IN THE HIGH COURT OF LESOTHO
In the matter between:
KHAUHELO RADITAPOLE 1st APPLICANT
MOLAPO QHOBELA 2nd APPLICANT
MPHO MOEKETSI 3rd APPLICANT
'MOLOTSI KOLISANG 4th APPLICANT
SEPHIRI MOTANYANE 1st RESPONDENT
NTSUKUNYANE MPHANYA 2nd RESPONDENTNATIONAL
OF BASUTOLAND CONGRESS PARTY 3rd RESPONDENT
BASUTOLAND CONGRESS PARTY 4th RESPONDENT
INTERIM POLITICAL AUTHORITY 5th RESPONDENT
THE ATTORNEY GENERAL 6th RESPONDENT
LEBENYA CHAKELA 7th RESPONDENT
Delivered by the Honourable Chief Justice Mr. Justice
J..L. KHEOLA on the 16th day of August. 1999.
This is an application for an order in the following
terms: 1. Dispensing with the ordinary rules and modes of
service of this
Directing the Respondents to file their opposing papers
(if any) on orabout the 19th day of July 1999 before
A Rule Nisi be and is hereby issued returnable on the
22nd day of July1999 at 9.30 a.m. calling upon the
Respondents to show cause (ifany) why -
A purported Meeting of the National Executive Committee
ofthe Fourth Respondent in which a decision was taken toremove
first Applicant from fifth Respondent shall not bedeclared null
and void and of no force and effect.
the purported decision to recall first Applicant from
themembership of the Interim Political Authority shall not
bedeclared null and void and of no force and effect.
the purported gazettement deleting the name of first
Applicant(being Legal Notice 74 of 1999) shall not be declared
3 void and of no
force and effect.
the purported swearing in of the seventh Respondent
shall notbe declared null and void and of no force and effect.
it shall not be declared that first Applicant remains a
memberof the Interim Political Authority.
seventh respondent shall not be interdicted and/or
restrainedfrom holding himself out as a member of the Interim
PoliticalAuthority representing fourth Respondent.
Applicant shall not be granted such further and/or
alternativerelief as this Honourable Court may deem meet.
(h) Respondents shall not be ordered to pay costs hereof
jointly and severally the one paying, the other being absolved, the
fifth and sixth Respondents paying only in the event of
4 3. Prayers 1
and 2 operate with immediate effect as interim Court
It is common cause that at all material times to this
application, the fourth respondent is and has been a member of the
in terms of section 5 (1) (b) of Act No. 16 of 1998.
The fourth respondent was represented in the fifth respondent by two
The first applicant was one of such members. It is also
common cause that she was elected as one of the two chairpersons of
On the 6th July, 1999 the second respondent
wrote Annexure "KDR1" which was addressed to the first
respondent. In it the second respondent
informed the first respondent
that in terms of the judgment of the High Court in CIV/APN/205/99
delivered on the 6th July, 1999, the committee which was
the second respondent as its Secretary General is the rightful
committee. The second respondent
went further to request the first
respondent to give effect to the decision of the National Executive
Committee of the fourth respondent
of replacing the first applicant
with the seventh respondent as a representative of the fourth
respondent in the fifth respondent.
It is clear that the first respondent complied with the
above request. In Legal Notice No.74 dated the 8th July,
1999 the first respondent deleted the name of the first applicant and
substituted that of the seventh respondent as the representative
the fourth respondent in the fifth respondent.
In her founding affidavit the first applicant alleges
that Annexure "KDR1" was written without having first given
opportunity to be heard prior to her purported removal. She
alleges that she was never called upon by either of the two (2)
committees of the fourth respondent to show cause (if any)
why she should not be removed from the fifth respondent.
The second, third and fourth applicant also confirm that
they were never invited to a meeting at which a decision was taken by
National Executive Committee of the fourth respondent that the
first applicant be removed from the fifth respondent. The first
alleges that the second, third and fourth applicants are
members of the National Executive Committee of the fourth respondent.
avers that the decision to remove her is flawed having been taken
without affording some of the members of the N.E.C. an opportunity
consider such a serious issue as they were entitled so to do.
6 In his
answering affidavit the second respondent avers that the first
applicant is deliberately withholding material facts
from the Court. She knows that she was called on several occasions to
before the third respondent but she refused. She is also
deliberately refraining from telling the Court that "KDR1"
but a sequel or a mere follow-up to a letter written to the first
respondent on the 5th May, 1999. He submits that in fact
her application is not urgent in that she knew in May, 1999 that she
was being replaced from I.P.A.
but decided to sit back and do nothing
until two months later. A copy of the letter is marked Annexure "AA".
If I may be allowed to digress at this juncture I wish
to point out that Annexure "AA" is a letter written to the
respondent in Maseru. It was copied to the fifth respondent.
There is nothing to show that a copy was given to the first
It is therefore not correct to say that the first
applicant knew in May that she was to be replaced. She could not have
she was not served with a copy of Annexure "AA".
There is no evidence that a copy of Annexure "AA" was hand
to her or posted to her at her usual address. The same
applied to Annexure "KDR1". It was also addressed to the
and copied to the Executive Secretary - I.P.A. There
is no evidence that the first applicant received a copy of Annexure
The mere fact that she was one
7 of the two
chairpersons of the fifth respondent does not necessarily mean that
she knew every letter addressed to I.P.A. An affidavit
Executive Secretary of I.P.A. would probably show whether the first
applicant knew anything about Annexures "AA"
Without such evidence the respondents have failed to prove that the
first applicant knew the about the above
annexures and therefore
deliberately refused to attend the meeting at which her removal from
the fifth respondent was decided.
In Annexure "CC" a certain Mr. G.R.
Ramolahloane who was the Deputy Secretary General of the fourth
respondent wrote a letter
to the first applicant inviting her to a
meeting of the NEC of the fourth respondent. It is not clear how the
letter was delivered
to her. If it was posted to her or hand
delivered the writer of the letter must say so in an affidavit. This
letter is dated the
30th March, 1999.
There is another Annexure "CC" dated the 3rd
March, 1999. It was addressed to members of the fourth respondent. It
was addressed to them in Maseru. It is not stated where in
they would be found. Again there is no evidence that any member of
the NEC received Annexure "CC".
The same applies to Annexure "EE".
The second respondent alleges that as proof that the
first applicant knew that she was called to appear in the meeting of
that she refused, is the fact that she held a caucus at
T.Y. where she ridiculed the N.E.C. for having called her to appear
it. In her replying affidavit the first applicant has denied
this allegation. It could be alleged that there is a dispute of fact
on this point. However that is not the case because the second
respondent's allegation is vague. He does not explain how he came
know what the first applicant said at the T.Y. caucus. Was he present
at the caucus and heard her say what she is alleged to have
he was not at the caucus who told him what she said? Why does he not
disclose the name of his informer who was probably
present at the
caucus? Without the answers to the above questions the allegation has
little or no evidential value.
In his submissions Mr. Mosito, counsel for the
applicants, has raised three issues for determination by the Court.
(a) Was the audi alteram partem principle applicable in
the case of the withdrawal of the first applicant from the fifth
by the fourth respondent acting through third respondent?
(b) Was the first applicant given a hearing prior to her
withdrawal from fifth respondent by the fourth respondent?
(c) Was a meeting held by the third respondent in which
a decision was taken to remove the first applicant in the absence of
to fourth applicants valid, and capable of producing of the
legally recognized consequences?
With regard to the first issue whether the Audi alteram
partem principle was applicable Mr. Ntlhoki, attorney for the
conceded that the Audi alteram partem was applicable.
The problem which his clients had was that the first applicant was
and refused to appear before the National Executive
Committee of the fourth respondent. I have already dealt with this
It seems to me that the respondents failed to prove that
the letters or notices inviting the first applicant were properly
to her. It is interesting to note that the second
respondent alleges that the first applicant had been ignoring their
to her; why did he not register all the letters addressed
to her or have them hand delivered directly to her? What the Court
was proof of service.
Mr. Mosito submitted that the respondents have annexed
three letters to
answering affidavit as proof that the first applicant was called for
a meeting where the issue of her withdrawal from I.P. A.
was going to
be addressed. Those letters are Annexures "CC" on pages 79
and 80 of the record and Annexure "EE"
on page 83 of the
record. He submitted that the statements in the three letters written
by one G.R. Ramolahloane are, in the absence
of an affidavit by Mr.
Ramolahloane confirming their truth, clearly hearsay and inadmissible
to prove the truth of their contents.
He relied on the words of
Ackermann, J.A. in Nqojane v. National university of Lesotho
1985-1989 L.A.C.369 at 383 where the learned
"If the council had in fact formed the opinion in
question the simplest way of providing it would have been to prove
of the meeting at which such opinion was formed or
recorded or,, in the absence of minutes, a person present at the
have deposed to the formation of such opinion. There is
no such proof in the present case. It is, however, permissible for
to prove this opinion as a matter of inference from all
the admitted or proven facts or unchallenged averments on the papers.
The statement in the first paragraph of Mr. Putsoane's
letter dated 9
11 November 1984,
'The Council of the National University of Lesotho has
considered a report of the Non-Academic Staff Appointment Committee
your employment at the University. It was noted that you
have been found guilty of the charges made against you in the letter
the 25th 1984'
Is, in the absence of an affidavit by Mr. Putsoane
confirming its truth, clearly hearsay and inadmissible to prove that
considered the report mentioned or even that the
Non-Academic Appointments Committee had made such a report. It might
be possible to infer from the letter (which appellant
admitted receiving) that the council had resolved to dismiss the
How cogent this inference is I shall consider later."
In the light of the decision in Nqojane's Case - supra -
there can be no doubt that Annexures "CC" and Annexure "EE"
are hearsay evidence and inadmissible because Mr. Ramolahloane has
not deposed to an affidavit to the truth of the contents of the
abovementioned annexures. There is no admissible evidence proving
that the first applicant was invited to those meetings.
12 Mr. Ntlhoki
submitted that the letters were not hearsay because they are
the letters by the fourth respondent. They were not
letters of Mr. Ramolahloane. I do not agree with this submission
because in Nqojane's
Case - supra - the letters were those of the
National university of Lesotho written by Mr. Putsoane. They were not
his personal letters.
Nevertheless the letters were found to be
The letters addressed to the second, third and fourth
applicants were also hearsay for the same reasons given above.
In the result the rule is confirmed with costs.
J.L. KHEOLA CHIEF JUSTICE
16th August, 1999
For Applicants - Mr. Mosito For Respondents - Mr.
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