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;

2

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

3

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

4

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

5

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

6

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

7

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

8

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."

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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.

17

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.

18

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

19

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

20

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

21

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.

22

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

23

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

24

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

25

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

26

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

27

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).

28

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

29

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

30

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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