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