CIV/APN/221/04

In the matter between:

LESETELI MALEFANE Applicant

AND

NATIONAL EXECUTIVE COMMITTEE

OF BASOTHO NATIONAL PARTY 1^st
Respondent

BASOTHO NATIONAL PARTY 2^nd
Respondent

JUDGMENT

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

The applicant has applied to this Court for an order in
the following
terms:-

1. 
   Declaring the purported termination of applicant’s
   membership of
   second Respondent at the instance of first
   Respondent as being
   unconstitutional, invalid, illegal and of no
   force or effect;

   
   

2. 
   Declaring Applicant to be a member of second Respondent
   until
   such time hereafter as his membership shall have
   been
   constitutionally and legally terminated at his instance or
   at the
   instance of respondents;

   
   

3. 
   Interdicting Respondents from interfering in any
   manner
   whatsoever with Applicant’s freedom of association,
   and
   interaction with members, organs and institutions of
   second
   Respondent, in his capacity as a member of second
   Respondent

   
   

except by due
process of the law;

4. 
   Interdicting Respondents from interfering with
   Applicant in any
   manner whatsoever in the discharge of his
   mandate as a duly
   nominated representative and member of
   parliament of second
   Respondent except by due process of law.

   
   

5. 
   Directing Respondents to pay costs on an
   Attorney-and-Client
   scale;

   
   

6. Granting further and/or alternative relief.
The
application is opposed.
Applicant’s Founding Affidavit is very
brief.

At paragraph 5 he alleges at all material times he has
been a member
of second Respondent for the Constituency of Maama
and “got into
parliament under the proportional representation”
module. At paragraph 7
he says at the commencement of the trial he
asked that he be represented by
a legal practitioner. On 17 March,
2004 according to his paragraph 8 he
received a letter terminating
his membership of the 2^nd respondent. His
appeal to the
General Conference of the 2^nd respondent did not take off
by
reason of there being no such provision in the Constitution of
the 2^nd
respondent (see paragraph 9).

Paragraph 10 challenges the finding of the Disciplinary
Committee

which tried his case
since the one which tried him was not a legal one in
terms of
Constitution; that he has been denied a right to legal
representation
and had not been afforded an opportunity to state
his case.

The application was opposed and in opposing it certain
points in
limine were taken namely:

6. 
   Non-joinder

   
   

7. 
   Dispute of fact

   
   

8. 
   Right to legal representation

   
   

9. 
   Applicant had no right to be heard since 1^st
   respondent was not the
   right repository of power the right
   repository of power being
   leader of the 2^nd
   respondent.

   
   

Concerning (a) above I have looked at the charge sheet
on page 7
(translation on p.10) of the proceedings and find that
the charge was
pursuant to Article 8 of the 2^nd
respondent’s Constitution; the charge was
signed for by the
General-Secretary of the 2^nd respondent. I have
also
looked at Article 8 of the Constitution above and find
Article 8 thereof
reads:-
DISCIPLINE. Sub article (b) is
to the effect that the Leader on the

advice of the N.E.C.
may remove any member(s) or the whole committee
earlier if it is
in Party’s interest to do so so that without much ado, on
the
advice of the National Executive Committee a leader may remove
a member
(s) if this is in Party’s interest.

According to sub-article (d) a disciplinary committee is
charged with
looking into matters of discipline within the party
and submits its
recommendations via the National Executive
Committee to the Leader and
according to sub-article (e) the
decision of the Party Leader in disciplinary
matters is final. Sub
article (h) is of vital importance for it distinguishes
between
minor and major disciplinary matters in terms of which
“minor
disciplinary” matters are settled at “Constituency
level” whereas major
disciplinary matters “shall always be
reported to the Disciplinary Committee
with recommendations.”

A question which immediately arises is whether the
breach was
“minor” or “major” for a major breach is
reported to the “Disciplinary
Committee with recommendations.”
There’s another important
consideration; according to the
Constitution the leader with the advice of
the National Executive
Committee can act alone by removing “any member

(s) or the whole
committee” without going via the Disciplinary process.
(sec. 8
(b)). Therefore, where the National Executive Committee advises
the
Leader to remove a member, he can be so removed; otherwise
the
process of removal must be via the Disciplinary Committee
which “shall be
guided by the Party’s Constitution (sec.8 (f))
and according to sec. 8 (h) is
to “appoint a sub-committee at
the Constituency level to handle and settle
minor disciplinary
matters” any major “disciplinary matters being reported
to the
Disciplinary Committee with recommendations.” It stands to
reason
that where there’s breach of discipline by a member, such
breach is to be
reported to The Disciplinary Committee for action.

Since there is no allegation of the breach being major
or minor, and in
any event the Disciplinary Committee having dealt
with the matter with
recommendations to the leader, I see no
reason whatsoever why the leader
of the 2^nd respondent
should have been co-joined. I cannot but dismiss the
point in
limine taken. As for (b) above, I see nothing in dispute in
the
application for the either the applicant was validly or
invalidly dismissed.
The point in limine is also dismissed.

As for (c) above, as a rule, legal representation is
limited to courts of

law and does not
extend to tribunals and for there to be representation in the
latter
is a matter of discretion - see Max Hamata & One v
Chairperson,
Peninsula Technikon Internal Disciplinary Committee v
3 others, case
No. 384/2000 (AD Reportable). There is no
provision either in the
constitution of the 2^nd
respondent and I don’t see how the issue can be
forced down its
throat. 2^nd Respondent has every right to regulate
and
control its day to day affairs so long as these do not collide
with the law.
Besides, in our Constitution at the end of the day
though, whether or not
parties are entitled to legal
representation in tribunals has been laid down in
our Constitution
at page 23 viz:-
“Right to fair trial, etc.”:
And according
to section 12

(1) If any person is charged with a criminal
offence then, unless the
charge be withdrawn, the case shall be
afforded a fair hearing within
a reasonable time by an independent
and impartial court established
by law.”

(e) Shall be permitted to defend himself before the
court in person or be
a legal representative of his own choice.

As this Court sees things, in the eyes of the
Constitution, legal
representation is a sine qua non in
criminal cases in the interest of a fair
trial. It has to be
because in criminal cases a person may be deprived of his
basic
rights and since by incarceration alone he is deprived of freedom of

expression and
assembly, it becomes necessary for him or her where he or
she may
be deprived of these rights to be availed legal representation.
Where
oral hearings are granted it would seem legal representation is not
an
essential requirement – see Baxter (Administrative Law) p.
555 footnote
128 and cases therein quoted; there is also authority
for the proposition that
in unusually complex cases involving
complicated evidence and legal
issues, legal representation might
be regarded as a sine qua non for hearing
– see in
particular Wiechers 238–9 and Smith v Beleggende Ontoriteit
van
Kommandment Noord – Transvaal van die SA Weermag. 1980 (3)
SA
519 (T) at 524 and would also agree with Gardiner J and
Innes CJ that, as
was said in Dabner V South African
Railways, 1920 AD 583 at 589-90
and 599 respectively that
there is much to be said for keeping lawyers out of
the
administrative process where the adjudicative process as in the
instant
application is not essential for, as was said lawyers and
over-judicialization
go hand in hand. This point in limine if
taken solely to have this application
dismissed, I doubt this can
be done for in my opinion merits of this
application are material.

Something about these points in limine. These are
taken to destroy a
case and if efficacious shorten proceedings
though sometimes they are taken

because it is
fashionable to do so. I have found them to be taken in many
cases
as substitutes for a lost cause and an attempt to cause
unnecessary
confusion and to unduly lengthen proceedings.

It is the function of Courts of law to protect
individual constitutions
be they public or private. But how are
courts able to go about their duty if
the framers are ignorant of
their constitutions? Isn’t the oft repeated
assertion
attributing lack of knowledge to some classes of society
over
exaggerated seeing that those who adopt a certain way of life
have to live by
it. How can they be disadvantaged by a way of life
they have chosen for
themselves? Surely even a lunatic must act
like one?

Coming now to the merits of the application, I should at
least have
mentioned that at the hearing of this application it
was drawn to the
attention of the Court that an application was
lodged for the striking out of
paragraphs 7, 10 and 12 of the
Answering Affidavit and by agreement of the
parties these had been
struck out. This case has to do with the material
which applicant
published in the paper Public Eye on 22 and 28 November,
2002 the
result of which applicant was indicted as follows:
FIRST COUNT:

“ contravening section 10 (a), (d) and (e) and the
provision of

paragraph three of section 6 of
the Constitution of BNP.”
Now there is no foreword
to the Constitution of the 2^nd
respondent
nor is there an explanatory note of the terms and
phrases used in the
Constitution. For example, in their pleadings
I have found applicants and
respondents to use “Articles and
Sections” in referring to numbered
paragraphs of the
Constitution. Accordingly, I will assume that section 6
refers to
Article 6 and vice-versa. Section 6 of the Constitution as appears
in
the First count above has to do with “OATH
OF ALLEGIANCE” and
“paragraph three of
section 6” starting from “any person who has fulfilled

” would be; “I fully and freely pledge myself
publicly that my loyalty

to the Party will always be firm and I accept all the
duties as a member of
the Party.”
SECOND COUNT:

Charges the applicant for contravening section 10 (d)
and (e) and
provision of paragraph three of section six (6) of the
constitution of the
2^nd respondent.

Of course there is duplication and splitting of charges
though as I
have remarked above respondents are not conversant
with legal
requirements and has to be remembered that we are not
here dealing with a
court trial with strict adherence to court
procedures.

With regard to the
charges against the applicant, Count I charges the
applicant with
imputing a bad administration of the Party to the nation and
to
induce followers of the Party and the nation in general to have
no
confidence in the leadership of the Party while Count II
charges applicant
with instigating “confusion in the
administration of the Party with
statements showing non-acceptance
of the elected committee and the
mandate which the National
Executive Committee has of administering the
party and to make
decisions on behalf of the Party.” Also, that the applicant
“wrote
to the Honourable Moupo Mathaba in his capacity as the Chairman
of
BNP Parliamentarians and amongst others you stated that the
Conference
of the Party was usurped unlawfully and the decisions
were made under
coercive circumstances.”

Further, “you even added that the National Executive
Committee
which has just been elected was not lawful.” It was
also claimed by his
letter the applicant showed his firm intention
of undermining the provisions
stated herein above, moreover that
the addressees have no authority to
remove the present National
Executive Committee from its functions. It is
common cause that as
a result of the above breaches of the Constitution
applicant was
hauled before the Disciplinary Committee of the 2^nd

respondent and was
on 24 February, 2004 informed:-

“I hereby inform you that the Honourable leader of the
Basotho
National Party (BNP) upon recommendation of the
disciplinary
committee and upon advice of the National Executive
Committee
arrived at a decision that you be expelled from all the
business of the
party for two years .”

And please note that the first paragraph of “LM²”
shows the applicant
to have appeared before the disciplinary
committee. It is noteworthy though
that according to annexure
“LM¹” applicant was charged in terms of the
provisions
of Article 8 of the BNP Constitution and that Article 8 has
several
provisions having very little if anything to do wit breach of
the
constitution for the Article is premised on Discipline
which includes
functions of the Party leader (sub-article (b) and
(e) and penalties (i).

According to article 8 above major disciplinary matters
are reported
to the Disciplinary Committee with recommendations. I
have gone through
the record of proceedings in this application
and have found no such report
with recommendations and the
applicant has referred to no such report in his
Founding Affidavit
save at paragraph 9 where he alleges: ‘I subsequently
noted an
appeal to the General Conference of Second Respondent ----” and
I
was thereafter advised by my Attorneys of record that the
Constitution of
Second Respondent “does not provide for appeal
to the General

Conference.” And
yet, according to 2^nd respondent’s article 8 (e)
the
decision of the Party Leader on disciplinary matters shall be
final” unless
revoked by the Annual Conference.” There’s no
way the Annual
Conference can revoke the Party Leader’s decision
except the matter
coming to the Annual Conference by amongst other
procedures on appeal
and the view of this court is that there is
provision for appeal in 2^nd
respondent’s constitution
and applicant was ill-advised that there is no such
provision and
it would seem the decision of the Disciplinary Committee was
not
challenged and no wonder the applicant’s attempt to challenge
the
composition of the 2^nd respondent. As for
composition of the latter, Mr.
Mosito has submitted that if
the applicant knew that the Disciplinary
Committee was not
regularly composed, the composition should have been
challenged by
the applicant at the hearing and applicant having failed to do
so
he cannot but have acquiesced to the proceedings for if applicant
knew
that the composition was irregular he should have given
members affected
by the irregularity an opportunity to defend
themselves and not having done
so it cannot be said they acted
irregularly. Mr. Mosito’s submission is
unfortunate and
certainly not well taken. He consented to paragraphs 7, 10
and 12
of the Answering Affidavit of the 2^nd respondent to be
struck out.
Paragraph 10 of the Founding Affidavit challenges the
Disciplinary

Committee “which
tried my case” in that it “was not properly a legal one in
terms
of the Constitution of the second Respondent.” There is no answer
to
this challenge by the respondents in that paragraph 12 of the
Answering
Affidavit of the respondents was by consent of the
parties also struck out.
So far so good for Mr. Ntlhoki in
challenging the constitutionality of the
Disciplinary Committee
and succeeding early. I am however at a loss why
Mr. Ntlhoki
made the challenge since this does not appear to be applicant’s
case
the latter’s case in his Notice of Motion being “declaring the
purported
termination of Applicant’s membership of second
respondent at the instance
of first Respondent as being
unconstitutional, invalid illegal,” etc. Now 1^st
respondent
is “National Executive Committee of Basotho National Party
and
there is no evidence they set in judgment over the applicant and
besides,
they are differently constituted in 2^nd
respondent’s constitution. Applicant
having succeeded that the
Disciplinary Committee was improperly
constituted should, in my
view, also have prayed for a declaratory against
the purported
termination of his membership by the Disciplinary Committee
and
had the applicant done so, this Court would have had no hesitation
to
grant the order but as it is, the declaratory is directed at a
wrong body for
the National Executive Committee of Basotho
National Party is not the
same thing as the Disciplinary Committee
and in any event according to

evidence before me
1^st respondent did not sit in judgment over applicant
the
Disciplinary Committee having done so. That the Disciplinary
Committee
was not properly constituted is the reason to set aside
its proceedings. But
unless such proceedings are not only
challenged, but there is an
accompanying prayer to set them aside
or render them invalid, they stay in
force.

There is also another aspect of this application,
although respondents
have agreed to have paragraph 10 of the
Answering Affidavit struck out
thus admitting paragraph 8 of the
Founding Affidavit, applicant has himself
annexed “LM²”
which the Court cannot but deal with. I do not think that
the
striking out of paragraph 10 has anything to do with “LM²”
for “LM²”
remains evidence before court. If there
was the intention to discredit it, the
view of this Court is that
it should have in like manner been struck out. By
way of emphasis,
although paragraph 10 of the Answering by Affidavit
having to do
with whether applicant was suspended or expelled by reason of
having
been struck out is a non-starter, this in no way affects contents
of
“LM²”. Paragraph 12 is very long. It re-iterates
Mr. Mosito’s submission
above. The paragraph attempts to
argue that the Disciplinary Committee
was properly constituted and
the objection should have been raised at the

hearing. As I have
said above, I don’t know how Mr. Mosito (unless he
was
oblivious of the fact that the paragraph has been struck out)
came to argue
the point for it had fallen by the wayside. That the
decision was taken by
the leader of the 2^nd respondent
also does seem to fall by the wayside by
reason of the paragraph
having been struck out. While by reason of
paragraph 7, 10 and 12
of respondent’s Answering Affidavit having been
struck out
applicant appears to have made a good case in that in
material
respects his allegations are not denied, there’s the
problem that the Sesotho
and original version of “LM²”
is to the effect that applicant was
“suspended” and not
“expelled” from membership of the 2^nd
respondent
“expelled” emanating from the translated version of
LM²”. As the Sesotho
version is the original
document, this is the copy that this court goes by.
Moreover, if
it was the intention of applicants to discredit “LM²”
or have it
set aside, there should have been in like manner an
application that it be
struck out. Since “LM²” is
extant and shows applicant to have been
suspended, applicant
should have challenged “suspension” and not
“expulsion”.
Nor does this court agree that there’s a conflict between
the
Sesotho and English version of “LM²” for the
Sesotho version being the
original document prevails. At the same
time as challenging the bona fides
of the Disciplinary
Committee in which applicant may have succeeded, he

should in like
manner have challenged his suspension from the 2^nd
respondent.
Until the applicant has challenged his suspension, he
remains
suspended from the activities of the 2^nd
respondent.

Needless to emphasis that applicant has submitted to the
subservient
nature of the constitution which amongst other things
requires him “to
respect those in authority” (art. 10 (d) and
as if this was not enough to
‘refrain from making any hostile or
critical statements on any policy or
actions of the Party” (art.
10 (e).

Applicant has admitted the publication but has retorted
that as a bona
fide member of the 2^nd respondent
he was justified to have expressed his
views the way he did and I
have understood his defence both from himself
and his counsel as
being that afterall freedom of expression is a guaranteed
right.

It has been said freedom of expression is one of the
most precious of
all the guaranteed freedoms and that it has four
broad special purposes to
serve namely: (i) it helps an individual
to obtain self-fulfillment; (ii) it
assists in the discovery of
truth; (iii) it strengthens the capacity of an

individual to
participate in decision-making; and (iv) it provides a
mechanism
by which it would be possible to establish a reasonable
balance
between stability and social change – see Pandy
Constitutional Law of
India 24^th ed at
118 for, strictly, what’s at stake is the basic principle of
the
“people’s right to know” – see also Indian Express
Newspapers (Bombay)
v Union of India (1985) 2 SCR 287.

Perhaps though not exactly to the point, but at least in
so far as the
rule to protection of freedom of expression is
concerned, it also finds favour
in Hague v
Committee for Industrial Organization 307 US 496 (1938)
where
Justice Jackson was at pains to spell out the importance attaching
to
the right to “freedom of expression” in public places at
515-16 thus:-
“Wherever the title of streets and parks
may rest, they have
immemorably been held in trust for the use of
the public and, time out
of mind, have been used for purposes of
assembly, communicating
thoughts between, and discussing public
questions. Such use of their
streets and public places has from
ancient times, been part of the
privileges, immunities, rights and
liberties of citizens. The privileges of
a citizen of the United
States to use the streets and parks for
communication of views on
national questions may be regulated in the
interest of all; it is
not absolute, but relative and must be exercised in
subordination
to the general comfort and convenience, and in
consonance with
peace and good order, but it must not, in the guise of
regulation,
be abridged or denied.”

Politics or rather politics as seen democratically is of
recent

development in most countries of the world and more so
in Lesotho where

democratic
dispensation has not as yet touched half a century. It may be
said
such use of party echelons of power as the various committees
and
office-bearers conducting them are no more than part of the
privileges,
immunities, rights and liberties of members composing
them. The privilege
of a member of a political party to use the
several committee structures and
leadership of a political party
to express his views on party and national
questions is surely
something that may be so disseminated in the interest of
all and
though the deed is not absolute but relative and to be exercised
in
subordination to the general comfort and convenience of party
members and
in consonance with peace and order it cannot, in the
guise of regulation be
abridged or denied, and it follows that an
attempt to abridge or deny a
member of a political party his basic
right to freedom of expression is
something that goes against
individual political right.

I am here concerned with freedom of expression and much
as the
following passages concern themselves with freedom of
expression and
assembly, there are, however, passages in the
quotation which are relevant
to freedom of expression. It is to be
noted though that here Lord Scarman in
“The Red Lion Square
Disorders” Report of Enquiry (Comnd 5919 of 1975)
was concerned
with freedoms which shape a democratic regime with

governmental
responsibility to ensure sound maintenance of public order,

namely:-
“Amongst our fundamental human
rights there are, without doubt, the
rights to peaceful assembly
and public protest, and the right to public

order and tranquility. Civilized living collapses it
is obvious ---- if

public protest becomes violent protest or public order
degenerates into
the quietism imposed by successful oppression.
But the problem is

more complex than the choice between two extremes one
a right

to protest whenever and wherever you will and the other,
a right to
continuous calm upon our streets unruffled by the noise
and obstructive
pressure of the protesting procession. A balance
has to be struck, a
compromise found that will accommodate the
exercise of the right to
protest within a framework of public
order which enables ordinary
citizens, who are not protesting, to
go about their business and pleasure
without obstruction and
inconvenience. The fact that those who at any
time are concerned
to secure the tranquility of the streets are likely to be
the
majority must not lead us to deny the protesters their opportunity
to
march; the fact that the marchers are desperately sincere and
are
exercising a fundamental right must not lead us to overlook
the rights of
the majority.”

Whenever there are marchers and protesters in the street
protesting
against municipal, provincial or national issues, are
they always in the
majority? Applicant is a single protester in a
sea of members of the 2^nd
respondent. In a democratic
dispensation where the majority is the norm,
what weight can
applicant’s protest carry, can his right lead us or allow us
to
overlook the rights of the majority or as it were “the silent
majority?”

Freedom of expression is entrenched in our Constitution
but with
several limitations. Well intentioned as applicant’s
criticisms are, I have

found them not to
be in tune with the spirit and direction of his constitution
which
clamps down on internecine criticism and rivalry. Besides,
applicant
is an odd man out, he does not go with the flow and tune
of members of the
2^nd respondent and I agree if his
outbursts were allowed he would
unnecessarily destabilize and
bring 2^nd respondent into disrepute.

Indeed though freedom of association and interaction is
entrenched in
our constitution, it is, in my view, with the
safeguard that these prevail so
long as they do not interfere with
the rights and freedoms of others. And
although in Hague vs.
Committee for Industrial Organization above
Justice Jackson found
“freedom of expression” was not to be “abridged or
denied”,
I would caution that in our case there are limitations and
what’s
more, this court has not been called upon to impugn or
set aside particular
provisions of the Constitution of the 2^nd
respondent.

The applicant knew at all material times of the
omnipotence of
the hierarchy of the 2^nd respondent and
that it was impervious to criticism in
terms of its constitution
and this regardless, applicant benefited by 2^nd
respondent’s
overtures of goodwill. When these overtures were extended
to
applicant, it was because he was compliant with the
Constitution of the 2^nd

respondent and my
view is applicant is estopped from denying what he
accepted and
homologated.

In course of argument, the proprietary or otherwise
of
disciplinary proceedings was raised but it was raised in
connection with
expulsion and not suspension and I find its
raising was out of context and
irrelevant to the real issue.

I am also to mention, unless I have not done so above,
that the fact
that the applicant was slapped with a suspension
demonstrates that his
breach was not that serious. Applicant has
challenged expulsion from the
2^nd respondent and in
doing so I have said he was wrong for he was
suspended from
membership of the 2^nd respondent. I have been addressed
on
applicant’s expulsion and not suspension and the lesser is said of
the
latter, the better.

As to costs, 2^nd respondents’ translated
copy of the finding by the
Disciplinary Committee is wrong and
misleading and I am of the view had
applicant been apprised of the
true finding against him, it is unlikely he
would have taken
trouble to go to court. Even if I am wrong in this, at any

rate the finding of
“expelled” instead of “suspended” has severely
prejudiced
the applicant in his case and I have already said above that
the
confusion must be laid at the door of the respondents. For
this reason I am
not inclined to award costs and although in any
event the application is
dismissed, there will be no order as to
costs.

G. N. MOFOLO
JUDGE

For the Applicant: Mr.
Ntlhoki

For the Respondents: Mr. Mosito