IN THE HIGH COURT OF LESOTHO In the Application
LIJABATHO FOOTBALL CLUB Applicant
LESOTHO SPORTS COUNCIL
13 OTHERS Respondents
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
9th day of March, 1992
The Court heard arguments in the above application on
2nd March, 1992. The application was dismissed.
The following are the reasons for the dismissal of this
Mr. Mohapi for the 1st respondent relied on
contents of a document filed on 14th October 1991 on behalf of the
1st respondent and styled "Notice
pursuant to Rule 8(10)(c)".
Rule 8(10) reads :
"Any person opposing the grant of any order sought
in the applicant's notice of motion shall;
(c) if he intends to raise any question
of law without any answering affidavit, he shall
(sic) deliver notice of his
intention to do so, within the time aforesaid, setting
forth such question". (Underlining and "sic" relate to
in the text).
None of the respondents has filed any opposing
affidavit. Thus in throwing the light on factors to be taken into
account in order
to understand the nature of the 1st respondent's
opposition Mr. Mohapi for the 1st respondent repeatedly
referred to the applicant's affidavit.
Relying on facts alleged in the applicant's affidavit at
paragraph 3 Mr. Mohapi submitted that it is common cause that
the 1st respondent authorised a body called LEFA (Lesotho Football
Association) to run and
organise football games in this country.
However in CIVVAPN\209\91 the High Court declared that authorization
null and void. The
applicant had participated in football games
organised by LEFA before this body was declared null and void.
It is the understanding of the applicant that such a
declaration has the effect of nullifying all that LBFA did prior to
an illegal body.
It seems that while originally the 1st respondent had
divested itself of the administrative powers to LEFA the 1st
its mind and wanted to resume its exercise of
administrative powers over all the organisation of
football games in the country. LEFA sought an interdict against the
before Kheola J, but was finally unsuccessful.
The applicant seeks to obtain a declaratory order in
terms of prayer 4(c) in the notice of motion wherein this Court is
asked to declare
the play of the matches and participation of the
applicant in those of the matches set out in Bokang Segoete's
affidavit null and
An incidental factor set out in the affidavit which Mr.
Monaphathi assured the Court that it is not the motive force
behind seeking the relief stated is that, of the 8 games the
applicant played under
the management of sports by LBFA only 2 were
won by the applicant.
However Mr. Mohapi for the 1st respondent pointed
out that in order to succeed in this application the applicant ought
to show prejudice but has failed
to do so. In reply Mr.
Monaphathi indicated that it is not always necessary that the
Court would only be moved to make a determination by reason of
He was of the view that the important thing is the
interest a party has in the matter. Thus the applicant's interest in
suffered prejudice in that the applicant played games
under unlawful administration.
The Court was referred to Section 2(c) of the High Court
Act 34\84 laying down that the High Court shall have
"in its discretion and at the instance ofany
interested person, power to inquire intoand determine any
existing future or contingentright or obligation notwithstanding
that suchperson cannot claim any relief consequentialupon the
In my view the applicant's difficulty is that it has not
shown what relevance the relief sought has on its future right.
Furthermore the applicant has not averred or established
any factual basis to enable this Court to grant the declaration
being had to the fact that declarations are matters for
the Court's discretion.
One of the important factors for persuading the Court to
make a declaration sought is the determination that the case is a
one. It is the applicant's duty to show what proper
circumstances moved it to make the application. The Court has seen
the papers to show that this is a proper case for the
exercise of the Court's discretion in the applicant's favour. The
motive seems to me to be that the applicant sought
this application as the excuse for avoiding relegation from the "A"
Division to lower ranks. Thus the reason advanced that the applicant
has suffered prejudice, hence it approached
-5-this Court, merely disguises this real excuse.
I accept Mr. Mohapi's submission that it is not
enough to say that because a party is an affiliate then whatever is
decided affecting the mother body affects
it, then that constitutes
its interest. Interest in the legal sense requires the affected
party to show prejudice that is actual
or potential hence the
insistence in law that a declaration should affect the future and not
the past interest.
It was for this reason that the Court invited both
Counsel to say whether there are no parallels between this case and
C. of A. (CIV)
No.5 of 1985 The Law Society of Lesotho vs the Hon.
Prime Minister of Lesotho and Another (unreported) at p. 52
where in effect the Court of Appeal
" declared that the appointment of the
Honourable Mr. Acting Justice Peete an acting judge was
made in contravention of the State's duty to guarantee the
the Courts in terms of Section 16(6) of the Human
Rights Act 24 of 1983".
yet despite such declaration the Judgments the
Honourable Mr. Acting Justice Peete delivered remained in place.
Both Counsel agreed
that they were not aware of any judgment that was
sought to be upset because the judge who had delivered it had been
I wholly endorse Mr. Mohapi's submission that in
applications of the kind I am seized with it is required of the
applicant to avoid speculative, abstract, hypothetical
questions. The applicant must have some right which falls to be
inquired into and determined. The applicant must satisfy
that it is a person interested in an existing, future or contingent
right or obligation and the circumstances are such
that the case is a
proper one for the exercise of the discretion conferred on this
Failure by the applicant to satisfy the above
requirements is a material defect which entitles the Court to dismiss
for lack of cause of action.
I have viewed with regret that despite its obvious lack
of substance this application was granted ex parte and the
applicant obtained a rule nisi which it sat on for months on
end despite the precarious position in which the 1st respondent was
placed. The 1st respondent as Mr. Mohapi stated on 24th
February 1992, was unable to organise the league or run football
games as it should have despite that the season for
these games had
long started. Meantime the applicant had nothing to lose while the
real interest of the respondents and, I should
say, of the sports
loving public is placed in unredressed jeopardy. The magnitude of
the public interest far outweighed the ill-conceived
that the applicant imagined. From this point of view it
is not difficult to appreciate that the inconvenience suffered by the
respondent which serves the football lovers - a very seizable
proportion of the Lesotho public was far in excess of the imagined
and not real prejudice suffered by the applicant. For this reason
alone the applicant ought not to have been granted the rule ex
In future the Court seized of a similar matter should be
astute enough to require of the applicant to pay security for the
costs before granting a rule and should insist on
alternative claim for damages to avoid a party having a chip on its
on having the undeserved pound of flesh. Nosy
Parkers would think before bringing applications of this kind to
Court, if so-calledrules nisi are not indiscriminately sought
and obtained and proper regard is paid to the fact that even though
they are temporary in operation
they affect the rights of the other
party who was not heard at the granting of such rules. Thus to that
extent the operation of arule nisi is a negation of the audi
alteram partem precept. It is important that unless it is shown
that irreparable loss would be suffered by the applicant and the
issuance on notice
would enable the respondent to defeat the very
purpose for which the rule was issued ex parte the Court
should refuse to issue it and insist on notice to the other side.
Even where it issues it, it should do
so sparingly and restrain itself with discipline in
order to pay proper regard to the existence, if any,
"of factors of such urgency, or of well-grounded
apprehension of perverse conduct on the part of a respondent who if
beforehand that resort will be had to the assistance of
Court, that the course of justice stands in danger of frustration
temporary curial intervention can be unilaterally obtained"
See Republic Motors vs Lytton Road Service Station1971(2) SA at 518.
The Court of Appeal has demurred at the trend obtaining
in our Court where a rule nisi is there for the picking no
matter what the circumstances. It is about time the authority of the
Court of Appeal was heeded.
The rule is discharged with costs.
J U D G E
For Applicant : Mr. Monaphathi For 1st Respondents:
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law