CIV/APN/232/94 IN THE HIGH COURT OF LESOTHO
In the application of:
MATTHEWS MOFOKENG APPLICANT
BERNICE MOLAPO, N.O. 1ST RESPONDENT
PALAMA - MOSHOESHOE 2ND RESPONDENT
JUSTICE SEKHONYANA NTLHABO 3RD RESPONDENTLESOTHO
LABOUR CONGRESS (IN
LIQUIDATION) 4TH RESPONDENT
SETHO MOLAPO 5TH RESPONDENT
MOLETSANE JONATHAN 6TH RESPONDENT
HOFNIE LEBONE. 7TH RESPONDENT
Delivered by the Honourable Mr, Justice G.N. Mofolo,
Acting Judge on the 13th day June, 1995.
This application came by way of an ex-parte application
wherein the applicant sought:
1. Dispensing with ordinary Rules pertaining to
themodes of periods of service.
2. -A Rule Nisi returnable on a date and time to
bedetermined by this court calling upon respondents toshow
cause (if any) why:
(a) The sixth and seventh respondents shall not be
restrained and/or interdicted from continuing to execute duties of
Secretary-General of the 4th respondent.
The first and second respondents shall not bedirected
not to hold meetings of the trustees ofthe 4th respondent
without informing applicantand/or giving applicant notices of
The purported appointment of the third respondentas
liquidator of the fourth respondent shall notbe declared null
and void and of no force oreffect.
The first and second respondents shall not bedirected
to organise and hold a trustee meetingin consultation with the
The fifth and seventh respondents shall not
beinterdicted from continuing to receive anypayments and/or
monies and using the same forwhatever purpose pending
finalisation of thisapplication.
The respondents shall not be directed to filetheir
opposing affidavits (if any) within seven(7) days of. service
upon them of this applicationand Court Order.
(g) The respondents shall not be ordered to pay costs
hereof only in the event of opposition hereto.
(h) The first and second respondents shall not be
directed to hold a meeting soonest to decide upon the appointment of
On 27 July, 1994 the Chief Justice granted a Rule Nisi
and after several extensions the application was placed before me on
1995 and hence this judgment.
According to the record of proceedings, it appears that
4th respondent, a Federation called the Lesotho Labour
(LLC) was registered as a Trade Union under Sec. 9 of
Unions and Trade Disputes Law No.11 of 1964 whose
until its Liquidation, was the 6th respondent.
On 10th May, 1994 the Registrar of Trade Unions, one Mr.
Fanana wrote to the 6th respondent acknowledging, amongst other
letter of 29th April, 1994 which:
Forwarded a list of names of persons purporting to
be"The Lesotho Labour Congress":
forwarded five (5) 'Form Cs' wherein nine (9)
tradeunions had given notice of their resolution to form a
.federation to be called 'Lesotho Labour Congress' and
(c) included the constitution of the 'Lesotho Labour
In the letter Mr. Fanana drew attention to the 6th .
respondent of the provisions of the Labour Code, 1992 and that since
called Lesotho Labour Congress had not availed itself
of the provisions of the Act the Lesotho Labour Congress was deemed
and accordingly the office of the Registrar would not deal
with Lesotho Labour Congress until the Registrar was informed of
taken in winding up the affairs of the federation.
It is not clear whether it was before or after the
letter quoted above that the provisions of 4th respondent's
Article 9(b) followed. From the papers it is
clear that after the dissolution the applicant, 1st respondent and
became trustees, as applicant said, in terms of
Article 7 of 4th respondent's Constitution.
Applicant has brought this application primarily
because, according to his affidavit, trustees of the 4th respondent
have never notified
'me of a meeting whereat we as trustees could sit
down and then deliberate on how we could administer the winding up of
respondent.' I doubt this statement. The applicant wrote
an evenly minuted letter on 26 May, 1994 to the 6th respondent
a meeting with all trustees including former national
office-bearers of the 'former federation.' He was right to say that
should have taken charge of the
affairs of the federation and to suggest a meeting for
handing over to the trustees and consequent appointment of a
last paragraph of applicant's letter reads:
'trusting that you will co-operate and assist with a
view of having this meeting on Sunday at former L,L.C. offices
at 12.00 noon.'
I am buffled by applicant's assertion and that of his
counsel's submission that trustees of the 4th respondent have never
the applicant when the applicant himself in uncontroverted
terms called a meeting including the day, time and venue of the
It is not for the applicant to tell me that 'I never called
a meeting for any specific Sunday date' or that he did not specify a
date for in the event it was his own fault for those who attended the
meeting understood for what day it was called and if the applicant
did not understand his own letter it is his affair and in my opinion
cannot be allowed to benefit by his own error.
In Chetty v. Tamil Protective Association, 1951(3)
S.A. 34(N.P.D.) where a meeting had been called but 2 committee
members though they attended the meeting when their protest that the
been called at short notice was rejected, they left the
meeting. Held: it was failure to give notice to any one member
that may invalidate the meeting. According to respondents'
attended the meeting but left.
This being an application, I have no reason not to
believe respondents especially in the light of the fact that
applicant is now trying
to rationalise notice of a meeting called by
In Jockey Club of S.A. and others v. Feldman, 1942
A.P, 340 at p.359 Tindall J.A. fas he then was) is
reported to have said:
'I am not prepared to accept, as a rule acceptable to
all cases of irregularity in the proceedings of private tribunals,
that an irregularity which is calculated to prejudice
a party entitles him to have the proceedings set aside. No doubt
prima facie gives him such right, but it is clear
that in the particular case the irregularity caused such party no
I don't see how a letter calling a meeting written by
the applicant can prejudice him. Note also that in Chetty's
case supra Tindall J.A. went on to say that the real issue had been
debated at a properly called meeting and the applicant having
out there was no point in re-holding another Annual General Meeting.
I see no need in holding another meeting, either. On reflection,
Hlaoli for the respondents was probably right in saying that holding
another meeting would be of academic interest for the applicant
lost the day.
If this progress of events had been the end in this
application, it can be seen that this application had no merit
applicant in his letter also invited 'the former
national office bearers of the former Federation. Having invited
them, rightly so
in my view as Mr. Hlaoli contended that no proper
handing over could be conducted without thier cooperation, I find it
the applicant to say that they are holding themselves out
as office-bearers of a defunct - organisation. I disagree - it is the
of trustees to ensure that there are no irregularities and
the applicant should have attended a meeting he called to checkmate
As I have said, a letter written by 3rd respondent as
Liquidator has caused me some concern as has the applicant's founding
where he refers to the sixth and eighth respondents holding
themselves out as aforesaid; as there is no 8th respondent in this
I am wondering if the applicant is not the type who sees
enemies in every bush. Concerning the 3rd respondent, he says in his
of 1st July, 1994 that having been duly appointed as
Liquidator in accordance with article (10) (c) and in this he finds
in applicant's letter of 26 May, 1994 already referred to
where it is said 'so that we are enabled pursuant to article 10 (c)
appoint liquidators.' I am flabbergasted and disconcerted for
Article 9 (b) (i) of the Constitution of the defunct Lesotho Labour
'The trustees shall immediately take charge of the
affairs of the federation and appoint a liquidator.'
Article 10 has nothing whatsoever to do with the
appointment of a liquidator. It is clear to me therefore that in
appointing the liquidator
the trustees did not follow own rules or
rather disregarded them (Jockey Club of S.A. and Ore v. Feldman
above) . I cannot come to the rescue of a party that disregards its
own rules or does not follow them. In my view when the trustees
down to appoint 3rd respondent they could well have been looking at
rules other than those of the 4th respondent.
Although I have said it was by applicant's invitation
that some executive members of former Lesotho Labour Congress
a meeting called by the applicant, this is not to
say that I can overlook a letter written by the 6th respondent to one
It will be recalled that the Registrar of Trade Unions
by his letter of 10th May, 1994 considered 4th respondent as
failure to take advantage of provisions of the Labour
Code Order, 1992.
The Registrar as I have said wrote to the 6th respondent
that by operation of the law 4th respondent 'was automaticaly deemed
in law' and in this he was right. And yet 6th respondent
wrote a letter of 31st May, 1994 purporting to dismiss
one Hape Tsakatsi. When 6th respondent did so, as I have
said elsewhere, he was disregarding rules of the 4th respondent to
that on dissolution:
'The trustees shall immediately take charge of the
affairs of the federation and appoint a liquidator. (vide Article 9
(b) (i) of
4th respondents Constitution).
I come to the conclusion that:-
Sixth and seventh respondents or anybody desist
fromholding themselves out as either Secretary or
AssistantSecretary or official in whatever capacity of the
4threspondent and the said sixth and seventh respondentsor
anybody is restrained and interdicted fromcontinuing to execute
normal duties of the 4threspondent except where such duties are
in facilitationof aims and objects of 4th respondent's trustees
First, second respondents and the applicant herein
tohold trustees meetings together and to give each othernotice
of such meetings.
The appointment of third respondent as liquidator
isset aside and declared invalid.
The fifth and seventh respondents are interdicted
fromcontinuing to receive any payments and/or monies andusing
the same and to account to the trustees orliquidator of any
moneys received after the liquidationof 4th respondent herein.
First, second respondent and the applicant to holda
meeting sooner to decide upon the appointment of aliquidator.
6th respondent's letter of 31st May, 1994 is set
asideand declared invalid.
On costs, as costs are punitive, in view of the fact
that but for 3rd respondent's error the judgment might have gone the
I do not feel that it would be just to penalise any party
to these proceedings and my finding is that there will be no order as
G.N. "MOFOLO Acting Judge 6th June, 1995
For Applicant: Mr. Mosito For Respondent: Mr. Hlaoli
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