IN THE SIGH COURT OF LESOTHO In the matter between:
TSEPANG MAKHALEMELE 1ST APPLICANT
JUBILEE MAKHETHA 2ND APPLICANT
DISTRICT SECRETARY, MORALE'S HOEK 1ST RESPONDENT
MINISTER OF HOME AFFAIRS 2ND RESPONDENT
GENERAL 3RD RESPONDENT
Delivered by The Honourable Mr. Justice G.N. Mofolo,
Acting Judge. on the 15th day of September. 1995.
This is an application in which the applicants sought an
order in the following terms:-
Dispensing with the rules of court pertaining to
modesand periods of service.
That a Rule Nisi be and is hereby issued returnable
ona date and time to be determined by this HonourableCourt
calling upon the respondents to show cause (ifany) why:-
The 1st Respondent and/or his subordinates shallnot
be interdicted from engaging in re-elections in the
villages of Thabena-Ts'ooana andHa Potsane which are due to be
held on the 22nddav of August. 1995 for the village
developmentcouncils pending finalization hereof.
The purported declaration of the elections of the11th
August. 1995 as invalid shall not be declarednull and void and
of no force or effect.
The 1st respondent shall not be directed toproceed
to call for holding of ward electionswhich he unlawfully
Costs of suit on attorney-and-client costs in theevent
Further and/or alternative relief.
I granted the interim relief and made the Rule Nisi
returnable on 25th August, 1995 and on this day the Rule was extended
August, 1995 when the matter was argued before me.
In their Notice of Motion applicants in paragraph 2(a)
called upon respondents to show cause (if any) why
The 1st respondent and/or his subordinates shall not be
interdicted from engaging in re-elections in the villages of
and HA POTSANE which are due to be held on the 22nd
day of August. 1995 for the village development councils pending
In his Founding Affidavit and at paragraph 4 thereof 2nd
applicant has deposed:
On or about the 11th August, 1995 Village Development
Council elections were duly held pursuant to Legal Notice No.62 of
the Potsane Village where I am resident (I have underlined).
9 of the 2nd applicant's affidavit reads:
It was only this very yesterday the 20th of August. 1995
when I was told by one LEBONA and MALEBANYE both of whom are
officer and acting Principal Chief of LIKUENENG
HA POTSANE respectively; that there will be held re-elections in my
together with HA POTSANE Village in which there will be
re-elections as there were protest pertaining thereto.
It will be observed that in paragraph 4 above 2nd
applicant says he is resident at POTSANE Village and on paragraph 9
will be held re-elections in my said village' (of course
meaning HA POTSANE) and HA POTSANE village. Certainly I am lost what
2nd applicant means unless he is saving that it was intended that
two simulteneous re-election were going to be held at HA POTSANE
village; if this is what he means it is quite nonsensical because
according to 1st Respondent's opposing affidavit the 4th paragraph
thereof he deposes:
For the election to the Village Development Council of
Thaba-Ts'ooana Ha 'Mapotsane, 20 (twenty) candidates were registered
1st Respondents paragraph 14 thereof reads;
The bye-election date for the Thaba-Ts'ooana Ha
'Mapotsane Village Development Council was the 22nd August. 1995. The
did commence on the said date and only to be stopped
after an Order of Court was served on the same day interdicting me
in bye-elections in that village.
I must state that no bye-elections were or are ever to
be held in the village of Ha Poteane.
The above must be read in conjunction with the
list of candidates shown the court which showed that the
Village Development Council elections were held at Thaba-Ts'ooana Ha
and not at Thabana-Ts'ooana and Ha potsane as the 2nd
It becomes clear that the applicants and 1st Respondent
are not agreed as to where the election was held and the problem for
is that, unfortunately, a deponent to an affidavit
rises or falls by what he has deposed to in his affidavit.
Applicants' Notice of Motion and 2nd applicants'
affidavit quite apart from the fact that applicants Notice of Motion
is in conflict
with 2nd applicants Founding Affidavit, 2nd applicants
Founding Affidavit is itself self-contradictory. I cannot, therefore,
2nd applicant's affidavit to determine where the Village
Development Councils were held but find that 1st Respondent's
is a true and reliable restatement of where these
elections were held.
As I have said the list of candidates which was shown
the court reflects the election as having been at Thaba-Ts'ooana Ha
and not Thabana-Ts'ooana and/or Ha Potsane - these are
entirely two different villages and on the onset I find that there
Village Development Council election held at Potsane villages
or at Thabana-Ts'ooana and Ha Potsane but that the said election was
at Thaba-Ts'ooana Ha 'Mapotsane.
It will be seen from the above that the purported
interim relief which I granted on 21st day of August, 1995 should not
granted if full facts had been known to the court then.
It was argued on behalf of the applicants firstly that
the let Respondent should not have nullified the election as he had
title in law so to act. Secondly it was also argued that 2nd
applicant having won the election aforesaid in the Potsane Village
applicant had a vested right which could not be taken away from
Concerning the first argument above, in terms of Legal
Notice No.62 of 1995, the 1st Respondent was designated as supervisor
Councils Elections in terms of s.3(l) of the Notice.
Section 4(a) thereof empowers the let Respondent to
exercise general supervision over the administrative
conduct of elections.
As this legislation confers on the 1st Respondent power
to superintend the elections, it goes without saying that the
has also conferred on him necessary discretion with
regard to the running and control of Development Council Elections.
When, therefore, it came to 1st Respondents notice that
there were irregularities in the election, be was entitled to act
to protect the smooth and just conduct of the election.
It was in my view, an irregularity for the polling officer or anybody
candidates though, as I have said, 1st Respondents
action at Thaba-Ts'ooana Ha 'Mapotsane has not been challenged in
As for the second leg of applicants' argument, it has
been said that
'The only condition attached to this reshaping power is
that, if the action of the subordinate organ has resulted to the
of certain rights by individuals, the superior organ may
retract only if it has express statutory authority to do so or if the
is invalid in law.' -Wichers, Administrative Law,
Butterworths, 1985 p.49.'
Wiechers on the same page as above says that the
principle may be illustrated by way of a case where the licensing
board of a city
council issues a licence perfectly lawfully to an
applicant and the council subsequently withdraws the licence:
according to him,
the council cannot subsequently withdraw the
licence since the licence bolder has already acquired rights in
consequence of the granting
of the licence and the city council may
withdraw the licence only if it was invalidly issued or if the city
council has authority
to withdraw it.
These are precise terms in which Mr. Mosito for the
applicants addressed this court and I can only say that quite apart
from the fact
that the election was invalidly held in that
the polling officer had no right to disqualify
candidates, this question no longer arises as the act of the 1st
Respondent to nullify
elections at Thaba-Ts'ooana Ha 'Mapotsane is
not challenged in these proceedings.
In this matter the superior organ in the form of
Minister of Home Affairs has transferred his powers to the 1st
Respondent in terms
of Legal Notice No.62 of 1995. The superior organ
has also given instruction to the inferior organ within the control
to the 1st Respondent. In this deconcentration of
activities taking place within a specific administrative hierarchy of
the Minister delegated his powers to the 1st
Respondent. And as Wiechers says in his Administrative Law on p.52:
'where the delegate performs a function on behalf of or
in the name of the delegans, he replaces the delegans completely and
the function as if the delegans himself were performing it.'
It has also been said:
'Now it is settled law that where a matter is left to
the discretion of or the determination of a public officer, and where
has been bona fide exercised or his judgment bona fide
expressed, the court will not interfere with the result.' in Shidiack
Govt. 1912, 642 (A.D.) at p.651.
'not being a judicial functionary no appeal or review in
the ordinary sense would lie; and if be has duly and honestly applied
to the question which has been left to his discretion, it is
impossible for a court of law either to make him change his mind or
to substitute its conclusion for his own.'ibid 0.651.
8 it was also said
'There are circumstances in which interference would be
possible and right. For instance such an officer had acted mala fide
ulterior and improper motives, if he had not applied his mind
to the matter and exercised his discretion at all, or if he had
the express provisions of a statute - in such cases the
court might grant relief. But it would be unable to interfere with
and honest exercise of his discretion, even if it considered
the decision inequitable or wrong.' op. cit. pp. 651 - 652.
It is unusual for a court of law to heap praises and
accolades on a public official. In this judgment I have not found an
more deserving of his public duties. The discretion which he
used was most fitting and appropriate in the circumstances. By
the election and ordering the holding of another election
none of the parties in this application have been prejudiced. On the
the holding of another election ensures that simple justice
will not only be done, but will be seen to be done.
Accordingly this application is refused with costs to
the 1st respondent.
G.N. MOFOLO Acting Judge 14th September, 1995.
For the Applicant: Mr. Mosito For the respondents:
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