) of the Constitution provides that the Chairman "shall preside in all meetings of the Executive Committee and conference. " It seems to me, therefore, that whatever the Applicant and his defiant group of the Executive Committee members resolved in their meetings not presided over by the constitutionally elected Chairman whose portfolio had not become vacant and was still available and willing to preside over meetings that were constitutionally convened, as clearly demonstrated by Annexure "D" of the 2nd Respondent's Replying Affidavit, was unconstitutional and, therefore, null and void.It has been argued for the Applicant that the General meeting of the 3rd April, 1981 could not have17/ been
-17-been constitutional for the reason that it was only arranged by four (4) members of the Committee, namely the 2nd, 3rd, 5th and 7th Respondents. This argument is clearly based on the Applicant's contention that as Mokhutsoane and Lethunya did not attend the Special General Meeting of the 3rd April, 1981, they could not, therefore, have arranged for it. I have already come to the conclusion that the Applicant had failed to prove this contention and the probabilities are in favour of the 2nd Respondent's contention that Mokhutsoane and Lethunya did attend that meeting. The argument has, therefore, no basis and must fall away. As I have pointed out, the probabilities are that there were, at the General Meeting of the 3rd April, 1981, six (6) members of the Executive Committee, one of whom was the 2nd Respondent who was, at the time, the constitutionally elected Chairman.On the argument of the Applicant himself that only those of the Executive Committee members who had associated themselves with the Special General Meeting of the 3rd April, 1981 must have arranged for that meeting, it must be assumed that it was arranged by the six (6) who on the face of Annexure "B" of the 2nd Respondent's Replying Affidavit did associate themselves.It was further argued that in terms of Clause 29(c) of the Constitution the Executive Committee of the Association is constitutionally constituted to carry out its business when it has a quorum of five (5) members, including the Chairman. The 2nd, 3rd, 5th and 7th Respondents could not, therefore, have formed the necessary quorum to arrange for the Special General Meeting of the 3rd April, 1981.18/ Again
-18-Again, the argument seems to be based on the assumption that Mokhutsoane and Lethunya did not associate themselves with the meeting of the 3rd April, 1981. This assumption has been proved untenable and the argument must, therefore, be rejected.Ad Para 3 (b) of his founding affidavit Applicant averred that the meeting of the 3rd April, 1981 was called without his knowledge as the Secretary-General of the Association (and was therefore unconstitutional). As it has been pointed out earlier the Applicant did not dispute Annexure "D" of the 2nd Respondent's Replying Affidavit in which the latter clearly instructed him to arrange for the General Meeting of the 3rd April, 1981 pursuant to the petition that had been handed to the 2nd Respondent by the Applicant himself. That granted it surely cannot be in Applicant's mouth to say the meeting was called without his knowledge. What is abundantly clear is that he and his defiant click of some of the Committee members were boy- cotting the Chairman in their desperate attempt to oust him out of office. They could not however achieve this by dissociating themselves from or boycotting him and the rest of the Executive Committee members. Such a procedure was completely unconstitutional. To hold the contrary would bring nothing but chaos into the Executive Committee and the Association as a whole.I come to the conclusion that the meeting of the 3rd April, 1981 was duly convened in terms of Clause 20 of the Constitution and therefore constitutional.It was not disputed that during the course of that meeting a decision was taken in terms of Clause 61 of the Constitution calling for elections of a new ExecutiveCommittee.19/ The procedure
-19-The procedure stipulated by the Constitution for such elections was followed and all the 15 Respondents won their seats. They therefore became the new constitutional elected Executive Committee of the Association.
ACTING JUDGE31st AUGUST, 1981For Applicant: Mr. MdaFor Respondent: Mr. O.K. Mofolo