CIV/APN/58/04

IN THE HIGH COURT OF LESOTHO

In the matter between:

LEHLOHONOLO TS'EHLANA APPLICANT

AND

THE NATIONAL EXECUTIVE COMMITTEE

OF THE LESOTHO CONGRESS FOR

DEMOCRACY lST RESPONDENT

LESOTHO CONGRESS FOR DEMOCRACY 2ND RESPONDENT

JUDGMENT

Delivered by the Hon. Mr. Justice G. N. Mofolo On the 3rd day of June. 2005

This is an application in which the applicant approached this court seeking an order in the following terms:-

Declaring the purported termination of applicant's membership of 2nd respondent at the instance of 1st respondent and purportedly confirmed by 2nd respondent at the latter's Annual General Conference of 30th January to 1st February, 2004 as being unconstitutional, invalid, illegal and of no force or effect;

Declaring applicant to be a member of 2nd respondent until such time hereafter as his membership shall have been constitutionally and legally terminated at his instance or at the instance of respondents;

Interdicting, respondents from going about in public and in private proclaiming that applicant's membership of second respondent has been terminated by respondent;

Interdicting respondent from interfering in any manner whatsoever with applicant's freedom of association and interaction with members, organs and institutions of 2nd respondent, except by due process of law;

Interdicting respondents from interfering with applicant in any manner whatsoever in the discharge of his mandate as a duly elected representative and member of parliament for 2nd respondent in Constituency No. 79, Mokhotlong, except by due process of law only;

Directing respondents to pay costs hereof on an Attorney-and-client scale;

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Granting applicant further and/or alternative relief.

The application is opposed.

It is usual and customary for parties to throw dust and obfuscate real issues for no reason other than to set the court on a wrong track. To avoid the stratagem, the court has decided to advert to real and substantial issues in this application for it is these that matter in this application and will decide its fate.

Although in the beginning Mr. Ntlhoki for the applicant raised a number of points in limine, he nevertheless abandoned them. Mr. Ntlhoki also applied for viva voce evidence to be led and this was turned down. When the application for viva voce evidence was turned down Mr Ntlhoki applied to have supplementary heads of argument submitted and the Court agreed directing that the opposite party be served with supplementary heads and the matter was postponed to a date to be arranged with the Registrar.

When, however, the matter resumed for hearing on 04 April, 2005, Mr. Ntlhoki had submitted he had since reconsidered his position and found there was no need to file further heads of argument. As to the

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business of supplementary heads of argument, these are to be understood in the light of the fact that heads of argument available were those in support of the application for viva voce evidence. I have since perused the record of proceedings and find that heads of arguments on merits were filed on 06/12/04 the same date the application was postponed to a date to be arranged with the Registrar. As to the subject-matter of whether or not head of argument were filed by Mr. Ntlhoki after the Court dismissed the hearing of viva voce evidence, this is a chapter that must be closed for it appears after the decision to disallow viva voce evidence heads of argument on merits were filed.

According to papers before me, applicant is a bona fide member of the 2nd respondent and was elected into power as Parliamentarian for constituency No. 79 in the Mokhotlong district. And while he was a parliamentarian of the 2nd respondent applicant made some statements which were not in tune and policies of the 2nd respondent. This court has gone through the Founding Affidavit of the Deputy Prime Minister and the court is satisfied with this representation of the respondents. However, the court is a little astounded, taken aback by the fact that although this is an application, pleadings in it is evidence. Such pleadings being evidence, they must satisfy

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the court as to the justice of either applicant's or respondents case According to paragraph 7.1 of the Deputy Prime Ministers Founding Affidavit, "applicant wrongfully, maliciously and without any justification whatsoever insulted and defamed the leadership of the LCD", further, "'he leveled false and divisive allegations of corruption and criminal activities against members of the LCD and its leadership." At para 7.2 the Hon. Minister has also deposed "the applicant embarked on a malicious and unfounded onslaught on the Leader of the Party and Prime Minister Mr. Pakalitha Mosisili, members of Cabinet and Members of Parliament." Further at para. 7.3 'the allegations and statements aforesaid are not only totally irresponsible and divisive, but they are false." All very well but it is desirable that as to particular allegations against the respondents, precise and particular allegations against the applicant as to particular words and phrases should have been tabulated as constituting applicant's misconduct. This court has no authority to pick and choose which parts of annexures LCD2 and 3 were offensive. Courts of law are creatures of evidence and whether it is in trial action or application, in the latter as dispositions are pleadings on which a court is able to decide in favour or against a particular party, particularly in matters that come to court by way of application, full disclosure and particularity is the norm. A court cannot pick and choose

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what is deemed offensive and liable to misconduct, there is to be clear direction in this regard by referring to particular passages in a publication that are offensive.

At paragraph 9 of his Founding Affidavit Minister Lesao Lehohla and Deputy Prime Minister and Minister of Education deposed that "the N.E.C. and the L.C.D. was greatly concerned and worried by the conduct of applicant aforesaid" and the N.E.C. set in motion disciplinary proceedings in terms of the Constitution and he has referred to "LCD4". Now LCD4 is a letter from the General Secretary of the 2nd respondent dated 27 July, 2003 in terms of which applicant's misconduct was reported to the Disciplinary Committee of the 2nd respondent.

According to paragraphs 10 and 11 of the deponent Deputy Prime Minister aforesaid, applicant was on 11 September 2003 summoned to appear before the Disciplinary Committee on 20 September, 2003 but the hearing had instead commenced on 24 September, 2003 as the proceedings were adjourned "to give applicant more time to present his case —." According to para. 12 thereof, "to ensure that applicant fully utilized the opportunity afforded to be heard" a letter had been written to him reminding

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him of the date 8 October, 2003 to which the hearing had been postponed. In terms of para. 13, the hearing scheduled for 8 October. 2003 had not proceeded for by his letter of 2 October 2003 applicant requested a postponement which was granted the matter being further postponed to 16 October, 2003. According to para. 14 and on 16 October when the hearing resumed as scheduled, instead of utilizing "the opportunity afforded him to be heard" applicant had refused to proceed with the case citing advices he had received from his lawyers and the hearing had been postponed to 30 October, 2003 (para. 14.2).

At para. 14.3 the Minister and deponent has alleged the applicant was afforded "every opportunity to be heard — but he refused it —" preferring, like other politicians in the Kingdom, "to have purely political and domestic matters determined by the Honourable Court." According to para. 15, the Disciplinary Committee had decided to interview Mokhotlong Constituency No.79 Committee of the 2nd respondent concerning serious allegations relating to applicant and while the Constituency Committee of the 2nd respondent confirmed the allegations against the applicant, the Committee had also pleaded that the applicant be reprimanded. The record of proceedings thereof is annexed as "LCD11". "Now, "LCD11" according to

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the translated copy is "Minutes of Disciplinary Committee and Mokhotlong Constituency Committee of 04-12-03." According to the Publicity Secretary Mr. Molupe Marinakhoe, he heard the things the "things and many that were not reported" and "he heard him say that the Ministers were thieves." Further , Mr. Ts'eliso Ramasike and Mr. Maqhema Makhuna members of Mokhotlong constituency committee had gone on to say Mr. Ts'ehlana their Parliamentarian "speaks ill of them in public gatherings and that steps should be taken against him" and further said even on 8th of 11 -03 in his youth gathering there was a lot which was very wrong.

At paragraph 16 the deponent says the Disciplinary Committee having considered the matter had decided the applicant was guilty of gross misconduct the gravity of which warranted expulsion from the party and it had been recommended to the N.E.C. that the applicant be expelled at its sitting of the 21st January, 2004 the N.E.C. had accepted the recommendation of the Disciplinary Committee aforesaid.

Now annexure "LCD12 referred to by the deponent in his para. 16 above is a "fair translation" of the "Report of the Disciplinary Committee on the conduct of Lehlohonolo Ts'ehlana, Member of Parliament for

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Mokhotlong No. 79 on 19.01.04" whose recommendation was that "Lehlohonolo Ts'ehlana be expelled from the Party in term chapter one 28 (b) of the Constitution" because he has completely rebelled against the Party, total disrespect of its Leadership. The syntax here is unclear though 1 understand the meaning to be that the applicant be expelled from the 2nd respondent in terms of the Constitution as he has rebelled against the party and is disrespectful of 2nd respondent's leadership.

"LCD13" is a "Fair Translation" of an extract of "Minutes of the Executive Committee of LCD 21-01-04 and committee members present are shown. The subject-matter is as shown as "Disciplinary Matter against Hon. Lehlohonolo Ts'ehlana. Member for Mokhotlong No. 79 and it would seem the object of the meeting was "to review the recommendations of the Disciplinary Committee—." "LCD13" has recorded that though some members were concerned about the two thirds majority of certain bills in Parliament but "the majority of members nevertheless accepted the recommendations of the Disciplinary Committee that Mr. Lehlohonolo Ts'ehlana be expelled from the Party."

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In addition, the committee had resolved that Mr. Ts'ehlana be expelled from the LCD Party and a letter of dismissal be written to him and that his constituency be also informed. Talking about "his constituency, it has been alleged by the Hon. Minister Lesao Lehohla that the applicant's constituency committee was informed of applicants turn-coat tactics and that the committee recommended that either the applicant be reprimanded or action taken against him. As shown above, the committee appears to have been aghast with applicant's demeanour and recommended that action be taken against him. 1 am surprised however that the Hon. Minister and deponent herein has not referred to a counter-action against applicant's dismissal by the constituency committee No.79 of Mokhotlong for according to annexure "TSI" at p.214 of the record of proceedings, members of the Mokhotlong Constituency No. 79 of Mokhotlong Lesotho Congress for Democracy appear not to have endorsed applicant's dismissal from the 2nd respondent. In no uncertain terms the committee has expressed its disapprobation and disagreement "with the decision expelling the Hon. Member of Parliament from the Party." Among some of the reservations by the committee is the fact that provisions of the constitution of the 2nd respondent were not adhered to by the National Executive Committee particularly clauses three, 3, 4, 5, 6, 7, 8, 9 and 10 in that, according to the

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members, there was no conference in the constituency nor was there such a constituency gathering at Thabang on 24.06.03. The approach by the Constituency Committee to the National Executive Committee was to cancel its decision by reason of the fact that at the Annual General Conference the National Executive Committee "prevented the conference from dealing with the issue of appeal by Mr. Ts'ehlana." The committee has alleged "we attended that conference and we know the truth that he was not afforded an opportunity to prosecute his appeal before the Conference." Correspondence from constituency branches comprising seventeen branches namely;

1. Chaba-se-Maketse

2. Mojakisane

3. Matobo, Khohloaneng, Checha, Kampo, Lebopo, Senkoase, Thaba-Nts'o Nkotoane, Malapane, Linots'ing, Phutha, Malefiloane, Nazareth, Ralefatla and Mohale

is said to be attached. There are six (6) signatories to the complaint and the 7th is Mats'otetsi Mokhesi the constituency secretary.

I do not know whether the above are party to this application deserving to be heard except, since the Deputy Leader of the 2nd respondent has alleged in his Founding Affidavit that "members of the constituency

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committee of LCD confirmed the said allegations against applicant" and "they also pleaded that applicant be reprimanded for speaking ill of them in public gatherings --------," I have already said that such members of the constituency committee confirmed the Hon. Minister's assertions the only problem being who are members of annexure "TSI" in relation to the constituency committee of No.79 constituency, Mokhotlong?

Contents of "TSI" are vitally important and enough to decide the fate of this application and it seems to me they were well known by the applicant all along even before launching this application. If so, they are such that should have formed part of applicant's case and to be raised by the applicant in his founding papers to give respondents an opportunity to respond to them. There is no evidence whatsoever of "TSI" in applicant's founding affidavit except reference to it in doubtful and suspicious terms in his Replying affidavit. Doubtful because the applicant refers to "attached affidavit of the Chairman of Constituency No. 79 Mokhotlong and the letter attached." Suspicious because applicant in his Replying affidavit does not refer to the letter as annexure "TSI" nor does he say who this Chairman of Constituency No.79 is whose affidavit and letter he has attached in his Replying Affidavit. Needless to say this Court cannot countenance evidence

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coming in a Replying affidavit for as I have said, it must come in founding papers to give the respondent(s) an opportunity to respond to it.

In terms of the Constitution of the 2nd respondent, there are, amongst others functions of 2nd respondent's Disciplinary Committee:

1. ---------.

2. To recommend to the N.E.C. suspension or expulsion of a member who has turned against the wishes and desires of the Party, when it deems that such a member is guilty.

3. An appeal from Ad hoc committee of the AGM, which shall have worked in accordance with the reports of the Disciplinary Committee and the N.E.C, shall be laid before A.G.M. itself.

4. ---------.

5. The leader of the Lesotho Congress for Democracy shall have powers to suspend any member of the National Executive Committee whose behaviour and attitude are unacceptable; such a suspension shall have to have the endorsed or otherwise of the N.E.C. when it sits to consider it.

(see section 28).

From the above, since after finding the applicant guilty of misconduct the Disciplinary Committee recommended to the National Executive Committee that applicant be expelled and the National Executive Committee duly expelled applicant from the membership of the 2nd respondent and the applicant appealed the decision to the Conference with the Conference

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appointing an ad hoc Committee to deal with the appeal and having dismissed the appeal recommended to conference to have applicant dismissed, 1 do not think that these procedural steps can be faulted.

According to paragraph 20 of Minister Lehohla's Founding Affidavit when the applicant lodged his appeal on 28 January, 2003 the General Conference of the LCD had long been scheduled for the 31st January to lst February, 2004; though the National Executive Committee was taken aback by applicant's move, the National Executive Committee had consented to the order of Court. Then Hon. Minister has further deposed among issues dealt with at the conference was applicant's appeal. Though, according the Hon. Minister, "the issue of Appellant's expulsion for obvious reasons was not on the agenda" for the reason that when it was lodged the conference agenda had been agreed upon and drawn, according to the deponent to the Founding Affidavit opposing this application, it had nevertheless been decided to have the Secretary-General of the party table the appeal before the conference (para. 22.2). Following provisions of the Constitution of the 2nd respondent, the General conference elected a special committee to deal with the appeal. This though put me in a tizz or quiver wee bit for I was expecting for example that when it comes to the election of a special ad hoc

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committee to deal with appeals from the disciplinary committee, this would appear in the functions of the Annual General Meeting or Conference but it appears in the functions of the Disciplinary Committee; well, perhaps it is as it should be and we will leave it at that afterall there is such a function of the General Conference (vide section 28 (c)). According to the Hon. Minister, the applicant was heard by the special committee of the General Conference. I have had occasion to refer to the translated copy of annexure "LCD15" styled "Report of the review committee of the conference on the expulsion of Mr. Lehlohonolo Ts'ehlana, member of parliament for Mokhotlong No.79 before a review committee." The proceedings before the special committee are long covering more than 4 type-written pages. I am not persuaded that this special committee and particularly its secretary Mohlabi Tsekoa would be so iniquitous and misguided as to implicate applicant falsely in order to save the General Conference of its misdeeds. In any event this is an application. In applying for viva voce evidence which was refused, Mr. Ntlhoki was well aware of the insuperable hurdles associated with proceeding by way of application, pitfalls he should have foreseen before proceeding by way of application. Since respondents have denied allegations against them, can it be said the version of respondents is preferred? At the same time, is it really the reason to dismiss this

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application? Mr. Ntlhoki has in any even attacked the credibility of members of the special committee put in place by the General Conference of the 2nd respondent. But since no evidence was led, can the court properly decide on the credibility of participants whose demeanour the court has not observed? Moreover, as we have already seen, respondents case is that when applicant's appeal came before the Annual General Conference, the conference decided to appoint a special committee to deal with applicant's case and the appointment was in terms of the constitution of the 2nd respondent. In my judgment, the applicant appeared before the Conference on appeal, was heard but his appeal was referred in terms of the Constitution of the 2nd respondent to a special committee which was desirous to hear applicant but applicant refused or failed to exercise his constitutional right to be heard. He spurned the Special Committee because he wanted to be heard to a finish by the Conference itself.

This court rejects the contention that applicant's case has to do with status. There is, in this court's view neither status or rights involved for the reason that applicant's status as parliamentarian is unaffected and any such challenge at present is immature. Applicant by virtue of losing his membership of the 2nd respondent is not prejudiced nor does he stand to lose

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for he can always when the time conies stand as an independent, join another political party or form his own.

In his heads of argument and before me. Mr. Ntlhoki has submitted that full conference of the 2nd respondent in turn went ahead to adopt the mis guided recommendations of its special committee which had turned itself into a Review body; having said this, a fact clearly admitted by him, Mr. Ntlhoki has attacked "LCD16". Clearly, much as LCD16 is unintelligible and skewed, Mr. Ntlhoki shoots himself on the foot if, having admitted that 2nd respondent "went to adopt the misguided recommendations", he can in the same breath deny that recommendations of the Special Committee were not adopted by "full conference of the second respondent" for afterall, recommendations do not need concurrence of full conference but by the conference depending on Constitutional imperatives. Moreover, Mr. Ntlhoki is wrong to allege the Special Committee "turned itself into a Review Body" for as I have shown above the General Conference mandated the Special Committee to attend to applicant's appeal and report back to it. Allowance has also to be made for the fact that the conference of 2nd respondent and its Special Committee are lay organs knowing no difference between review and appeal.

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Despite my remarks above, I have read and acquainted myself with contents of annexure LCD2 and 3 and find that undoubtedly applicant" has turned against the wishes and desires of the Party" as is laid down in section 28(b) of the Constitution of the 2nd respondent, something that is hardly unusual for some politicians and human nature in general to become turncoats, bite the hand that feeds them or kill the goose that lays a golden egg once new pastures beckon.

A person who is not in tune and flow of the general mainstream to which he belongs is unsuited to the mainstream for either the gathers or scattereth. If he scatters while others gather he does not belong to the mainstream and must give way. These latter remarks are made in the light of the fact that Mr. Ntlhoki's objections and arguments have been covered in their entirety including whether there's a conflict in applicant and respondent's case with reference particularly to supporting affidavits to applicant's and respondent's case. It will be observed that according to Mr. Ntlhoki. applicant had more support at the Annual Conference than respondents. I have read the supporting affidavit of Seeiso Sehloho a member of Parliament for No.29 Mabote Constituency who supports the applicant to the hilt.

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According to paragraph 4 of Mr. Sehloho's affidavit, the issue of applicant's appeal 'had not been included as part of the agenda" nor had constituencies been advised in advance as the constitution requires. And yet 1 would have thought that this is answered by the Deputy Prime Minister to the effect that the issue of appeal came late when the agenda had already been drawn and for this reason could not form part of the agenda and by the same token it was impossible to inform constituencies of its coming for discussion during the Conference and that it emerged and was discussed by reason of the order of court. Mr. Sehloho, incidentally, agrees that a "Special Committee was set up by the conference to look into the appeal" and that the same committee "reported back to the conference with its recommendations advising the conference to confirm applicant's expulsion." (para. 5).

In my view Mr. Sehloho's paragraph 6 is an about turn to what he submitted in paragraph 5 for in paragraph 6 the Hon. Parliamentarian speaks of I am one of those speakers at the conference who steadvastly insisted on Applicant being afforded an opportunity to speak on his behalf and I wonder how with reference to paragraph 5 above "the conference resolved that it be

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included as part of the agenda —" and "a special committee was set up by the conference to took into the appeal 1 don't sec how the conference could have acted as it did unless it had heard the applicant. Even if it did not hear him, the mechanism to set up a special committee is a dispensation afforded by the constitution of the 2" respondent by which if the conference did not hear the applicant he would in any event be heard by the special committee which has claimed it heard the applicant. 1 find paragraph 7 of Mr. Sehloho's affidavit quite unhelpful in that once the conference resolved that applicant's appeal be referred to a special committee that was the end of the matter for thereafter there was no need for wrangling. As far as paragraph 8 of Mr. Sehloho is concerned, he has a wrong end of the stick in that instead of the conference itself dealing with applicant's appeal it set up by resolution a special body to look into the appeal and report back to the conference and, according to Mr. Sehloho the special committee looked into the appeal and reported back to conference with recommendation advising conference to confirm applicants expulsion (vide para.5 of Mr. Sehloho's affidavit). There was no subversion of the Court's order in that conference having deliberated on applicant's appeal saw it fit in its wisdom, to refer the appeal to an organ of the conference as is conference's constitutional right to

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do so. Importantly, in these proceeding the court has not been asked to impugn or set aside the special committee's findings.

Concerning paragraph 9, the Leader of the 2nd respondent was quite right to have said applicant was expelled by conference. This is so because conference referred the affair to a special committee set up and responsible to conference; a committee which, after its deliberations reported to conference with recommendations advising conference to confirm applicant's expulsion. All that 'Nyane Mphafi did was to confirm Seeiso Sehloho's averments and supporting affidavit. As shown above, Seeiso Sehloho's averments were insupportable and in no way discredited the finding of the conference relying on recommendations of the special committee to have applicant dismissed and expelled from the membership of the 2nd respondent. Since Seeiso Sehloho's averments and support of the applicant have been rejected, 'Nyane Mphafi's averments cannot but suffer the same fate. This also goes for the averments of the applicant which the court has rejected.

And then there is the supporting affidavit of Rantelali Shea member of Parliament for Semonkong representing the 2nd respondent who says he has

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read and understood the founding, answering and replying affidavits in the application and at paragraph 4 of his supporting affidavit says he was elected a member of the special committee mandated to deal with applicant's appeal. I have checked the composition of the special committee and find that indeed Mr. Rantelali Shea was elected by conference of the 2nd respondent to the special committee of conference. 1 do not understand how one can depose to an affidavit after reading founding, answering and replying affidavits not unless his affidavit came after the replying affidavit making such a supporting affidavit quite worthless as I have said above.

Mr. Ntlhoki has alluded to majority support as to whether or not applicant's appeal was heard by conference. This question has been answered above but importantly, it is not a question of majority but whether there's evidence before this court that applicant was heard by conference and I have said he was heard.

In support of applicant's case, and seemingly a decisive factor in the case as I have remarked above, one Tefo Seforo has annexed "TSI" being in support of the applicant. Tefo Seforo has said in his supporting affidavit that he is chairman of the of the No. 79 Mokhotlong constituency of the LCD.

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On page 215 of the record of proceedings office bearers of Mokhotlong Constituency No.79 of LCD are shown to have signed against their names and Tefo Seforo does not feature. Instead there is Teboho Seforo who is not shown as chairman. Annexure "TSI" has been handed in by Tefo Seforo and since Tefo Seforo is not a member of Mokhotlong constituency No.79 he cannot have annexed the document and the annexation is accordingly null and void and of no cause or effect. For goodness sake, I cannot understand what the applicant was up to in this application. On paragraph 4 of his supporting affidavit Tefo Seforo has attached annexure "TSI" seemingly the same document termed "letter" attached by the applicant in his Replying Affidavit and as we have seen, the so-called Tefo Seforo Chairman of Constituency Committee for Constituency No.79, Mokhotlong is not its Chairman and instead of Tefo Seforo appears Teboho Seforo an ordinary member of the Committee. This juggling and manipulation of names and roles is not confines to Tefo Seforo's and Teboho Seforo's alone. There is also the case of the two Seeiso Sehloho's both of Khubetsoana. It could well be there are two Seeiso's living at Khubetsoana or as is said Khebetsoana but I doubt. If this is the way applicant imagines cases are won, he is terribly mistaken. There can be no doubt that this mixture of names was not innocent or accidental, but that it was intended to cause confusion. On the

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other hand, while the court has found respondents' supporting affidavits congenial and supportive of the 2nd respondent in all material respects, it has found applicant's supporting affidavits disparate and dispersive in material respects.

All that was required in this case is organs charged with disciplinary applicant to have acted in good faith and to listen to both sides and I would add and for the other side to co-operate. And, according to Lord Loreburn LC in Board of Education v Rice, the disciplinary committee can obtain information in any way they think best for they do not have to treat the inquiry as if it were a trial though the organ must afford the individual the opportunity of a fair hearing much as the proceeding may range from the informal (where the decision has minor consequences) and relatively formal (where the consequences of the decision could be grave). I have already said above that since consequences of the decision would be minor, it now follows that the proceedings were no more than informal in all the stages of the hearing. Also, the ingredient of the opportunity to be heard is notice to the applicant as to when, where and by whom he is to be heard and respondents complied with this- see Royal Hotel Dundee vs Licensing Board Area No.26 , 1960 (2) SA 661 (please note that private individuals

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are also expected to observe formalities and procedures and in hearing him applicant was expected to observe formalities and procedures, something applicant is claimed to have defied).

Further, Coleman J. in Heatherdale Farms (Pty) Ltd v Deputy Minister of Agriculture, 1980 (3) SA 476(T) 486 was of the view "the person concerned must be given a reasonable time in which to assemble the relevant information and to prepare and put forward his representation and secondly, "he must be put in possession of such information as will render his right to make representations a real, and not an illusory one." An opportunity to be heard it would also seem involves an appraisal of the information and reasons which underlie the impeding decisions to take against him, C/F O'Reilly v Mackman (1983) 2 AC 237, 276, where Lord Diplock is quoted as having said "the requirement that a person who is charged with having done something which —has consequences that will, or may, affect him adversely should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is fundamental to any civilized legal system so much so that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement. Further, Lord Loreburn LC

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considered a fair hearing to be '"a duty lying upon everyone who decides anything (Board of Education v. Rice (1911) AC 179, 182). In my view the intergral and overriding inquiry is whether in the event of the applicant being discharged from the membership of the 2nd respondent this will affect him adversely. I have already expressed my view on this aspect and needless to repeat that I don't think applicant will be affected adversely considering that he holds his parliamentary seat at the behest of his constituents and is dependent on them alone for the retention or abdication of his seat.

In this particular case the applicant was apprised of the information and reasons underlining the impending action against him and properly the Disciplinary Committee found against him with the recommendation to the Annual Conference of the 2nd respondent that he be expelled from the 2nd respondent. Indeed he had some warning of the nature of the charge against him and the circumstances under which the charge was founded (Ross v. Government Mining Engineer, 1920 TPD 1,5, and in this court's view nothing was kept up anybody's sleeve. But it would seem these appellations apply more to public bodies than private bodies if the administrative act complained of would affect the individual's existing rights, liberties or

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Although I was critical of the globular fashion in which respondents presented their case, I have, however, read annexures "LCD2" and "LCD3" and on the whole find that they are despicable of the leadership of the 2nd respondent with accompanying character assassination of the leadership. Applicant was by no means justified to do so and the view this court holds is that the affair between the applicant and respondents is a meltdown in relationships not worth maintaining whatever may be the circumstances of this application and it's no wonder that the leader of the applicant has called the latter "an embarrassment to the leadership and the party as a whole." I have also found the applicant to be a square peg in a round hole. He is blithely if proudly alleged to have unleashed a blistering attack on the leadership of the 2nd respondent claiming, amongst other things, that he was in the liberation struggle of the BCP without so-called educated people "who speak English educated ones having served in chief Leabua's administration." He is also claimed to have alleged subterfuge of the so-called intellectuals to infiltrate the LCD to establish BNP administration under colour of the LCD. I have wondered what LCD has to do with the BCP and vice versa since the two are separate and distinct entities unless, as the applicant has alleged, it's the same infiltration exercise. Anyway, what

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privileges. It is said the shift started in Laubscher v Native Commissioner, Piet Retief, 1958 (!) SA 546 (A) to justify exclusion of the principle of natural justice where a person who wished to obtain a permit to enter a restricted area was denied it without a hearing.

It is said Schreiner JA found as there was no antecedent right to enter the area the applicant had no entitlement to natural justice and later the approach was endorsed by Steyn CJ in Cassim v Ooskaapse Komitee van die Groepsge-biederaal, 1953 (3) SA 651 (A), 660E-D and has subsequently been used to justify exclusion of fair hearing in expropriations, MVA Insurance Claims, admission and exclusion of aliens, dismissal of public employees and many other circumstances. Although Prof Baxter in his Administrative Law is critical of the "rights approach (p.578) he is nevertheless malleable that "the busybody or pest cannot be accommodated since it would be unreasonable to expect the administration to give unbiased hearings to whomsoever chooses to demand its attention (p.579). According to Prof. Baxter, ibid, the problem has been met in England by the adoption of a flexible "reasonable" or "legitimate" expectation test which does away with the "rights" requirement as the criterion by which natural justice will be enforced (pp. 579-80).

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political party would knowingly allow infiltration in its ranks? I am also amazed by applicant's cheek to have not specifically denied allegations contained in annexures LCD2 and "LCD3 " of respondents' opposing papers but to dismiss these serious allegations with a terse and crisp sentence,"I was being taken to task for exercising my constitutional right —." This court disagrees for applicant's outburst was not to exercise a constitutional right but rather to malign and expose the leadership of the 2nd respondent to public ridicule. I was also surprised by Mr. Ntlhoki who before me and in his Heads of Argument did not deny applicant's unsavoury attack on the leadership of the 2nd respondent. In Mandela v Falati, 1995 (I) SA 251 van Schalkwyk J. had the occasion to consider these fundamental rights enshrined in the constitution and at page 259 expressed himself as follows:-

"In a free society all freedoms are important, but they are not all equally important. Political philosophers are agreed about the primacy of the freedom of speech (a constitutional right). It is the freedom upon which all others depend; it is the freedom without which others would not long endure. This of course does not mean that whenever the right of freedom of speech (constitutional right) comes into conflict with the right to human dignity the former must prevail. To allow that to happen would be to abrogate the law of defamation, and would in any case violate provisions of s.33 (1) of the Constitution." (see also saving clauses of s.12 of the Constitution of Lesotho, particularly subsections (a) and (b) thereof).

Emanating from the above quotation, it becomes absolutely clear that whereas there are guaranteed provisions in the Constitution, these are not

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absolutes in that their enjoyment is not to prejudice the right, freedoms, immunities and dignity of others in the same body politic.

In the instant case the leadership of the 2nd respondent has been inveigled and I find freedom of speech or constitutional rights have been abused in that applicant's outburst was no more than a thinly disguised attempt to attack the dignity of the leadership of the 2nd respondent.

In my judgment, while reason is open to error, the sum total of individual reasons on behalf of respondents is unlikely to be blatantly more erroneous than that advanced on behalf of the applicant and on reflection the applicant is to count himself lucky that despite his orgy of denunciations this administration of the intelligentsia as I understood him to dubb it has instead resorted to quasi-judicial process than extra-parliamentary and extra-judicial means so much favoured in parts of the so-called democratic black Africa.

In his closing remarks, Mr. Kennedy has plead for common sense approach to this application away from technical and legalistic nuances in that conference of the 2nd respondent through its Special Committee set as a

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review body and not an appeal body and in doing so it cannot be said that the Conference exceeded its mandate.

This Court has taken applicant's excuses with a pinch of salt afterall, the applicant has not disclaimed publications attributed to him. Besides, the leadership of the 2nd respondent as a whole has rejected applicant's bona fides of the 2nd respondent and the Court finds it would be unfair to foist applicant's membership of the 2nd respondent on an unwilling leadership of the 2nd respondent.

The Court has had no option but to dismiss this application and it is so dismissed with costs to the respondents.

JUDGE

For the applicant: Mr. Ntlhoki

For the respondents: Paul Kennedy, SC

(with him Mr. S. Phafane)

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