HIGH COURT OF LESOTHO
EXECUTIVE COMMITTEE OF THE 1st APPLICANT
AFR1CAN CONGRESS 2nd APPLICANT
by the Hon. Mr Justice G. N. Mofolo On the 2nd March. 2004
I did on
2 March, 2004 deliver judgment in this matter indicating that my
reasons will follow. Here are my reasons:-
applicant approached this court for an order in the following terms.
with the Rules of Court pertaining to modes and periods of service
of notice and process on the grounds of urgency
of this matter;
a Rule Nisi issue calling upon the Respondent to show cause on a
date to be determined by this Honourable Court why the following
Order shall not be made a final Order of Court.
the Respondent from issuing any notice whatsoever in connection
with the Annual Conference of the 2nd Applicant
due to be held not
later than the first week of March, 2004 in accordance with an
Order of this Court in CIV/APN/13/04 as he
has no mandate of the
1st respondent, pending finalization of this application;
The Respondent from making any preparations in connection with the
2nd Respondent due to be held not later than the first week of March,
2004 in accordance with an Order of this court in CIV/APN/13/04
has no mandate from the 1st Applicant pending finalization if this
as null and void and of no constitutional force And effect
Respondents' circular letter dated 19th January, 2004 regarding
Annual Conference of the 2nd applicant due to be held not later than
the first week of March, 2004 in accordance with an
order of this
court in CIV/APN/13/04.
application was opposed.
Founding Affidavit to the application was deposed of by Tsie B
Pekeche to the effect that:-
hereby make oath and say that:-
I am an
adult Mosotho male and the substantive Deputy Secretary-General of
the Basutoland African Congress while I am also presently
Seeretary-General of the Basutoland African Congress, cited as the
2nd Applicant and in that capacity I am authorized to
depose to this
affidavit on behalf of the applicants.
deposed to herein are, unless the context denotes otherwise, within
my personal knowledge and/or arise from documents
to which I have a
direct access, and I verily believe same to be true and correct.
Applicant is The National Executive Committee of the Basutoland
African Congress, P.O. Box 739, Maseru.
purposes of the present application the physical address of the lst
and 2nd Applicants shall be the address of Applicants'
Applicant is the Basutoland African Congress; a political
organization registered as such under 16/2002 in the Societies
Register, Maseru and having the status of a legal persona.
Respondent is Maholela Mandoro, an adult Mosotho male and
Secretary-General of the 2nd Applicant, presently employed by The
Lesotho Telecommunications Authority at L T A, Thetsane Industrial
paragraphs have been recited because they are central to this
application. Mr. Ntlhoki for the respondent has adopted his
approach to the application by raising points in limine as follows:-
of the Rules or Practice Directions
of domestic Remedies
of material facts.
of bad faith towards The Court.
of proper resolution
and impracticability of the order sought. .X. Hearsay. 9.
application was launched on 27 February, 2004 it being claimed that
the conference was to be held on 5-7 March, 2004. Preparations
go into the calling of a General Conference are wide and
far-reaching, very costly in time and money and it becomes necessary
to have arrangements well in advance. Equally, where the holding of a
conference is to be stopped, an applicant is to proceed with
as not to involve participants in unnecessary costs and anxiety. I am
of the view that the application had elements of
urgency and that
much as courts frown on applications being made urgent when in fact
they are not, at the same time rulings deprecating
there is none are not to be taken advantage of I am of the view that
the application merited urgency and that there
was no breach of rules
and practice directions.
3 above, I don't know what Mr Ntlhoki means by exhausting domestic
remedies in accordance with the constitution of the
As Mr Ntlhoki addressed the court, I saw him paging
what seemed to be a constitution and the court remarked that he was
to make the constitution available to court. It was
available as so often happens where documents do not form part of the
originating papers. This was bound to happen and
the court had a
heated debate with Mr Ntlhoki in this regard saying more often than
not he proceeded by taking points in limine
without much a do. He
submitted he had acted similarly with regard to a case that went on
If he was
referring to Malebo v The Attorney-General C of A (CIV) No. 5 of 2003
delivered on 7 April, 2004, he was terribly mistaken.
In this case it
was said Mr Ntlhoki had raised a defence that was not 1steaded, a
defence which was not 1steaded having been raised
in the judgment of
the High Court per Ramodibedi J (as he then was) at p.3 of the
judgment. And the Appeal Court dismissed the
appeal for the reason
that........... I am of the view that the "requirements which
would entitle appellant to argue an impleaded
defense were not
satisfied.' (p.7 of the judgment).
of departure between Mr. Ntlhoki and this court was that while in law
a point in limine can be taken at any stage of the
had to be some basis in that a point of law cannot be taken in vacuo.
an example, in trial actions a defendant must enter appearance and
1stead and it is after 1steading that he can, e.g, counterclaim.
goes without saving that in applications while a point of law can be
raised at any time in course of proceedings it must nevertheless
1steaded. It cannot be 1steaded, in my view, unless there is an
opposing or answering affidavit. Had Mr. Nilhoki in the instant
application 1steaded the point of law, he would have been able to
annex the constitution making it unnecessary to furnish one
separately from the proceedings. All that is called for is a neat,
inclusive and accessible application.
the need to exhaust local remedies, it would seem the right to seek;
judicial review might be suspended or deferred until
has exhausted domestic remedies which might have been created by the
government legislation though, as Baxter in
his Administrative Law
(1984 publication) p.720 this is not automatic for, as said in Golube
v Oosthuizen, 1955 (3) S A I (T) per
De Wel J quoted with approval by
Ogilvie Thompson AM in Welkom Village Management Board v Leteno 1968
(1) SA 490 (A) and see also
Msomi v Abrahams No 1981 (2) SA 256 (N)
'The mere fact that the Legislature has provided an extra-judicial
right of review or appeal is not sufficient to imply an intention
that recourse to a court
of law should be barred until the aggrieved person has exhausted his
statutory remedies '
also seem to me according to judgment in Jockey Club of South Africa
v Feldman, 1942 AD 340 251-2; Leteno's case above
and Lenz Township
Co (Pty) v Lorenzo No, 1961 (2) SA 450 (A), 1955 A-D, 458E-459A in
respect of private organizations, the right
of judicial review will
only be deferred if such intention is clearly evident from the terms
of agreement between the complainant
and the association concerned.
In the instant application I have not been appraised of such terms of
agreement between the complainant
and the Basutoland African
Congress. Be this as it may, I am of the view that until the
suspended leader Mr Molapo Qhobela has
moved somehow to have the
suspension against him lifted or removed, his right to be heard or
make representations concerning the
2nd applicant or in any way
interfering with functions of the lst respondent cannot succeed or be
entertained by this court.
non - disclosure of material facts, I take the point (4.2 of points
of law raised) to mean that applicants did not disclose
the fact that
at the time of launching the application the leader Qhobela Molapo
was under suspension for it is common cause that
at the material time
he was so suspended. Resolution of 15 November 2003 is proof of this
(annexure "BACT") in that the
special conference having
noted maladies affecting the party's machinery, persistent
non-attendance of the working committee by
the leader Molapo Qhobela,
fraudulent amendment of the party's constitution and the erosion of
the party's fortunes and image,
it had been resolved that he be:
as party leader from any privileges and functions attendant thereto,
until the sitting of the next AGM;
he be accordingly charged and appear before the party's disciplinary
the Registrar-General of Societies be informed and kindly requested
to rectify the situation;
the Deputy leader, Dr Khauhelo Raditapole shall, ad interim, act as
all correspondence and circulars to constituencies. be issued by the
all the Party's property currently in the possession of The Deputy
Secretary-General be returned to the Secretary-General.
The NEC is
empowered to do all that will be necessary for the return of such.
earlier application before me (CIV/APN/13/04), it was conceded on
behalf of the leader Molapo Qhobela that he had been suspended
the reason for the calling of conference to challenge the suspension
and rectify the situation. At the time of launching this
there had been no rectification of Mr. Molapo Qhobela's suspension
for the suspension had neither been lifted nor set
aside, and I fail
to see how, in the present application, since the status quo remains
the same, the application can succeed. Both
the leader and deputy
Secretary were shorn of their powers by resolution of 15 November,
2003. Despite this, both the suspended
leader and his Deputy
Secretary put on a brave face pretending their powers are in 1stace.
It is a stance a court well instructed
Oxford dictionary - 10lh Ed, meaning of 'suspend' is: halt
temporarily, debar temporarily from a post, duties, etc, as a
-and according to clause 1 above, the leaders privileges
and functions were put on hold meaning he could not function as a
And yet it is the same Molapo Qhobela who, despite the
suspension, chaired a meeting of the National Executive Committee of
2nd Applicant in which a special resolution was passed to the
Basutoland African Congress should apply for an urgent interdict
against Moholobela Mandoro, etc (present respondent)
B Pekeche should be authorized to depose to the Founding Affidavit.
following should form an action group in respect of the said legal
Qhobela, Adv. G. M. Kolisang,Peo Moejane, B Pekeche and Tokonye
Kotelo. The resolution was signed by Mr Molapo Qhobela. Again,
Molapo Qhobela appears to have curiously given certain instructions
on 15/05/04 saying:
my capacity as President and Chief Executive of the BAC -
lists people who attended meeting of 08/02/04 and signs as
Leader/Convener and Chairman, NEC. Regarding Mr. Molapo Qhobela
the Deputy Secretary Mr. Pekeche, their participation flies in the
face of Special Conference Resolution of 15/11/03 above.
There can be
nothing more mind-boggling and contemptuous of orderly procedures. I
am of the view that since the meeting was called
and chaired by a
person who had no authority or standing, the meeting and any
resolutions passed are a nullity. It follows that
documents either Mr Molapo Qhobela or Mr. Pekeche signed in these
proceedings are a nullity. Since I have nullified
the proceedings, I
do not think it is necessary to consider other points in limine
taken. Suffice it to say that there is 1stenty
of authority in the
steps I have taken as exemplified by Baxter above where he says power
is not conferred upon 'the administration'
generally for any power
conferred may be exercised by the office-holder or body upon which it
is conferred alone and
someone purports to exercise the power, the latter's act is simply
ultra and invalid (p. 426).
Molapo Qhobela's suspension power was conferred on Dr. Raditapole and
it is her who exercises power as Leader and Chairman
African Congress. By the same token, whatsoever may have been the
functions of the Deputy Secretary Mr. Pekeche,
these were taken away
from him and 1staced on the General Secretary the respondent by
resolution of the lst applicant. Mr. Mandoro
and the respondents'
functions have not been restricted or curtailed and to interpose Mr.
Pekeche was to arbitrarily usurp the
Secretary-Generals' powers. In
any event, Mr. Pekeche was put in 1stace and given a mandate by an
organ which had no authority
to do so. Once Mr. Molapo Qhobela was
suspended he had no functions to perform, could not superintend or
supervise BAC committee
or its structures.
Baxter above has also said in order to exercise powers conferred,
officials must hold them validly. Neither Mr. Molapo
Qhobela nor Mr.
Pekeche had powers conferred on them and it follows that they did not
hold office validly. As for co-opting members,
it has been said where
to act expeditiously and some of its members reside at great
distance, it may dispense with the requirements of summoning
who will not be able to attend and may function with those members
who are available to form a quorum - see Roberts v Chairman
Road Transportation Hoard (2) 1980 (2) SA 480 (I) 479A-501D, CF Young
and I adies Imperial Club Ltd (1920) 2KB 523. I make
the point that I
do not think 4.5 of points in limine was properly taken.
application has not succeeded for the reason that the leader Mr.
Mohapo Qhobela and his Deputy Secretary Mr. Pekeche had no
power to act as they did for, evidently, there cannot be two bulls in
one kraal lest they kill each other. It is for
these reasons that the
application was dismissed.
costs, Mr. Ntlhoki has urged the court to award costs on a higher
scale to show the court's displeasure of the contemptuous
attitude of, in particular, the suspended leader Mr. Molapo Qhobela.
While it is true that Mr. Qhobela's attitude does
not inspire respect
for lawful strictures, in some respects applicants have been more or
although the respondent was largely successful, this court wasn't
particularly happy with the approach adopted in the application.
costs will be costs as between party and party, and on an ordinary
Applicant : Mr. Mapetja
Respondent. Mr. Ntlhoki
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