CIV/APN/221/04
In the matter between:
LESETELI MALEFANE Applicant
AND
NATIONAL EXECUTIVE COMMITTEE
OF BASOTHO NATIONAL PARTY 1st Respondent
BASOTHO NATIONAL PARTY 2nd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice G. N. MofoloOn the 3rd day of June, 2005
The applicant has applied to this Court for an order in the followingterms:-
Declaring the purported termination of applicants membership ofsecond Respondent at the instance of first Respondent as beingunconstitutional, invalid, illegal and of no force or effect;
Declaring Applicant to be a member of second Respondent untilsuch time hereafter as his membership shall have beenconstitutionally and legally terminated at his instance or at theinstance of respondents;
Interdicting Respondents from interfering in any mannerwhatsoever with Applicants freedom of association, andinteraction with members, organs and institutions of secondRespondent, in his capacity as a member of second Respondent
except by due process of the law;
Interdicting Respondents from interfering with Applicant in anymanner whatsoever in the discharge of his mandate as a dulynominated representative and member of parliament of secondRespondent except by due process of law.
Directing Respondents to pay costs on an Attorney-and-Clientscale;
6. Granting further and/or alternative relief.The application is opposed.Applicants Founding Affidavit is very brief.
At paragraph 5 he alleges at all material times he has been a memberof second Respondent for the Constituency of Maama and got intoparliament under the proportional representation module. At paragraph 7he says at the commencement of the trial he asked that he be represented bya legal practitioner. On 17 March, 2004 according to his paragraph 8 hereceived a letter terminating his membership of the 2nd respondent. Hisappeal to the General Conference of the 2nd respondent did not take off byreason of there being no such provision in the Constitution of the 2ndrespondent (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 interms of Constitution; that he has been denied a right to legal representationand had not been afforded an opportunity to state his case.
The application was opposed and in opposing it certain points inlimine were taken namely:
Non-joinder
Dispute of fact
Right to legal representation
Applicant had no right to be heard since 1st respondent was not theright repository of power the right repository of power beingleader of the 2nd 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 waspursuant to Article 8 of the 2nd respondents Constitution; the charge wassigned for by the General-Secretary of the 2nd respondent. I have alsolooked at Article 8 of the Constitution above and find Article 8 thereofreads:-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 committeeearlier if it is in Partys interest to do so so that without much ado, on theadvice of the National Executive Committee a leader may remove a member(s) if this is in Partys interest.
According to sub-article (d) a disciplinary committee is charged withlooking into matters of discipline within the party and submits itsrecommendations via the National Executive Committee to the Leader andaccording to sub-article (e) the decision of the Party Leader in disciplinarymatters is final. Sub article (h) is of vital importance for it distinguishesbetween minor and major disciplinary matters in terms of which minordisciplinary matters are settled at Constituency level whereas majordisciplinary matters shall always be reported to the Disciplinary Committeewith recommendations.
A question which immediately arises is whether the breach wasminor or major for a major breach is reported to the DisciplinaryCommittee with recommendations. Theres another importantconsideration; according to the Constitution the leader with the advice ofthe 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 advisesthe Leader to remove a member, he can be so removed; otherwise theprocess of removal must be via the Disciplinary Committee which shall beguided by the Partys Constitution (sec.8 (f)) and according to sec. 8 (h) isto appoint a sub-committee at the Constituency level to handle and settleminor disciplinary matters any major disciplinary matters being reportedto the Disciplinary Committee with recommendations. It stands to reasonthat where theres breach of discipline by a member, such breach is to bereported to The Disciplinary Committee for action.
Since there is no allegation of the breach being major or minor, and inany event the Disciplinary Committee having dealt with the matter withrecommendations to the leader, I see no reason whatsoever why the leaderof the 2nd respondent should have been co-joined. I cannot but dismiss thepoint in limine taken. As for (b) above, I see nothing in dispute in theapplication 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 thelatter is a matter of discretion - see Max Hamata & One v Chairperson,Peninsula Technikon Internal Disciplinary Committee v 3 others, caseNo. 384/2000 (AD Reportable). There is no provision either in theconstitution of the 2nd respondent and I dont see how the issue can beforced down its throat. 2nd Respondent has every right to regulate andcontrol 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 notparties are entitled to legal representation in tribunals has been laid down inour 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 thecharge be withdrawn, the case shall be afforded a fair hearing withina reasonable time by an independent and impartial court establishedby law.
(e) Shall be permitted to defend himself before the court in person or bea legal representative of his own choice.
As this Court sees things, in the eyes of the Constitution, legalrepresentation is a sine qua non in criminal cases in the interest of a fairtrial. It has to be because in criminal cases a person may be deprived of hisbasic rights and since by incarceration alone he is deprived of freedom of
expression and assembly, it becomes necessary for him or her where he orshe may be deprived of these rights to be availed legal representation.Where oral hearings are granted it would seem legal representation is not anessential requirement see Baxter (Administrative Law) p. 555 footnote128 and cases therein quoted; there is also authority for the proposition thatin unusually complex cases involving complicated evidence and legalissues, legal representation might be regarded as a sine qua non for hearing see in particular Wiechers 2389 and Smith v Beleggende Ontoriteit vanKommandment Noord Transvaal van die SA Weermag. 1980 (3) SA519 (T) at 524 and would also agree with Gardiner J and Innes CJ that, aswas said in Dabner V South African Railways, 1920 AD 583 at 589-90and 599 respectively that there is much to be said for keeping lawyers out ofthe administrative process where the adjudicative process as in the instantapplication is not essential for, as was said lawyers and over-judicializationgo hand in hand. This point in limine if taken solely to have this applicationdismissed, I doubt this can be done for in my opinion merits of thisapplication are material.
Something about these points in limine. These are taken to destroy acase 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 manycases as substitutes for a lost cause and an attempt to cause unnecessaryconfusion and to unduly lengthen proceedings.
It is the function of Courts of law to protect individual constitutionsbe they public or private. But how are courts able to go about their duty ifthe framers are ignorant of their constitutions? Isnt the oft repeatedassertion attributing lack of knowledge to some classes of society overexaggerated seeing that those who adopt a certain way of life have to live byit. How can they be disadvantaged by a way of life they have chosen forthemselves? Surely even a lunatic must act like one?
Coming now to the merits of the application, I should at least havementioned that at the hearing of this application it was drawn to theattention of the Court that an application was lodged for the striking out ofparagraphs 7, 10 and 12 of the Answering Affidavit and by agreement of theparties these had been struck out. This case has to do with the materialwhich 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 2nd respondentnor is there an explanatory note of the terms and phrases used in theConstitution. For example, in their pleadings I have found applicants andrespondents to use Articles and Sections in referring to numberedparagraphs of the Constitution. Accordingly, I will assume that section 6refers to Article 6 and vice-versa. Section 6 of the Constitution as appearsin the First count above has to do with OATH OF ALLEGIANCE andparagraph 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 ofthe Party.SECOND COUNT:
Charges the applicant for contravening section 10 (d) and (e) andprovision of paragraph three of section six (6) of the constitution of the2nd respondent.
Of course there is duplication and splitting of charges though as Ihave remarked above respondents are not conversant with legalrequirements and has to be remembered that we are not here dealing with acourt trial with strict adherence to court procedures.
With regard to the charges against the applicant, Count I charges theapplicant with imputing a bad administration of the Party to the nation andto induce followers of the Party and the nation in general to have noconfidence in the leadership of the Party while Count II charges applicantwith instigating confusion in the administration of the Party withstatements showing non-acceptance of the elected committee and themandate which the National Executive Committee has of administering theparty and to make decisions on behalf of the Party. Also, that the applicantwrote to the Honourable Moupo Mathaba in his capacity as the Chairmanof BNP Parliamentarians and amongst others you stated that the Conferenceof the Party was usurped unlawfully and the decisions were made undercoercive circumstances.
Further, you even added that the National Executive Committeewhich has just been elected was not lawful. It was also claimed by hisletter the applicant showed his firm intention of undermining the provisionsstated herein above, moreover that the addressees have no authority toremove the present National Executive Committee from its functions. It iscommon cause that as a result of the above breaches of the Constitutionapplicant was hauled before the Disciplinary Committee of the 2nd
respondent and was on 24 February, 2004 informed:-
I hereby inform you that the Honourable leader of the BasothoNational Party (BNP) upon recommendation of the disciplinarycommittee and upon advice of the National Executive Committeearrived at a decision that you be expelled from all the business of theparty for two years .
And please note that the first paragraph of LM2 shows the applicantto have appeared before the disciplinary committee. It is noteworthy thoughthat according to annexure LM1 applicant was charged in terms of theprovisions of Article 8 of the BNP Constitution and that Article 8 hasseveral provisions having very little if anything to do wit breach of theconstitution for the Article is premised on Discipline which includesfunctions of the Party leader (sub-article (b) and (e) and penalties (i).
According to article 8 above major disciplinary matters are reportedto the Disciplinary Committee with recommendations. I have gone throughthe record of proceedings in this application and have found no such reportwith recommendations and the applicant has referred to no such report in hisFounding Affidavit save at paragraph 9 where he alleges: I subsequentlynoted an appeal to the General Conference of Second Respondent ---- and Iwas thereafter advised by my Attorneys of record that the Constitution ofSecond Respondent does not provide for appeal to the General
Conference. And yet, according to 2nd respondents article 8 (e) thedecision of the Party Leader on disciplinary matters shall be final unlessrevoked by the Annual Conference. Theres no way the AnnualConference can revoke the Party Leaders decision except the mattercoming to the Annual Conference by amongst other procedures on appealand the view of this court is that there is provision for appeal in 2ndrespondents constitution and applicant was ill-advised that there is no suchprovision and it would seem the decision of the Disciplinary Committee wasnot challenged and no wonder the applicants attempt to challenge thecomposition of the 2nd respondent. As for composition of the latter, Mr.Mosito has submitted that if the applicant knew that the DisciplinaryCommittee was not regularly composed, the composition should have beenchallenged by the applicant at the hearing and applicant having failed to doso he cannot but have acquiesced to the proceedings for if applicant knewthat the composition was irregular he should have given members affectedby the irregularity an opportunity to defend themselves and not having doneso it cannot be said they acted irregularly. Mr. Mositos submission isunfortunate and certainly not well taken. He consented to paragraphs 7, 10and 12 of the Answering Affidavit of the 2nd 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 interms of the Constitution of the second Respondent. There is no answer tothis challenge by the respondents in that paragraph 12 of the AnsweringAffidavit of the respondents was by consent of the parties also struck out.So far so good for Mr. Ntlhoki in challenging the constitutionality of theDisciplinary Committee and succeeding early. I am however at a loss whyMr. Ntlhoki made the challenge since this does not appear to be applicantscase the latters case in his Notice of Motion being declaring the purportedtermination of Applicants membership of second respondent at the instanceof first Respondent as being unconstitutional, invalid illegal, etc. Now 1strespondent is National Executive Committee of Basotho National Partyand there is no evidence they set in judgment over the applicant and besides,they are differently constituted in 2nd respondents constitution. Applicanthaving succeeded that the Disciplinary Committee was improperlyconstituted should, in my view, also have prayed for a declaratory againstthe purported termination of his membership by the Disciplinary Committeeand had the applicant done so, this Court would have had no hesitation togrant the order but as it is, the declaratory is directed at a wrong body forthe National Executive Committee of Basotho National Party is not thesame thing as the Disciplinary Committee and in any event according to
evidence before me 1st respondent did not sit in judgment over applicant theDisciplinary Committee having done so. That the Disciplinary Committeewas not properly constituted is the reason to set aside its proceedings. Butunless such proceedings are not only challenged, but there is anaccompanying prayer to set them aside or render them invalid, they stay inforce.
There is also another aspect of this application, although respondentshave agreed to have paragraph 10 of the Answering Affidavit struck outthus admitting paragraph 8 of the Founding Affidavit, applicant has himselfannexed LM2 which the Court cannot but deal with. I do not think thatthe striking out of paragraph 10 has anything to do with LM2 for LM2remains evidence before court. If there was the intention to discredit it, theview of this Court is that it should have in like manner been struck out. Byway of emphasis, although paragraph 10 of the Answering by Affidavithaving to do with whether applicant was suspended or expelled by reason ofhaving been struck out is a non-starter, this in no way affects contents ofLM2. Paragraph 12 is very long. It re-iterates Mr. Mositos submissionabove. The paragraph attempts to argue that the Disciplinary Committeewas properly constituted and the objection should have been raised at the
hearing. As I have said above, I dont know how Mr. Mosito (unless he wasoblivious of the fact that the paragraph has been struck out) came to arguethe point for it had fallen by the wayside. That the decision was taken bythe leader of the 2nd respondent also does seem to fall by the wayside byreason of the paragraph having been struck out. While by reason ofparagraph 7, 10 and 12 of respondents Answering Affidavit having beenstruck out applicant appears to have made a good case in that in materialrespects his allegations are not denied, theres the problem that the Sesothoand original version of LM2 is to the effect that applicant wassuspended and not expelled from membership of the 2nd respondentexpelled emanating from the translated version of LM2. As the Sesothoversion 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 itset aside, there should have been in like manner an application that it bestruck out. Since LM2 is extant and shows applicant to have beensuspended, applicant should have challenged suspension and notexpulsion. Nor does this court agree that theres a conflict between theSesotho and English version of LM2 for the Sesotho version being theoriginal document prevails. At the same time as challenging the bona fidesof the Disciplinary Committee in which applicant may have succeeded, he
should in like manner have challenged his suspension from the 2ndrespondent. Until the applicant has challenged his suspension, he remainssuspended from the activities of the 2nd respondent.
Needless to emphasis that applicant has submitted to the subservientnature of the constitution which amongst other things requires him torespect those in authority (art. 10 (d) and as if this was not enough torefrain from making any hostile or critical statements on any policy oractions of the Party (art. 10 (e).
Applicant has admitted the publication but has retorted that as a bonafide member of the 2nd respondent he was justified to have expressed hisviews the way he did and I have understood his defence both from himselfand his counsel as being that afterall freedom of expression is a guaranteedright.
It has been said freedom of expression is one of the most precious ofall the guaranteed freedoms and that it has four broad special purposes toserve namely: (i) it helps an individual to obtain self-fulfillment; (ii) itassists in the discovery of truth; (iii) it strengthens the capacity of an
individual to participate in decision-making; and (iv) it provides amechanism by which it would be possible to establish a reasonable balancebetween stability and social change see Pandy Constitutional Law ofIndia 24th ed at 118 for, strictly, whats at stake is the basic principle of thepeoples 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 therule to protection of freedom of expression is concerned, it also finds favourin Hague v Committee for Industrial Organization 307 US 496 (1938)where Justice Jackson was at pains to spell out the importance attaching tothe right to freedom of expression in public places at 515-16 thus:-Wherever the title of streets and parks may rest, they haveimmemorably been held in trust for the use of the public and, time outof mind, have been used for purposes of assembly, communicatingthoughts between, and discussing public questions. Such use of theirstreets and public places has from ancient times, been part of theprivileges, immunities, rights and liberties of citizens. The privileges ofa citizen of the United States to use the streets and parks forcommunication of views on national questions may be regulated in theinterest of all; it is not absolute, but relative and must be exercised insubordination to the general comfort and convenience, and inconsonance with peace and good order, but it must not, in the guise ofregulation, 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 besaid such use of party echelons of power as the various committees andoffice-bearers conducting them are no more than part of the privileges,immunities, rights and liberties of members composing them. The privilegeof a member of a political party to use the several committee structures andleadership of a political party to express his views on party and nationalquestions is surely something that may be so disseminated in the interest ofall and though the deed is not absolute but relative and to be exercised insubordination to the general comfort and convenience of party members andin consonance with peace and order it cannot, in the guise of regulation beabridged or denied, and it follows that an attempt to abridge or deny amember of a political party his basic right to freedom of expression issomething that goes against individual political right.
I am here concerned with freedom of expression and much as thefollowing passages concern themselves with freedom of expression andassembly, there are, however, passages in the quotation which are relevantto freedom of expression. It is to be noted though that here Lord Scarman inThe 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, therights 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 intothe 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 tocontinuous calm upon our streets unruffled by the noise and obstructivepressure of the protesting procession. A balance has to be struck, acompromise found that will accommodate the exercise of the right toprotest within a framework of public order which enables ordinarycitizens, who are not protesting, to go about their business and pleasurewithout obstruction and inconvenience. The fact that those who at anytime are concerned to secure the tranquility of the streets are likely to bethe majority must not lead us to deny the protesters their opportunity tomarch; the fact that the marchers are desperately sincere and areexercising a fundamental right must not lead us to overlook the rights ofthe majority.
Whenever there are marchers and protesters in the street protestingagainst municipal, provincial or national issues, are they always in themajority? Applicant is a single protester in a sea of members of the 2ndrespondent. In a democratic dispensation where the majority is the norm,what weight can applicants protest carry, can his right lead us or allow usto overlook the rights of the majority or as it were the silent majority?
Freedom of expression is entrenched in our Constitution but withseveral limitations. Well intentioned as applicants criticisms are, I have
found them not to be in tune with the spirit and direction of his constitutionwhich clamps down on internecine criticism and rivalry. Besides, applicantis an odd man out, he does not go with the flow and tune of members of the2nd respondent and I agree if his outbursts were allowed he wouldunnecessarily destabilize and bring 2nd respondent into disrepute.
Indeed though freedom of association and interaction is entrenched inour constitution, it is, in my view, with the safeguard that these prevail solong as they do not interfere with the rights and freedoms of others. Andalthough in Hague vs. Committee for Industrial Organization aboveJustice Jackson found freedom of expression was not to be abridged ordenied, I would caution that in our case there are limitations and whatsmore, this court has not been called upon to impugn or set aside particularprovisions of the Constitution of the 2nd respondent.
The applicant knew at all material times of the omnipotence ofthe hierarchy of the 2nd respondent and that it was impervious to criticism interms of its constitution and this regardless, applicant benefited by 2ndrespondents overtures of goodwill. When these overtures were extended toapplicant, it was because he was compliant with the Constitution of the 2nd
respondent and my view is applicant is estopped from denying what heaccepted and homologated.
In course of argument, the proprietary or otherwise ofdisciplinary proceedings was raised but it was raised in connection withexpulsion and not suspension and I find its raising was out of context andirrelevant to the real issue.
I am also to mention, unless I have not done so above, that the factthat the applicant was slapped with a suspension demonstrates that hisbreach was not that serious. Applicant has challenged expulsion from the2nd respondent and in doing so I have said he was wrong for he wassuspended from membership of the 2nd respondent. I have been addressedon applicants expulsion and not suspension and the lesser is said of thelatter, the better.
As to costs, 2nd respondents translated copy of the finding by theDisciplinary Committee is wrong and misleading and I am of the view hadapplicant been apprised of the true finding against him, it is unlikely hewould 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 severelyprejudiced the applicant in his case and I have already said above that theconfusion must be laid at the door of the respondents. For this reason I amnot inclined to award costs and although in any event the application isdismissed, there will be no order as to costs.
G. N. MOFOLOJUDGE
For the Applicant: Mr. Ntlhoki
For the Respondents: Mr. Mosito