Petitions - appeals noted against decisions of the High Court sitting
as The Court of Disputed Returns dismissing such
Sections 69 and 129 of the Constitution read with the National
Assembly Election Act, 1992, confer a special and exclusive
jurisdiction on the High Court to determine any question arising from
an election petition. - The Court of Appeal does not have
jurisdiction to adjudicate upon any aspect of the appeals. Appeals
dismissed with costs.
C of A
(CIV) No. 3/2003 C of A (CIV) No. 4/2003
COURT OF APPEAL OF LESOTHO
Returning Officer For Constituency of
No. 33 and 13 Others - Respondents
C of A
(CIV) No. 3/2003
No. 32 and 12 Others - Respondents
C of A
(CIV) No. 4/2003
Maseru on .. April 2003
in the above two matters was heard together. The same objection in
limine has been raised in both matters by the respondents.
the issue is the following: Has the Court of Appeal jurisdiction to
entertain an appeal against the decision of the High
Court made in
respect of an election petition when sitting as a Court of Disputed
legislative framework which regulates the legal procedures concerning
election petitions consists of the following:
National Assembly Election Order 1992.
Court of Disputed Returns (National Assembly Election Petition)
heading "Decisions of questions as to membership of Parliament,"
section 69 of the Constitution provides as
"(1) The High Court shall have jurisdiction to hear and
determine any question whether -
person is validly nominated or designated as a Senator under section
55 of this Constitution;
person has been validly elected as member of the National Assembly;
seat in Senate or the National Assembly of any member thereof has
application to the High Court for the determination of any question
under subsection (1)(a) may be made by any Senator or
by any person
who is registered as an elector in elections to the National
Assembly or by the Attorney-General and, if it is
made by a person
other than the Attorney-General, the Attorney-General may intervene
and may than appear or be represented
in the proceedings.
application to the High Court for the determination of any question
under subsection (1 )(b) may be made by any person qualified
vote in the election to which the application relates or by the
Attorney-General and, if it is made by a person other than
Attorney-General, the Attorney-General may intervene and may then
appear or be represented in the proceedings.
application to the High Court for the determination of any question
under subsection (1)(c) may be made by any member of
Assembly or by any person registered as an elector in elections to
the National Assembly or by the Attorney-General
and, if it is made
by a person other than the Attorney-General, the Attorney-General
may intervene and may then appear or be
represented in the
may make provision with respect to -
circumstances and manner in which and the conditions upon which any
application may be made to the High Court for the determination
any question under this section; and
powers, practice and procedure of the High Court in relation to nay
such application, but, subject to any provision in that
under this subsection, the practice and procedure of the High Court
in relation to any such application shall be regulated by rules
by the Chief Justice.
determination by the High Court of any question under this section
shall not be subject to appeal."
of the intention of the lawgiver to exclude the jurisdiction of the
Court of Appeal in regard to determinations by
the High Court of any
question under section 69 of the Constitution is to be found in
section 129. Under the heading Appeals to
the Court of Appeal this
section provides as follows:
" 129 (1) In addition to the right of appeal accorded by section
47 of this Constitution, an appeal shall lie as of right
to the Court
of Appeal from decisions of the High Court in the following cases,
that is to say:
to section 69 of this Constitution, final decisions in any civil or
criminal proceedings on questions as to the interpretation
Constitution, including any such decision made on a reference to the
High Court under section 1 28;
decisions of the High Court in the determination of any question in
respect of which a right of access to the High Court
by section 1 7 of this Constitution and final decisions of the High
Court under section 22 of this Constitution.
to section 69 of this Constitution, the Court of
Appeal shall have such other jurisdiction with regard to appeals as
shall be determined by Parliament.
Court of Appeal shall, when determining any mater other than an
interlocutory matter, be composed of an uneven number of
not being less than three."
2. The National Assembly Election Order 1992 (the Order).
The following sections of this Act are relevant for present purposes:
2.1 CHAPTER 8 - ELECTION PETITIONS
2.1.1. High Court's jurisdiction in election petitions
Sec. 100 "The power to determine questions, in an election
petition, relating to membership of the National Assembly is, in
accordance with section 69 of the Constitution, vested in the High
2.1.2. How and by whom an election may be disputed
Sec. 101 "An election may be disputed, in accordance with
section 69 of the Constitution and the provisions of this Order
means of an application to the High Court and as may be prescribed by
rules made under section 112 of this Order."
2.1.3 Requirements of an election petition An election petition shall
-Sec. 102 (a) be presented to the High Court within 30 days
after the end of the election period concerned; and
out the facts relied on to dispute the election or return;
the order sought from the High Court; and
signed by the petitioner before a witness; and
the signature, occupation and address of the witness."
2.1.4 How the High Court is to deal with an election petition
Sec 104 (1) The High Court shall conduct the trial of an election
petition in open court.
determining a petition, the High Court shall be guided by the
substantial merits of the case and good conscience, without regard
to legal form or technicalities and shall not be bound by the rules
the trial of an election petition, the Court has power -
its own motion or on the application of a party to the petition, to
compel the attendance of witnesses and the production
examine witnesses on oath; and
punish a contempt of its authority by fine or imprisonment.
Court shall take all reasonable steps to ensure that -
in relation to the petition begin within 30 days after the petition
is lodged; and
Court's final orders in relation to the petition are given within
30 days after the end of the proceedings.
2.1.5 There are measures catering for the provision of security for
costs and the powers of the High Court in Sections 106, 107
of the Act.
2.1.6 Under the heading: Orders of the High Court not to be subject
to appeal the following appears:
22.214.171.124 "111. A determination or order or other action of the
High Court relating to an election petition is final and cannot
appealed against or questioned in anyway."
notice No. 54 of 1993 and pursuant to the Order, Rules were published
under the title "The Court of Disputed Returns
Assembly Election Petition) Rules 1993". In Rule 3(2)(c)
provision is made inter alia for the service of the election
on the Speaker. This requirement as well as the ensuing obligations
of the Speaker are also dealt with in the Constitutional
Rules, section 14 of which reads as follows:
(1) An application under section 69 of the Constitution by members of
Parliament, the Attorney-General or registered electors
brought on notice of motion supported by an affidavit as to the
contentions upon which the applicant relies for relief.
application under sub-rule (1) shall be lodged with the Registrar
and served on -
the case of the National Assembly, the Speaker of the National
the case of the Senate, the President of the Senate.
notice shall request the Speaker of the National Assembly and the
President of the Senate to bring the application to the
all members in the relevant houses, in writing, within five days of
the service on the Speaker of the National Assembly
President of the Senate.
member of the National Assembly or Senate, the Attorney-General or
any registered elector who wishes to oppose the granting
of an order
sought in an application made under sub-rule (1) shall notify the
Registrar, in writing and, within 10 days of the
making of the
application, of an intention to oppose.
notice under sub-rule (4) shall state the address, within 25
kilometres from the office of the Registrar, at which a member
the National Assembly or Senate, Attorney-General or registered
elector will accept notice and service of all documents in
notice under sub-rule (4) is given, the application shall be dealt
with in accordance with the provisions of rule 1 1.
notice to oppose is not lodged under sub-rule (4), the
matter shall be disposed of in accordance with directions given by
the presiding judge, which may include a direction -
for an additional information as the presiding judge may consider to
be necessary or expedient to deal with the matter;
interested members of Parliament, who wish to call for additional
information make written submissions relevant to the determination
of the issue within a period specified in the direction."
on the Framework
Seen as a
cohesive whole these various provisions create the legal framework
within which a disaffected election candidate can challenge
validity of an election in which he/she was an unsuccessful
candidate. Counsel for the respondents in their submissions contended
that the provisions set out above clearly excluded the Court of
Appeal from exercising any jurisdiction in respect of the
of any election petition lodged with the High Court
pursuant to section 69 of the Constitution and section 101 of the
Mosito on behalf of the appellant as I understood him, urged us to
find that section 69 of the Act only excluded the jurisdiction
this Court if the High Court makes an order on the merits of the
appeal. In this regard he relied most significantly also on
provisions of section 1 04 (2)
Order cited above.
cases in casu the decision to dismiss the petitions was not based on
the merits but on points taken in limine. These were
that the Speaker
should have been joined as a party in the litigation, that the
petitions were presented to the High Court out
of time and that the
petitioners failed to provide security as ordered by the High Court.
In both cases the preliminary objections
were sustained by a Court
consisting of three Judges.
Constitution, the Order and the Rules create a legislative structure
which is directed primarily at producing a fair result
but one which
is expeditious. The legislature has, as it were, traded off the right
of appeal to a higher Court for the benefit
of expeditious finality.
Its motivation in this regard is readily understood. Should an
election be a close run thing and election
petitions are lodged
which, if upheld, could turn a majority into a minority and vice
versa, serious disruption could occur in
the governance of the
Kingdom. If aspirant parliamentarians were afforded the right of
appeal - the delays of which are notorious
in many jurisdictions -
unacceptable uncertainty could follow.
present case is an example of this danger. This Court was requested
some four weeks before the commencement of this session
to set the
appeals down as a matter of urgency even though they were out of
time. Therefore we were in April 2003 seized with an
electoral irregularities that were alleged to have occurred in May
2002. This is in my view an outcome which the legislature
founding enactment would not wish to have countenanced.
several provisions in the statutory and regulatory framework set out
above that demonstrate the intention of the legislature
to achieve a
balance between a fair outcome on the one hand and a rapid
adjudication of election petitions on the other.
69 states in clear and explicit terms that the determination by the
High Court of "any question under this section"
be subject to appeal. The outcome of these petitions, i.e a decision
by the Court rejecting the petitions and declining
the relief sought,
was that the two respondents, who were the successful candidates in
the election were declared validly elected.
This is one of the
questions which was, in the result, determined by the High Court and
in my view was made "under" section
provisions of chapter 8 of the order remove any vestige of doubt that
the High Court has a special and exclusive jurisdiction.
vests the power to determine questions in an election petition in the
High Court. Section 111 says that a determination,
order or other
action of the High Court relating to a petition "is final and
cannot be appealed against or questioned in any
Mosito was heard to argue that we should read in the words "as
required by the law" after the words "other action".
This submission is untenable. It would simply negate the clearly
expressed intention of the law-giver which is explicit in
its intention to exclude a right of appeal.
be borne in mind that this exclusion has its origin in the
Constitution itself. It is therefore distinguishable from the
approach to "ouster clauses" in conventional legislation.
See in this regard Snyman vs Schoeman 1949 (2) S.A. 1 (A.D.);
Rens 1996 (1) S.A. 1218 (CC); S v. Ntuli 1996 (1) S.A. 1207 (CC);
Besserglik v Minister of Trade, industry and Tourism 1996
331 (CC); and de Villiers v Louw 1930 A.D. 426.
latter judgment Curlewis JA said at p430 in relation to the South
African election legislation that:
"The provisions of the Act clearly indicate that the trial by a
Court of Law of an election petition cannot be regarded as
a trial of
any ordinary action before a Court but as something special and
distinct character of such proceedings has been recognized in the
Constitution and is manifested by the provisions of section
69 and 1
29. Moreover the history of the development of the procedures to deal
legal challenges directed at the validity of an election also
demonstrates the uniqueness of the process.
case heard by the Court of Disputed Returns of Lesotho in the
Election Petitions between Abel Molepo Mathaba and 28 other
petitioners and Enoch Matlaselo Lephema and 28 others Respondents
ClV/APNS/182 to 206 and 208 to 210/1993 before Cullinan CJ.,
and Kheola J., the Court analysed the history of how election
petitions originated and developed. At page 1 5 of the judgment
Court says the following in this regard.
"It must be remembered that originally the jurisdiction to deal
with election petitions was reserved to Parliament itself,
Grenville Act, 1770, subsequently reserving responsibility for the
hearing of such petitions to a Select Committee of the House
Commons in England: see e.g. the Ludgershall Case (1) decided in
1791, the Dublin Case (10) decided in 1836 (see Halsbury ibid
691) and the Dungarvan Borough Case (11) decided in 1854, that is,
before jurisdiction in the matter was transferred to the
the Parliamentary Practice, 21 Ed. at p.36 and Parliamentary
Elections by Norman Schofield 3 Ed. (1959) at p.503)."
be noted that at p. 17 of the judgment in the Mathaba petition the
Court also refers to "the mandatory and directory
the Order which seek respectively to expedite the hearing and
delivery of judgment in a petition. "
Vol. 1 5, para 874 says the following in regard to the statutory
provisions to Parliamentary and European Parliamentary
"874. Right of appeal. No appeal lies without the High Court's
special leave from the decision of the High Court on any question
law, whether on appeal or otherwise, under the provisions of the
Representation of the People Act 1983 relating to election
If leave to appeal is granted, the decision of the Court of Appeal in
the case is final and conclusive." This is
an example of a
different kind of jurisdictional limitation which a legislature can
impose by way of an explicit provision.
due regard also to the historical development, there is nothing in
the legislative framework which would justify this Court
from the clearly expressed injunction of the Constitution, read with
the National Assembly Election Act, 1 992 and the
thereunder that no appeal to this Court shall lie against the
decision of a High Court dismissing an election
petition. This Court
therefore does not have the jurisdiction to adjudicate upon any
aspect of this appeal. The Constitution does
not allow it to do so.
objections in limine are upheld and the appeals are dismissed with
on the 14th April 2003.
Appellant : Mr. K.E. Mosito
Respondents : Messrs. Griffiths, Putsoane and Phafane
cases where emphasis has been indicated this has been added by us.
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